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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> H (Jurisdiction), Re  EWHC 1252 (Fam) (26 May 2016)
Cite as:  EWHC 1252 (Fam),  WLR(D) 303,  4 WLR 102
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B e f o r e :
Sitting at the Royal Courts of Justice
JUDGMENT: Re H (Jurisdiction)
Paul Hepher (instructed by Jones Myers) for the Respondent
Hearing dates: 25 May 2016
Judgment date: 26 May 2016
Crown Copyright ©
Mr Justice Peter Jackson:
(1) The court should be extremely circumspect in exercising powers on the basis of nationality alone, but all must depend upon the circumstances of the particular case: Re A, Baroness Hale at .
(2) The need for caution has three main reasons: avoiding a conflict of jurisdictions; avoiding a conflict of decisions; and avoiding the making of unenforceable orders: Re B, Baroness Hale and Lord Toulson at .
(3) However, the exercise of the inherent jurisdiction is not confined to extreme cases: Re B, Baroness Hale and Lord Toulson at .
(4) The question is whether the child requires protection: Re B, Baroness Hale and Lord Toulson at , Lord Wilson at .
(1) The court should not make even the limited orders sought by the mother because she is seeking to use the jurisdiction for custodial rather than protective purposes. It is inevitable that she will seek to enforce any order that is not obeyed and that she will go on to seek broader orders.
(2) To make any orders would offend the principle of comity. The investigation of Z's situation is in the hands of the Afghan authorities and the court should not cut across those or seek to take over.
(3) The mother is at liberty to take proceedings in Afghanistan and the court should not judge the effectiveness of that remedy to be inadequate: Black LJ in Re B .
(4) The circumstances here are not of the extreme kind envisaged for the exercise of the jurisdiction: Black LJ in Re B . There is no evidence of Z being at risk of serious harm.
(5) There is no precedent for the exercise of the court's powers in circumstances of the kind found in this case.
(1) There is no requirement that the circumstances must be extreme. In Re A itself, the justification for exercising jurisdiction was no more than that the child's three siblings were habitually resident in England and Wales while he was not.
(2) The mother is presently only seeking an order that the father should provide information. But even if she were seeking an order that Z should be brought to England that would not be a custodial order: Re A, Baroness Hale at .
(3) There is no evidence, other than the father's word, of any police involvement in Afghanistan (at least not since 2011) and neither parent has taken any form of legal proceeding there. In November 2015, the head of the CID in Kabul informed this court that the father's account of there having been a kidnap investigation was incorrect and that the documents that the father had provided to this court were not genuine. (In fairness to the father, Newton J did not make any express finding about this.)
(4) The English court is the appropriate forum, given that both parents are habitually resident here and have the benefit of publicly funded lawyers.
(5) All international instruments are founded upon the best interests of the child. It is in Z's best interests that his circumstances should be known.
(1) The order is necessary for Z's welfare and protection. He is a British citizen whose whereabouts and circumstances are unknown to the court and to his mother. Until that information is available, a high level of concern must exist about his welfare, if only because he has been separated from his mother against her will for almost the whole of his life. The fact that there is no actual evidence of serious harm gives no reassurance as it is no more than the result of there being no evidence at all. Even if it was a requirement that the jurisdiction can only be exercised in extreme circumstances (and in my view there is no such requirement), these circumstances are extreme.
(2) The court must approach matters in stages. I do not accept that by making any order the court must make every order that the mother seeks. The matter must be assessed as it develops. The considerations that might apply to an application for an order that Z should be brought to this country may be entirely different to those that apply to the present application.
(3) There is no lack of comity or potential for conflict in making such an order because, at least since 2011, there has been no police or legal activity in Afghanistan at all, and nor is any likely.
(4) The mother is in no position to seek remedies in Afghanistan without knowing Z's whereabouts, particularly as he may no longer be in that country.
(5) The solution to this deeply troubling situation lies in this country because it is here that the father resides. It is only by this court exercising its powers that a remedy is likely to be available.
(6) The fact that there is no precedent for an order of this kind is a reflection of the highly unusual facts. It cannot be a reason for inaction.