Within the context of long-running proceedings under the Children Act 1989 concerning the parties’ three children, the father applied to the High Court under its wardship jurisdiction for a summary inward return order in respect of his son, B, who had been wrongfully removed by the mother to her native country and left there with her family. The mother had failed to uphold her previous agreement to return B to England and, inter alia, cross-applied for an order permitting her retrospectively to relocate B in Sierra Leone until the conclusion of his GCSE education. She asserted that she had become extremely concerned with B’s behaviour, his welfare and his apparent increasing involvement in “gang culture” immediately before his relocation. At the time of the hearing B was aged 14½and gave evidence that, although he wished to rebuild a relationship with his father and missed his mother and siblings, he categorically wished to remain in Sierra Leone until he had completed his education.
On the parties’ respective applications—
Held, the father’s application refused and the mother’s application granted. It was noteworthy that in other spheres of family law, and indeed the general law, the decision of a child of 14½ would be decisive of the matter in question but the decision of a Gillick-competent child about a particular issue was not decisive if that issue was the subject of proceedings in wardship or under the Children Act 1989. Although established authority made clear the powers of the courts to “make orders in the best interests of children up to the age of majority, with due regard to their wishes and those of their parents, but not dictated by them”, it was not merely a question of giving “due regard” to the wishes of a Gillick-competent child on a particular issue. If the seminal authority was not to be hollowed out, the wishes of a Gillick-competent child on a particular issue, where they were not objectively foolish or unreasonable, ought normally to be given effect. Here, notwithstanding the concerns raised by the father, B’s wishes were not objectively foolish or unreasonable and it was in his best interests that they not be overridden. Accordingly, the father's application for a summary inward return order was to be refused and the mother’s application to keep B in Sierra Leone until the summer of 2022 was to be granted (paras 17–22, 29).
Per curiam. (i) In many cases of this type wardship is sought almost as a reflex. The wording of paragraph 1.3 of Practice Direction 12D supplementing Part 12 of the Family Procedure Rules, needs to be borne in mind carefully by anybody seeking to make a child a ward of court in a case such as this. They need to ask: what does wardship add to the invocation of the inherent and/or statutory jurisdiction? The answer is, in many cases, nothing. In some abduction cases not covered by the Hague Convention on the Civil Aspects of International Child Abduction 1980 there are features where wardship may assist a return but they would have to be clearly identified and justified by evidence rather than by mere assertion (paras 31–32).
(ii) It should not be thought that whenever the High Court’s inherent powers are invoked, existing private law proceedings in the Family Court should always be stopped and moved to be heard alongside the High Court proceedings. There will be cases, perhaps many cases, where the private law proceedings in the Family Court can continue perfectly satisfactorily notwithstanding that the High Court is supplying additional powers to those available in the Family Court (paras 34).
(iii) Where an inward or outward return order is sought, other than pursuant to the Hague Convention 1980, the application should seek a specific issue and/or a prohibited steps order and be issued in the Family Court. If it is considered that special expertise is required, a request for allocation within the Family Court to High Court judge level can be sought. If a tipstaff order is needed, then an application must be made in the High Court, but it should be strictly confined to that specific relief (para 48).
Mehvish Chaudhry (instructed by Miles & Partners llp) for the father.
Kate Claxton (instructed by Morrison Spowart Ltd) for the mother.