Children Law Update - December 2025

I will begin this seasonal edition of my children’s law update (not exactly sure how the content is ‘seasonal’… I will ask whoever formats it to put some pictures of snow and bells on the pages or something like that) with a judgement from the newest edition to the Family section of the Court of Appeal, Lord Justice Cobb. It is, actually, a really good judgment from a relatively new Lord Justice of Appeal. The case in question is Re H (Final Care Orders at IRH) [2025] EWCA Civ 1342. This is an appeal from a decision of a Circuit Judge to conclude care proceedings at the IRH stage, where the parents wanted the matter listing for a contested final hearing. Basic background facts are as follows: Y and N were the two children subject to care proceedings with the central risk issues were father’s drug and alcohol use. N lived with the father, Y with the mother. Y was removed from the mother’s care by police officers just before proceedings were issued in relation to Y, however N remained in his father’s care. Y then moved to live with the father and N following a positive assessment. Things took a negative turn when the father attended school to collect the children when drunk, leading to care proceedings being issued in relation to N and both children being accommodated by the local authority. The father’s case at IRH was that he was abstinent from alcohol, whilst the paternal grandparents were being assessed as special guardians (that assessment had not yet been completed).

The care plan for N provided for him to be placed with his paternal grandmother and her partner for his long-term future, however this was expressed to be: 

"… subject to satisfactory work being undertaken by the couple around sexual risk by the Edge of Care (EOC) team following the Lucy Faithful programme. It is proposed that the EOC team complete this work by 8 July 2025 with an addendum Special guardianship assessment being completed on the 29 July 2025 in order to evaluate the effectiveness of the work completed and make final recommendations".

The care plan further provided that:

"In the event that [the paternal grandmother] and [her partner] are not deemed suitable to care for [N], the Local Authority are parallel planning including a plan of adoption which will be considered as an alternative final care plan for [N], subject to [Agency Decision Maker's] approval".

The care plan for Y provided that he should be placed in the long-term with paternal grandmother's partner’s daughter, and her partner. In the event that this placement were to break down, the care plan for Y also provided for a parallel plan of adoption. The Children’s Guardian did not feel able to lend her full support to this long-term family placement under the aegis of special guardianship orders in the absence of the DBS check.

Prior to the IRH the local authority’s position was that the matter required listing for final hearing. It then changed its position subsequent to filing its position statement and asked the Court to conclude proceedings at the IRH and make final care orders. The father opposed this and sought to care for the children. The Guardian supported proceedings concluding at the IRH. The Judge gave a (very) limited ex-tempore judgement and concluded the proceedings via the making of care orders. The father appealed. 

In allowing the appeal, it was re-iterated by the Court of Appeal that the Family Court can legitimately conclude matters at IRH even when there is not agreement:

‘The role of the IRH in the public law process was considered by this court in Re J (Care Proceedings: Issues Resolution Hearing) (ALC Intervening) [2017] EWCA Ci 398  (Re J). Paragraphs [17] to [23] of Macur LJ's judgment (with which the other members of the court, including Sir James Munby P, agreed) repay re-reading in full. Macur LJ highlighted the importance of "robust case management" at the IRH, particularly given the pressures then (as indeed now) on the Family Court. She continued:

"[17] … There can be no doubt that the Public Law Outline ('PLO') contemplates the resolution and final determination of applications under s 31 Children Act 1989 at the IRH in appropriate cases, subject implicitly to the necessary evidence being before the court." (emphasis by italics in the original).

"[18] The determination of what procedure to adopt calls for the exercise of judicial discretion dependent on the circumstances of the case before the judge. It is impossible to formulate a 'one size fits all' policy. This court will be slow to interfere in that exercise of judgment carefully articulated and soundly based. However, the principles of procedural fairness formulated in several recent cases decided by this Court provide clear guidance to the first instance judge in his/her decision of the appropriate and fair procedure to be adopted at various stages in family proceedings".

….

"[22] It is obvious that Art 6 and 8 ECHR convention rights necessarily will be engaged at every stage of the process. As Pauffley J so aptly characterised in Re NL (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam, 'Justice must never be sacrificed upon the altar of speed'."

Macur LJ went on to quote the following passages from the judgment of Sir James Munby P in Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136  (Re S-W):

"[57] … there is the right to confront one's accusers. So, a parent who wishes to cross examine an important witness whose evidence is being relied upon by the local authority must surely be permitted to do so.

[58] I stress the word important. I am not suggesting that a parent has an absolute right to cross-examine every witness or to ask unlimited questions of a witness merely with a view to 'testing the evidence' or in the hope, Micawber-like, that something may turn up. Case management judges have to strike the balance, ensuring that there is a fair trial, recognising that a fair trial does not entitle a parent, even in a care case, to explore every by-way, but also being alert to ensure that no parent is denied the right to put the essence of their case to witnesses on those parts of their evidence that may have a significant impact on the outcome. 

[60].… there can, in principle, be care cases where the final order is made at the case management hearing. But, unless the decision goes by concession or consent, it will only be exceptionally, in unusual circumstances and on rare occasions, that this can ever be appropriate."

Cobb LJ also reminds us of the further ‘Case Management Guidance’ that was issued by Sir Andrew McFarlane P in 2022, aimed at tightening up good practice in the public law process and returning to the principles of the PLO:

"IRHs need to be more effective. At an IRH, it is the judge's role to encourage all parties to take a realistic approach. Any suggestion of adjournment or  the  filing of further evidence at that stage will only be justified if it is 'necessary' to determine the remaining relevant  issues"

In this case however, the Judge was held to be simply wrong to have concluded the proceedings at IRH. Cobb LJ’s rationale for reaching this decision was as follows:

‘The judge was plainly concerned at the IRH about the undue delay, and she was right to be so. In her judgment she makes several references to this. It is easy to understand her eagerness to resolve the case at that hearing, and I accept that this was well-intentioned. However, the benefits of robust resolution of public law proceedings at any stage prior to the final hearing (where evidence is tested) must never be at the expense of procedural fairness and justice (rule 1 of the FPR 2010, Article 6 ECHR and Re J at [18], above). In this case, the solution to the procedural disarray of this protracted litigation did not lie, in my judgment, in the summary termination of the proceedings at the IRH in a manner which was procedurally unfair to the respondent parents. 

There was a material issue of fact to be tried. The judge had rightly identified that the central issue in the case was future risk (see §17 above). The local authority's final care plans for the children, filed shortly before the IRH, had been predicated on the factual premise that the parents had not "been able to achieve any positive change to their lifestyles that would support the children returning to either of their care". However, the father had filed evidence maintaining that he could demonstrate a contrary position, with evidence (including from professionals working with him, and hair strand testing), that he had made significant strides successfully to rehabilitate from his alcohol misuse. The social worker did not, it appears, believe the father, or credit him with any or any claimed progress in his recovery; therein lay a material factual issue which justified determination, the more so since history reveals that the local authority had (a) allowed N and Y to live with the father for a period of time, and had (b) actually supported the father in that regard, when the authority knew of the father's troubled relationship with drugs and alcohol. It seems to me that the father had a right to challenge the social worker's view that he had not reformed (he had "the right to confront [his] accusers", per Sir James Munby P in Re S-W see §32 above), given that if the father was vindicated in his assertion of sobriety this "may have a significant impact on the outcome" (Re S-W ibid);

Secondly, it appears that the local authority had not signalled any prior intention to seek final orders at the IRH; it had, in fact, indicated a contrary position in its position statement (see §12 above). This offers a troubling context for the hearing itself; the parents and their lawyers were entitled to complain that they were taken by surprise by the applicant's change of stated position. Moreover, in despatching these long-running proceedings at the IRH in no more than 45 minutes, including judgment (which itself gives every indication of being rushed and improvised) there is a real question whether the listing of the hearing had complied with the letter or the spirit of the President's 2024 guidance (see §35 above). There should always be "sufficient preparation and hearing time" at an IRH, so that the parties are treated justly and fairly, and no-one is denied the opportunity to attempt properly to resolve the issues. 

Thirdly, the evidence was incomplete at the IRH; the time for filing the final assessment report on the prospective long-term carers for N had not yet passed (it was not due for filing for one more month). While all other indications were positive, it was not clear what the further court-ordered assessment may show in relation to sexual risk of the grandmother's partner, and how it may affect the shape of the plans going forward. Moreover, the DBS checks on Y's prospective carers had not been returned, and this had caused the Children's Guardian to pause in supporting them as special guardians. The parents were surely entitled to have this information before final orders could be made. Moreover, in view of this lack of certainty in the plans for the boys, the judge needed to address the contingency of adoption for the boys, and explain why it would not be unfair to the parents to proceed to finality notwithstanding the spectre of this radically different long-term outcome.

Fourthly, before making a care order, it was the judge's duty to "consider the permanence provisions of the section 31A plan for the child concerned" and specifically the issue of contact. Section 31(3A) / (3B) CA 1989 specifically engages section 34(11); this subsection provides that:

"Before making, varying or discharging an order under this section or making a care order with respect to any child the court shall— (a) consider the arrangements which the authority have made, or propose to make, for affording any person contact with a child to whom this section applies; and (b) invite the parties to the proceedings to comment on those arrangements".

The judgment offers no more than a perfunctory endorsement (para. [16]: see §20 above) of the care plan for contact. The judge did not acknowledge the social work evidence that contact had been "positive family time" for all, nor that the plan provided for significant changes to both the inter-sibling and parental relationships; for example, the father's contact with Y would reduce from once per week to four times per year and the inter-sibling contact would reduce from three times per week also to four times per year. The judge did not address at all the pros and cons of the plan, and the inevitable impact of the proposed diminution of contact on family relationships, particularly as she was aware (and had recorded) the parents' opposition to this course.’

Cobb LJ also noted a number of other deficits with the judgement, including the absence of any real consideration of the welfare checklist, the impact of separation on both children, and the fact that adoption remained a contingency plan for both children, with the full assessment of the grandparents still outstanding (there was no analysis of how such an outcome could be proportionate).

His Lordship went on to provide some very important best practice guidance for all of us family law hacks who draft the orders at an IRH where proceedings conclude:

‘Where proceedings conclude at an IRH, particularly where the outcome of the proceedings are contested, as here, there is an obligation on the judge to give clear reasons which explain:

i) Why the IRH has been used as a final hearing, and / or why the proceedings are not being case managed to a further / final hearing, particularly if (as here) there is a dispute as to whether the proceedings should be concluded at the IRH;

and

ii) The substantive final orders which are to be made at the IRH. In this regard, I suggest that the judgment should include specific reference to the threshold criteria (section 31(2) CA 1989) and a review (however short) of the evidence which supports the same, a discussion of the balancing exercise in which each future option for the child is evaluated "to the degree of detail necessary" (Re B-S (Children) [2013] EWCA Civ 1146 at [44]), the permanence arrangements in the care plan (section 31A CA 1989), the constituent elements of the welfare checklist (section 1(3) CA 1989), and the contact provisions (section 34(11) CA 1989).’

So, all in all a really well written judgment with the bonus of some sound guidance in the end bit. It is worth cross referencing this judgment with the judgement in Re D (Threshold Findings and Final Orders at IRH) [2025] EWCA Civ 1362, another Cobb LJ judgment handed down the same month, which deals with broadly similar issues. There are a couple of points from Re D that I do want to emphasis, in particular the point picked up by Cobb LJ that the threshold was not properly pleaded, failing to conform to the principles set out by Sir James Munby some 10 years ago in Re A (A Child) [2015] EWFC 11 (the local authority drafting of thresholds is a continuing irritation of mine in some cases I come across). Cobb LJ’s made the following comments in relation to this issue;

‘Pausing there, the final threshold statement filed by the local authority in this case is to my mind defective in two material respects: 

i) it includes "reports of" alleged facts (see (ii) above); in a later paragraph ([16] see §24 below) the judge refers to "the evidence from the professionals are [sic] that if [D] were to be returned to her parents' care she would be at risk of significant harm"; however "this form of allegation, which one sees far too often in such documents, is wrong and should never be used" (see Sir James Munby P in Re A (Application for Care Orders: Local Authority failings) [2015] EWFC 11 at [10]: 'Re A');

ii) it fails clearly to link the facts relied upon by the local authority with the statutory threshold grounds. It is essential for an authority to demonstrate why certain facts justify the conclusion that the child has suffered, or is at risk of suffering, significant harm. A case based on a lack of honesty with professionals (see §18 (i), (ii), and (iii) above) must feed through into a conclusion that the child is suffering or likely to suffer a particular type of significant harm. In this case, as I regret in many others of its type, "the conclusion does not follow naturally from the premise" (see generally Re A at [12]).’

The judge at first instance found threshold to be established and made care and placement orders at the IRH: the parents’ engagement had been inconsistent throughout the proceedings and they opposed the local authority’s care plans. The judgment contained very limited reasoning. In allowing the appeal, Cobb LJ made a number of salient observations in relation to the issue of threshold findings;

‘It is as well to remember why a judge needs to identify the basis on which the threshold criteria are established in any given case, and expressly confirm judicial endorsement of the same, even where the process is essentially uncontested. This point has been canvassed in the courts many times in recent years; it is unnecessary for me to rehearse the anthology of the latest caselaw. That said, useful reference can of course be made to Re A (above) and the passage cited from Re B (Adequacy of Reasons) (at §28 above).

First, section 31(2) CA 1989 places the obligation squarely on "the court" to be "satisfied" of the threshold criteria; the section is explicit that the court can "only" go on to make an order under Part IV if it is so satisfied. This means that the threshold cannot be determinatively resolved by agreement between the parties, nor by default; the court must scrutinise the documents and satisfy itself of proof of the same and say why it is so satisfied. This is, as Mr Banerji rightly put it, "non-negotiable". The court must make threshold findings. 

Secondly, it is important that the judge exercises discipline in scrutinising the statement of proposed threshold. In this case, for the reasons which I have set out at §19 above, the final threshold statement was defective, in that the local authority was seeking to rely in part on witnesses' 'reports' and 'evidence from [witnesses]' in place of established facts, and had failed to link some of the pleaded facts with the statutory threshold grounds. The judge should therefore have rejected the threshold as it was presented to him. The judge is not required of course "slavishly to adhere to a schedule of proposed findings", and can reach a conclusion other than that sought (see Wall LJ in Re G and B (Fact-Finding Hearing) [2009] EWCA Civ at [15]); in this case, he plainly could – on the evidence – have done so. It is worth remembering in this context what Henry LJ said in Flannery v Halifax Estate Agents [2000] 1 WLR 377 ('Flannery') at p.381G-H:

"…a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not".

The case management orders made in this case (see §12 and §15 above) which 'deemed' the parents to have accepted the threshold facts, coupled with their almost total disengagement from the legal process, may well have caused the judge to lower his judicial guard, and distract him from the important duty which he owed under the CA 1989 in this respect. 

Thirdly, the judge rightly identified that the father had filed a document in which he "disputed threshold" (in fact the Interim Threshold (2) document) (see §16 above). Having identified the dispute on threshold, the judge plainly needed to determine it.

Fourthly, and importantly, it has long been recognised that the threshold criteria operates as the "bulwark" against too ready an interference by the state in family life (see Lord Nicholls in In re O (Minors) (Care: Preliminary Hearing) [2003] UKHL 18 at [14] and [17], and Baroness Hale in Re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9 at [20]). In an earlier decision of the House of Lords (Re B [2008] UKHL 35) Baroness Hale had spoken of the importance of judicial scrutiny of the alleged threshold facts (at [54] and [58]):

"[54] The threshold is there to protect both the children and their parents from unjustified intervention in their lives".

…

"[58] The local authority make the application for a care or supervision order under section 31(1) and the local authority will be responsible for carrying out any order which the court may make. The task of the court is to hear the evidence put forward on behalf of all the parties to the case and to decide, first, whether the threshold criteria are met and, second, what order if any will be best for the child. While the local authority may well take preliminary or preventive action based upon reasonable suspicions or beliefs, it is the court's task when authorising permanent intervention in the legal relationship between parent and child to decide whether those suspicions are well-founded." (emphasis by underlining added).

She returned to these points in Re J at [44] when she spoke of the need for "a clearly established objective basis for such interference". 

The "objective" check referred to in the quote from Re J (immediately above) is self-evidently offered by the judge. Thus, a mere judicial acknowledgement of the local authority's statement of threshold facts and an indication of judicial agreement gives the appearance of an administrative act, all the more so if the parents have been 'deemed' to accept the threshold facts by reason of a case management default or mis-step.

Finally in this regard, the court owes a duty to the parties to set out the basis on which the orders are being made; justice must not only be done but be seen to be done. This is true in any case, as recent well-known caselaw has underlined (see for example Baker LJ in Re T & Others (Children: Adequacy of Reasons) [2023] ewca civ 757; [2024] 1 FLR 303 at [35].) Fairness requires that the parties, especially the "losing party", should be left in no doubt why they have "won or lost" (Flannery again, at 381G). The duty will be all the greater if the orders which the judge proposes to make are of the draconian nature of care and placement orders.’

For me a critical point made by Cobb LJ is that;

‘There is no less a duty upon the judge to express clearly their findings and reasons if any of the parties (the parents in this instance) are absent from the hearing at which these crucial decisions are being made, even if absent by their own choosing. Moreover, it should be remembered that the child herself may as an adult wish to know more about the history of her childhood and early life, and in particular the reasons for her separation from her parents and the permanent severance of her family ties. In this regard, it is distinctly possible that she will seek access to the judgment which gave effect to her permanent placement away from parents; if D were to read the judgment under review, she would I regret be left none the wiser.’

That must surely be correct. The appeal was also allowed on the basis of a lack of adequate reasoning underpinning the making of care and placement orders. The judgment reminds us that parental non-engagement ‘could not, as a bald fact, establish a ground for proof of the threshold criteria, and it had no place therefore in this section of the judgment’. As in Re H, Cobb LJ repeated his concern at the wording within the standard from orders providing that a parent is ‘deemed to accept the threshold allegations made by the local authority’ unless they file response documents as directed. A suggested alternative wording put forward by His Lordship was;

‘If the parents fail to respond [to the schedule of findings in support of the threshold criteria], the court may proceed to consider [at the next hearing / at the IRH / at the final hearing] whether the section 31(2) Children Act 1989 threshold criteria are established by reference to the written evidence filed by the local authority.’

Whilst on the subject of threshold and risk assessments, I would also highly recommend reading the excellent judgment of Peter Jackson LJ in K-H (Children)(Care Orders: Proportionality) [2025] EWCA Civ 1368. This case involved the removal of three children from the care of their grandparents at a welfare hearing. The appeal brought by the grandparents was allowed, care orders set aside, and the children returned home under supervision orders. The key issues in the case related to historical convictions of a sexual nature against the grandfather (some 40 years ago), allegations of sexual misconduct against an uncle, and allegations that one of the children had exhibited sexualised behaviours in school. Importantly the local authority sought to rely upon the grandfather’s convictions and accepted facts: it did not seek to pursue findings relating to the disputed allegations made against the uncle or findings relating to the alleged behaviours of one of the subject children. Peter Jackson LJ in allowing the appeal, reminds us that risk of future harm (founded upon a ‘real possibility’) must be based upon previous events which have been found to have occurred as a fact. His Lordship cites Re A and a host of other authorities, with the judgment providing a comprehensive analysis of how the issue of risk should be approached by a judge. I think my favourite section of the judgment, which neatly encapsulates the proper approach to risk assessment, is the following;

‘It is therefore unarguably clear that when the court is assessing risk it must act on the basis of proven facts and inferences that can properly be drawn from them. The submission that the assessment of future risk can be based even in part on unproven facts has been repeatedly rejected. The decision in Pearce concerned the interpretation of a different statute in a different context. The decision of Devon County Council v EB (Baker J) confirms that the court can spread its net widely to gather all relevant material, yet cannot base its assessment of risk on unproven facts. I therefore firmly reject the Guardian’s legal submission on this appeal. In any case, the “fact in issue” is not the level of risk but the facts that are said to establish the level of risk.

The court can, and very often will, refer in its reasoning to evidence about which it has not made a finding of fact, and it will often need to do so in order to make sense of events, but it cannot rely upon such evidence as a basis for assessing risk: Re A (Fact-Finding: Disputed Findings) [2011] EWCA (Civ) 12; [2011] 1 FLR 1816 per Munby LJ at paragraph 29. Were it otherwise, the risk of error and injustice would be greatly increased. 

The demands of child protection are built into a system that operates the balance of probability standard in respect of past events and the real possibility standard in respect of future risks. Past facts must be proved and future risks must be assessed on the basis of the conclusions that can properly be drawn from the proven facts. Orders made by the Family Court are often very serious and it would be quite wrong for these principles to be diluted. 

The argument that it takes time to prove contested matters is no answer. If evidence is said to justify an order, it needs to be properly assessed. That does not mean that the court is obliged to make findings about every aspect of the evidence. Using its case management powers, it will identify matters that need to be determined and matters that do not. Nor does it have to hear direct or oral evidence about every allegation. Provided a fair process is followed, it can reach a conclusion based on all the available evidence. But it does need to reach a conclusion about evidence if it is going to act upon it.’

I really couldn’t have put it any better myself (hence why I am not and never will be a Lord Justice of Appeal).

The next case I am going to deal with relates to return orders made under the Court’s inherent jurisdiction: JK (Return Order Under Inherent Jurisdiction) [2025] EWCA Civ 1309. The facts of this case are that J’s parents had a lot of local authority involvement over the years and had had numerous children removed from their care. The mother became pregnant with J and the parents travelled to Thailand with a view to avoiding removal at birth (you can see where this is going….). J was born in Thailand and the parents were arrested following returning to England (without J) for concealing the birth of a child. J had been left with the parents’ friends in Thailand. A video call was arranged by social workers with the parents’ friends, with it being noted that the male friend appeared to be intoxicated during the call. The local authority then issue a C66 application seeking for J to be made a ward of Court, to be returned to the UK and for the parents’ passports to be seized. The application for a wardship and a return order was made on the basis that either J was habitually resident in the UK, or in the alternative J’s British nationality allowed for such orders to be made. The application was ultimately determined by Lieven J who made the return order sought. The local authority made clear its intention to issue care proceedings upon J’s return to this jurisdiction. The father sought to appeal Lieven J’s decision. 

Baker LJ gives the lead judgment and, as is the case with most of his and PJLJ’s judgments, it really merits reading in full and provides an analysis of all of the relevant statutory provisions (including the salient bits of the Family Law Act 1986- aka the most confusingly and badly drafted statute of all time!) and case law. What is made clear is that the established Supreme Court authority, namely A v A (Children: Habitual Residence) [2013] UKSC 60, confirmed that a return order can be granted on the basis of a child’s nationality in circumstances where they are not habitually resident in the UK and where their welfare requires protection: the parens patriae jurisdiction is a protective one. A v A was however, not a case involving a local authority. 

There are various authorities which have dealt with the circumstances in which a wardship jurisdiction based on nationality should be exercised, with words such as ‘extreme circumspection’ having previously been used, however Baker LJ cited with apparent approval, Poole J’s summary of the principles derived from the appellate authorities in this area in GC v AS (No.2) [2022] EWHC 310 (Fam);

‘The jurisdiction is protective. Whilst there may be many circumstances in which it might be said that children habitually resident and present abroad need protection, the exercise of the parens patriae jurisdiction is to be confined to those cases in which there are circumstances sufficiently compelling to make it necessary to protect the children, in this case by their being removed from Libya and returned to England. Other measures must be insufficient. If it is to be exercised "with great caution or circumspection", then the jurisdiction cannot be exercised in every case where it would be in the best interests of a child habitually resident and physically present abroad to be returned to the jurisdiction of England and Wales.’

Baker LJ then went on to consider the judgment of Henke J in Re D (Wardship: Jurisdiction: Cutting Across Statutory Schemes) [2024] EWHC 1658 (Fam). That case involved a local authority seeking the return of a child from Iraq. Henke J found that whilst the inherent jurisdiction was undoubtedly available on the basis of a child’s British nationality, she should decline to exercise it on the facts of that case as the orders:

‘…. sought to compel D's return to this jurisdiction. Those orders seeking to compel return were made so that the local authority could exercise their public law duties to safeguard and protect her as a child in need in their area and so that public law proceedings could be taken in relation to her…. That is a use of the inherent jurisdiction which cuts across the statutory scheme in this case and its jurisdictional boundaries.’

In other words the orders would offend s.100(2)(b) of the Children Act 1989 as the inherent jurisdiction would effectively be exercised as a means by which the local authority could accommodate the subject child:

‘In the circumstances of this case, although the residual inherent jurisdiction did exist in this case to protect D, I have decided that it ought not to have been exercised. I frankly acknowledge that from a child protection perspective that is counter intuitive. I see the force of the Guardian's argument that the orders have protected D from her father who on the findings of Mr Justice Moor is a risk to any child in his care. However, I have reminded myself that local authorities do not have a roving child protection mandate and that their duties and powers are circumscribed by their having the jurisdiction to exercise those powers and observe those duties. Hence, after long and hard deliberation, I have had to conclude that D was a child who had never been present in the jurisdiction and that the local authority was seeking her return to enable them to exercise a statutory jurisdiction which was not available to them had she remained abroad’

Lieven J distinguished Re D as not being analogous to the facts in the case before her, particularly in relation to the issue of risk:

‘I do not accept that the facts of Re D were analogous to the present ones. The risk to the child came primarily from the father, and he was in the UK not in Iraq. The risks in Iraq were merely those of being in a highly unstable country with considerable challenges, nothing specific to the child. The issues in the present case are entirely different and relate entirely to the child being left in the care of her parents, where there is considerable evidence suggesting that they pose a risk to a young and vulnerable child.’

The appeal against Lieven J’s decision was brought on the basis that (i) the judge failed to properly apply the principles set out in the relevant authorities, and (ii) the judge was wrong to conclude that the facts and presenting concerns gave rise to sufficiently compelling circumstances to permit the Court to exercise its inherent jurisdiction. 

In dismissing the appeal, Baker LJ summarises the limits on the use of the inherent jurisdiction in making return orders based on nationality alone but went on to observe that:

‘But these restrictions leave open a range of circumstances in which a local authority is not constrained from seeking to invoke the jurisdiction. Those circumstances include a case, when the 1996 Convention does not apply (as explained above), where a child who is a British national is habitually resident or present in a foreign country and is at risk of significant harm. There is no other remedy available to a local authority in these circumstances. Section 50 of the 1989 Act empowers the family court to make a "recovery order" in respect of a child who is subject to a care order or emergency protection order or police protection and has been unlawfully taken away or is being unlawfully kept away. It does not apply to children who are not subject to a care order or emergency protection order or police protection. Furthermore, as noted by Bodey J in Lewisham London Borough Council v D (Criteria of Territorial Jurisdiction in Public Law Proceedings) at paragraph 30, the terms in which section 50 is drafted make it clear that such an order can only be made in respect of a child who is present in the jurisdiction.

The reason why the local authority is seeking to invoke the jurisdiction is to protect the child from significant harm. That is the very essence of the parens patriae jurisdiction. The hurdle for invoking the jurisdiction is high because, as explained by Baroness Hale and Lord Toulson in Re B, at [59], there are reasons why the court should "approach the use of the jurisdiction with great caution or circumspection". However, as they went on to say, at [60], the "real question is whether the circumstances are such that this British child requires that protection". In short, as Moylan LJ said in Re M, at [105] "there must be circumstances which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction".’

The key point on the making of protective orders in the circumstances of this case was then made;

‘In my view the fact that, after the return of J to this country following an order under the inherent jurisdiction, the local authority intends to start proceedings under Part IV of the 1989 Act is irrelevant to any decision whether or not to exercise the jurisdiction. The purpose of seeking an order for the return of J Thailand is not (as this Court held on the facts in Re M and Henke J held in Re D) to confer on the English courts a jurisdiction to make orders which would not otherwise be available. It is, rather, simply to protect the child from significant harm. In Re D, Henke J concluded that the reason for the local authority seeking that case to invoke the inherent jurisdiction for the return of the child was "so that they could exercise a statutory duty to safeguard and protect and so that public law proceedings could begin in relation to her." The facts of that case were very different to those in the present appeal and I express no view as to whether Henke J's assessment was correct. I do not read her judgment as advancing as a general proposition that a local authority cannot invoke the inherent jurisdiction to secure the return of the child if it intends thereafter to take care proceedings which the court could not otherwise entertain. If, however, she was holding that in such circumstances inherent jurisdiction can never be invoked because it "cuts across the statutory scheme", I would respectfully disagree. 

In the present case, the purpose of the local authority's application for J's return is simply to secure the protection of the child to which she is entitled as a British national. The fact that the local authority intends thereafter to start proceedings under Part IV of the 1989 Act does not invalidate the application.’

So basically, whether a local authority can properly seek a return order relating to a child based upon the jurisdiction conferred by nationality alone, depends on an assessment of all of the facts in the case. If such an order is necessary in order to protect the child from suffering significant harm, then the application is not invalidated by the fact that a local authority intends to commence care proceedings upon that child’s return to the jurisdiction. 

Moving on from case law, I would strongly advise everyone working in the area of children law to have a read of the Executive Summary of the Domestic Abuse Commissioner’s report ‘Everyday Business: Addressing domestic abuse and continuing harm through a family court review and reporting mechanism’: https://www.gov.uk/government/publications/everyday-business-addressing-domestic-abuse-in-the-family-court/everyday-business-addressing-domestic-abuse-and-continuing-harm-through-a-family-court-review-and-reporting-mechanism . It is really important and makes a number of worrying observations relating to how the issue of domestic abuse is treated by the Family Courts. On that note, AB v CD [2025] EWFC 398 (B) is a really interesting Circuit Judge decision from HHJ Robinson in a case involving domestic abuse. I mention this case as for me it provided a stark and disturbing reminder of how litigation in children proceedings can be used by an abusive parent to continue perpetrating further abuse upon their victim and of the impact of the same. There is what I view to be a very articulate analysis of domestic abuse perpetrator’s programmes at paragraph 107 of the judgment:

‘The fact of engaging in a Domestic Abuse Perpetrators' Programme does not provide an automatic pass to enable contact to progress; it is the reflection and understanding of any perpetrator which is key in assessing welfare, and the actions which follow. Such a Domestic Abuse Perpetrators' Programme can only lay foundations, but a perpetrator must build upon them meaningfully, and must evidence change from previous behaviours. It is not enough to simply turn up to the sessions provided by such a programme. The welfare of any child requires critical assessment of just what has changed, not just want is said to have changed; actions really do speak louder than words in such a context.’ 

Simply attending a course/therapy/engaging with intervention does not guarantee change. It is not a tick box exercise and any change that an individual claims to have made will need to be properly assessed and adequately demonstrated.

Finally, in relation to international child abduction cases, the Judiciary of England and Wales has published a useful fact sheet relating to protective measures available in this jurisdiction: ‘Protective Measures: Fact Sheet: International Hague Network Judges for England and Wales ’ (https://www.judiciary.uk/wp-content/uploads/2025/11/Factsheet-Protective-Measures-in-England-and-Wales.pdf ). It is easy to read and accessible (therefore making it ideal for holiday reading).

On that note I will conclude this festive edition of my update and wish all of my readers the very best over the holiday break and for the new year.