(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.