Covid-19 Protocol: This judgment was handed down
remotely
by circulation to the parties'
representatives
by email,
release
to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand down is deemed to be 10.30am on Friday 13 August
2021.
LORD JUSTICE BAKER :
- This is an appeal against an
order
made on 11 January
2021
dismissing applications by the mother under the
inherent
jurisdiction
in
respect
of her
children
who are
residing
with their father in Libya. Permission to appeal was granted by Moylan LJ on 10 March
2021.
Background
- The mother was born in England and is now aged 41. The father, now aged 38, was born in Tripoli in Libya. They met in England in 2007 and
started
a
relationship,
and in 2008 went through an Islamic marriage in Brighton. In 2013, after the father had obtained a Masters degree in Law from an English university, they moved to Tripoli for a few months. By the end of that year, the mother was pregnant, and in November
she
moved back to
stay
with her parents in England. In April 2014, the father
returned
to this country and the parties
resumed
living together. The following month, the mother gave birth to their first child, D, and in January 2016 to their
second
child, E. In
September
2016, the father, who had previously been given indefinite leave to
remain,
was granted British citizenship. In
September
2017, the mother gave birth to the parties' third child, F.
- In December 2017, the parties and the three
children
travelled to Turkey on one-way tickets booked by the mother. They met with members of the paternal family for a holiday, before all travelling on to Libya on 26 December 2017. In a judgment in
subsequent
proceedings in this country to which I
shall
turn
shortly,
it was held that at that point the parties had agreed to move with the
children
to live permanently in Libya. Two weeks later, however, in January 2018, the mother
returned
to this country alone to attend an appointment in
relation
to a benefits claim. The mother had expected that the youngest child, F, would be travelling with her, but
shortly
before their
scheduled
departure the father advised her that he had not been able to
secure
an exit visa for F. During the early part of 2018, and while in England, the mother made contact with English
solicitors,
Dawson Cornwell, a lawyer in Libya, the Libyan embassy,
Reunite,
and others,
seeking
advice about her
situation.
Over the course of 2018, the mother travelled between Libya and England on
several
occasions. Throughout this period, the
children
and the father
remained
in Libya. In
September
2018, the mother
returned
to England and thereafter has not visited Libya again.
Since
that date
she
has had only indirect contact.
- In November 2018, the mother
started
proceedings in the Family Division of the High Court
seeking
the
summary
return
of the
children
to this
jurisdiction.
She
asserted that the
children
had been "forcibly"
retained
in Libya by the father who,
she
claimed, was
shortly
due to travel to this country. At a preliminary hearing, conducted without notice to the father, the
children
were made wards of court, and a Tipstaff passport
order
was made, with the aim of preventing the father leaving the
jurisdiction
after his arrival. In the event, the father did not travel to England at that time, or at any time
since.
In April 2019, he
sent
the mother an invitation to apply for a visa in Libya, but
she
did not take it up.
- After
several
interim hearings, the wardship proceedings were listed for "a fact-finding hearing to determine the issue of the habitual
residence
of the
children
and thereafter whether or not the court has
jurisdiction
to proceed to make
orders
in
respect
of the
children."
The hearing took place over two days in
September
2019 before HH Judge Hillier
sitting
as a deputy High Court judge. Both parents gave oral evidence, the mother attending court and the father joining by video link from Libya. Judgment was
reserved
and handed down on 25 October 2019. In a lengthy analysis the judge found that the mother had told lies in the course of the proceedings and the father had deceived the UK immigration authorities when applying for asylum in a way which the judge described as "
sophisticated,
planned and totally dishonest".
She
found that they had agreed to move with the
children
to live permanently in Libya in 2017,
rejecting
the mother'
s
case that they were only visiting Libya on holiday, and therefore concluded that the
children
had not been wrongfully
removed
from England.
She
further
rejected
the mother'
s
alternative claim that the
children
had been wrongfully
retained
in Libya in January 2018 when the mother
returned
for the first time to England to attend the benefits appointment. Finally,
she
concluded that, by the date of the mother'
s
application to the Family Division at the end of November 2018, the
children
had acquired habitual
residence
in Libya.
She
concluded that the courts of England and Wales did not have
jurisdiction
in matters of parental
responsibility
over the
children
pursuant to Articles 8 or 10 of Brussels IIA and therefore dismissed the mother'
s
application for an
order
for the
summary
return
of the
children.
- At the end of her judgment, the judge added this coda:
"Parens patriae
134. The court has
jurisdiction
in
relation
to British citizen
children
by virtue of their nationality: the
inherent
parens patriae
jurisdiction.
The current
state
of the law is not entirely clear, given the various different (obiter) dicta emerging from the UK
Supreme
Court in
Re
B (A Child) (Habitual
Residence:
Inherent
Jurisdiction)
[2016] UKSC 4, [2016] 2 WLR 557 ….
135. Mr Edwards [counsel for the father] pre-emptively defended any
suggestion
that this court
should
exercise its parens patriae
jurisdiction
in the current case.
136. In the event, however, there has been neither a formal application nor any
submissions
on behalf of the mother asserting that the court
should
exercise its parens patriae
jurisdiction,
whether on welfare/protection grounds or for
reasons
deriving from forum necessitatis arguments.
137. Accordingly, I need not burden this judgment either with analysis of the modern
scope
of this ancient
jurisdiction
or with consideration of whether, in the absence of both a wrongful
retention
and of habitual
residence
at the
relevant
date, the court
should
consider making any
orders
by this route."
- Permission to appeal was granted against the judge'
s
decision on the application for
summary
return.
By
supplemental
application, the mother in addition
sought
permission to argue that the judge
should
have investigated whether it was appropriate to exercise the parens patriae
jurisdiction.
At the outset of the appeal hearing, this Court (Bean LJ, Baker LJ and Cobb J) heard brief
submissions
on whether they
should
permit this additional ground to be advanced. In his judgment, Cobb J (with whom the other members of the Court agreed) indicated that he would
refuse
permission to the mother to be allowed to
rely
on the additional ground, for three
reasons,
set
out at paragraphs 55 to 59 of his judgment:
"55. First, counsel for the mother had not presented her case before the judge at the hearing on the basis that the judge
should
exercise this parens patriae
jurisdiction;
the mother'
s
case had been explicitly presented on the basis that the English Court'
s
jurisdiction
was to be founded either on the basis of Article 8 BIIR or Article 10 B …
56. Consistent with the way in which the case was presented before the judge at first instance, the appellant'
s
case on this appeal was originally presented on the basis that the 'legal framework' was limited to a consideration of Article 8 and Article 10 of BIIR. It
seems
to me that the appellant is in very considerable difficulties in arguing that the judge was wrong not to accept
jurisdiction
on a basis which was not argued before her.
57.
Secondly,
and in any event, a parens patriae
jurisdiction
founded on the basis of nationality is a
relative
rarity."
Cobb J then cited dicta from the Justices of the
Supreme
Court in
Re
B,
supra,
(considered below). He continued:
"58. Thirdly, the court'
s
reliance
on, or deployment of, the
inherent
jurisdiction
is highly discretionary. It would in the circumstances be very difficult indeed for the appellant mother to persuade us that the judge was wrong not to exercise her discretion to invoke this
jurisdiction
in the absence of
some
error of principle or misunderstanding of the facts; this is particularly
so
(although I
realise
that this is
repeating
the first point above), as the case had not been argued before the judge at first instance in this way.
59. Even if we had decided that the mother
should
be allowed to
rely
on this further ground of appeal, then for the
reasons
outlined above, I would have had no hesitation in concluding that this ground would not have added materially to the merits of the appeal, or affect the ultimate outcome."
- With
regard
to the grounds for appeal for which permission had been granted, the appeal was dismissed, for the
reasons
set
out in Cobb J'
s
judgment at paragraphs 60 to 84. It is unnecessary to
recite
those
reasons
for the purposes of the current appeal.
- On 17 August 2020, the mother, who had changed
solicitors,
filed two applications, one in Form C66 (applicable for
starting
proceedings under the
inherent
jurisdiction)
and the other in Form C2 (applicable for
seeking
an
order
in current proceedings). In the former, in the box asking her to
set
out what
she
was applying for, her
solicitor
wrote:
"For the Court to continue to hear the case on the basis of an application to exercise its
inherent
jurisdiction,
but to do
so
in pursuance of parens patriae, on the basis of the
children's
nationality and because the
children's
situation
requires
their immediate protection by the High Court (apropos
Re
B (A Child) (Habitual
Residence:
Inherent
Jurisdiction)
[2016] UKSC 4)."
In the equivalent box in the latter application, her
solicitor
wrote:
"For the Court to
set
aside
the
order
of HHJ Hiller
sitting
as Judge of the High Court on 28th October 2019 (case number FD18P00811).
The Mother
relies
upon FPR 2010, Rule 12.52A and B (A Child) (Abduction: Article 13(b)) [2020]
EWCA
Civ
1057. The Mother asserts there has been a fundamental change of circumstances which undermines the basis on which the original
order
was made, as now incorporated in FPR 2010, PD12F, para 4.1A, and in addition facts not properly considered by the Court at first instance that were presumably not considered by mistake."
In the event, the court office declined to issue the first application as the previous wardship proceedings had not been dismissed. But the mother'
s
solicitor
made it clear in a
statement
that his client was
seeking
to make two applications (1) for an
order
setting
aside
the non-
return
order
and (2) for the court to continue to hear the case under the parens patriae
jurisdiction
on the basis of the
children's
nationality and because their
situation
required
their immediate protection.
- The application in C2 and
supporting
statement
were
served
on the father by email and the matter listed for a case management hearing before Mostyn J on 22
September.
At the hearing, the judge decided that the
set
aside
application
should
be determined first. He delivered an ex tempore judgment giving his
reasons
for this decision. That has not been transcribed but in his later judgment he explained that it
seemed
to him "illogical and conceptually challenging for the court to consider making a
return
order
while there
remained
on the file a valid, undischarged
order
refusing
that very
relief."
He added that he had expressed the view that the mother was "likely to face at trial an argument that
she
had been guilty of Henderson abuse,"
referring
to the principle, derived originally from Henderson v Henderson (1843) Hare 100, that a court has the power to
strike
out proceedings as an abuse of process in circumstances where the issues
sought
to be raised might have been dealt with in earlier proceedings. He listed the application to
set
aside
for a hearing before himself on 14 and 15 December 2020 and gave directions for the mother to file a
statement
setting
out, inter alia:
"(a) what
she
asserts to be the
relevant
change in circumstances
since
the family'
s
consensual
relocation
to Libya and is to
set
out those changed circumstances in
schedule
form identifying the factual evidence in
support
of
same;
(b) the current
state
of the justice and geo-political
systems
currently pertaining in Libya;
(c) an explanation as to why
she
did not
seek
to argue that there
should
be a full welfare enquiry and/or consideration of
orders
pursuant to the
inherent
(parens patriae)
jurisdiction
when the case was heard by HHJ Hillier in
September
and October 2019;
(d) why
she
asserts that the changed circumstances, as alleged by her,
should
lead to the court exercising its
inherent
(parens patriae)
jurisdiction."
The mother complied with that direction and the father filed a
statement
in
response.
- The mother exhibited to her
statement
a
report
from Dr Igor Cherstich, an anthropologist with wide-ranging knowledge of Libya.
She
had not
sought
permission under Part 25 of the Family Procedure Rules to file any expert evidence, but in the event the judge allowed her to
rely
on the
report.
Dr Cherstich'
s
opinion was
summarised
at the end of his
report,
and cited by the judge, as follows:
"(a) Libya is in
state
of war.
(b) There is widespread and unpredictable violence throughout the country, and if the
children
remain
in Libya they would,
solely
on account on their presence there, face a
real
risk of being
subject
to violence.
(c) If the
children
remain
in Libya, they will not be able to live a functional life, access healthcare or pursue an education.
(d) In the context of a potential litigation between the mother and the father, it is likely that the mother will not be able to access the Libyan justice
system.
(e) In the context of a potential litigation between the mother and the father, it is likely that any application brought by the mother or on her behalf in
relation
to the
children
will not be considered fairly.
(f) The three governments operating in Libya are unable to ensure that the
children's
human rights are
respected."
In his
statement
in
response,
the father asserted that Dr Cherstich'
s
report
described the general
situation
in Libya rather than the
specific
circumstances of the
children
which he portrayed as unremarkable and normal as demonstrated in photographs exhibited to his
statement,
that the
situation
had not deteriorated
since
2017 when the mother had been content for the
children
to live there, and that contrary to the mother'
s
assertion,
she
would be able to litigate fairly.
- In his
skeleton
argument on behalf of the mother for the hearing before the judge, Mr William Tyler QC
stated
that the mother was applying (a) for Judge Hillier'
s
order
to be
set
aside
and (b) "both dependent on that application and
separately,
for the court to hear her application pursuant to its
inherent
jurisdiction
(deriving from the parens patriae nationality-based
jurisdiction)
in
order
to ensure the
children's
safety
and welfare." He based his application to
set
aside
on two grounds (1) that there had been change of circumstances and (2) that the
children's
welfare
required
it. In addition, he argued, independently of the
set
aside
application, that the parens patriae
jurisdiction
should
be exercised because the
children
required
the court'
s
protection. On behalf of the father, Ms Cliona Papazian invited the court to dismiss the application to
set
aside
on both grounds advanced, asserting that there had not been a fundamental change of circumstances and that the
children's
welfare did not
require
that the
order
be
set
aside.
With
regard
to the further application under the parens patriae
jurisdiction,
she
contended that the high threshold for the exercise of the
jurisdiction
had not been
reached.
- The hearing duly took place in December 2020 as directed. Much of the argument centred around the topic of Henderson abuse. At the conclusion of the hearing, judgment was
reserved.
On 11 January
2021,
judgment was handed down dismissing the mother'
s
application dated 17 August 2020 and her earlier wardship application made on 30 November 2018, and
ordering
that the
children
should
cease to be wards of court.
The law
- The interesting history of the
inherent
parens patriae
jurisdiction
has been considered in a number of cases and learned works. It is unnecessary to
retrace
that history again in this judgment. The legal principles governing the exercise of the parens patriae
jurisdiction
to
order
the
return
of a child to this country has been considered by the
Supreme
Court in A v A and another (
Children:
Habitual
Residence)
(
Reunite
International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1 and again in
Re
B (A Child) [2016] UKSC 4, [2016] AC 606. This Court had considered the principles in the latter case
reported
as
Re
B (A Child) (Habitual
Residence)
(
Inherent
Jurisdiction)
[2015]
EWCA
Civ
886, [2016] AC 606 and has done
so
more
recently
in
Re
M (A Child) [2020]
EWCA
Civ
922, [2020] 3 WLR 1175. In the last-named case, at paragraphs 43 to 109, Moylan LJ carried out an extensive
review
of the
relevant
case law. As a
result,
no further lengthy exegesis is
required.
- The Family Law Act 1986
restricts
the making of
orders
giving care of, or contact with, a child to cases where the court has
jurisdiction
under Council
Regulation
2201/2003 or the Hague Convention 1996 or, if not, where the child is (a) habitually
resident
in England and Wales, or (b) present in England and Wales and either (i) is not habitually
resident
in any part of the United Kingdom or (ii) the court considers that the immediate exercise of its powers is necessary for his protection:
sections
1(1)(d), 2(3) and 3. In A v A, the
Supreme
Court held that the
restrictions
on the use of the parens patriae
jurisdiction
in the 1986 Act do not exclude its use
so
as to
order
the
return
of a British child to this country. Whilst endorsing the warning given by Thorpe LJ in Al Habtoor v Fotheringham [2001] 1 FLR 951 that there were
reasons
for "extreme circumspection" in exercising the
jurisdiction,
the
Supreme
Court observed (at paragraph 65) that "all must depend on the circumstances of the particular case". In
Re
B, the Justices of the
Supreme
Court made a number of further observations, all of which were obiter. In
Re
M, however, the use of the
inherent
jurisdiction
to
order
the
return
of a British national child was the issue arising on the appeal. It was in that context that Moylan LJ carried out his extensive
review
referred
to above. His conclusions are
set
out at paragraphs 104 to 108:
"104. I understand why, given the wide potential circumstances, concern was expressed in In
re
B 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.
105. In my view, following the obiter observations in In
re
B, 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.
106. 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 to "approach the use of the
jurisdiction
with great caution or circumspection", at [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 would not provide a
substantive
test and, in practice, would not
result
in great circumspection being exercised.
107. 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
s.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
in In
re
B, at [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.
108. 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….."
- In
Re
M, the judge at first instance had made an
order
under the
inherent
jurisdiction
for the
return
of a British national from Algeria, a non-Hague Convention country, where
she
was habitually
resident
so
that, as
recited
in the
order,
"an assessment can be made in a place of
safety
as to her best interests and living arrangements". This Court allowed an appeal from the
order
on
several
grounds, including that, as had been made clear by the
recital
and other provisions dealing with the child'
s
care, the court was embarking on a welfare inquiry which would include making
orders
about arrangements for her care, an
order
which conflicted with the 1986 Act. In Moylan LJ'
s
view (paragraph 137):
"this would be using the
inherent
jurisdiction
directly for the purpose of avoiding the effect of the 1986 Act and would, in the circumstances of this case, improperly have
subverted
Parliament'
s
intention …. I deliberately
say,
in the circumstances of this case, because I can
see
that there may well not be a bright line between an
order
which conflicts with the limitations imposed by the 1986 Act and one which does not. In my view, it would be doing
so
in this case because the judge'
s
order
was expressly for the purpose of enabling this court to decide who
should
care for A and whether here or in Algeria."
- The provisions now in the Family Procedure Rules and associated Practice Directions governing applications to
set
aside
orders
under the
inherent
jurisdiction
were introduced in April 2020 following the decision of this Court in
Re
W (Abduction:
Setting
Aside
Return
Order)
[2018]
EWCA
Civ
1904. In his judgment in that case, Moylan LJ, having analysed the previous case law, concluded (at paragraph 66):
"my provisional view is that the High Court has power under the
inherent
jurisdiction
to
review
and
set
aside
a ?nal
order
under the 1980 Hague Convention. This power can be exercised when there has been a fundamental change of circumstances which undermines the basis on which the original
order
was made."
For
reasons
explained in his judgment, by the time of the hearing of the appeal in that case, the issue had become academic,
so
his observations were obiter. At the end of the judgment, Moylan LJ
stated
that he would
refer
the matter to the Family Procedure Rules Committee. After a consultation process, the committee proposed amendments which went further than anticipated following the decision in
Re
W. Two new rules were introduced – one (FPR 12.42B) dealing with applications to
set
aside
orders
under the
inherent
jurisdiction
generally and the other (FPR 12.51A) dealing with applications to
set
aside
orders
for the
return
or non-
return
of a child under the Hague Convention. Under FPR 12.42B(2), a party may apply to
set
aside
an
inherent
jurisdiction
order
where no error of the court is alleged. These new rules were accompanied by amendments to two Practice Directions – PD12D, "
Inherent
Jurisdiction
(including Wardship) Proceedings", and PD12F, "International Child Abduction". Whereas the new rules were
separate,
however, there was
some
overlap between the two Practice Directions because PD12F dealt with applications for the
summary
return
of
children
not only under the Convention but also under the
inherent
jurisdiction.
In addition, the grounds on which a court could
set
aside
an
order
were extended to include a number of factors in addition to "fundamental change of circumstances", including (in cases under the
inherent
jurisdiction)
where "the welfare of the child
requires
it".
- The
relevant
provision in PD12D is paragraph 8.4:
"An application to
set
aside
an
inherent
jurisdiction
order
should
only be made where no error of the court is alleged (unless the circumstances
set
out in rule 18.11 apply). If an error of the court is alleged, an application for permission to appeal under Part 30
should
be considered. The grounds on which an
inherent
jurisdiction
order
may be
set
aside
are and will
remain
a matter for decisions by judges. The grounds may include: (i) fraud; (ii) material non-disclosure; (iii) certain limited types of mistake; (iv) a fundamental change in circumstances which undermines the basis on which the
order
was made; and (v) the welfare of the child
requires
it."
- The
relevant
provision in PD12F is paragraph 4.1A:
"If you are a party to a
return
case and you believe that the court has made an error, it is possible to apply for permission to appeal (
see
Part 30 of the Rules and Practice Direction 30A).
In rare circumstances, the court might also '
set
aside'
its own
order
where it has not made an error but where new information comes to light which fundamentally changes the basis on which the
order
was made. The threshold for the court to
set
aside
its decision is high, and evidence will be
required
– not just assertions or allegations.
If the
return
order
or non-
return
order
was made under the 1980 Hague Convention, the court might
set
aside
its decision where there has been fraud, material non-disclosure or mistake (which all essentially mean that there was information that the court needed to know in
order
to make its decision, but was not told), or where there has been a fundamental change in circumstances which undermines the basis on which the
order
was made. If you have evidence of
such
circumstances and wish to apply to the court to
set
aside
its decision, you
should
use the procedure in Part 18 of the Rules.
If the
return
order
or non-
return
order
was made under the
inherent
jurisdiction
(
see
Part 3 of this Practice Direction), the court might
set
aside
its decision for
similar
reasons
as with
return-non-return
orders
under the 1980 Hague Convention, but it also might
set
aside
its decision because the welfare of the child or
children
requires
it. If you have evidence of
such
circumstances and wish to apply to the court to
set
aside
its decision, you
should
use the procedure in Part 18 of the Rules. Any
such
application
should
be made promptly and the court will also aim to deal with the application as expeditiously as possible."
The fact that the child'
s
welfare is a ground for
setting
aside
a
return
or non-
return
order
under the
inherent
jurisdiction
but not under the Hague Convention
reflects
the fact that the former is a
jurisdiction
in which welfare is paramount whereas the latter is not.
- In
Re
B (A Child) (Abduction: Article 13(b)) [2020]
EWCA
Civ
1057, this Court (Moylan LJ, Peter Jackson LJ and Carr LJ) allowed an appeal against an
order
refusing
to
set
aside
a
return
order
under the Hague Convention. This was the first
such
appeal that had
reached
this Court after the implementation of the amended rules and Practice Directions. At paragraph 83, Moylan LJ noted:
"In
Re
W I proposed, what I described as, a "high" bar when the court is determining an application to
set
aside
an
order
under the 1980 Convention, namely (I
repeat)
"a fundamental change of circumstances which undermines the basis on which the original
order
was made". This approach has been adopted, as part of the changes to the FPR 2010, in PD12F paragraph 4.1A…. That this approach has been adopted by the Family Procedure Rules Committee, fortifies my view that this is the right test when the court is deciding whether to
set
aside
an
order."
In making that observation, Moylan LJ was
referring
to applications to
set
aside
orders
made under the Hague Convention, rather than the
inherent
jurisdiction,
under which, as mentioned above, the grounds on which an
order
can be
set
aside
include not merely a fundamental change of circumstances but also where the child'
s
welfare
requires
it.
- Moylan LJ
stressed
(at paragraph 82) that in his observations at paragraph 66 in
Re
W he had been only dealing with the
set
aside
application, not with the approach the court
should
take at any consequent
rehearing.
At paragraph 89, he
suggested
the following approach to dealing with an application to
set
aside
an
order
under the Convention:
"(a) the court will first decide whether to permit any
reconsideration;
(b) if it does, it will decide the extent of any further evidence;
(c) the court will next decide whether to
set
aside
the existing
order;
(d) if the
order
is
set
aside,
the court will
redetermine
the
substantive
application."
He continued:
"90. Having
regard
to the need for applications under the 1980 Convention to be determined expeditiously, it is clearly important that the fact that there are a number of distinct issues which the court must
resolve
does not unduly prolong the process. Indeed, it may be possible, when the developments or changes
relied
upon are clear and already evidenced, for all four
stages
to be addressed at one hearing. More typically, I would expect there to be a preliminary hearing when the court decides the issues under (a) and (b), followed by a hearing at which it determines the issues under (c) and (d). These will, inevitably, be case management decisions tailored to the circumstances of the
specific
case."
The judgment under appeal
- The judgment
started
with a
summary
of the background and the history of the proceedings. The judge
reiterated
his view,
reflected
in the case management
order
made previously, that the
set
aside
application
should
be the lead application.
Referring
to the judgment in this Court dismissing the appeal from Judge Hillier, and in particular to the observations made by Cobb J for
refusing
the mother permission to amend her grounds of appeal to
rely
on the parens patriae
jurisdiction,
Mostyn J
said,
(at paragraph 18):
"I do not think that Cobb J was
saying,
on the facts of the case before him, that the parens patriae
jurisdiction
could not be used to protect the
children.
Put another way, I do not think that I am impeded by the Court of Appeal decision from considering whether the
jurisdiction
should
be exercised."
He then continued with a
summary
of the evidence, including the
report
of Dr Cherstich and the father'
s
response.
- At paragraph 40, the judge embarked on his analysis of the law. He noted that the power to
set
aside
an
order
under the
inherent
jurisdiction
is contained in FPR 12.42B,
supplemented
by PD 12D paragraphs 8.1 to 8.6 and PD 12F paragraph 4.1. He noted under paragraph 8.4 of PD 12D that:
"The grounds on which an
inherent
jurisdiction
order
may be
set
aside
are and will
remain
a matter for decisions by judges. The grounds may include: (i) fraud; (ii) material non-disclosure; (iii) certain limited types of mistake; (iv) a fundamental change in circumstances which undermines the basis on which the
order
was made; and (v) the welfare of the child
requires
it."
Having cited further from the two Practice Directions, he observed (at paragraphs 41 to 42:
"41. Thus, the procedure prescribed by these Practice Directions is that the court may first consider whether the application is either unarguable or otherwise abusive and if
so
dispose of it then and there. If it
survives
this preliminary
sift
the court will give the necessary directions for evidence and
set
the case down for trial. At trial the court will determine the application and, if it is
successful,
will go on to determine anew the original application.
Such
a two-part process is routine for all kinds of applications. It happened in this case although it was not pressed on me at the directions hearing that the application to
set
aside
HHJ Hillier'
s
order
should
be
summarily
dismissed or
struck
out. This bifurcated process is also
suggested
in
some
obiter observations by Moylan LJ in
Re
B (A Child) (Abduction: Article 13(b)) [2020]
EWCA
Civ
1057 at [89 – [90].
42. As for the grounds for a
set-aside
it is my opinion, consistently with my decision in the financial
remedy
case of CB v EB [2020] EWFC 72, that there is no
scope
for expanding the list of potential grounds mentioned in PD 12D para 8.4. Moreover, the final ground namely "the welfare of the child
requires
it" cannot be interpreted literally to allow
repeated
further bites at the cherry on the mere assertion that a new welfare analysis militates in favour of a different
order.
In my opinion the welfare ground
should
be aligned with the change-of-circumstances ground. There must have been
such
a fundamental change in circumstances that the welfare analysis is completely undermined, and a fresh analysis of the child'
s
welfare demands a different disposition. Any other approach is to encourage duplicative litigation and to defeat finality, which is contrary to the public interest."
- At that point in the judgment (paragraphs 43 to 55), the judge embarked on an exegesis on the principle of Henderson abuse. He distinguished it from the
substantive
law doctrine of
res
judicata and cause of action estoppel and identified it as arising in two circumstances (1) where a party
seeks
to mount a collateral attack on a final decision of a court of competent
jurisdiction
and (2) if it can be
shown
that the claim now made
should
have been raised in the earlier proceedings. In the latter circumstances, he
stated
(at paragraph 52):
"there is imposed on a litigant a
requirement
to
show
that
she
could not with
reasonable
diligence have brought forward the
subject
matter, or key ingredients, of the
second
case first time round."
He cited in
support
his earlier decision in GM v KZ (No. 2) [2018] EWFC 6, [2018] 2 FLR 469, 2 paragraphs 10 to 12. He noted, however, that the due diligence principle is applied in
children
cases with a degree of flexibility, and cited in
support
dicta of Waite LJ in
Re
S
(Discharge of Care
Order)
[1995] 2 FLR 639. He continued:
"54. … In this case the mother did not raise parens patriae first time round, or at least not
soon
enough. The first case lasted for 17 months from November 2018 to April 2020. This case has lasted for 4 months
since
its initiation in August 2020. It is hard not to draw the conclusion that the father is being unjustly harassed. The mother'
s
explanation for the failure to advance her present argument is
simply
that
she
was not advised to raise it by her lawyers.
55. If this were a case about money I would
readily
conclude that the failure to advance the case first time round was not justified and that therefore the current case is an abuse which
should
be
stopped.
However this is not a case about money and my conclusion on the facts of this case is that the unjustified failure to advance this claim first time round
should
be brought into the equation as part of the overall discretionary exercise as to whether the
jurisdiction
should
be exercised, rather than as a preliminary
reason
to
stop
the case without further consideration of the wider question. I am not
saying
that this
should
be the rule in all
children's
cases; there may well be cases where Henderson abuse, if proved,
should
stop
the case preliminarily. However, on the facts of this case it would not be just, in my judgement, to
stop
the case now without consideration of the
scope
and purpose of the parens patriae
jurisdiction
and whether it
should
be exercised in this case …."
- The judge then considered the legal principles
relating
to the parens patriae
jurisdiction,
drawing in particular on a lecture given by
Sir
James Munby, previously President of the Family Division, to the Court of Protection Bar Association on 10 December 2020: "Whither the
inherent
jurisdiction?
How did we get here? Where are we now? Where are we going?" He quoted observations from the judgments in
Re
B (A Child) [2016] UKSC 4, [2016] AC 606 (all of which were, as he noted, obiter) and from the judgment of Moylan LJ in
Re
M
supra.
This led him to observe (at paragraph 67) that "lying behind these principles are two big questions". He continued:
"First, can this court'
s
order
actually protect these British
children?
This gives rise to the question of the enforceability in the other country of any
order
that this court might make."
Having cited a passage from paragraph 56 of the judgment of this Court in
Re
B (A Child) (Habitual
Residence)
(
Inherent
Jurisdiction)
[2015]
EWCA
Civ
886, [2016] AC 606, the judge observed:
"This passage
suggests
that a factor, maybe a critical factor, at large when deciding to make a protective
order
is the likelihood of
successful
enforcement of the
order
by the other country'
s
legal
system
in the event that the actor with the care of the
children
refused
to comply with it."
Having cited a passage from the judgment of
Sir
James Munby P in
Re
Jones (No 2) [2013] EWHC 2730 (Fam) at paragraph 15, he added:
"generally
speaking,
the court will not undertake an analysis of the
subjective
intentions of the
respondent
regarding
compliance. I am not
suggesting,
of course, that
such
an analysis is impermissible, or that conclusions
reached
are inadmissible. Rather, I am
suggesting
that if this course is taken it is a distinctly
secondary
exercise."
- This led the judge to consider what he described as the
second
big question:
"What can this court do when the
children
are living in a place where normal
civil
society
has broken down?"
He observed that, in the case of
Re
KR (Abduction: Forcible
Removal
by Parents) [1999] 2 FLR 542, in which
Singer
J had exercised the parens patriae
jurisdiction
to find and
rescue
a child abducted to India for the purposes of forced marriage, the judge had been able to draw on the assistance of the Indian authorities and the British High Commission. He observed that it was doubtful that the
order
would have been made if there was anarchy in the country because "it would have been a futile
order."
After a further quotation from
Sir
James'
s
lecture, he
stated
(at paragraph 74):
"It is my clear judgment that where the court is exercising this exorbitant extraterritorial
jurisdiction,
it has to make first and foremost an assessment of the likelihood of
reciprocal
enforcement of its
order
in an overseas court. The court will need to be
satisfied,
therefore, before it makes an
order
for protection – and
realistically
the
order
will be almost invariably be an
order
which facilitates
repatriation
– that in the event of non-compliance by the actor with the care of the
children
there is a
reasonable
prospect of the authorities of that country enforcing the
order."
- The judge then (at paragraph 75)
set
out his conclusion on the application before him:
"I approach my task with great caution and circumspection. My conclusion is that the mother does not
surmount
the
substantive
(which I take to mean "high") threshold for the making of a protective
order
in
respect
of these
children.
I cannot conclude that the circumstances are
sufficiently
compelling to
require
or make it necessary that the court
should
exercise its protective
jurisdiction.
I now give my
reasons."
- He considered first "whether a protective
order
for
repatriation,
if made, would be likely to be capable of enforcement in the Libyan courts at the
suit
of the mother." Having considered Dr Cherstich'
s
evidence, to the effect that the rule of law was "practically absent" in Libya, that women were discriminated against there and that it was likely any application brought by the mother about the
children
would not be treated fairly, he held (at paragraph 78):
"The evidence is clear. The mother would be unlikely to be able to enforce an
order
for
repatriation
in the courts of Libya, even assuming that they were functioning. Therefore, an
order
for
repatriation
which
seeks
the assistance of the Libyan authorities in its facilitation would be a brutum fulmen, or an exercise in futility."
Whilst not entirely dismissing the
suggestion
that he could make an
order
and
see
if the father complied on the grounds, the judge expressed doubt about
such
a course, adding that:
"an assessment of the likelihood of compliance by the father with an
order
for
repatriation
is not the ultimately determinative consideration in assessing whether the
order,
if extending to the Libyan authorities, would be futile."
- He then turned to the question of change of circumstances. On this point, he found (at paragraph 82):
"I am not
satisfied
that
since
the
order
of HHJ Hillier on 25 October 2019 there has been a fundamental change of circumstances undermining the basis on which her
order
was made, justifying its
setting
aside
or that the welfare of the
children
demands it. On the contrary, it
seems
to me, while the
situation
in Libya is concerning, that things have not got worse and that it could be
said
that things have
slightly
improved
since
that date."
- Having identified those "two primary
reasons"
for
refusing
the application, he added two further
reasons
(paragraph 84):
"(i) Although the mother has carefully framed her application in terms of protection, the
stark
reality
is, just as it was in
Re
B, that as
soon
as the
children
arrived here (if they ever did)
she
would apply for
residence
with, or contact to, them. This means that the
inherent
jurisdiction
is
sought
to be used to circumvent principled limitations which Parliament has placed upon the
jurisdiction
of the court. This would not be a proper exercise of the court'
s
power.
(ii) … the
inherent
jurisdiction,
while not being wholly excluded, has been confined to a
supporting,
residual
role…[T]he mother
seeks
the
jurisdiction
to be used as the primary, indeed
sole,
form of
relief.
Again, this would not be a proper exercise of the court'
s
powers."
- At paragraph 85, he added:
"An additional
reason
(on which my primary conclusion does not depend) is that the mother has been guilty of Henderson abuse.
She
could and
should
have raised her parens patriae arguments before HHJ Hillier. The failure of her previous lawyers to advise her to place this argument before HHJ Hillier does not justify the default. For the father to have been forced to endure, if not an identical claim, then one that is
strikingly
similar,
only four months after the conclusion of the first claim does amount, in my judgment, to unjust harassment."
- The judge then dismissed the mother'
s
application dated 17 August 2020 and her originating wardship application dated 30 November 2018. He concluded by urging the father to allow the mother to have "meaningful contact" with the
children.
Submissions
to this Court
- On behalf of the mother, Mr Tyler, leading Ms Emily James,
submitted,
first, that the judge wrongly interpreted and applied the rules in
relation
to the
setting
aside
of an
order
under the
inherent
jurisdiction
and in particular failed to consider whether the
children's
welfare
required
the non-
return
order
to be
set
aside.
The general grounds on which an
order
under the
inherent
jurisdiction
can be
set
aside
under PD 12D paragraph 8.4 and the
specific
grounds a non-
return
order
under the
inherent
jurisdiction
can be
set
aside
under PD 12F paragraph 4.1 are the
same
- fraud, material non-disclosure, certain types of mistake, a fundamental change in circumstances, and where the welfare of the child
requires
it. Mr Tyler
submitted
that the judge had been wrong in paragraph 42 of his judgment to align the welfare ground with the change-of-circumstances ground. There is no basis for
such
an interpretation within the Practice Direction. In both PD12D and PD12F, welfare is a
separate
ground for
setting
aside.
- Mr Tyler adds that, in the current case, the judge'
s
analysis is doubly wrong. How would it be possible for there to be "
such
a fundamental change in circumstances that the welfare analysis is completely undermined" when there has been no welfare analysis in the first place in either
set
of proceedings? The effect of the judge'
s
mistaken analysis of the law was to
remove
entirely from the judicial
reasoning
any consideration of whether the welfare of the
children
required
the
order
to be
set
aside
when that was a central plank of the mother'
s
case.
- Although the judge had declared at the case management hearing that the
set
aside
application
should
be determined first, the mother had also made a fresh application for a
return
order
under the parens patriae
jurisdiction.
In both applications, the mother asserted, with the
support
of expert evidence, that the
children
were in danger. The judge'
s
assessment of this issue was confined to his observation that he was not
satisfied
that there had been a fundamental change of the circumstances in which Judge Hillier'
s
order
had been made
so
as to justify
setting
it
aside,
or that the
children's
welfare demanded it. He added that, on the contrary, the
situation
in Libya had not got worse and if anything could be
said
to have
slightly
improved. Mr Tyler
submitted
that these brief observations came nowhere near meeting the
requirement
for an assessment of the
children's
welfare or their need for protection.
- Next, Mr Tyler
submitted
that in the exercise of his discretion whether to make an
order,
the judge gave undue weight to the likelihood that
such
an
order
would not be directly and
reciprocally
enforced in the other country. Mr Tyler focused his
submissions
on paragraph 74 of the judgment which he
submitted
contained a number of errors. In particular, it was wrong to
say
that the court "has to make first and foremost an assessment of the likelihood of
reciprocal
enforcement". Mr Tyler
submitted
that the primary assessment must
surely
be the
children's
welfare and need for protection, how best to promote their welfare and meet that need. In
support
of this
submission,
Mr Tyler cited the
so-called
radicalisation cases in which the courts have been willing to exercise the wardship
jurisdiction
based on nationality in
respect
of
children
who are outside the
jurisdiction
and living in parts of
Syria
which were at that
stage
under the control of the
self-proclaimed
Caliphate where there was no prospect of the wardship
orders
being enforced:
Re
M (Wardship:
Jurisdiction
and Powers) [2015] EWHC 1433, [2016] 1 FLR 1055. To that end, any number of
orders
might be made, and the assistance of any number of other persons or organisations might be enlisted by the court. That would involve an assessment of the likelihood of the person or persons against whom
orders
are being made complying with them and, in addition, any means of enforcing compliance. It is the latter point which involves an assessment of the likelihood of
reciprocal
enforcement alongside an assessment of other means of achieving compliance
such
as
sequestration,
arrest warrants and
so
on. An
order
which may be acted on by the person to whom it is directed cannot be described as "futile" even if it would not be directly enforceable in a foreign court. Mr Tyler pointed to the fact that the father is a British citizen and a practising lawyer. He has participated in and complied with two
sets
of proceedings in this
jurisdiction.
At no point has he indicated that he would not comply. In those circumstances an
order
made in these proceedings could not be described as futile
simply
because the Libyan courts may not be prevailed upon to enforce it.
- Having challenged the judge'
s
two primary
reasons
for dismissing the mother'
s
application, Mr Tyler turned to the
subsidiary
reasons
in paragraphs 84 and 85 of the judgment. He acknowledged the concern that an
order
for the
return
of the
children
would have the effect, on compliance, of
re-creating
a
substantive
Children
Act
jurisdiction
based on presence under
s.3
of the Family Law Act 1986 and could therefore be
seen
as "cutting across the
statutory
scheme"
and that Moylan LJ in
Re
M had identified this as an additional
reason
for limiting the exercise of the
jurisdiction
to compelling circumstances. Mr Tyler
submitted
that, whilst this was a factor
supporting
the constraining of the exercise of the
jurisdiction
to cases demonstrating compelling circumstances, it was not a
reason
for
refusing
to exercise the
jurisdiction.
What is
required
in any case is an analysis of whether the circumstances are
sufficiently
compelling.
Secondly,
the fact that Moylan LJ in
Re
M endorsed the proposition that the
inherent
jurisdiction
has been confined by the
statutory
limitations to a
supporting
role does not mean that it cannot be exercised in circumstances where it would be the primary or
sole
form of
relief.
Finally, although the judge had
stated
that his primary conclusion did not depend on his finding that the mother had been guilty of Henderson abuse, Mr Tyler
submitted
that the doctrine had no place in
children's
proceedings. He informed us that he and Ms James had been unable to find any case under the
Children
Act involving welfare or in wardship in which it has even been argued, let alone judicially determined, that
so-called
"Henderson" abuse can act to defeat a claim, whether in whole or as part of a discretionary process. Accordingly, the judge had been wrong to characterise the mother'
s
conduct as amounting to
such
abuse or unjust harassment of the father and wrong to take this into account when deciding to dismiss the mother'
s
applications.
- In
reply,
Mr Henry
Setright
QC, leading Ms Papazian who had appeared below,
submitted
that the judge had identified the applicable law and correctly found on the material before him that there was no basis for a
set
aside
of the non-
return
order
and that the mother had not established grounds for the exercise of the parens patriae
jurisdiction.
He
submitted
that that the correct test on
set
aside
is encapsulated by PD12D rather than PD12F. While the list in paragraph 8.4 of PD12D is non-exhaustive and intended to be illustrative, it does
require
an applicant to establish one of the "qualifying grounds" to establish the gateway to the exercise of the discretion to
set
aside.
Contrary to the mother'
s
contention before this Court, it does not
support
a
stand-alone
welfare enquiry. Indeed, that was not how the mother had framed her case in the court below. Instead,
she
had contended that there had been a fundamental change of circumstances. This was apparent from the case management directions made at the hearing in
September
2020 under which
she
was
required
to identify by a
schedule
the basis on which
she
asserted a "fundamental change of circumstance". It was her case that the
situation
in Libya had
so
deteriorated
since
2017 that that amounted to both a fundamental change in circumstance and established the need for protection. When it was pointed out in the course of the hearing before us that no welfare findings had been made by Judge Hillier, Mr
Setright
responded
that, although her decision had been based on habitual
residence,
she
had considered the evidence as to the
children's
circumstances and made
some
findings about them in the course of her judgment.
- In the alternative, Mr
Setright
submits
that, even if the judge'
s
determination on
set
aside
was flawed, his determination as to whether the mother had established the basis of the exercise of the nationality-based
jurisdiction
was entirely correct and consistent with the decisions of the
Supreme
Court in In
re
B and of this Court in
Re
M which
stipulated
a
substantial
threshold to found the exercise of the
jurisdiction.
Mr
Setright
described the judge'
s
succinct
appraisal of the evidence and conclusion as unimpeachable. He rightly was not
satisfied
on the facts that the mother had established a case for protection, given what appeared to be an improvement in the
situation
in Libya compared to 2017 at a date when, as found in the earlier proceedings, the mother had agreed to the family'
s
relocation.
Unsurprisingly, Dr Cherstich'
s
report
did not intersect with the father'
s
assertions on the particular circumstances of the
children
whose actual experiences of life as members of a well provided for middle class family were very different from the general picture of life in Libya portrayed in the
report.
Mr
Setright
relied
on the proposition, which he described as "unremarkable", that, whilst
some
children
may be at risk in a country divided by
civil
war, others may be
safe
and well provided for. The mother had not
sought
to put any further information as to the
children's
circumstances before the court. While
she
now complained of a failure to carry out a welfare analysis, that was not how her case was put before the judge. Given the focus of her application, and the evidence put before him, the judge was entitled to conclude that the
relatively
high hurdle for the gateway criteria for the exercise of the parens patriae
jurisdiction
was not
surmounted.
- Mr
Setright
submitted
that,
reading
the judgment as a whole, it is clear that the question of enforceability was ultimately not central to the judge'
s
decision which was based on the mother'
s
failure to establish a need for protection. Mr
Setright
added, however, that the court does not act in vain or make
orders
that are empty or incapable of enforcement. It was
inherent
in the mother'
s
case that there are no means of enforcing a
substantive
English
order
in Libya. Furthermore, the father has no
reason
to
return
to this country and has no assets, family or connections in this
jurisdiction
which might provide an opportunity for enforcement. Ultimately, however, the fact that the judge considered that any
order
would be futile is irrelevant, given his principal finding that the mother had failed to establish her case.
- Mr
Setright
described the judge'
s
characterisation of the mother'
s
litigation conduct as Henderson abuse as a good example of judicial vigilance against
repeat
applications. He
relied,
however, on the judge'
s
own comment that his conclusion that the mother'
s
litigation conduct amounted to Henderson abuse was not one on which his primary conclusion depended.
Discussion and conclusions
- I deal first with the question of Henderson abuse. I acknowledge that judges must
remain
vigilant, in Mr
Setright's
words, to ensure that the processes and
resources
of the court are not abused. In my judgment, however, to import Henderson abuse into
children's
proceedings is neither necessary nor appropriate, for
several
reasons.
- First,
children's
proceedings are, for the most part, quasi-inquisitorial rather than adversarial, and largely concern decisions
relating
to the welfare of
children.
Where a child'
s
welfare is in issue, a
second
application to the court will rarely be capable of being
simply
dismissed as a "collateral attack" on the first decision.
Similarly,
the fact that the claim as presented on the
second
occasion could have been raised the first time round does not by itself absolve the court from considering it when the welfare of a child is in issue.
Secondly,
the family court has plenty of weapons at its disposal to prevent unnecessary and inappropriate applications getting off the ground without having to add Henderson abuse to its armoury. The active case management powers in rule 1.4 of the Family Procedure Rules by which the court furthers the overriding objective in rule 1.1 include the power to decide promptly which issues need full investigation and hearing and which do not. Under rule 4.3, the court has the power to make
orders
of its own initiative. This Court has held that, in an appropriate case, a judge may
summarily
dismiss an application under the
Children
Act as lacking enough merit to justify pursuing the matter:
Re
C (Family Proceedings: Case Management) [2012]
EWCA
Civ
1489, [2013] 1 FLR 1089. If on considering an application the judge comes to the view that the applicant is doing nothing more than
relying
on evidence and
repeat
arguments that have already been considered, he or
she
will no doubt deal with the application
summarily.
Furthermore, under
s.91(14)
of the
Children
Act, on disposing of any application under the Act,
" the court may (whether or not it makes any other
order
in
response
to the application)
order
that no application for an
order
under this Act of any
specified
kind may be made with
respect
to the child concerned by any person named in the
order
without leave of the court."
- Thirdly, whilst it is true that, under FPR r.4.4(1)(b), the court has the power to
strike
out a
statement
of case if it appears to be an abuse of the court'
s
process, the rules expressly provide that this power does not extend to
children's
proceedings under Parts 12 to 14 of the FPR. It is to my mind
significant
that the rules expressly exclude the power to
strike
out proceedings on the ground of abuse of process in cases involving
children.
- Finally, at a more mundane level, an endorsement of the power to
strike
out a claim on grounds of Henderson abuse in
children's
cases would be to open the door to a raft of
satellite
litigation in which the
resources
of the parties and the court would be unnecessarily expended on arguments as to whether the case fell within the
scope
of the power. This is illustrated by the present case in which the discussion of Henderson abuse
seems
to have taken up a considerable amount of time in the hearing and in the judgment. There is a danger that
such
discussion may distract the court from the
real
issues in the case.
- Of greater
significance
to the outcome of the present appeal, however, is the judge'
s
interpretation of the
substantive
applications before him. In my judgment, and with
respect
to the judge, he misinterpreted the rules
relating
to the
setting
aside
of
orders
under the
inherent
jurisdiction.
In addition, he failed to deal adequately with the mother'
s
additional application, advanced independently of the
set
aside
application, asking the court to exercise its parens patriae
jurisdiction.
- Both PD12D and PD12F identify five
separate
grounds for
setting
aside
orders
under the
inherent
jurisdiction.
Each list expressly includes amongst the grounds for
setting
aside
that "the welfare of the child
requires
it". In the case of PD12F, this is an important distinction between
return
and non-
return
orders
under the
inherent
jurisdiction
and
such
orders
made under the Hague Convention. There is no basis in the rules for the judge'
s
approach of aligning the welfare ground with the change-of-circumstances ground. No doubt in
some
cases the arguments advanced about the
children's
welfare will amount to a change of circumstances
since
the original
order.
But to insist on an alignment between the two grounds and that there must be "
such
a fundamental change in the circumstances that the welfare analysis is completely undermined" is, in my view, a misinterpretation of the Practice Directions.
- Furthermore, in the present case, no welfare analysis was undertaken by the court in the earlier proceedings because Judge Hillier concluded that the
children
were habitually
resident
in Libya and as a
result
the court had no
jurisdiction
to undertake
such
analysis. Mostyn J'
s
brief observations in paragraph 82 in which he concluded that there had not been "a fundamental change of circumstances undermining the basis on which her
order
was made" were, with
respect
to the judge, a misreading of the case. The decision not to
order
the
return
of the
children
was made on the basis of their habitual
residence
in Libya, not on any assessment of welfare. The incidental findings made by Judge Hillier in the course of her judgment do not, in my view, amount to a welfare analysis.
- The consequence of the judge'
s
misinterpretation as to the effect of the FPR and of his apparently mistakenly considering that the previous
order
was based on a welfare analysis is, as Mr Tyler
submitted,
that one of the judge'
s
primary
reasons
for dismissing the mother'
s
applications,
set
out in paragraph 82, is unsustainable. In the circumstances of this case, the application to
set
aside
was not confined, as the judge considered, to a fundamental change of circumstances. Nor, to
repeat,
had there been any prior
substantive
welfare analysis. I deal further below with whether it was necessary at all to
set
the previous
order
aside.
- In addition, I would
respectfully
disagree with the judge'
s
observation that "where the court is exercising this exorbitant extraterritorial
jurisdiction,
it has to make first and foremost an assessment of the likelihood of
reciprocal
enforcement of its
order
in an overseas court". As a preliminary point, I observe that the pejorative word "exorbitant" (used originally, I believe, by Thorpe LJ in Al Habtoor v Fotheringham,
supra,
and then by Lord
Sumption
in his dissenting judgment in In
re
B) does not
represent
the prevailing view about the
jurisdiction
held by the
Supreme
Court and this Court. More
substantially,
as the
so-called
radicalisation cases make clear, the "first and foremost" assessment which the court
required
to carry out is not the enforceability of its
order
but the welfare of the
children.
It is only after deciding what
orders
are
required
to
secure
the
children's
welfare that the court
should
turn to consider enforceability, and when it does consider that matter it will look first at the likelihood of the person against whom the
order
is made complying with the
order
and then the means of enforcing compliance if he does not. There may be various means of
securing
compliance without
resorting
to
reciprocal
enforcement in the courts of the other country. In the present case, as Mr Tyler observed, there are
several
reasons
why the father may be inclined to comply with an
order
even though it may not be enforceable in Libya. For those
reasons,
to describe this exercise as futile is, to my mind, not correct.
- It follows that I disagree with the judge'
s
two primary
reasons
for dismissing the mother'
s
application. As for the further
reasons
identified in paragraph 84 of the judgment, whilst it is right that the court must guard against the
inherent
jurisdiction
being improperly used to circumvent
statutory
limitations on the court'
s
jurisdiction
to make
orders
relating
to the care of and contact with
children,
and that as a
result
the
jurisdiction
must be limited to compelling circumstances, this does not obviate the need for an assessment of the circumstances to establish whether, as the mother contends in this case, they are
sufficiently
compelling to
require
the court to exercise its protective
jurisdiction.
Secondly,
it does not follow from the proposition that the
inherent
jurisdiction
has been confined by the
statutory
limitations to a
supporting
role that it cannot be exercised in circumstances where it would be the primary or
sole
form of
relief.
I understand Moylan LJ'
s
observation in
Re
M that its role is
supporting
and
residual
to be a general
reflection
on its
scope,
not a
specific
requirement
that it can only be invoked to
support
another cause of action. Finally, as already
stated,
the doctrine of Henderson abuse has no place in
children's
proceedings. Insofar as the judge attached any weight to his finding that the mother'
s
conduct could be
so
characterised, he was wrong to do
so.
The mother'
s
conduct of the litigation is of course a matter which may be
relevant
to a decision whether to exercise the
jurisdiction,
but for my part I would not describe her decision to apply to
set
aside
the non-
return
order
by
relying
on a
jurisdictional
basis that had not been considered in the earlier proceedings as harassment of the father, particularly in the light of her concerns about the
children
who
she
has not
seen
for over three years and whose welfare is, as I have noted above, the first and foremost consideration.
- For those
reasons,
I conclude that the judge'
s
approach to the
set
aside
application was flawed and that the mother'
s
appeal against his decision to dismiss the application dated 17 August 2020 must be allowed.
- In addition, I conclude that the judge failed to give
sufficient
consideration to the mother'
s
independent application to exercise the parens patriae
jurisdiction.
At paragraph 75 of the judgment, he expressed his conclusion in terms which would
suggest
that he had considered and was dismissing that application. But in the following paragraphs, his
reasoning
all
relates
to his analysis of the application to
set
aside
the earlier
order,
and his conclusions that an
order
would be futile and that there was no fundamental change of circumstances. The mother'
s
argument that the
children's
welfare
required
exercise of the parens patriae
jurisdiction
was never independently considered. For that
reason,
I would also allow the appeal against the judge'
s
dismissal of the 2018 originating application.
- How
should
this matter now proceed? I propose that the case be
remitted
to another judge of the Family Division to determine. In my view, what needs to be determined is not the application to
set
aside
the earlier
order
but, rather, the mother'
s
independent application under the parens patriae
jurisdiction.
It does not appear to me to be necessary at all for the previous
order
to be
set
aside.
The
real
question in this case is whether the court
should
make an
order
for the
return
of the
children
under the parens patriae
jurisdiction.
The issue for the court will be whether the circumstances are
sufficiently
compelling to
require
or make it necessary that the court
should
exercise its protective
jurisdiction.
That is a matter which can be determined without any
reference
to the question whether the earlier
order
should
be
set
aside.
It would, of course, be preferable, if possible, for this Court to determine whether the protective
jurisdiction
should
be exercised, but for my part I do not think we are in a position to do
so.
It
requires
careful analysis by a judge at first instance applying the legal principles and approach
summarised
by Moylan LJ in
Re
M.
LORD JUSTICE
STUART-SMITH
- I agree.
LORD JUSTICE MOYLAN
- I also agree.