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England and Wales High Court (Family Division) Decisions
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Cite as:  EWHC 451 (Fam)
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This 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.
Neutral Citation Number:  EWHC 451 (Fam)
Case No: FD19P00339 & FD19F05033
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
(SITTING AS A DEPUTY HIGH COURT JUDGE)
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In the matter of:
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Ruth Kirby (instructed by Dawson Cornwell Solicitors) for the mother
Cliona Papazian (instructed by Freemans Solicitors) for the father
Hearing dates: 30 and 31 January, 17 and 27 February 2020
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i. The court’s Inherent Jurisdiction and parens patriae,
ii. FMPO, and
Inherent Jurisdiction and parens patriae
“the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self-imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages.”
'The parents owe the child a duty to give or to withhold consent in the best interests of the child and without regard to their own interests.
The Court, when exercising the parens patriae jurisdiction, takes over the rights and duties of the parents, although this is not to say that the parents would be excluded from the decision making process. Nevertheless, in the end, responsibility for the decision, whether to give or withhold consent, is that of the Court alone”.
“32. This is not the occasion, and there is no need for me, to explore the range of circumstances in which it may be appropriate to make a child who is outside the jurisdiction a ward of court. I merely observe that cases such as this demonstrate the continuing need for a remedy which, despite its antiquity, has shown, is showing and must continue to show a remarkable adaptability to meet the ever emerging needs of an ever changing world. I add that the use of the jurisdiction in cases where the risk to a child is of harm of the type that would engage Articles 2 or 3 of the Convention - risk to life or risk of degrading or inhuman treatment - is surely unproblematic. So wardship is surely an appropriate remedy, even if the child has already left the jurisdiction, in cases where the fear is that a child has been taken abroad for the purposes of a forced marriage (as in Re KR and Re B) or so that she can be subjected to female genital mutilation or (as here) where the fear is that a child has been taken abroad to travel to a dangerous war-zone. There is no need for me to go any further, so I need not consider whether there are other kinds of situation where a child who is already abroad should be made a ward of court or whether wardship is an appropriate remedy where the risk to the child is of harm falling short of harm of the type that would engage Articles 2 or 3 of the Convention.
33. In the Tower Hamlets case, Hayden J recognised (para 11) that the relief he was being asked to grant arose in circumstances without recent precedent, but rightly saw that as no obstacle. He said (paras 57-58), and I entirely agree:
“57 The family court system, particularly the Family Division, is, and always has been, in my view, in the vanguard of change in life and society. Where there are changes in medicine or in technology or cultural change, so often they resonate first within the family. Here, the type of harm I have been asked to evaluate is a different facet of vulnerability for children than that which the courts have had to deal with in the past.
58 What, however, is clear is that the conventional safeguarding principles will still afford the best protection.”
34. For these reasons, I concluded, therefore, that I had jurisdiction to make the children wards of court, because they are British subjects, notwithstanding the fact that they were at the time out of the jurisdiction.
35. Having jurisdiction, it was plain that I must exercise it, for the children's future welfare demanded imperatively that I do so. And in exercising the jurisdiction, I sought to apply the well known words of Lord Eldon LC in Wellesley v Duke of Beaufort (1827) 2 Russ 1 , at 18:
“it has always been the principle of this court, not to risk the incurring of damage to children which it cannot repair, but rather to prevent the damage being done.”
These words are as apposite today as they were over 180 years ago: see M v B, A and S (By the Official Solicitor)  EWHC 1681 (Fam),  1 FLR 117 , para 108, and Re SA (Vulnerable Adult with Capacity: Marriage)  EWHC 2942 (Fam),  1 FLR 867 , para 103.”
“ Lord Wilson 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. 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.
 The basis of the jurisdiction, as was pointed out by Pearson LJ in In re P (GE) (An Infant)  Ch 568, at 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 re N (Abduction: Appeal)  EWCA Civ 1086;  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).
 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.”
 If a child has a habitual residence, questions of jurisdiction are governed by the framework of international and domestic law described by Lord Wilson in paras 27 to 29. Conversely, Lord Wilson 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 Mercredi. 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'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.”
This was further supported by Lord Wilson at paragraph 53 where he stated:
“… I do, however, agree with Lady Hale and Lord Toulson when, in para 60 below, they reject the suggestion that the nationality-based jurisdiction falls for exercise only in cases “at the extreme end of the spectrum”. I consider that, by asking, analogously, whether the circumstances were sufficiently “dire and exceptional” to justify exercise of the jurisdiction, Hogg J may have distracted herself from addressing the three main reasons for the court's usual inhibition about exercising it. In para 59 below Lady Hale and Lord Toulson identify those reasons and I agree that arguably none of them carries much force in the present case. To my mind the most problematic question arises out of the likelihood that, once B was present again in England pursuant to an order for her return, the appellant would have issued an application for orders relating to care of her or contact with her. The question would be whether in such circumstances an order for her return would improperly have subverted Parliament's intention in enacting the prohibitions comprised in ss 1(1)(d), 2(3) and 3(1) of the 1986 Act. Or, in such circumstances, should the interests of the child prevail and indeed would Parliament have so intended?”
“35.The jurisdiction of the High Court with respect to children derives from the Royal Prerogative, as parens patriae, to take care of those who are not able to take care of themselves (see Re L (An Infant)  1 All ER 20 at 24G). As I noted in HB v A Local Authority and Anor (Wardship: Costs Funding Order)  EWHC 524 (Fam), its origins lie in the feudal period when, as an incidence of tenure, upon a tenant's death, the lord became guardian of the surviving infant heir's land and body (see Lowe, N. and White, R. Wards of Court 1986, 2nd edn). The inherent jurisdiction with respect to children is exercised by reference to the child's best interests, which are the court's paramount concern. Whilst under its inherent jurisdiction, the court may make any order or determine any issue in respect of a child and whilst, therefore, the jurisdiction of the court under the inherent jurisdiction is theoretically unlimited, there are, in fact, far-reaching limitations on the exercise of the jurisdiction (see Re X (A Minor)(Wardship: Restriction on Publication)  All ER 697 at 706G). The boundaries of the inherent jurisdiction, whilst malleable and moveable in response to changing societal values, are not unconstrained.
36. Prior to the implementation of the Children Act 1989, the most frequent example of the exercise by the High Court of its inherent jurisdiction over children was in wardship. However, wardship is only one manifestation of the inherent jurisdiction with respect to children. Subject to the distinguishing characteristics of wardship being that custody of the child is vested in the court and that, although day to day control is vested in the individual or local authority, no important step can be taken in the child's life without the court's consent, the jurisdiction in wardship and the inherent jurisdiction of the High Court are the same (see Re Z (a minor)(freedom of publication)  Fam 1). In the circumstances, the inherent jurisdiction in respect of children can be invoked without the use of wardship (see Re W (A Minor)(Medical Treatment: Court's Jurisdiction)  Fam 64). This is sometimes known, for convenience, as the 'residual' inherent jurisdiction of the High Court.”
12. A useful summary of the jurisprudence is provided by a decision of MacDonald J in Surrey County Council v NR and RT (Wardship: Without Notice Return Order)  EWHC 153 (Fam). Paragraphs 26-33 deal with the exercise of the inherent jurisdiction based on nationality. I summarise the salient points as follows:
a) The Supreme Court has affirmed that the inherent jurisdiction can be exercised with respect to a child who is a British national wherever s/he may be located (A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening)  UKSC 60 at paragraph );
b) In Re B (A Child)  UKSC 4 the Supreme Court made a number of observations as to the circumstances in which the inherent jurisdiction based on nationality could be exercised. The use of the jurisdiction did not require the circumstances in an individual case always to be " dire and exceptional " or " at the very extreme end of the spectrum " [paragraph 59];
c) Re B set out 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 [paragraph 59];
d) The real question which the court needed to ask itself was whether the circumstances were such that the British child concerned required the protection afforded by the inherent jurisdiction [ Re B, paragraph 60];
e) There is a strong reason to approach the exercise of a nationality based jurisdiction with great caution because this may run counter to international legal frameworks to which this country has subscribed [ Re B, paragraph 61];
f) The test for exercising the jurisdiction does not appear to be conclusively settled [ Surrey County Council v NR and RT, paragraph 33];
g) A court may, albeit with great caution and circumspection exercise its inherent jurisdiction in respect of a British child who is outside the jurisdiction based on the nationality of that child where the court is satisfied on the evidence before it that the child concerned requires the court's protection [ Surrey County Council v NR and RT, paragraph 33].
13. Sir James Munby, P (as he then was) declared in Re M (Wardship)  EWHC 1433 (Fam) that the Crown's duty in relation to children extended, in the case of a child who was a British subject, to protect the child wherever he may be, whether in this country or abroad [paragraph 30]. In that case he invoked the inherent jurisdiction to make orders with respect to children who had purportedly been taken by their parents to Syria in circumstances where it was feared their lives were at risk. He commented:
" …I add that the use of the jurisdiction in cases where the risk to a child is of harm of the type that would engage Arts 2 or 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (European Convention) - risk to life or risk of degrading or other inhuman treatment - is surely unproblematic. So wardship is surely an appropriate remedy, even if the child has already left the jurisdiction, in cases where the fear is that a child has been taken abroad for the purposes of forced marriage (as in Re KR and Re B ) or so that she can be subject to female genital mutilation or (as here) where the fear is that a child has been taken abroad to travel to a dangerous war zone…."
His observations clearly survive the decision of the Supreme Court in Re B (see above) which concerned itself with a child who was not at risk of the harms identified by Sir James Munby in Re M”.
She continued in the same judgment by stating that;
“19. If this court does not exercise the inherent jurisdiction to make M and K wards of court, this may prove to be an impediment to their protection from forced marriage and female genital mutilation. The Forced Marriage Protection Unit has stated that orders making each girl a ward of court would assist it in demonstrating to any relevant foreign authority that, notwithstanding any objection by the mother, the court had sanctioned the protection of the girls from their mother's actions and that such orders would facilitate the return of the girls to this jurisdiction. I note that it is beyond argument that, if M and K remain in Somaliland, there is a very high risk that each will be forced into marriage and that each may also become a victim of female genital mutilation. The latter harm is a harm which engages Art. 3 of the European Convention, namely the right to protection from torture or inhuman or degrading treatment. The very high risk of these harms in this case have persuaded me that I should exercise the nationality based inherent jurisdiction notwithstanding that it is eleven years since M lived in this jurisdiction and that K has never lived here.
20.I am thus satisfied that both M and K require the protection of the court and that the appropriate means of protecting them is to make them wards of court alongside making forced marriage and female genital mutilation protection orders. I consider it almost inevitable that their welfare will require their return to this jurisdiction where the local authority can put in place arrangements for their care and protection.
21.I am also satisfied that the exercise by the court of its inherent jurisdiction based on the girls' nationality does not risk creating a conflict of jurisdiction since Somaliland or Somalia itself are not signatories to any applicable treaty alongside/with the United Kingdom. Furthermore, it is unlikely that the courts in Somaliland or Somalia would entertain an application by a local authority for protective orders in respect of M and K which required their removal from both their mother's care and from that territory. Finally, it is possible that there are steps which an English court may be able to take which might persuade the mother to obey the court's orders. In that regard, I note that the mother still claims child benefit for both M and K. The Forced Marriage Unit has raised the possibility that, as leverage to persuade the mother to comply with this court's orders, the payment of this benefit might in due course be suspended.”
i. The court’s Inherent Jurisdiction is versatile but not without limits.
ii. The court’s Inherent Jurisdiction may be exercised in respect of a child who is a British national and lives in another jurisdiction.
iii. The court’s jurisdiction in wardship and under its Inherent Jurisdiction are the same.
iv. The court’s Inherent Jurisdiction may be invoked without wardship such as in cases of medical treatment.
v. When exercising its parens patriae jurisdiction, the court assumes the rights and duties of the parents. Whilst this does not extinguish the parents’ parental responsibilities - who will be consulted about matters relating to parental responsibility - the ultimate welfare decisions rest with the court.
vi. The subject child’s welfare is the court’s paramount consideration.
vii. The “real question” that the court must address is whether, based on the evidence before the court, the British child concerned who is abroad requires the protection of the court.
viii.The use of the parens patriae jurisdiction must be approached with “great caution or circumspection” and it is not limited to cases that are “dire and exceptional” or “at the very extreme end of the spectrum”.
ix. Caution is necessary when exercising this jurisdiction to avoid;
i. inconsistency or conflict with jurisdictional schemes applicable between the countries in question or international framework to which the country has subscribed, and
ii. conflicting decisions in the two countries, and
iii. making unenforceable orders.
x. The court’s Inherent Jurisdiction may be exercised where it is necessary to avoid the welfare of the subject child being “beyond all judicial oversight” would not conflict with the principle of comity as it aims to facilitate a harmonious approach between countries to more effectively achieve common objectives that in this context is the protection of children.
16. Jurisdiction to grant FMPOs is provided for in Family Law Act 1996, Part 4A "Forced Marriage", which was inserted into the 1996 Act by the Forced Marriage (Civil Protection) Act 2007, s 1.
17. Statutory provision with respect to forced marriage followed a developing line of authority within the High Court, Family Division, in which judges condemned the practice of forced marriage in the strongest of terms holding that it was "an abuse of human rights…a form of domestic violence that dehumanises people by denying them their right to choose how they live their lives" (Re SK (An Adult) (Forced Marriage: Appropriate Relief)  EWHC 3202 (Fam) (Singer J)) and that it was "…utterly unacceptable…a gross abuse of human rights…intolerable…an abomination" (NS v MI  1FLR 444 (Munby J (as he then was)). Forced marriages were said to be "a scourge, which degrade the victim and can create untold human misery" (Bedfordshire Police Constabulary v RU  1All ER 1068 (Holman J)).
18. The following provisions within FLA 1996, Part 4A are of particular relevance to this Appeal:
(1) The court may make an order for the purposes of protecting—
(a) a person from being forced into a marriage or from any attempt to be forced into a marriage; or
(b) a person who has been forced into a marriage.
(2) In deciding whether to exercise its powers under this section and, if so, in what manner, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the person to be protected.
(3) In ascertaining that person's well-being, the court must, in particular, have such regard to the person's wishes and feelings (so far as they are reasonably ascertainable) as the court considers appropriate in the light of the person's age and understanding.
(4) For the purposes of this Part a person ("A") is forced into a marriage if another person ("B") forces A to enter into a marriage (whether with B or another person) without A's free and full consent.
(5) For the purposes of subsection (4) it does not matter whether the conduct of B which forces A to enter into a marriage is directed against A, B or another person.
(6) In this Part—
"force" includes coerce by threats or other psychological means (and related expressions are to be read accordingly); and
"forced marriage protection order" means an order under this section.
(1) A forced marriage protection order may contain—
(a) such prohibitions, restrictions or requirements; and
(b) such other terms;
as the court considers appropriate for the purposes of the order.
(2) The terms of such orders may, in particular, relate to—
(a) conduct outside England and Wales as well as (or instead of) conduct within England and Wales;
(b) respondents who are, or may become, involved in other respects as well as (or instead of) respondents who force or attempt to force, or may force or attempt to force, a person to enter into a marriage;
(c) other persons who are, or may become, involved in other respects as well as respondents of any kind.
(3) For the purposes of subsection (2) examples of involvement in other respects are—
(a) aiding, abetting, counselling, procuring, encouraging or assisting another person to force, or to attempt to force, a person to enter into a marriage; or
(b) conspiring to force, or to attempt to force, a person to enter into a marriage.
(1) A person who without reasonable excuse does anything that the person is prohibited from doing by a forced marriage protection order is guilty of an offence.
(2) In the case of a forced marriage protection order made by virtue of section 63D(1), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when the person was aware of the existence of the order.
(3) Where a person is convicted of an offence under this section in respect of any conduct, that conduct is not punishable as a contempt of court.
(4) A person cannot be convicted of an offence under this section in respect of any conduct which has been punished as a contempt of court.
(5) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.
(6) A reference in any enactment to proceedings under this Part, or to an order under this Part, does not include a reference to proceedings for an offence under this section or to an order made in proceedings for such an offence.
(7) "Enactment" includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978
A forced marriage protection order may be made for a specified period or until varied or discharged.
19. In addition FLA 1996, s 63G makes provision for a court to vary or discharge a FMPO on an application by a party to the proceedings, a person protected by the order, any person affected by the order or by the court even if no application for variation or discharge has been made.
20. Finally, by FLA 1996, s 63Q, the Secretary of State may from time to time publish guidance. The current statutory guidance was issued in June 2014: "The Right to Choose: multi-agency statutory guidance for dealing with forced marriage".
46. Stage One is for the court to establish the underlying facts based upon admissible evidence and by applying the civil standard of proof. The burden of proof will ordinarily be upon the applicant who asserts the facts that are said to justify the making of a FMPO.
47. Where an application for a FMPO is contested at an on notice hearing it will be necessary for the court to determine any relevant factual issues. In the course of her August 2018 judgment, HHJ Tucker referred to Re A (Forced Marriage: Special Advocates)  EWHC 2438 (Fam). She observed that in Re A Sir Nicholas Wall P "emphasised the protective and injunctive nature of a FMPO and expressed the view that it did not depend on a complex factual matrix so that the decision could be made without detailed investigation of the factual issues."
48. It is necessary to refer to the precise words used by Sir Nicholas Wall P at paragraph 90 of his judgment:
"…The first is the nature of the relief given by the Act. It is protective - quasi injunctive - and does not depend upon a complex factual matrix. The person to be protected has for most of the proceedings not sought actively to disturb the order. If, therefore, the view is taken that there is a proper basis for the court's exercise of its jurisdiction under the Act an order under the Act can properly be made ex parte.
93. This leaves the wider question as to whether or not special advocates are needed to resolve the issues of fact which may arise on any application to discharge."
49. It is plain that Sir Nicholas Wall's observations regarding the absence of a need to depend upon a complex factual matrix relate to the first without notice hearing of a FMPO application. At that stage, the court's primary role is protective and can be exercised without a detailed analysis of the underlying facts. Where, however, as here, the continuation of a FMPO is contested, it will be necessary for the court to undertake an ordinary fact-finding evaluation of any potentially relevant factual issues.
50. At Stage Two, based on the facts that have been found, the court should determine whether or not the purpose identified in FLA 1996, s 63A(1) is established, namely that there is a need to protect a person from being forced into a marriage or from any attempt to be forced into a marriage, or that a person has been forced into a marriage.
51. At Stage Three, based upon the facts that have been found, the court must then assess both the risks and the protective factors that relate to the particular circumstances of the individual who is said to be vulnerable to forced marriage. This is an important stage and the court may be assisted by drawing up a balance sheet of the positives and negatives within the circumstances of the particular family in so far as they may relate to the potential for forced marriage.
52. At the conclusion of Stage Three, the court must explicitly consider whether or not the facts as found are sufficient to establish a real and immediate risk of the subject of the application suffering inhuman or degrading treatment sufficient to cross the ECHR, Article 3, threshold.
53. At Stage Four, if the facts are sufficient to establish a risk that the subject will experience conduct sufficient to satisfy ECHR, Article 3, the court must then undertake the exercise of achieving an accommodation between the necessity of protecting the subject of the application from the risk of harm under Article 3 and the need to respect their family and private life under Article 8 and, within that, respect for their autonomy. This is not a strict "balancing" exercise as there is a necessity for the court to establish the minimum measures necessary to meet the Article 3 risk that has been established under Stage Three.
54. In undertaking the fourth stage, the court should have in mind the high degree of flexibility which is afforded to the court by the open wording of FLA 1996, s 64A. In each case, the court should be encouraged to establish a bespoke order which pitches the intrusion on private and family life at the point which is necessary in order to meet the duty under Article 3, but no more. The length of the order, the breadth of the order and the elements within the order should vary from case-to-case to reflect the particular factual context; this is not a jurisdiction that should ordinarily attract a template approach.
55. In assessing the length of time that any provision within a FMPO is in force, the court should bear in mind that the circumstances within any family, and relating to any individual within such a family, may change. It is unlikely in all but the most serious and clear cases that the court will be able to see far enough into the future to make an open-ended order which will remain in force unless and until it is varied or terminated by a subsequent application. In other cases, the court should look as far as it can in assessing risk but no further. The court should first consider whether a finite order adequately meets the risk, with the consequence (if it does) that the applicant for the order will have to seek a further order at the end of the term if further protection is then needed. A date should be fixed on which the order, or a specific provision within it, is reviewed by the court. “
24. Judge Tyzack was commendably clear and frank in explaining why he was making the passport orders. It was to induce the maternal grandmother and L to "apply [their] mind[s] … to the essential task of putting persuasion / influence / pressure on [the mother] to return [B] to the jurisdiction", to "put pressure and influence on [her]". Was that a permissible basis upon which to make a passport order? In my judgment it was not. That follows from the decision of this court in Re B (Child Abduction: Wardship: Power to Detain)  2 FLR 479.
25. In Re B the father took the children to Algeria without the mother's consent. He returned to England without the children, who remained with the grandparents in Algiers. Singer J concluded that the father had deliberately sought to keep the children out of the jurisdiction for reasons unconnected with their welfare and doubted that the children would be returned voluntarily to England. It was common ground, however, that the father was not in contempt of court. Singer J ordered that the father be detained by the Tipstaff until the children were taken to the British Embassy in Algiers. On the father's appeal this court discharged the order and directed the father's release.
26. It will be appreciated that Singer J's purpose in Re B was precisely the same as Judge Tyzack's purpose in the present case, albeit that Singer J had recourse to the more drastic method of incarceration.
27. Explaining why Singer J's order was impermissible, Butler-Sloss LJ, as she then was, said this (page 483):
"The purpose of a bench warrant is to bring the person detained to court and its purpose is effected as soon as he appears before the judge. At that moment he may or may not be in contempt of a court order. If he is not in contempt then in my view there is no power to detain him further. The direction of the court has been complied with and there is nothing before the court to enable the further power of detention to be invoked. If the person is prima facie guilty of contempt but the proceedings are part heard and are continuing, I can see no reason, in certain circumstances, not to detain him pending the conclusion of the case if the court is satisfied that he will not voluntarily attend on the next hearing day. The purpose is to secure the attendance of the alleged contemnor for the next court hearing. There is no precedent for detaining a party or a witness at the end of the hearing in order to compel another to comply with a court order (emphasis added)."
"The heart-rending emotions of a child abduction case do not take it outside the proper exercise of the court's powers."
28. Hobhouse LJ, as he then was, gave judgment to the same effect (page 485):
"… the purpose of detaining the father was to bring pressure to bear upon and influence the conduct of the grandparents in Algeria. They were being told, in effect, your son is being held in prison in London and he will not be released until you return the grandchildren. It was thus an exercise in coercion whereby an individual was being deprived of his liberty so as to coerce others into doing what the court wishes. In my judgment, however laudable the motives or worthy the objective, this is not a power which is part of the law of England; nor should it form part of any civilised system of law."
29. The only point of difference between that case and this is that whereas in Re B the coercive method applied by the judge was incarceration, in this case it was a passport order. Now there are, of course, in certain respects very great differences between the two forms of order. In the one case the hapless witness is confined to a prison cell; in the other he is confined to the United Kingdom - islands, as Mostyn J pointed out in Young v Young  EWHC 138 (Fam),  2 FLR 470, para 6, very much larger than the island to which the Mafioso in Guzzardi v Italy (Application No 7367/76) (1981) 3 EHRR 333 had been confined. Moreover, in the one case he is deprived of his liberty, thus engaging Article 5 of the Convention; in the other what is involved is no more than an interference with his liberty of movement and freedom to leave the country, engaging Article 2 of Protocol 4 (which, it may be noted, is not binding on the United Kingdom).
30. In B v B (Injunction: Restraint on Leaving Jurisdiction)  2 FLR 148, 154, Wilson J, referring to a submission put to him by counsel in that case, Mr Nicholas Mostyn, said:
"Mr Mostyn suggests that a restraint upon leaving England and Wales is wholly unlike imprisonment. I disagree."
31. In Young v Young  EWHC 138 (Fam),  2 FLR 470, para 6, Mostyn J, as by then he had become, commented in relation to Wilson J's observation that "that was decided before the advent of the Human Rights Act 1998 and without consideration of the Strasbourg jurisprudence." That no doubt is so, and was highly material in the context of the point Mostyn J was considering, namely the applicability of Article 5 in the case before him.
32. But Wilson J's words surely suggest, what a reading of his judgment as a whole indicates, that his observation was not directed to the Strasbourg distinction between a deprivation of liberty and an interference with liberty of movement, but rather to a different and for present purposes much more significant point; namely, that either form of coercive sanction is equally outside the proper ambit of the court's powers as a matter of domestic law. For immediately after the words I have just quoted, Wilson J cited these words of Hobhouse LJ in Re B, page 488:
"The use of ancillary powers which have the practical effect of restricting the liberty, or freedom of movement of an individual is recognised in the granting of injunctions, now under s 37 of the Supreme Court Act 1981 … There is an obvious difference in kind between an injunction and the arrest or physical detention of an individual, but such orders are analogous and illustrate the proper use of an ancillary power although it prima facie infringes the personal rights of the individual involved.
Where a power of arrest or detention has been recognised other than as part of a punitive jurisdiction, it is ancillary to the exercise of another power of the court and is legitimate because it is necessary to the implementation of the order of the court."
33. In my judgment it is clear that, for this purpose, neither Hobhouse LJ nor Wilson J saw any material difference between a coercive order where the coercive method used is incarceration and a coercive order where the coercive method used is a passport order. Each is equally outside the proper ambit of the court's powers. Mr Williams referred in this context to sippenhaft. The point was well made: cf Re MCA; HM Customs and Excise Commissioners and Long v A and A; A v A (Long Intervening)  EWHC 611 (Admin/Fam),  2 FLR 274, para 190.”
i. The removal or restrictions placed upon the use of an individual’s passport that have the net effect of restraining a person from leaving England and Wales is a “deprivation of liberty and an interference with the liberty of movement”.
ii. The removal or retention of an individual’s passport cannot be a “coercive measure” so as to ensure compliance or future compliance of orders which is “wrong in principle and fundamentally objectionable”.
iii. Subject to iv. and v. below, any retention of a passport must be limited to a “comparatively short period”. Such a time limit must be bespoke for each case that is founded on the facts and needs of each case.
iv. Unless the court can identify with “clarity” that the need for such an order will cease after a particular date or event, the case must be listed for a short review hearing before the date on which the order will expire.
v. Open ended orders may only be made in the most exceptional cases where the court can look sufficiently far into the future to be satisfied that such an order is necessary.
“The FCO’s Social Work Adviser specialised in child safeguarding agreed with the consular staff who spoke with A that the visit did not raise concerns about A’s health or welfare.”