ND v K [2025] EWHC 1548 (Fam)

[2025] EWHC 1548 (Fam)Case No FD24P00632
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/06/2025
Before
THE HONOURABLE MR JUSTICE HAYDEN
Between
NDApplicantKRespondent
Tori Adams (instructed by Dawson Cornwell LLP) for ApplicantGemma Lindfield and Simon Rowbotham (instructed by London Family Solicitor LLP) for RespondentHearing Hearing date: 1 st May 2025
APPROVED JUDGMENTThis judgment was handed down remotely at 2pm on 20 th June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MR JUSTICE HAYDENThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
[1]I am concerned with L, a boy aged four years. The matter is listed before me pursuant to the Order of Mr Goodwin KC, sitting as a Deputy Judge of this Division, on 19th February 2025. The Order made on that day identifies the issues to be determined at this hearing:(i) Whether the child should be made a Ward of court;(ii) Whether the court has jurisdiction to make a summary return order in respect of the child pursuant to the inherent jurisdiction; and(iii) If so, whether a summary return order should be made in the terms sought by the applicant. Background[2]L’s mother (ND), a Cameroonian national, arrived in France in 2019. She was later granted refugee status, arising from the persecution she was found to be facing in her home country. ND settled in Grenoble. Whilst living there, she met K, who is a dual British-Nigerian national. He was born in England and has extended family both here and in Nigeria. K is an engineer. He was working in Grenoble on a six-month consultancy contract when he met ND.[3]It is a feature of this case that almost every aspect of this couple’s relationship is in dispute. The two facts beyond dispute, however, are that the relationship was a short one (approximately eight months) during the course of which the parties did not live together and it resulted in the birth of L. ND gave birth to L in La Tronche, France in April 2021. By this stage, ND was in a new relationship with J. ND chose to name J as L’s biological father when registering the birth of the child. ND has made allegations of sexual and physical violence against K. This is given as the explanation for wrongly naming J as L’s father. I record that K strenuously disputes these allegations.[4]K appears quickly to have discovered that ND had falsely identified J as the father and, in June 2021, applied to the court in Grenoble for a DNA test, to which the mother agreed, though she had initially objected. Upon the DNA test confirming K as the biological father, the Court granted K parental responsibility. Subsequently, on 30th October 2023, the French court granted ND full custody of L, with a progressive contact plan for K. This plan began with supervised visits at a contact centre and was gradually to increase to overnight stays. ND was obviously concerned that K might try to abduct their son and requested a Prohibited Steps Order from the French court, to prevent L from being taken out of France. The application was refused, it seems, because it had not been foreshadowed in writing and was made orally, late in the day.[5]Contact commenced in January 2024. There were problems virtually from the outset. Much of this revolved around K’s behaviour. A report prepared by Siége OSJ, the organisation responsible for promoting the contact arrangements, made the following observations, which, I record are not accepted by K:
“Working with [K] then proved to be complicated, as he refused to cooperate, turned up late, arrived accompanied or with animals, and refused to attend meetings so as not to communicate with [ND]. Our feedback on the educational differences between them, which risked disturbing their son did not concern them. On several occasions, he was aggressive with the team, invoking his rights and then realising his mistake when he reread with us the court decision that concerned him. I had to send him several reminder letters of the situation. As we were unable to work with him, we had to interrupt our call out just long enough for him to agree to come back and take part in the work: there were therefore no visits between the beginning of February 2024 and the end of March 2024. We had to organise a meeting with the parents for [L]’s first overnight stays with his father and for [ND] to explain her son’s habits and special needs. [K]’s refusal to consider these working hours and their importance seemed to us to put his son in difficulty, as [K] did not consider his needs and was not interested in his habits or the life he could lead at his mother’s house.”
[6]Despite these difficulties, contact resumed on 13th April 2024. Notwithstanding her concerns, it is clear that ND complied with the Contact Arrangements. On 27th July 2024, it was arranged that L would spend his first overnight stay with his father. It was agreed that he would be returned to his mother the following day at 4pm. This was the first time L had ever spent a night away from home or been separated from his mother. L was not returned. ND quickly contacted the police who attended at the address K had provided both to the French court and to the contact centre. It proved to be a fictitious address. On 29th July 2024, the contact centre discovered that K had emailed them at 4pm the previous day, precisely the time that L should have been returned to his mother, to inform them that he had taken L on holiday with his family for two weeks. K did not indicate where he had gone.[7]On 30th July 2024, the French police discovered that K had travelled to England with L on the same day that he was collected from the contact centre. At the expiry of the two-week period, when L was not returned to his mother, further enquiries were made as to his whereabouts. On 10th August 2024, it was confirmed that K was in Nigeria. ND immediately contacted the Nigerian consulate and, on 9th September 2024, a month later, ND was informed by the investigating French Judge that an international arrest warrant had been issued against K. ND was also informed that K had managed to obtain a British passport for L. ND later learned that K had also obtained a Nigerian passport for L.[8]In pursuance of that arrest warrant, K was arrested on 13th December 2024, whilst in the United Kingdom. On 17th December 2024, ND applied to the High Court for a Location Order and for summary return of L to France. It transpired that L had remained in Nigeria.[9]On 17th January 2025, ND made an application for return of L to England. Ms Kate Grange KC, sitting as a Deputy Judge of the High Court, directed that the matter be listed to determine whether this Court has jurisdiction to make an order for the summary return of L to England, and if so, whether it should exercise it. An Order was made that L should have contact with his mother on Wednesdays, Saturdays and Sundays at 5pm via WhatsApp.[10]On 30th January 2025, ND made a Part 25 Application for the instruction of an expert in French Law to report on what provisions might be made in that jurisdiction to procure L’s return to France. That application was granted in the Order of 19th February 2025. It was also confirmed to the parties at that hearing that extradition proceedings had been commenced to secure K’s return to France. These proceedings are opposed by K. Inevitably, ND was concerned as to who might be looking after her son. K told the Court that his brother had commenced guardianship proceedings in Nigeria and has subsequently provided a copy of an Order, dated 19th March 2025, from the Nigerian Court, stating that a “Mr and Mrs O have been appointed as legal guardians for [L]”. This document, which has been filed in these proceedings, reveals that the first names of Mr and Mrs O have been redacted from the Order, which also states that L is the half nephew of Mr O and Mrs O is K’s sister-in-law. Disturbingly, the application itself and any supportive documents have not been disclosed, notwithstanding that ND is listed as the Respondent in those proceedings. Moreover, the Order records the following:
“Now after a careful perusal of the Application, the supporting processes and other attached documents proffered by parties through their counsel, this Honorable Court is convinced that the 2 Respondents herein are the biological parents of the Subject and are willing to allow the 2 Applicants take over parental obligations, responsibilities and authority over the Subject.”
[11]It is clear that the Nigerian Court was given entirely false information. ND knew nothing about the application, had not received any documentation from the Court and most certainly had not given her consent for Mr and Mrs O to take over parental responsibility for her son.[12]On 14th March 2025, the expert report was received, setting out the options available to ND in France. The report is written by Mme. Morghân Peltier, a partner in Chauveau Mulon & Associés, a firm of French lawyers based in Paris. Mme. Peltier was asked the following questions:
“1. What legal remedies are available to the mother in France to secure the return of the child in the circumstances of this case? 2. In the event the father was extradited to France and there were criminal proceedings in France, how does this impact your answer to (1), if at all? 3. What enforcement mechanisms are available in France that could be used to secure the return of the child if an order was made for the child’s return and not complied with? 4. Would the parties be entitled to any legal aid and if so, what are the requirements of obtaining the same? If not, what would be the legal costs of such proceedings?”
[13]The first question, concerning the child’s return from Nigeria to France, is addressed in these terms:
“7. Referral to the Ministry of Europe and Foreign Affairs (MEAE) - Insofar as Nigeria has not ratified the Hague Convention of 25 October 1980, it would be possible to refer the matter to the Office for the Protection of Minors and the Family of the French Ministry of Europe and Foreign Affairs (MEAE). The child would then be returned from Nigeria to France through consular channels. In this respect, the fact that [L] is not being looked after by any of his parents, as they are not in Nigeria, could be an argument in support of the need to order his prompt return to France. However, while in theory it is possible to apply to the MEAE, practice has shown that the consular channels is often ineffective and time-consuming. The mother could therefore lodge a request to the MEAE, but we have real reservations about the effectiveness of this channels, despite the arguments in its favors. (my emphasis) Finally, if this procedure were to be used, it would be advisable to apply for the exequatur of the French decision establishing [L]' habitual residence with the mother in France, before the competent court in Nigeria. This could provide an additional argument for consular proceedings, as the French judgment will be recognized in Nigeria.”
[14]For completeness, I should add to the above that Nigeria has not ratified the Hague Convention nor is there any bilateral agreement between Nigeria and France apposite to this case. It is also to be highlighted that whilst applying to MEAE is an option, it is described as having a theoretical complexion to it, and that practice shows consular channels are often ineffective and time consuming. L does not have time on his side. He finds himself in an alien country now without his father or mother and in a culture that will be strange to him. His language was French, which is now not spoken around him. Neither the French Court nor this Court know anything, of any consequence, about his present carers or his general circumstances. It is plainly causing L’s mother great anxiety and distress.[15]The Nigerian Court has also, as I have stated above, been given false information. L is manifestly vulnerable. He has endured plainly traumatic experiences. In this sphere of international abduction law, there is frequently an intense concentration on the interpretation and application of the legal framework and case law. The guiding principle is one of international comity. However, all this can risk a deflection from the central objective of the process, which is intended speedily to protect and return children who have been wrongfully removed. It is, I think, helpful to look at the Criminal Court’s approach to child abduction and the emphasis placed on the child victim, see R v RH and another [2016] EWCA Crim 1754. There, Treacy LJ reviewed the sentencing guidelines for cases of abduction, indicating those features which indicate gravity of offending:
“6. We have considered Kayani, R v SB [2012] 2 Cr App R (S) 71 and a number of other decisions of this court which reflected the varying circumstances underlying prosecutions for these offences. We have also had the benefit of one member of this constitution having considerable experience in handling abduction cases under the jurisdiction of the Family Division of the High Court. 7. It seems to us that the most serious class of case, of which Kayani is an example, will involve a high level of harm exemplified by a very lengthy period of abduction or detention, a serious effect on the child (whether emotional or otherwise), or serious damage to, or severance of a loving relationship with a parent, siblings, or other relevant person. 8. High culpability may be exemplified by persistent non-disclosure or concealment of the place of abduction, significant and sophisticated planning, breach of a court order or disregard of court process, intention to sever the relationship between the child and another relevant person, or abduction for a criminal purpose (for example a sexual purpose, female genital mutilation, or forced marriage). 9. Where there is a combination of both a high level of harm and a high level of culpability we would expect the bracket for such offending after a trial, to be 5 to 7 years.”
[16]These passages provide a very convenient reference for identifying the seriousness of the wrongful removal. Many of the factors identified there resonate strikingly with K’s behaviour. It is obvious that K’s conduct, even on his own account, is at the extreme end of the index of gravity. It requires to be identified as such. K’s disregard for his son’s safety and emotional welfare has resulted in him being in an extremely vulnerable situation which requires every effort to be made to achieve a speedy resolution. It is difficult to imagine a situation where delay could be more inimical to the welfare of the child.[17]Ms Lindfield and Mr Rowbotham, on K’s behalf, submit that the passages in the CM&A report, prepared by Mme. Peltier (see para. 13 above) reveal options available in the French legal system which cause them to identify what they term as “the key question” before this Court as being:
“Should the court’s protective (parens patriae) jurisdiction be exercised to order a child to be brought to England and Wales for the sole purpose of considering their summary return to France?”
[18]They answer this question in their written submissions thus:
“There is not (as far as these authors are aware) any reported example of the court’s protective jurisdiction being used for this purpose. It is submitted that the answer for that gap in the authorities is obvious: such an order has no inherently “protective” benefit to [L] and would amount to an unacceptable creep of the court’s inherent powers. That the question posed at paragraph 61 above should be answered in the negative is further supported by the fact that – save for the nature of the mother’s application – there is no aspect of this case that might be considered exceptional or otherwise outside what has been described as the ‘ordinary, or expected, circumstances’ of international child abduction, see McFarlane LJ in Re N at [31].”
[19]I should also add that it is emphasised, on behalf of the father, that there is no cited case in which a child’s summary return has been ordered, pursuant to the protective jurisdiction in focus. Rather more than that, there is a considerable body of case law where the Court has declined to exercise its powers, e.g. H v H (Jurisdiction to Grant Wardship) [2011] EWCA Civ 796, [2012] 1 FLR 23; and GC v AS (No. 2) [2022] EWHC 310 (Fam), [2022] 2 FLR 756. The seemingly sole example of an order made pursuant to the parens patriae for a child to be summarily returned to England was overturned by the Court of Appeal in Re M (A Child) (Exercise Of Inherent Jurisdiction) [2020] EWCA Civ 922, [2021] 1 FLR 415. McFarlane LJ, in Re N (Abduction: Appeal)[2012] EWCA Civ 1086, [2013] 1 FLR 457, strikes me as at least casting a quizzical eye as to whether the jurisdiction exists:
“29. It seems to me 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. Hogg J spoke of very dire circumstances justifying what Thorpe LJ in Al Habtoor was rightly concerned should be a very careful exercise of the jurisdiction if it is to be exercised at all. In Re B the dire circumstances referred to were the circumstances of the 15-year-old young person concerned, who had thrown herself on the mercy of the British authorities and the British authorities had sought orders from the High Court to assist their ability to protect her.”
[20]McFarlane LJ was summarising Thorpe LJ’s observations in: Al Habtoor v Fotheringham [2001] EWCA Civ 186, [2001] 1 FLR 951. McFarlane LJ plainly had in mind the following paragraph in Thorpe LJ’s judgment:
“42. I therefore reject Mr Swift's attempt to establish jurisdiction by dependency and turn to his final submission to the effect that, whatever may be the restrictions introduced by the Family Law Act 1986, the court retained an inherent jurisdiction, derived from the fact that Tariq is a British national, at least to grant the declaration that Tariq was and is unlawfully detained within the United Arab Emirates. There are a number of things to be said of this submission. The first is that in my opinion the courts of this jurisdiction should be extremely circumspect in assuming any jurisdiction in relation to children physically present in some other jurisdiction founded only on the basis of nationality. Parens patriae jurisdiction has a fine resounding history. However its practical significance has been much diminished domestically since the codification of much child law within the Children Act 1989. In order to achieve essential collaboration internationally it has been necessary to relax reliance upon concepts understood only in common law circles. Thus our historic emphasis on the somewhat artificial concept of domicile has had to cede to an acknowledgement that the simpler fact based concept of habitual residence must be the currency of international exchange. The parens patriae concept must seem even more esoteric to other jurisdictions than the concept of domicile. If we are to look for reciprocal understanding and co-operation, so vital with the steady increase in mobility and mixed marriage together with an equal decrease in the significance of international frontiers, we must refrain from exorbitant jurisdictional claims founded on nationality. To make a declaration of unlawful detention in relation to a child of dual nationality cared for by a biological parent in a jurisdiction whose courts have sanctioned the arrangement by order is only to invite incomprehension, and perhaps even stronger reactions, in that other jurisdiction.”
[21]It may be that in the intervening years (nearly a quarter of a century) since Thorpe LJ’s judgment, international “reciprocal understanding and co-operation” has proved to be more resilient to common law concepts than Thorpe LJ feared. Wardship, for example, has remained an active feature of our law in this sphere. In any event, on the facts of this case, we are concerned not with a child cared for “by a biological parent in a jurisdiction whose courts have sanctioned the arrangement”, but with a child who is not cared for by either biological parent and whose legal status in Nigeria has been achieved at best erroneously, more likely by deception.[22]Though Mme. Peltier in her Report, referred to above at paragraph 14, identified a range of combined procedures available in France, she nonetheless concluded that “French legal action alone would not be sufficient to ensure [L]’s rapid and effective return to France.” It strikes me that the use of the word “alone” in that sentence highlights the potential for cooperative strategies to be deployed between the various Courts involved in this highly unusual triangular situation. It is a recognised feature of child protection that where agencies work together, there are invariably better outcomes for children. In this sphere of child abduction, something of that principle, by parity of analysis, can apply, in the appropriate case, to cooperation by the respective Courts involved. Indeed, as this international jurisdiction has evolved and matured, it has generated a structured framework of international judicial cooperation (e.g. International Family Justice Office (IFJO); Family support service for the Foreign, Commonwealth & Development Office (FCDO)). Further, there are now well-established patterns and structures for international judicial exchanges and cooperation.[23]It is to be remembered that the principle of international comity is predicated not only on Courts of differing jurisdictions, recognising and enforcing each other’s judgments and orders, but also on an understanding of the need for reciprocity, appreciating that association of nations achieves mutual benefit. The scaffolding of the Article 13(b) defences under the Hague Convention 1980, illustrates the point, constructing, as it does, key exceptions to the general rule, that a child removed or retained across international borders should be promptly returned to their country of habitual residence. Approached in this way and in a case which has an unusual factual matrix, consideration of the scope of the parens patriae need not be perceived as an ‘exorbitant jurisdictional claim founded on nationality’ but as a facet of reciprocal understanding, giving effect to the cooperation that Thorpe LJ identified as being “so vital”. This “expansive meaning” of comity was, I note, identified in Justice Breyer’s book, The Court and the World (2015), noted with approval in Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4.[24]Whilst the parens patriae concept might, in Thorpe LJ’s view, seem “esoteric to other jurisdictions”, it is perhaps important to recollect that the civil law jurisdiction is rooted in Roman law and particularly, the Napoleonic code. Perhaps all law is to some degree necessarily esoteric in origin. What ultimately matters is not the nature or approach of the law in a particular jurisdiction, but whether it can be utilised effectively, collaboratively, and reciprocally in modern practice. The Applicable Law[25]There is broad agreement as to the framework of the law. Ms Lindfield and Mr Rowbotham, correctly, in my view, concede “in principle” that the inherent jurisdiction can be triggered on establishing a child’s British nationality. The Court’s parens patriae jurisdiction, in respect of children who are not habitually resident in England and Wales but are in a jurisdiction with no reciprocal jurisdiction agreements, was considered at length in the case of Re M [2020] EWCA Civ 922. The following principles emerge: (i) The Family Law Act 1986 ("the 1986 Act") sets out when a court in England and Wales has jurisdiction to make the orders listed in s.1(1).

(d) :

“an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children - (i) so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but (ii) excluding an order varying or revoking such an order.” (ii) Section 2 of the 1986 Act contains general jurisdiction provisions. An order under s.1(1)(a) can only be made as follows: “(1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless – (a) it has jurisdiction under the Council Regulation or the Hague Convention, or (b) neither the Council Regulation nor the Hague Convention applies but – (i) the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A of this Act is satisfied, or (ii) the condition in section 3 of this Act is satisfied.” (iii) Section 2(3) provides when an order can be made under s.1(1)(d): “A court in England and Wales shall not make a section 1(1)(d) order unless: (a) it has jurisdiction under the Council Regulation or the Hague Convention, or (b) neither the Council Regulation nor the Hague Convention applies but – (i) the condition in section 3 of this Act is satisfied, or (ii) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection.” (a) it has jurisdiction under the Council Regulation or the Hague Convention, or (b) neither the Council Regulation nor the Hague Convention applies but – (i) the condition in section 3 of this Act is satisfied, or (ii) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection.” (iv) Section 3 of the 1986 Act provides: “(1) The condition referred to in section 2(1)(b)(ii) of this Act is that on the relevant date the child concerned – (a) is habitually resident in England and Wales, or (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom …”
As Lady Hale pointed out in A v A, at [19], the “omission of a reference to section 2(3)(b)(i) from section 3(1) appears to be an oversight [but it] does not alter the sense of the provisions”.

(v) Section 8 of the Children Act 1989 provides the following:

“Child arrangements orders and other orders with respect to children. (1) In this Act – “child arrangements order" means an order regulating arrangements relating to any of the following – (a) with whom a child is to live, spend time or otherwise have contact, and (b) when a child is to live, spend time or otherwise have contact with any person; “a prohibited steps order” means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court; “a specific issue order” means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.”
[26]It is necessary to repeat the observations of Lady Hale and Lord Toulson in their joint judgment in Re B (supra).(I note that Moylan J conducted a similar exercise in Re M (supra)): “[58] Lord Wilson JSC's conclusion on the issue of habitual residence makes it unnecessary to reach a decision on the hypothetical question whether it would have been right for the court to exercise its jurisdiction founded on B's nationality if she had no habitual residence at the time when these proceedings began. It is not in doubt that the restrictions on the use of the inherent or parens patriae jurisdiction of the High Court in the Family Law Act 1986 do not exclude its use so as to order the return of a British child to this country: this court so held in A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2014] AC 1. The Court of Appeal, ante, p 614, devoted a large proportion of their judgment to this aspect of the case. Their approach is summed up in para 45: ‘Various words have been used down the years to describe the kind of circumstances in which it may be appropriate to make an[27]Above, in the passage that I have emphasised in Lord Wilson’s judgment, the “concerns” identified in exercising this jurisdiction are succinctly set out: the danger of conflicting decisions; conflict with the applicable scheme between the countries in question; risk of unenforceable Orders. Whilst these are undoubtedly important considerations, they must not become a three-headed Cerberus barring all entry to the jurisdiction. There is something essentially amorphous about the parens patriae which will always elude prescription. That said, it is axiomatic that if the use of the inherent jurisdiction is not constrained to cases which are demonstrably exceptional, the risk of cutting across the statutory scheme becomes very considerably elevated, with all the obvious dangers that entails. For these reasons, the case law manifestly demonstrates that exercise of this jurisdiction requires “extreme circumspection” which will most likely be confined to broadly protective purposes. In applying it, the Court must therefore ask itself whether to do so would be to work in harmony with related foreign laws so that together, we can more effectively achieve common objectives in an expansive spirit of international comity. Do the circumstances of this child require the protective support of the inherent jurisdiction?[28]The answer to this requires careful evaluation of the child’s own circumstances as the central priority, alongside a consideration of the wider principles discussed above. It is important to note that, in this context, following the conclusion of submissions, some updated information was forwarded to me concerning K:
“[K] was arrested yesterday, 19 May 2025, on a further arrest warrant that pertains to his removal of his son from France to Nigeria. On 14 May 2025, an advance copy of the warrant was provided by the CPS, who act for the French judicial authority, to Mr [K]’s criminal solicitors.”
[29]The information was far more extensive than set out above, but the detail does not need to be incorporated into this judgment. What is clear, is that K is involved in complex criminal law proceedings which are unlikely to enable him to return to Nigeria for some considerable time. Accordingly, this four-year-old boy finds himself abandoned in a country that remains alien to him, deprived of the protection of his mother and, at least theoretically, his father. Neither parent can come to the aid of their son in anything like the timescales demanded by his circumstances. Nor can there be any confidence in K’s assurance that L is with family members who are safe. The evidence of K’s capacity for dishonesty and manipulation is abundantly displayed within the papers.[30]In many of the cases considered by the Courts, the child has been abducted by one parent with whom they remain. The added trauma of L’s situation is his isolation. I repeat, he has neither parent to protect him. What also requires repetition is that on the day he was abducted by his father, he had never previously spent a night away from his mother. Some of the authorities focus on the need to identify “peril” for the child when considering whether the parens patriae can be utilised. Whilst for all the reasons I have sought to analyse above, I consider the exercise is a broader evaluative one, I nonetheless have no hesitation at all in describing this child’s circumstances as perilous. To my mind, this is beyond any coherent contrary argument.[31]What further distinguishes this case from the others considered is that, unusually, there are three countries involved. That is not a feature of any of the cases that I have been referred to. Against this factual backdrop, the risk of cutting across statutory schemes requires to be considered in the context of a third jurisdiction (Nigeria), in which the Nigerian Court has itself plainly been deliberately and dishonestly deceived into making invalid Orders. No other sensible inference can be drawn from the available evidence. The dangers involved in cutting across the scheme adhered to by two signatories to the Hague Convention recede when the child is in neither jurisdiction. To my mind, it is the reciprocity of international comity that requires to be emphasised here. As between England and France, the expert evidence points to the use of the inherent jurisdiction in the English High Court as being most likely to achieve L’s speedy return. The flexibility of the common law appears to afford an enhanced opportunity to protect this child with a dexterity that the civil law jurisdiction alone cannot achieve. The distinction between the two is the pace with which the parens patriae can be deployed. There is of course no guarantee that it would be effective. Perhaps the important point is that the jurisdiction exists, it is not a chimera and it remains there to be harnessed in exceptional circumstances.[32]I recognise that the fact that Nigeria is not a signatory to the 1980 Hague Convention, does not come close to establishing the exceptionality required. McFarlane LJ in Re N (supra) maintained unswerving focus on the actual circumstances of the child, recognising in that process, that any child involved in a wrongful removal from a parent will inevitably face painful challenges. He identified the paradigm circumstances of an international family where the parents come from different States, have a child for whom they are both responsible but separate and find themselves split between two jurisdictions. L’s circumstances for the reasons that I have set out above, are far removed from that paradigm. McFarlane LJ went so far as to say, on the facts of Re N (supra), that “the difficulties here are that of the mother” and found that the circumstances of the child did “not come near the very exceptional category that might justify the High Court in looking carefully at the question of whether or not it did have jurisdiction to act for her protection”. As one would have expected, McFarlane LJ accepted that the child in that case was “on ordinary welfare grounds, likely to be experiencing loss of contact with her mother”, recognising “that will be to her detriment; but those facts do not come outside the ordinary facts of a case of this nature”.[33]Whilst the mother’s distress in this case is visceral, I too consider that my focus must be on the child. I do not think that this exercise should be constrained to L’s immediate circumstances. It is important to consider his situation in the context of his experience. I emphasise that this abduction was, in my view, in the most serious class of cases. It involved the brutal severance of L’s loving relationship with his mother and his complete deracination from every aspect of life as he knew and understood it. It involved complex, sophisticated, long-term planning and deception on the Courts, the Contact Centre, the mother and, most importantly, the child himself. It can only have been profoundly emotionally damaging to him. It has also been a protracted separation, even potentially involving L being retraumatised now by the loss of his father. The photographs and school reports, presented by the father, purporting to show L happy at school in Nigeria, are of little, if any, evidential significance against the wider canvass of the evidence. K has no credibility. Indeed, his attempts to portray L as happy, serve only to raise further concern, in my mind, as to his lack of empathy.[34]L is now living with people whom he can barely know. With no apologies for yet further repetition, I emphasise that he is deprived of his mother, who was his sole carer, all his life, prior to his abduction. He has been in Nigeria for ten months. He is only four years of age. Contact with his mother has been sparce in the extreme, and her telephone number has been blocked. I note too that there were concerns expressed by the Contact Centre in France recording that K regularly turned up late, refused to cooperate with professionals and refused to attend meetings. He was recorded as aggressive with the team and entirely unprepared to engage with the mother. He was also assessed as “not interested” in his son’s routine or “in his habits or the life he could lead at his mother’s house”. In particular, his refusal to consider what are referred to as his son’s “habits and special needs” prior to the overnight contact have even greater resonance now that it has become clear that he was intending to utilise that first overnight stay to abduct his son. For the avoidance of doubt, the phrase “special needs” is a translation from the French script and is not intended to convey any disability, but rather to emphasise L’s individuality. It might have been thought that K would have been particularly interested in learning about his son’s routine and habits in order to help to pacify him in the trauma that he knew must inevitably follow. All of this can deliver no comfort or reassurance as to what provision K has made for his son in Nigeria.[35]By contrast, the evidence cogently indicates that ND is a warm, empathetic and loving mother with whom her son had a healthy and secure attachment. The following record from the Contact Centre capture the essence of the professional observations:
“[ND] was always punctual and respectful of the agreement and the team. She has always given timely notice of her son's absences due to illness. She takes an active part in the events organised by the crèche to spend special time with her son. As far as [K] is concerned, he is a child with very good motor skills, emotional and psychological development. We feel that he is completely safe, both emotionally and physically, with his mum. She knows how to set limits and a framework for her child when necessary. They know how to pass on important values such as politeness, benevolence, solidarity and mutual aid towards peers and respect for others. (children and adults). [ND] is open to discussion about [K]’s education, care and well-being, and doesn't hesitate to ask questions. It's fair to say that [K] is a child who is fulfilled and happy in his current life.”
[36]I highlight these contrasting features of the parent’s personalities and behaviours only to reveal the light they cast on the extent of the trauma to the child. In addition, to all the other matters considered above, there is compelling evidence that L has been removed from a loving environment into one which is unlikely to have met his emotional needs. The parens patriae has been described as an essentially protective jurisdiction. L’s need for protection, on my assessment of the evidence, is both clear and clamant. Recognising the rarity of circumstances in which the inherent jurisdiction can be invoked, I regard L’s situation as ‘exceptional’.[37]Having concluded that this is a case in which the inherent jurisdiction should be invoked, I propose to list a further hearing to refine what Declarations are likely to be most effective. I should also like the parties further to explore how best to achieve effective cooperation with the French authorities. I note that there is some authority for the proposition that return to a “third State” is achievable. Such authorities, as there are on this point, all arise in the context of summary return under Article 12 of the 1980 Hague Convention. That of course is not what I am dealing with here. In those cases, the children were also physically present in England at Wales at the time of the hearing, see Re C and Another (Children) (International Centre For Family Law, Policy And Practice Intervening) [2018] UKSC 8, [2018] 1 FLR 861; Re B (A Child) (Abduction: Habitual Residence) [2020] EWCA Civ 1187. In the latter case, the observations of Moylan LJ require to be considered: … I consider that to confine Art 12 as suggested would be contrary to the primary objective of the Convention which is to protect children from the harmful effects of their abduction. To exclude the remedy of a return to a third state would not protect children in that situation from the harmful effects of abduction … if Art 12 is not interpreted so as to include this power, absent any of the exceptions being established, the court would be mandated to order, ‘shall order’, the child's return to the state of habitual residence at the date of the wrongful removal or retention. … O v O provides an example of when, as Keehan J said, it would have been ‘absurd’, and contrary to the child’s welfare, to have ordered that the child be returned to Australia. As Keehan J said, at [64]:
‘It would be strange indeed if the Convention required steps to be taken which were positively contrary to the interests of the subject children.’
[38]The above strikes me as, at least tangentially, relevant when reflecting that L needs to be returned to his mother’s care in France and that the inherent jurisdiction is welfare-based territory. Though it might be necessary, as a staging post, it would be needlessly burdensome for him to be returned to England. I can see, subject to any further submissions, no reasons why the French authorities would have any objection to a plan to return him directly to his mother on this collaborative basis. Further, I see no reason why the inherent jurisdiction could not indicate that a flight to Paris as opposed to London is in L’s best interests. I should be grateful if the parties could give some further thought to these issues by the next hearing.

order

'only under extraordinary circumstances', 'the rarest possible thing', 'very unusual', 'really exceptional', 'dire and exceptional' 'at the very extreme end of the spectrum'. The jurisdiction, it has been said must be exercised 'sparingly', with 'great caution' … and with 'extreme circumspection'. We quote these words not because they or any of them are definitive—they are not—but because, taken together, they indicate very clearly just how limited the occasions will be when there can properly be recourse to the jurisdiction.’ [59] Lord Wilson JSC has listed a number of important issues to which that question would have given rise and which must wait for another day. It is, however, one thing to approach the use of the jurisdiction with great caution or circumspection. It is another thing to conclude that the circumstances justifying its use must always be “dire and exceptional” or “at the very extreme end of the spectrum”. There are three main reasons for caution when deciding whether to exercise the jurisdiction: first, that to do so may conflict with the jurisdictional scheme applicable between the countries in question; second, that it may result in conflicting decisions in those two countries; and third, that it may result in unenforceable orders. (my emphasis) It is, to say the least, arguable that none of those objections has much force in this case: there is no applicable Treaty between the UK and Pakistan; it is highly unlikely that the courts in Pakistan would entertain an application from the appellant; and it is possible that there are steps which an English court could take to persuade the respondent to obey the order. [60] The basis of the jurisdiction, as was pointed out by Pearson LJ in In re P (GE) (An Infant) [1965] Ch 568, 587, is that “an infant of British nationality, whether he is in or outside this country, owes a duty of allegiance to the Sovereign and so is entitled to protection”. The real question is whether the circumstances are such that this British child requires that protection. For our part we do not consider that the inherent jurisdiction is to be confined by a classification which limits its exercise to “cases which are at the extreme end of the spectrum”, per McFarlane LJ in In re N (Abduction: Appeal) [2013] 1 FLR 457, para 29. The judgment was ex tempore and it was not necessary to lay down a rule of general application, if indeed that was intended. It may be that McFarlane LJ did not so intend, because he did not attempt to define what he meant or to explain why an inherent jurisdiction to protect a child's welfare should be confined to extreme cases. The judge observed that “niceties as to quite where the existing extremity of the jurisdiction under the inherent jurisdiction may be do not come into the equation in this case”: para 31. [61] There is strong reason to approach the exercise of the jurisdiction with great caution, because the very nature of the subject involves international problems for which there is an international legal framework (or frameworks) to which this country has subscribed. Exercising a nationality-based inherent jurisdiction may run counter to the concept of comity, using that expression in the sense described by US Supreme Court Justice Breyer in his book The Court and the World (2015), pp 91–92: “the court must increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web. In this sense, the old legal concept of 'comity' has assumed an expansive meaning. 'Comity' once referred simply to the need to ensure that domestic and foreign laws did not impose contradictory duties upon the same individual; it used to prevent the laws of different nations from stepping on one another's toes. Today it means something more. In applying it, our court has increasingly sought interpretations of domestic law that would allow it to work in harmony with related foreign laws, so that together they can more effectively achieve common objectives.” [62] If a child has a habitual residence, questions of jurisdiction are governed by the framework of international and domestic law described by Lord Wilson JSC in paras 27–29. Conversely, Lord Wilson JSC has identified the problems which would arise in this case if B had no habitual residence. The very object of the international framework is to protect the best interests of the child, as the CJEU stressed in the Mercredi case [2012] Fam 22. Considerations of comity cannot be divorced from that objective. If the court were to consider that the exercise of its inherent jurisdiction were necessary to avoid B's welfare being beyond all judicial oversight (to adopt Lord Wilson JSC's expression in para 26), we do not see that its exercise would conflict with the principle of comity or should be trammelled by some a priori classification of cases according to their extremity.”

Cited in 1 later judgment