England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr Justice RODERIC WOOD

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 February 2017

Sir James Munby, President of the Family Division :

1. This is an appeal, pursuant to permission granted by McFarlane LJ on 25 November 2016, from an order made by Roderic Wood J on 13 July 2016. Granting permission, McFarlane LJ commented that:

"The proposed appeal … raises important points of principle and jurisdiction … [and] concerns an issue (namely the making of an open-ended passport order at the conclusion of proceedings) which is a matter of importance and about which there is apparently no extant authority."

2. The background is very shortly stated. Roderic Wood J had been concerned with proceedings under Parts 2 and 4 of the Children Act 1989 concerning the seven children of the appellant father. For reasons which there is no need for me to rehearse, the outcome was that the older three children were made the subject of care orders to the local authority and the four youngest children were to go and live with their mother in Canada. They have now left this country and moved to Canada.
3. The appeal relates to that part of the order Roderic Wood J made on 13 July 2016 which related to the father's Libyan and British passports (the father is by birth and upbringing Libyan), held by the court pursuant to passport orders, the most recent made on 31 July 2014. The order so far as material was in the following terms:

"The father's application for the return of his passports is refused."

4. Explaining why he was making that order, Roderic Wood J in his judgment said this:

"Essentially this application and how I respond to it depends significantly on whether I have come to the view that I can now trust the father at all and, if so, the extent to which I can trust him. I do not consider it to be an easy issue and I have set out above the compelling reasons which might lead me on one view of the evidence to grant the application, but I well recall and cannot put to one side, the incredible lengths to which the father went to remove the seven children and their mother to Libya and the description of the horrors which followed, including their wrongful imprisonment, in effect, by him and several members of his family at his command once in Libya, and I have to pay attention to what happened thereafter, including the continued and repeated breaches of working agreements which underpinned not only their arrangements with the local authority but also which this court relied upon to show that court orders were not meanful.

… both parents chose to ignore the significant part of those arrangements and cause very considerable further damage to these children as the above summary suggests.

I have come to the conclusion on fine balance that I simply cannot trust him and would not begin to repose any trust in him whilst the youngest four children are in this country. For my part I consider in the light of his comparatively recent behaviour that there remains a significant risk that he might seek to take matters into his own hands once again. I have no idea where he lives. He has given an address in two recent statements, but then only at the requirement of the court, of shared accommodation. He does not even know the name of his landlord to whom he pays rent, presumably in cash. His behaviour is devious and damaging."

5. He went on:

"I have decided that this court cannot continue to, in effect, invigilate what is occurring in the lives of these three boys and I repose trust in the local authority to consider carefully from time to time whether or not they should be, on the evidence they know of, continuing to oppose the father's wish to have his passports returned to him.

I therefore dismiss his application outright today and will leave it to the local authority to not only consider the position on this aspect of the case but also to keep the father notified as to whether or not they feel able to consent to any application he may make in the future. I do not stop the father making further applications but he would be wise to draw breath and let months, if not some further period of time, pass before he renews; and if he renews, I would expect him to have further medical evidence of an updating kind if the matter becomes perilous for his mother."

6. It would seem that Roderic Wood J, although referred to Young v Young [2012] EWHC 138 (Fam), [2012] Fam 198, [2012] 2 FLR 470, was not referred to the two key decisions of this court in Re B (Child Abduction: Wardship: Power to Detain) [1994] 2 FLR 479 and In re B (A Child) (Wrongful Removal: Orders against Non-Parties) [2014] EWCA Civ 843, [2015] Fam 209, [2015] 1 FLR 871.
7. Mr Richard Alomo on behalf of the father has formulated grounds of appeal which, in addition to challenging the judge's factual findings, focussed on three points of principle and practice:

i) First, that, absent a statutory power, there was no power to permit the continuation of the passport order post the conclusion of the care proceedings until further order. There is, he submitted, no authority to support the proposition that the court in exercising its inherent jurisdiction can make a passport order which is unlimited in time after the conclusion of the proceedings in which it was made.

ii) Second, that the judge failed to give any adequate consideration to the fact that the order constituted a serious curtailment of the appellant's freedom and that accordingly the power to make such an order fell to be exercised cautiously and in a manner that was proportionate to the perceived risk.

iii) Third, that the judge erred in failing to make any adequate provision for future review of the necessity for the passport order. Local authority review from time to time of whether a future application by the appellant for the return of his passports should be opposed, was a wholly inadequate review mechanism, implying that the onus was on the appellant to justify why his passports should be returned to him when the onus should be on the State to justify the curtailment of his freedom. He submitted that the proper form of order was for the appellant's passports to be returned to him by a certain date unless an extension of the passport order had been obtained by the local authority.

8. Mr Alomo puts at the forefront of his submissions before us the decision in In re B (A Child) (Wrongful Removal: Orders against Non-Parties) [2014] EWCA Civ 843, [2015] Fam 209, [2015] 1 FLR 871.
9. Matters have moved on since McFarlane LJ granted permission. I can do no better than quote from the position statement prepared on behalf of the local authority by Mr Christopher Poole and adopted by Miss Sally Homer when she appeared before us:

"By way of update:

a. The younger children have now moved with their mother to Canada and the father has done nothing to undermine the move.

b. The father has cooperated with the local authority, has engaged with contact with the older children and there is no evidence of untruthfulness or indeed attempts to undermine the older children's placements.

… Having considered the developments over the last few months …, the local authority does not now oppose the return of the passports and accordingly does not oppose the father's appeal."

10. The mother has taken no part in the appeal, nor has the children's guardian, whose role in practical terms came to an end when the proceedings concluded in July 2016. The guardian and her solicitor have been approached, but understandably have indicated that, given their lack of recent involvement, they are not able to express any opinion and feel that, in the circumstances, they cannot justify the use of legal aid to be represented before us. That, if I may say so, is a very responsible and proper attitude on their part.
11. As Mr Poole has pointed out, given the way in which matters have developed on the ground, the father could have made an application at first instance for the return of his passports.
12. In the circumstances, it seems to me that the proper way forward for us, exercising our powers under CPR 52.10, is as follows: (1) to allow the appeal, though without determining the merits of the appeal, on the basis of the new evidence as to how matters have developed since Roderic Wood J made his order, (2) without setting aside the relevant paragraph of Roderic Wood J's order, to make an order ourselves for the immediate return of the father's passports to him and (3) for the avoidance of doubt to set aside all previous passport orders relating to the father. The justification for proceeding in this way is, in short, the matters set out in Mr Poole's position statement.
13. When we indicated to Mr Alomo and Miss Homer that we were minded to proceed in this way, neither sought to persuade us to any different course.
14. The result is that the important matters of principle and practice identified by Mr Alomo will have to await decision in another case on another day. Without expressing any definitive view on any of these matters, it may however be helpful if I make just three points:

i) I cannot help thinking, given the jurisprudence in Re B (Child Abduction: Wardship: Power to Detain) [1994] 2 FLR 479 and In re B (A Child) (Wrongful Removal: Orders against Non-Parties) [2014] EWCA Civ 843, [2015] Fam 209, [2015] 1 FLR 871, that there may be some real substance in Mr Alomo's first point.

ii) If an order such as that made by Roderic Wood J can ever be justified after the conclusion of proceedings, it is likely only to be in an unusual and probably quite extreme case where it can be demonstrated, after a close evaluation of the degree of risk to the children and of the harm to which they will be exposed if the risk becomes a reality, that such a serious invasion of the passport-holder's rights is proportionate and necessary: cf, Re A (A Child) [2016] EWCA Civ 572, [2016] 4 WLR 111, paras 69-70.

iii) If such an order can properly be and is made, it should usually be for a defined rather than, as here, an indefinite period of time; cf, Re L (A Child), Re Oddin [2016] EWCA Civ 173.

Lady Justice Black :

15. I agree.