Consider this thought: A parent who lives in the United Kingdom has been separated from their child who is in another country. That country is what we may call a ‘destabilised’ country in so far as it has been affected by war, a country in which its political system has come apart and a power vacuum exists in which we have competing parties vying to rule the country. That kind of a situation has a profound effect on its infrastructure such as local government, policing, healthcare and the justice system. Consider another obstacle for this parent: the child is habitually resident in that country and not the United Kingdom. In addition, that country is not a member of the Hague Convention 1996. Are there any options available for this parent to have the child returned to their care? 

The Court of Appeal has touched on what continues to remain an interesting talking point in the field of international law. The judgment recently handed down in S (Children)(Inherent Jurisdiction: Setting aside Return Order) [2021] EWCA Civ 1223 has set the stage for the question of whether we will see any developments on the use of the parens patriae jurisdiction. 

In this article, we will be exploring the factual background of this case as well as the decision made by the Court in order to see what we can take from this recent case as to whether we will see a development in the future for this area of law. 


The parents have three children who were all born in England. The Mother was born in England and the Father was born in Tripoli in Libya. The parties met in England in 2007 and started a relationship and thereafter, had an Islamic marriage the following year. The Father was later granted British citizenship. In December 2017, the parties and the three children travelled to Turkey for the purpose of meeting paternal family on holiday and then travelled to Libya at the end of that month. 

The Court’s assessment was that the parents had agreed to move with the children to live permanently in Libya. Two weeks later however, the Mother returned to the country for an appointment for a benefits claim. The Mother expected the youngest child, F, to join her however, it transpired that the Father had not been able to secure an exit visa and the Mother travelled alone. The Mother travelled between Libya and England on several occasions in 2018 and throughout the year, the children and the Father remained in Libya. The mother returned to England in September 2018 and had not returned to Libya since then; she has had only indirect contact with the children since. 

The Mother started proceedings in the High Court in November 2018 seeking the summary return of the children to England on the basis that the children had been ‘forcibly’ retained in Libya by the Father. 

During the course of the wardship proceedings, the Court had determined it was necessary to hold a finding of fact hearing to determine the issue of habitual residence of the children and whether or not the Court had jurisdiction to make orders in respect of the children. Her Honour Judge Hillier, the presiding judge, gave judgment on 25th October 2019 and held that the children’s habitual residence was in Libya and therefore, dismissed the Mother’s application. 

The Court, in that judgment, had noted that the Court had jurisdiction in relation to the jurisdiction by virtue of their nationality: the inherent parens patriae jurisdiction. During the hearing, the legal representatives for the Father had pre-emptively opposed any suggestion that the Court should exercise the parens patriae jurisdiction. The Mother’s legal representatives did not put forward any submissions with regard to parens patriae and therefore, the Court was of the view that this issue did not need to be explored. 

The Mother was granted permission to appeal and by way of a supplemental application sought to rely on an additional ground that the Court should have explored whether it was appropriate to exercise the parens patriae jurisdiction. That application was refused. 

Following this refusal, the Mother made a fresh application in which she sought to have the order of HHJ Hillier set aside. The Mother relied upon PD12F Family Procedure Rules 2010 in which she submitted there was a fundamental change of circumstances. The evidence for this was an expert report provided, albeit not a Part 25 expert report but the Court considered the report anyway. That report provided a view as to the geopolitical situation taking place in Libya. The Mother, in a separate application, sought to rely upon the parens patriae jurisdiction. The Judge in the first instance, Mostyn J, refused the application and considered the application to be an abuse of process and relied upon the principle of ‘Henderson abuse’ as outlined in the case of Henderson v Henderson (1843) Hare 100. The Mother appealed the decision. 

What does the Court mean by Parens Patriae jurisdiction? 

Parens Patriae is a latin term for ‘parent of the people’ and is a rarely used and antiquated doctrine related to the High Court’s inherent jurisdiction over children. Its origin can be traced to an old case of Hope v Hope (1854) 4 De GM & G 328. The original basis of this concept was essentially a social contract that the child owed allegiance to the Crown and in return the Crown had a protective or parens patriae jurisdiction over the child wherever he was, even when they are abroad by virtue of their nationality. 

History has shown that the higher Courts have been extremely apprehensive of exercising such a vast power over children who are neither habitually resident nor present in this country on the basis of nationality. The argument is a straight-forward one and it is that international law is always premised on the respect, understanding and cooperation between nations and therefore, exercising the parens patriae jurisdiction in such circumstances would undermine that relationship between nations. For a Court to say they have jurisdiction of a child who is neither habitually resident nor present in the country simply because they are a national of that country is a very bold claim that runs counterintuitive to those values promoted by international law. Looking at this case in particular, the Mother would have sought to invoke the High Court’s inherent jurisdiction to order the return of the children to England even against the fact that the children are habitually resident in Libya and continue to live there. 

What was decided by the Court? 

In terms of the Court’s decision, the Court was not minded to agree with Mostyn J’s view that the Mother’s application amounted to Henderson abuse and cautioned against the application of that principle in cases concerning children. The Court set out a very concise guide of the sufficient powers of case management contained in the Family Procedure Rules 2010 and s.91(14) Children Act 1989 to deal with any abuse of process. The Court was of the view that to import Henderson abuse into children’s cases could open the floodgates for satellite litigation. 

The Court was of the view that the judgment was flawed in that it failed to give sufficient consideration to the Mother’s independent application to exercise parens patriae jurisdiction on the basis that the reasons the Judge relied upon related to his analysis of the application to set aside the earlier order, and that the question of parens patriae was not thoroughly explored. 

What can we take from this? 

The Court has remitted this case back to the High Court to consider the Mother’s application to invoke the parens patriae jurisdiction. It was hoped that we could have seen a little more discourse discussed on the issue of parens patriae by the Court of Appeal in this case however, they took a view that clearly this question should be considered by the High Court.  

The case serves as an interesting talking point because the subject of Parens patriae poses a difficult debate: should the Court exercise jurisdiction and intervene over the welfare of a child who is a British national but is habitually resident in another country which by all accounts is a dangerous environment to be in whether it be by war, disease or some other national disaster?  

Is such an intervention justified? It will be interesting to see whether the High Court considers there should be a shift in the role of the inherent jurisdiction and whether such an intervention on the Court’s part could be justified therefore, international family law practitioners should keep a watchful eye over any developments in this case.  

Written by Amjad Kadhim, Pupil Barrister, Unit Chambers

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