D (Wardship: Jurisdiction: Cutting Across Statutory Schemes), Re [2024] EWHC 1658 (Fam)

“Recitals 3. This order was made on consideration of the papers without notice to the respondents. The reason why the order was made without notice to the respondent is because: a. The first respondent cannot be located; b. The second respondent cannot be located; 4. The judge read the following documents: a. Local Authority Risk Assessment 5. The court was satisfied and declared on a provisional basis on the basis of the evidence filed that: a. The courts of England and Wales have primary jurisdiction in matters of parental responsibility over the child pursuant to Articles [8] [10] of BIIR.”

“MR JUSTICE FRANCIS: Right. What is the basis of our jurisdiction in this case? LOCAL AUTHORITY ADVOCATE: Mother is a British citizen. It appears she was travelling abroad, the father would say on what is effectively a holiday, had a child abroad, but I know this was dealt with by [the previous local authority advocate] at the initial hearing---- MR JUSTICE FRANCIS: Yes. LOCAL AUTHORITY ADVOCATE: -- that case law suggested in those circumstances D is effectively a British child, for want of a better term, and therefore comes under your Lordship's jurisdiction. MR JUSTICE FRANCIS: So the jurisdiction is based on nationality. LOCAL AUTHORITY ADVOCATE: I would assert that at the moment, my Lord, yes. MR JUSTICE FRANCIS: I am busy writing a judgment-- a reserved judgment on this very subject at the moment. It is not entirely straightforward. LOCAL AUTHORITY ADVOCATE: No, it is not, my Lord. MR JUSTICE FRANCIS: And I am having to decide between on the one hand Baroness Hale and, on the other, Lord Sumption as to which one I prefer, which is an invidious task for a Puisne judge. I think what seems to be coming over from the authorities is that I have to be satisfied that there is a real danger.”

“FATHER’S ADVOCATE: My Lord, my reading of the authorities is exactly as my learned friend has suggested to you. By virtue of mother being a British citizen, if the court is sufficiently concerned about D's welfare---- MR JUSTICE FRANCIS: Right. FATHER’S ADVOCATE: -- regardless as to where the child is, then I think the authorities also say that she cannot be habitually resident in a country she has never been to. MR JUSTICE FRANCIS: We cannot base-- I am pretty sure we cannot base it on habitual residence. FATHER’S ADVOCATE: Yes. I am not really in doubt about that. FATHER’S ADVOCATE: So, it will have to be inherent jurisdiction which my reading of the authorities is that the court has jurisdiction as a result of mother being a British citizen. MR JUSTICE FRANCIS: Well I think next Tuesday I am delivering-- I am supposed to be delivering the judgment which I am still writing, so I will let you know whether I agree. FATHER’S ADVOCATE: Of course. MR JUSTICE FRANCIS: Certainly one side in that case suggested that a baby that is born in another country and that has never been here that I have got no jurisdiction unless there is serious danger. It may be that the serious danger in this case is more evident than in that case anyway, but there we are. All right. So, do you agree that it is appropriate to have a fact-find hearing? FATHER’S ADVOCATE: I think it is a matter I would say-- It is a matter for yourself, my Lord. It goes to, in some ways to welfare rather than securing the child's being brought back to England and Wales. If the court feels it is necessary, and instruct it, then my client will try and assist the court. MR JUSTICE FRANCIS: Well, I am assuming that some of the facts- The local authority have not pleaded the medicals but some of the facts are going to be whether your client has told us everything he knows about what happened. So I think that is not just welfare. [Local authority advocate], am I right about that, that you are going to be looking at--in this matter based on the nationality of D.”

“For the avoidance of doubt, I remain satisfied that this court has jurisdiction to deal with this matter. That was the initial finding of Francis J and I gave all of the parties an opportunity to consider whether this was raised as an issue and when the father was fully represented it was confirmed that there was no issue about jurisdiction. In fact, the father’s case has always been that he and his wife intended for their child to be born in the United Kingdom and be raised here and that was the evidence the father gave on oath. Declarations as to jurisdiction have already been made by consent when the father was legally represented and no reason or change of circumstances has been put before me to persuade me that I should reconsider earlier decisions made about this.”

“a) The court is satisfied that it has jurisdiction to maintain the Wardship order first made by Mr Justice Francis on the 27th September 2019, and b) Is satisfied that there remains a high index of risk to D from both her parents; c) Is satisfied that the legal test under Section 100 (4)(g) of the Children Act 1989 continues to be met d) Is satisfied that the mother has placed D at further risk of harm by fleeing the jurisdiction of England and Wales to Iraq e) That the mother must return the child forthwith to the UK for the purposes of further assessment of her capacity to care for the child. f) Failure by mother to comply with the requirement for the child to be returned to the UK will be considered evidence of the mother exposing the child to further elevated risk of harm. g) That on the evidence before the court, and upon the findings of Moor J, the father poses a significant risk of harm to D. Further, the mother and father reject that the father poses any risk to the child. The court is satisfied that any opportunity for them to reunite in a third country would place this child at overwhelming risk of harm and possibly death. h) Any application by father for the return of his travel documents is rejected on the basis that it is inappropriate in the circumstances where he and mother continue to flout the orders of this court, and he continues to obstruct attempts to communicate with and locate the mother. i) The father has indicated that he does not require any of the court documents including HHJ Gaynor Lloyd's judgment in March 2020 to be translated into Kurdish. j) Father has promised to the court that he will contact mother and inform her that she must engage in these proceedings and seek urgent legal advice.”

“a) The court remained satisfied that it has jurisdiction to maintain the Wardship order first made on the 27th September 2019, and b) Is satisfied that there remains a high index of risk to D from both her parents; c) Is satisfied that the legal test under Section 100 (4)(g) of the Children Act 1989 continues to be met d) Is satisfied that the mother has placed D at further risk of harm by fleeing the jurisdiction of England and Wales to Iraq e) That the mother must return the child forthwith to the UK for the purposes of further assessment of her capacity to care for the child. f) Failure by mother to comply with the requirement for the child to be returned to the UK will be considered evidence of the mother exposing the child to further elevated risk of harm. g) That on the evidence before the court, and upon the findings of Moor J, the father poses a significant risk of harm to D. Further, the mother and father reject that the father poses any risk to the child. The court `satisfied that any opportunity for them to reunite in a third country would place this child at overwhelming risk of harm and possibly death. h) Any application by father for the return of his travel documents is rejected on the basis that it is inappropriate in the circumstances where he and mother continue to flout the orders of this court, and he continues to obstruct attempts to communicate with and locate the mother.”

“So which approach accords most closely with the factual situation of the child - an approach which holds that presence is a necessary precursor to residence and thus to habitual residence or an approach which focusses on the relationship between the child and his primary carer? In my view, it is the former. It is one thing to say that a child's integration in the place where he is at present depends on the degree of integration of his primary carer. It is another thing to say that he can be integrated in a place to which his primary carer has never taken him. It is one thing to say that a person can remain habitually resident in a country from which he is temporarily absent. It is another thing to say that a person can acquire a habitual residence without ever setting foot in a country. It is one thing to say that a child is integrated in the family environment of his primary carer and siblings. It is another thing to say that he is also integrated into the social environment of a country where he has never been.”

“We have already established that the prohibition in section 2 of the 1986 Act does not apply to the orders made in this case. The common law rules as to the inherent jurisdiction of the High Court continue to apply. There is no doubt that this jurisdiction can be exercised if the child is a British national. The original basis of the jurisdiction was that the child owed allegiance to the Crown and in return the Crown had a protective or parens patriae jurisdiction over the child wherever he was. As Lord Cranworth LC explained in Hope v Hope (1854) 4 De GM & G 328, 344—345: The jurisdiction of this court, which is entrusted to the holder of the Great Seal as the representative of the Crown, with regard to the custody of infants rests upon this ground, that it is the interest of the state and of the Sovereign that children should be properly brought up and educated; and according to the principle of our law, the Sovereign, as parens patriae, is bound to look to the maintenance and education (as far as it has the means of judging) of all his subjects. The first question then is, whether this principle applies to children born out of the allegiance of the Crown; and I confess that I do not entertain any doubt upon the point, because the moment that it is established by statute that the children of a natural born father born out of the Queens allegiance are to all intents and purposes to be treated as British born subjects, of course it is clear that one of the incidents of a British born subject is, that he or she is entitled to the protection of the Crown, as parens patriae. The continued existence of this basis of jurisdiction was recognised by the Court of Appeal in In re P (GE) (An Infant) [1965] Ch 568, 582 where Lord Denning MR said: The court here always retains a jurisdiction over a British subject wherever he may be, though it will only exercise it abroad where the circumstances clearly warrant it: see Hope v Hope (1854); In re Willoughby (1885) 30 Ch D 324; R v Sandbach Justices, Ex p Smith [1951] 1 KB 62. The Law Commissions in their report also recognised its continued existence, while pointing out that there appears to be no reported decision in which jurisdiction to make a wardship order has been based on the allegiance of a child who was neither resident nor present in England and Wales: see Law Com No 138, paras 2.9 and 4.41. In fact, Hope v Hope was just such a case, as the boys in question had been born in France to British parents, had never lived here (although they had been brought here for a few days by their father), and were in France when the proceedings were begun. However, in Al Habtoor v Fotheringham [2001] 1 FLR 951, para 42 Thorpe LJ advised that the court should be extremely circumspect and must refrain from exhorbitant jurisdictional claims founded on nationality over a child who was neither habitually resident nor present here, because such claims were outdated, eccentric and liable to put at risk the development of understanding and co-operation between nations. But in In re B (Forced Marriage: Wardship: Jurisdiction) [2008] 2 FLR 1624, Hogg J did exercise the jurisdiction in respect of a 15-year-old girl born and brought up in Pakistan, who had never been here but did have dual Pakistani and British nationality. She had gone to the High commission in Islamabad asking to be rescued from a forced marriage and helped to come to Scotland to live with her half-brother. The High Commission wanted to help her but felt unable to do so without the backing of a court order. Hogg J made the girl a ward of court and ordered that she be brought to this country. The half-brother was assessed as offering a suitable home and in fact she went to him. Hogg J explained that she thought the circumstances sufficiently dire and exceptional: para 10. In In re N (Abduction: Appeal) [2013] 1 FLR 457, para 29 McFarlane LJ commented that if the jurisdiction exists in the manner described by Hogg J then it exists in cases which are at the very extreme end of the spectrum. The facts of that case were certainly not such as to require the High Court to assume jurisdiction over the child in question. In my view, there is no doubt that the jurisdiction exists, in so far as it has not been taken away by the provisions of the 1986 Act. The question is whether it is appropriate to exercise it in the particular circumstances of the case.”

“11. […] a) “Where BIIR applies, the courts of England and Wales do not have jurisdiction merely because the child is present within England and Wales. The basic principle, set out in Article 8(1), is that jurisdiction under BIIR is dependent upon habitual residence. It is well established by both European and domestic case-law that BIIR applies to care proceedings. It follows that the courts of England and Wales do not have jurisdiction to make a care order merely because the child is present within England and Wales. The starting point in every such case where there is a foreign dimension is, therefore, an inquiry as to where the child is habitually resident. b) In determining questions of habitual residence, the courts will apply the principles explained in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1. For present purposes the key principles (para 54) are that the test of habitual residence is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned and that, as the social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent, it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned. c) Jurisdiction under Article 8(1) depends upon where the child is habitually resident “at the time the court is seized”. d) Since the point goes to jurisdiction, it is imperative that the issue is addressed at the outset. In every care case with a foreign dimension jurisdiction must be considered at the earliest opportunity, that is, when the proceedings are issued and at the Case Management Hearing: see Nottingham City Council v LM and others [2014] EWCA Civ 152, paras 47, 58. e) Good practice requires that in every care case with a foreign dimension the court sets out explicitly, both in its judgment and in its order, the basis upon which, in accordance with the relevant provisions of BIIR, it has either accepted or rejected jurisdiction. This is necessary to demonstrate that the court has actually addressed the issue and to identify, so there is no room for argument, the precise basis upon which the court has proceeded: see Re E (above), paras 35, 36. f) Judges must be astute to raise the issue of jurisdiction even if it has been overlooked by the parties: Re E (above), para 36. 12. There is a further point to which it is convenient to draw attention. If it is, as it is, imperative that the issue of jurisdiction is addressed at the outset of the proceedings, it is also imperative that it is dealt with in a procedurally appropriate manner: i) The form of the order is important. While it is now possible to make an interim declaration, a declaration made on a ‘without notice’ application is valueless, potentially misleading and should accordingly never be granted: see St George’s Healthcare NHS Trust v S, R v Collins and Others ex p S [1999] Fam 26. If it is necessary to address the issue before there has been time for proper investigation and determination, the order should contain a recital along the lines of “Upon it provisionally appearing that the child is habitually resident …”

“The inherent jurisdiction of the High Court with respect to children originated in an age where the civil courts had no statutory family jurisdiction. It is based on the concept of a quasi-parental relationship between the Sovereign and a child of British nationality. It enables the courts to make a British child a ward of court, even if the child is outside the jurisdiction when the order is made. The continued existence of an inherent jurisdiction in an age of detailed and comprehensive statutory provision is something of an anomaly. The basis of the jurisdiction is, moreover, difficult to reconcile with the content of the statutory rules about jurisdiction. It is based on nationality, whereas the statutory rules are based on habitual residence and presence. None the less, its survival was implicitly recognized by sections 1(1)(d) and 2(3) of the Family Law Act 1986, which prohibited the exercise of the jurisdiction so as to give care of a child to any person or provide for contact with or the education of a child, unless either the court had jurisdiction under the Council Regulation or the 1996 Hague Convention or, if neither of these applied, the child is present or habitually resident in the United Kingdom. Its survival in other cases was acknowledged by this court in A v A, supra, subject to the proviso that its exercise would call for extreme circumspection: paras 63, 65. The case law, which fully bears out that proviso, is summarized in the judgment of the Court of Appeal, and I will not repeat that exercise here. The appellant in the present case invites the court, on the footing that there is no statutory jurisdiction, to use its inherent jurisdiction to order the return of the child to the United Kingdom. Such orders have been made in two classes of case, both of which can broadly be described as protective. The first comprises abduction cases before the enactment of a statutory jurisdiction to deal with them. The second comprises cases where the child is in need of protection against some personal danger, for example where she has been removed for the purpose of undergoing a forced marriage or female genital mutilation. All of the modern cases fall into this last category. A dissenting judgment is not the place for a detailed examination of the ambit of the inherent jurisdiction. Nor is such an examination required in order to determine this appeal. For present purposes, it is enough to make three points. First, the jurisdiction is discretionary, and should not be overturned in the absence of some error of principle or misunderstanding of the facts, unless the judge has reached a conclusion that no judge could reasonably have reached. […] Secondly, the inherent jurisdiction should not be exercised in a manner which cuts across the statutory scheme. If, as Baroness Hale DPSC and Lord Toulson JSC suggest, the use of the inherent jurisdiction is not reserved for exceptional cases, the potential for it to cut across the statutory scheme is very considerable. I have no doubt that it would do so in this case. In the first place, it would fall to be exercised at a time when the child will have been with her mother in Pakistan for at least two years, and will probably have become habitually resident there. Secondly, it seems plain that if an application under the inherent jurisdiction had been made by, say, an aunt or a sister of the respondent, there could be no ground for acceding to it. It is necessary to make this point in order to remind ourselves that it is to protect her relationship with the child on the basis that she should be regarded as a co-parent that the appellant is invoking the inherent jurisdiction of the court. The real object of exercising it would be to bring the child within the jurisdiction of the English courts (i) so that the court could exercise the wider statutory powers which it is prevented by statute from exercising while she is in Pakistan, and (ii) so that they could do so on different and perhaps better principles than those which would apply in a Court of family jurisdiction in Pakistan. Thirdly, this last point is reinforced by the consideration that the appellants application in the English courts is for contact and shared residence. This is not relief which the statute permits to be ordered under the inherent jurisdiction, in a case where there is no jurisdiction under the Council Regulation or the 1996 Hague Convention. I do not accept that the inherent jurisdiction can be used to circumvent principled limitations which Parliament has placed upon the jurisdiction of the court. For these reasons, in addition to those given by the judge and the Court of Appeal, I do not think that an order for the child’s return could be a proper exercise of the court’s powers. Third, if there were grounds for believing the child to be in danger, or some other extreme facts justifying the exercise of the inherent jurisdiction, it would no doubt be possible in the exercise of the courts inherent jurisdiction to direct an independent assessment of the situation of the child in Pakistan. Unless the facts were already clear, that would be the least that a court should do before it could be satisfied that she should be compulsorily returned to this country. In the present case, that assessment would also have to take account of the impact on the child of her removal for the second time of her life from a place where she is by now presumably settled, as well as the impact on her of the disruption of her primary carers life which would be involved in requiring her to abandon her life and job in Pakistan to return to a country where she has no job, is estranged from her family and has no desire to reside. But we are not in that territory. The courts below have held that there are no such grounds, and we have no basis on which to disagree with them. The mere absence of statutory jurisdiction in the English courts cannot possibly be a reason for exercising the inherent jurisdiction. On the contrary, in a case like this it is a reason for not doing so. Given that the inherent jurisdiction exists to enable the English court to exercise the Sovereigns protective role in relation to children, from what is it said that B needs to be protected? As I understand it, the suggestion is that she needs to be protected from the presumed unwillingness of the courts of Pakistan to recognise the status of the appellant in relation to the child in the way that the English court would now do if they had statutory jurisdiction. I cannot regard this as a peril from which the courts should rescue the child by the exercise of what is on any view an exceptional and exorbitant jurisdiction.”

“The courts inherent jurisdiction is, of course, not statutorily defined. It is also a jurisdiction which can potentially apply in a very wide range of circumstances and under which the court can make many orders relating to children, as referred to by Baroness Hale of Richmond DPSC, at para 26, in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2014] AC 1. Context is, therefore, very important for any analysis of the circumstances in which and the form or manner in which it is appropriate for the jurisdiction to be exercised.”

“I would also suggest that, whilst the power which the court is purporting to exercise is clearly important and may be determinative, the court will need to consider whether the order which it is proposing to make is, in reality, an order within section 1(1)(a) or, in particular, section 1(1)(d), for the reasons I give below.”

“I understand why, given the wide potential circumstances, concern was expressed in In re B (A Child) [2016] AC 606 that the exercise of the jurisdiction should not necessarily be confined to the extreme end or to circumstances which are dire and exceptional. But I do not consider that this means that there is no test or guide other than that the use of the jurisdiction must be approached with great caution and circumspection. The difficulty with this as a test was demonstrated by the difficulty counsel in this case had in describing how it might operate in practice. In my view, following the obiter observations in In re B (A Child), whilst the exercise of the inherent jurisdiction when the child is habitually resident outside the United Kingdom is not confined to the dire and exceptional or the very extreme end of the spectrum, there must be circumstances which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction. If the circumstances are sufficiently compelling then the exercise of the jurisdiction can be justified as being required or necessary, using those words as having, broadly, the meanings referred to above. In my view the need for such a substantive threshold is also supported by the consequences if there was a lower threshold and the jurisdiction could be exercised more broadly; say, for example, whenever the court considered that this would be in a child's interests. It would, again, be difficult to see how this would be consistent with the need toapproach the use of the jurisdiction with great caution or circumspection, at para 59. It is not just a matter of procedural caution; the need to use great caution must have some substantive content. In this context, I have already explained why I consider that the three reasons set out in In re B (A Child) would not provide a substantive test and, in practice, would not result in great circumspection being exercised. The final factor, which in my view supports the existence of a substantive threshold, is that the 1986 Act prohibits the inherent jurisdiction being used to give care of a child to any person or provide for contact. It is also relevant that it limits the circumstances in which the court can make a section 8 order. Given the wide range of orders covered by these provisions, a low threshold to the exercise of the inherent jurisdiction would increase the prospect of the court making orders which would, in effect, cut across the statutory scheme as suggested by Lord Sumption JSC in In re B (A Child), para 85. This can, of course, apply whenever the jurisdiction is exercised but, in my view, it provides an additional reason for limiting the exercise of the jurisdiction to compelling circumstances. As Henderson LJ observed during the hearing, the statutory limitations support the conclusion that the inherent jurisdiction, while not being wholly excluded, has been confined to a supporting, residual role. In summary, therefore, the court demonstrates that it has been circumspect (to repeat, as a substantive and not merely a procedural question) by exercising the jurisdiction only when the circumstances are sufficiently compelling. Otherwise, and I am now further repeating myself, I do not see, in practice, how the need for great circumspection would operate.”

“The FLA 1986, as referred to above, only deals with private law proceedings.

“A Tipstaff passport order is a useful tool in the judicial armoury, particularly in circumstances where: (i) a court needs to take urgent action to try to prevent a parent from removing a child out of the country (see Wilson J as he then was inB v B (Injunction: Restraint on Leaving Jurisdiction) [1998] 1 WLR 329, [1997] 2 FLR 148 remarked, at 333 and 153 respectively: ‘B v B’); (ii) where there is an assessed risk that a foreign parent may misuse a period of contact in England in order to remove a child overseas (again, B v Bat 333 and 153 respectively); (iii) where (as here) the court wishes to ensure the attendance of a person at a court hearing within the jurisdiction, and there is a risk that, absent such an order, the person may flee the country before doing so (see for instance Thorpe J as he then was in Re S (Financial Provision: Non-Resident) [1996] 1 FCR 148); and (iv) where without such an order the execution of an interlocutory order may be stymied (B v Bat 334 and 154 respectively). But a passport order is a potent order, with significant implications, and whose use, it seems to me, should be tightly controlled; thus: (i) A passport order should only ever be made for a finite period of time (this is likely to be, as it was in this case, for a period of 6 months before it would have expired unexecuted) (see Re L (A Child), Re Oddin [2016] EWCA Civ 173, [2017] 1 FLR 1135); (ii) A passport order should not be made where the sole purpose is to coerce the respondent into action of a particular kind; in his submissions, the father rightly referenced in this regard Hobhouse LJ’s judgment in Re B (Child Abduction: Wardship: Power to Detain) [1994] 2 FLR 479 at 486 and Sir James Munby P in Re B (A Child) (Wrongful Removal: Orders against Non-Parties) [2015] Fam 209, sub nom Re B (A Child: Evidence: Passport Order) [2015] 1 FLR 871 at para [33]. Furthermore, once granted and passports are seized: (iii) The passport order is unlikely to endure beyond the conclusion of the proceedings in which the order is made (Re M (Children) (Care Proceedings: Passport Orders) [2017] EWCA Civ 69, [2017] 4 WLR 41). If an order for a passport to be held indefinitely can ever be justified (ie after the conclusion of proceedings), it is likely only to be in an unusual and probably quite extreme case where it can be demonstrated, after a close evaluation of the degree of risk to the children and of the harm to which they will be exposed if the risk becomes a reality, that such a serious invasion of the passport-holder’s rights is proportionate and necessary: Re M (above); cf, Re A (A Child) [2016] EWCA Civ 572, [2016] 4 WLR 111, paras [69]–[70]; (iv) Consistent with the principles above, and the observations from the authorities, it seems to me to be incumbent on the court to keep under careful review during ongoing proceedings the need to deprive a person of their passport, under a Tipstaff passport order; such an order should not remain in place for any longer than is necessary to achieve the legitimate desired protection or outcome. The removal of an individual’s passport, even on a temporary basis, be that of an adult or child, is a very significant incursion into the individual’s freedom and personal autonomy. It is never an order that can be made lightly (Hayden J in London Borough of Tower Hamlets v M [2015] EWHC 869 (Fam), [2015] 2 FLR 1431, [2016] 1 All ER 182); a passport order should rarely if ever be more than a temporary measure.”

“In summary, therefore, the court demonstrates that it has been circumspect (to repeat, as a substantive and not merely a procedural question) by exercising the jurisdiction only when the circumstances are sufficiently compelling […]”

“Visit to be undertaken to the home address to try to establish [the mother’s] whereabouts. If [the mother] is in the UK or returns to the UK, care proceedings to be issued upon the Local Authority being aware of the baby’s birth. Baby to be placed in Foster Care to ensure her/his immediate safety and wellbeing while further assessment undertaken in respect of the family and wider network for consideration of reunification at the end of proceedings. If [the mother] has not returned to the UK, legal advice to be sought in respect of next steps.”

“If it is necessary to address the issue before there has been time for proper investigation and determination, the order should contain a recital along the lines of “upon it provisionally appearing that the child is habitually resident …””

“MR JUSTICE FRANCIS: Certainly one side in that case suggested that a baby that is born in another country and that has never been here that I have got no jurisdiction unless there is serious danger. It may be that the serious danger in this case is more evident than in that case anyway, but there we are. All right. So, do you agree that it is appropriate to have a fact-find hearing? FATHER’S ADVOCATE: I think it is a matter I would say--It is a matter for yourself, my Lord.”

“For the avoidance of doubt, I remain satisfied that this court has jurisdiction to deal with this matter. That was the initial finding of Francis J and I gave all of the parties an opportunity to consider whether this was raised as an issue and when the father was fully represented it was confirmed that there was no issue about jurisdiction. In fact, the father’s case has always been that he and his wife intended for their child to be born in the United Kingdom and be raised here and that was the evidence the father gave on oath. Declarations as to jurisdiction have already been made by consent when the father was legally represented and no reason or change of circumstances has been put before me to persuade me that I should reconsider earlier decisions made about this. I remind myself that the findings made by Moor J stand. They are serious findings and both parents continue to reject those findings. I am satisfied that the index of risk to this child has not reduced and there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child she is likely to suffer significant harm. The legal test under section 100(4)(b) of the Children Act 1989 continues to be met. I further reiterate that this mother has placed the child at further risk of harm by feeling the jurisdiction of this court to Iraq to evade social services involvement and the court’s oversight.”

“a) The court is satisfied that it has jurisdiction to maintain the Wardship order first made by Mr Justice Francis on the 27th September 2019, and b) Is satisfied that there remains a high index of risk to D from both her parents; c) Is satisfied that the legal test under Section 100 (4)(g) of the Children Act 1989 continues to be met d) Is satisfied that the mother has placed D at further risk of harm by fleeing the jurisdiction of England and Wales to Iraq e) That the mother must return the child forthwith to the UK for the purposes of further assessment of her capacity to care for the child. f) Failure by mother to comply with the requirement for the child to be returned to the UK will be considered evidence of the mother exposing the child to further elevated risk of harm. g) That on the evidence before the court, and upon the findings of Moor J, the father poses a significant risk of harm to D. Further, the mother and father reject that the father poses any risk to the child. The court `satisfied that any opportunity for them to reunite in a third country would place this child at overwhelming risk of harm and possibly death. h) Any application by father for the return of his travel documents is rejected on the basis that it is inappropriate in the circumstances where he and mother continue to flout the orders of this court and he continues to obstruct attempts to communicate with and locate the mother.”