The below is a case summary of LB of Waltham Forest v X, Y, Z & Ors (inherent jurisdiction),  EWHC 846(Fam).
In this case the local authority applied for and was granted permission on an urgent basis to invoke the inherent jurisdiction of the High Court and made orders in wardship in respect of two girls M, aged almost 16 and K, aged 10. The court ordered the summary return of the children to this jurisdiction and made Forced Marriage Protection Orders and Female Genital Mutilation Protection orders.
The court held that if it were not to 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. Knowles J noted in her judgment that it was beyond argument that, if M and K remained in Somaliland, there was a very high risk that each would be forced into marriage and that each might also become a victim of female genital mutilation. The latter harm being a harm which would engage Article 3 of the European Convention on Human Rights, namely the right to protection from torture or inhuman or degrading treatment. The court held that the children’s welfare required their return to this jurisdiction where the local authority could put in place arrangements for their care and protection.
M and K were at the time in Somaliland, an autonomous region of Somalia not currently recognised by any other UN Member state. K had been born in Somaliland and had never been in the UK. Somalia is not a signatory to any international instrument governing the movement of children or their welfare. On the basis that neither Somaliland nor Somalia were signatories to any applicable treaty, the High Court was satisfied that the exercise of its inherent jurisdiction based on the girls’ nationality did not risk creating a conflict of jurisdiction.
K and M’s older sister, who had herself been the victim of a forced marriage and an attempt by her mother to subject her to FGM, alerted the authorities in the UK to the harm that her younger siblings might be subject to as a result of their mother’s care.
M is a British citizen. K had a claim to British nationality through her mother. The FCO had agreed to issue K with a passport/emergency travel document so that she might enter this jurisdiction if the orders for her return were granted. This was held by the court to constitute express acceptance by the UK authorities of K’s right to those documents.
The court held that where a person to be protected is outside the jurisdiction of England and Wales but is nevertheless a British national, the court has jurisdiction to make forced marriage protection orders or female genital mutilation protection orders. Both these types of orders are ones whose terms may relate to conduct which takes place outside England and Wales as well as within England and Wales (see paragraph 63(2)(a) of the Family Law Act 1996 with respect to forced marriage and paragraph 1(4)(a) of Schedule 2 of the Female Genital Mutilation Act 2003).
In coming to its decision the court relied on decision of MacDonald J in Surrey County Council v NR and RT (Wardship: Without Notice Return Order)  EWHC 153 (Fam). In respect of the exercise of the inherent jurisdiction based on nationality the case says as follows:
- 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 );
- 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];
- 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];
- 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];
- 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];
- The test for exercising the jurisdiction does not appear to be conclusively settled [Surrey County Council v NR and RT, paragraph 33];
- 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].
The local authority’s application was without notice. The court accepted that there was clear evidence that to give the mother notice of the application would result in a significant risk that the mother would seek to frustrate the court’s orders by removing the children to another jurisdiction where it may be more difficult for the Forced Marriage Unit both to operate and to effect the return of the girls to this jurisdiction.
Read the full judgment here: https://www.bailii.org/ew/cases/EWHC/Fam/2019/846.html
Counsel for the Applicant Local Authority
This post was written for Coram’s international children law blog. Our International Children Law team has extensive experience in public and private child disputes. We act as family law barristers on child and finance matters, including cases dealing with child abduction, surrogacy, division of finances upon divorce, and cases of contested jurisdiction.