Family Law Hub

Inherent Jurisdiction

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  • The father applied under the inherent jurisdiction of the High Court for an order for the summary return of four children, aged 1, 9, 13 and 14, to the jurisdiction of Pakistan. The mother opposed the application. Both parents and all four children were Pakistani nationals, but the three oldest children had UK passports. The mother alleged domestic abuse, as did the three oldest children. The father alleged a scheme to marry the children off for immigration purposes. MacDonald J found that the father had at times been an arrogant witness, pre-occupied with the impact of the case on his reputation, and dishonest in his evidence. He found that the mother had also been "economical with the truth". The children had been habitually resident in Pakistan at the time of their removal, but a welfare case against their summary return was made out. Returning them, against their wishes, would not be in their best interests. The father's application was dismissed, and a stay on the mother's Children Act 1989 proceedings was lifted. Judgment, 24/07/2020, free
  • An appeal against an order that a thirteen-year-old child, a British national born in England but living in Algeria since 2008, should be brought to England so that an assessment could be made "in a place of safety" as to her best interests and living arrangements. The child had originally been taken to Algeria by both parents, the local authority having been about to initiate care proceedings. The mother now lived in England, and had raised concerns regarding forced marriage. Consular staff in Algeria had undertaken a welfare check with the daughter, and an FCO social work adviser, specialising in child safeguarding, had agreed with their assessment that the visit did not raise concerns about the daughter's health or welfare. In Moylan LJ's view, the substantive threshold required to justify the exercise of the inherent nationality jurisdiction was not crossed in this case; the circumstances did not require the court to act to protect the daughter. The judge's order had also conflicted with the limitations on the court's powers imposed by the Family Law Act 1986, and the judge had not been able to properly determine that his order was one which accorded with the daughter's welfare needs. Baker LJ and Henderson LJ agreed. The appeal had to be allowed, the judge's order set aside, and the proceedings dismissed. Judgment, 23/07/2020, free
  • The mother appealed against an order for the summary return of her child to Israel. Moylan LJ held that the judge had properly taken into account the protective measures in place and had reached a determination that was open to him. However, what had happened in this case did not amount to a retention within the scope of the 1980 Hague Convention, so the judge's order would be replaced by one made under the inherent jurisdiction. Flaux LJ and Haddon-Cave LJ agreed, and the appeal was dismissed save for that change. Judgment, 08/10/2019, free
  • The mother appealed against an order for summary return of the child to Israel. Moylan LJ decided that the appeal must be dismissed. He found that there was no retention such that the 1980 Convention applied, but the judge had been entitled to make an order for the child's return under the court's inherent jurisdiction, and had taken into account the identified protective measures. Haddon-Cave LJ and Flaux LJ agreed. Judgment, 21/06/2019, free
  • In brief: An unsuccessful application brought by a father (“F”) for the summary return to the Ivory Coast of his two young children. The mother (“M”) had removed the children to England four months earlier. Despite finding that the children’s habitual residence was the Ivory Coast, the court determined it was not in the children’s best interests to be returned in circumstances which may well have led to a further move for the children in due course. Judgment, 05/07/2018, free

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