(Family Division, MacDonald J, 2 February 2017)
Abduction – Non-Hague Convention country – Inherent jurisdiction – Children abducted by mother and taken to Northern Cyprus – Mother arrested – LA sought wardship and return orders
Orders were made for wardship and a return of the children to England and Wales under the inherent jurisdiction.
The two children, now aged 15 and 13 lived in the UK until 2012 when the mother took them to Northern Cyprus. There had been protracted proceedings regarding residence and contact with the father and the children had been subject to child protection plans due to the mother’s mental health.
The authorities in Northern Cyprus were involved with the family between 2014 and 2016 due to concerns of physical abuse and neglect. At the end of November 2016 the mother was arrested under a European Arrest Warrant pursuant to charges of child abduction. The children were placed in a children’s home in the Republic of Cyprus but the older child absconded to Northern Cyprus under the mother’s influence. He was located and eventually placed in a children’s home there which was reportedly not appropriate for his age. Both Cypriot authorities indicated that they were not willing to issue proceedings and would support their return to the UK following the mother’s arrest and impending extradition.
The local authority applied for the children to be made wards of court and for orders for their summary return under the inherent jurisdiction since the territory of Northern Cyprus was not a signatory to the Hague Convention or BIIA. The local authority intended to issue care proceedings upon their return to the UK.
The existence of the inherent jurisdiction based on nationality was in no doubt but the test for exercising the jurisdiction was not conclusively settled. It was, however, clear that the court was to exercise its inherent jurisdiction in respect of a British child who was outside the jurisdiction based on the nationality of that child where the court was satisfied on the evidence before it that that child requires the protection of this court.
In the circumstances of the case it was appropriate to proceed on a without notice basis since there was evidence that if given notice the mother would take steps to frustrate the court process by persuading the children to abscond.
The court was satisfied that it had jurisdiction to make orders under the inherent jurisdiction based on the children’s nationality and, arguably, their continuing habitual residence in England and Wales.
The children were currently separated, no one in either area had parental responsibility for them and neither parent was able to exercise parental responsibility. The authorities in Northern Cyprus and the Republic of Cyprus were clear that they were unable to take further protective measures. In that context it was appropriate for the court to make the orders sought. The children required the protection of the court and it was in their best interests for the court do so.The children were made wards of court and orders for return were granted.