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FM v KAH and others [2017] EWHC 441 (Fam)

Sep 29, 2018, 19:47 PM
Jurisdiction – Passports – Children living with father in Australia – Father had removed the children unlawfully 12 years ago – Inherent jurisdiction
The court postponed the renewal of the children’s passports until the mother had the opportunity to apply to the Australian court.
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Date : Mar 21, 2017, 08:25 AM
Article ID : 113971

(Family Division, Baker J, 6 March 2017)

Jurisdiction – Passports – Children living with father in Australia – Father had removed the children unlawfully 12 years ago – Inherent jurisdiction

The court postponed the renewal of the children’s passports until the mother had the opportunity to apply to the Australian court.

The two children were born in England in 2000 and 2001 respectively. In 2002 the parents divorced and in 2005 the father removed the children to Africa. On the basis of the mother’s application the children were made wards of court but in 2009 the mother discovered that the father and children were in Australia.

In 2011 the Family Court in Australia granted the father a residence order and subsequently sole parental responsibility. The children were to live with the father and spend time with and communicate with the mother. The children’s passports were released to the father.

In 2016 the English court was notified by HM Passport Office that applications had been received for renewal of passports for the children. The court directed a hearing should take place to determine whether it had jurisdiction in respect of the children and whether that jurisdiction should be exercised or whether issues relating to the children’s future should be determined in Australia.

The mother was opposed to the passport renewals. She accepted that jurisdiction in relation to the welfare of the children was held by the Australian courts by virtue of their habitual residence. However, she claimed that as British nationals the children were entitled to the protection of the Crown, exercised under the inherent jurisdiction of the High Court.

The court’s use of the inherent jurisdiction had to be exercised with caution, and would only be utilised in limited circumstances. In most cases the courts of the country of habitual residence would be able to take necessary steps to protect the children in question.

In this instance it would be in the children’s best interests for the court to exercise its jurisdiction by permitting the mother to apply to the Australian court before the renewal of passports. That would be consistent with the duty of the court to take measures necessary for the protection of children and would not intrude into the jurisdiction of the Australian court.


IMPORTANT NOTICE
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 no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular 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.

Case No: FD05P02342
Neutral Citation Number: [2017] EWHC 441 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


IN THE MATTER OF THE SENIOR COURTS ACT 1981
AND IN THE MATTER OF SU AND SA (CHILDREN)
Royal Courts of Justice
Strand, London, WC2A 2LL


Date: 6th March 2017 

Before:

THE HONOURABLE MR JUSTICE BAKER

- - - - - - - - - - - - - - - - - - - - -

Between:

FM
Applicant

- and -

KAH (1)

and

SU (2)

SA (3)
(by their children’s guardian)
Respondents

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Ruth Kirby (instructed by Gillian Radford and Co) for the Applicant mother
The First Respondent appeared in person
Mike Hinchliffe (of Cafcass Legal) for the Second and Third Respindents

Hearing dates: 14th December 2016

- - - - - - - - - - - - - - - - - - - - -

Judgment

FM v KAH and Others [2017] EWHC 441 (Fam).rtf
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