JK [2025] EWCA Civ 1309: Local authorities can secure a British child’s return under the inherent jurisdiction even where care proceedings are intended; Family Law Act 1986 largely irrelevant to public law

Court: Court of Appeal (Civil Division), England and Wales

Date: 17 October 2025

Judges: Lord Justice Baker (lead), Lady Justice Falk, Lord Justice Moylan

Citation: [2025] EWCA Civ 1309

Introduction

This important Court of Appeal decision clarifies the scope and deployment of the High Court’s inherent, parens patriae jurisdiction when a local authority seeks the return of a British child from a non‑Contracting State to the 1996 Hague Child Protection Convention. The court dismisses a father’s appeal against Lieven J’s “bare return” order for a nine‑month‑old baby (J) born in Thailand to British parents who had travelled there while pregnant to avoid child protection intervention in England. Two issues dominated:

Whether a local authority’s intention to issue care proceedings on the child’s return fatally “cuts across” the statutory scheme and precludes the use of the inherent jurisdiction; and
Whether, on the facts, the circumstances were “sufficiently compelling” to make it necessary to exercise the protective jurisdiction for J’s immediate return.

Lord Justice Baker (with whom Lady Justice Falk and Lord Justice Moylan agreed) holds that the Family Law Act 1986’s jurisdictional limits concern private law orders and are of limited relevance to public law child protection in this setting; that section 100 of the Children Act 1989 delimits, but does not prohibit, local authority use of the inherent jurisdiction to obtain a return order; and that the test remains whether circumstances are sufficiently compelling to make the exercise of the protective jurisdiction necessary. The fact that care proceedings are intended on return is held to be irrelevant to whether the return order can be made (paras 86–88).

Background and procedural history

The parents have a long history of serious child protection concerns: five of the mother’s children had previously been removed (2005–2018); a sixth child born in 2023 was made subject to care and placement orders and adopted in April 2024. The parents were arrested for robbery in April 2024; a June 2024 GP visit confirmed the mother was pregnant. On 16 September 2024, at 24 weeks’ gestation, the parents travelled to Thailand “to avoid the removal of their baby at birth” (para 6). J was born in Thailand on 26 December 2024.

On return to the UK in June 2025 to renew visas, the parents were arrested for concealing the birth. They told police J had been left with friends (X and Y) in Thailand. Social workers saw J on video call and later Thai social services visited her: she appeared well, meeting milestones (paras 9, 15). The FCDO indicated Thailand would assist a return if whereabouts were confirmed (paras 12–13). The local authority sought without notice orders to make J a ward of court and for a passport order, followed by a return order, and explained its plan to issue care proceedings immediately on return (paras 10–19).

Lieven J granted the return order on 15 August 2025, with practical directions for LA social workers to travel to collect J and for a hearing within 72 hours of her arrival. A recital recorded “reasonable cause to believe” J would be likely to suffer significant harm if the inherent jurisdiction were not exercised (para 18). The father appealed with the mother’s support. King LJ stayed the order; Baker LJ granted permission; the appeal was ultimately dismissed.

Summary of the judgment

FLA 1986 is of limited relevance. Part I of the FLA 1986 governs private law jurisdiction, not public law child protection under Part IV Children Act 1989 (paras 26–28). The applicable “statutory scheme” here is the 1996 Hague Convention and the Children Act 1989, especially section 100 (paras 28, 37–42).
Inherent jurisdiction available for return of a British child from a non‑Contracting State. The High Court retains parens patriae power over British children abroad and may order a “return” where sufficiently compelling circumstances make it necessary (paras 43, 42(1), 84–85; Re M [105]).
Section 100 Children Act 1989 conditions apply, but were satisfied. Leave is needed; the objective must be unachievable by other available orders; and there must be reasonable cause to believe the child is likely to suffer significant harm absent inherent intervention (para 41). The court was satisfied (para 89) and inferred leave was properly granted from the recitals.
Intention to issue care proceedings is irrelevant to whether to grant a return order. The use of the inherent jurisdiction in this case was to protect a British child at risk, not to confer jurisdiction to make orders otherwise unavailable (paras 86–87). Practical collection arrangements and listing on return do not offend section 100 (para 88).
“Sufficiently compelling” test met. On the evidence of parental history, deceit to evade safeguarding, refusal to drug test (adverse inference drawn), unstable care arrangements in Thailand, and risk of frustration of professional oversight, Lieven J’s evaluative decision was unimpeachable (paras 68–70, 85–91).
Guidance on Re M and Re D. The court identifies confusion around “cutting across the statutory scheme” and emphasises future focus on the Re M ratio (“sufficiently compelling”) rather than obiter (paras 85, 95). Re D is distinguished on facts and does not lay down a general prohibition.

Analysis

Precedents cited and their influence

Statutes and international instruments

Family Law Act 1986 (FLA 1986): The Court underscores that Part I applies to private law orders, including certain inherent jurisdiction orders “giving care” or “providing for contact/education” to a “person” (s.1(1)(d)), and not to public law care/supervision orders (paras 24–26, 80). As Singer J explained in Re R (1995), “person” is a human, not a local authority; ergo Part I is “pointing away” from public law (para 80).
1996 Hague Child Protection Convention: Primary jurisdiction rests with the State of habitual residence (Art. 5), with urgent/provisional measures based on presence (Arts. 11–12). Critically, where no Contracting State has substantive jurisdiction, a national court may rely on domestic rules (e.g., inherent jurisdiction) but foreign recognition is not compelled (paras 29–36, 81). The “relevant date” for jurisdiction under the Convention is proceedings issue date (Hackney; para 34).
Children Act 1989: Section 31 empowers care/supervision orders; section 100 both restricts and channels local authority access to the inherent jurisdiction, requiring leave, “no other route,” and likely significant harm. Section 50 recovery orders are not available extra‑jurisdictionally (paras 39–42, 83).

Case law shaping the return jurisdiction

A v A (2013) UKSC 60: Confirms power to order return of a British child under the inherent jurisdiction; emphasises circumspection because of potential disruption of habitual residence frameworks but endorses a case‑specific approach (paras 47–48).
Re B (2016) UKSC 4: Confirms the court should not confine the jurisdiction to only “dire and exceptional” cases; identifies three reasons for caution (conflicts with jurisdictional schemes, contradictory decisions, unenforceability) but treats them as fact‑sensitive; obiter cautions about not “cutting across” statutory schemes (paras 50–54).
Re M (2020) EWCA Civ 922: Establishes the governing test: there must be “circumstances sufficiently compelling” to make it necessary to exercise the protective jurisdiction (para 57 quoting [105]). Warns against using return orders to procure jurisdiction for welfare determinations that the FLA 1986 would otherwise limit; but that analysis was anchored in that case’s specific “welfare enquiry” purpose (paras 56–59).
GC v AS (No.2) [2022] EWHC 310 (Fam): Poole J distils Re M: the jurisdiction is protective; “sufficiently compelling” means more than “in the interests,” and other measures must be insufficient (para 60 quoted).
Re D [2024] EWHC 1658 (Fam): Henke J accepted inherent jurisdiction existed but set aside an earlier return order, finding on those facts the orders sought were made so that local authority public law duties could be exercised, thereby cutting across jurisdictional boundaries; distinguished here as fact‑specific (paras 61–62, 96–97; considered and distinguished at paras 64, 66–68, 86).
Hackney (2023) EWCA Civ 1213: Clarifies 1996 Convention operation, including ability to rely on national law when no Contracting State has Article 5/6 jurisdiction and the proceedings’ issue‑date focus (paras 29–36, 81).

Influence on the present decision: The Court of Appeal deploys the Re M test as the applicable standard while limiting the reach of Re M and Re B obiter about “cutting across” when the FLA 1986 is not engaged and section 100 CA 1989 provides the relevant gatekeeping. Hackney underpins the view that, because Thailand’s position means Articles 5/6 are not engaged, domestic inherent jurisdiction may be used without offending the 1996 Convention’s “closed system.”

Legal reasoning of the Court of Appeal

1) Which statutory scheme applies?

The court reframes the choice of law framework. While parties argued FLA 1986 considerations, Baker LJ stresses that FLA 1986 is not the operative jurisdictional scheme for public law child protection (paras 26–28, 80). Instead, the court looks to:

the 1996 Hague Convention (to the extent applicable), and
the Children Act 1989, especially section 100’s constraints and permissions (paras 28, 37–42).

2) The source and scope of the power

Drawing from Hope v Hope and In re P (GE) and modern authorities, the court confirms that the inherent jurisdiction extends to British children abroad and can be used to order return from a non‑Contracting State where protection is necessary (paras 43, 42(1), 84–85).

3) The test: “Sufficiently compelling” circumstances

Re M [105] is the controlling ratio: the court must be satisfied that the circumstances are sufficiently compelling to require or make it necessary to exercise the protective jurisdiction (paras 57–58, 84–85). The court also adopts the cautionary framework from Re B (para 50) while rejecting any requirement that the case be “dire and exceptional.”

4) Section 100 CA 1989 gateway

Section 100(3)–(5) permits local authority applications for inherent jurisdiction orders where (i) leave is granted, (ii) no other statutory route would achieve the desired result, and (iii) there is reasonable cause to believe the child is likely to suffer significant harm if the jurisdiction is not exercised (para 41). The Court of Appeal treats the detailed recital of “reasonable cause to believe likely significant harm” and the absence of alternative routes as sufficient to infer leave was granted, notwithstanding the lack of a formal order expressly saying so (para 89).

5) Intention to issue care proceedings is irrelevant to whether to grant return

The judgment decisively answers a recurring objection: a local authority’s plan to issue care proceedings on return does not bar, and is irrelevant to, the decision to make a nationality‑based return order (paras 86–87). The key is the purpose of the return order: protection of the child as a British national. The court distinguishes earlier remarks about “cutting across the statutory scheme,” locating them either within the private‑law FLA 1986 context (not engaged here) or as fact‑specific to cases where a return was being used to procure jurisdiction for a welfare enquiry (paras 85–87). Practical ancillary directions (e.g., authorising travel to collect J; listing within 72 hours) are not a misuse of inherent powers nor a section 100 breach (para 88).

6) Application to the facts: sufficiently compelling circumstances established

Lieven J’s findings included:

recent and serious child protection history culminating in adoption of a sibling (para 5);
parental deceit to evade safeguarding scrutiny and a refusal to undergo court‑ordered drug testing, justifying adverse inference (paras 66, 86);
J left with recent acquaintances whose commitment was short‑lived, with indications of substance misuse (para 9; see also para 87); and
unstable placement and risk that parents would frustrate oversight in any country (paras 68(3)-(5), 70, 88).

Balanced against evidence that J’s day‑to‑day needs were being met in Thailand at the time of visits, the judge remained unconvinced that the Thai system could reliably protect J given parental deceit and lack of persons with parental responsibility locally (paras 65, 69–70). The Court of Appeal holds this evaluative judgment was plainly open to the judge and correct (paras 91–92).

7) Clarifying the reach of Re M and Re D

To prevent over‑reading prior dicta, Baker LJ flags that obiter references to “cutting across” and “subverting Parliament’s intention” have generated uncertainty and may require reconsideration, but this case is not the vehicle because FLA 1986 is not engaged (para 85). Importantly, Moylan LJ emphasises that future reliance on Re M should focus on the ratio at [105], not the obiter (paras 94–95).

Impact and practical significance

Clear green light for local authorities: Where a British child is abroad in a non‑Contracting State (or where no Contracting State has Article 5/6 jurisdiction), local authorities may seek a “bare return” order under the inherent jurisdiction, provided section 100 CA 1989 is satisfied and circumstances are “sufficiently compelling.” The intention to issue care proceedings on return is not a bar (paras 42, 83–88).
Re‑centring the correct legal framework: The decision limits the role of the FLA 1986 in public law cases and reinforces the gating function of section 100 CA 1989, reducing confusion created by cross‑references to FLA limitations (paras 26–28, 80–83, 85–87, 95).
Comity and enforceability addressed in practice: The order is framed as a request for assistance and accompanied by practical steps (obtaining ETDs, travel logistics, immediate listing), reflecting best practice to respect comity while making the order operable (paras 19, 88).
Fact‑sensitive threshold: The case illustrates what “sufficiently compelling” looks like in practice: recent robust findings of risk to siblings; deception to avoid oversight; refusal of drug testing; unstable informal care; and real risk of evading professional scrutiny (paras 68, 85–88).
Future litigation strategy: Parties should avoid over‑reliance on “cutting across the statutory scheme” arguments derived from Re M obiter in public law return applications, and instead focus on the protective necessity test and section 100 compliance (paras 85–87, 95).
Policy signal: Parents cannot insulate themselves from English child protection oversight by arranging a birth abroad and leaving a British baby in ad hoc care overseas; the court will act to protect British children when necessary.

Complex concepts simplified

Inherent jurisdiction / parens patriae: The High Court’s ancient power, delegated from the Sovereign, to protect children who owe allegiance to the Crown, including British children abroad.
“Bare return” order: An order requiring the child’s return to England and Wales without, at that stage, deciding who will care for the child or making care/contact orders. Ancillary practical directions (e.g., travel, listing) are permissible.
Family Law Act 1986 (FLA 1986): A statute that, for these purposes, governs private law jurisdiction (e.g., residence/contact) and certain specified inherent jurisdiction orders “giving care” or “contact” to a person. It does not govern public law care/supervision orders.
Children Act 1989, section 100: The gateway governing when local authorities may ask the High Court to use its inherent powers. Leave is required; no alternative order must be capable of achieving the outcome; and there must be reasonable cause to believe the child is likely to suffer significant harm absent inherent intervention.
1996 Hague Child Protection Convention: Sets international rules on which State’s authorities can make child protection decisions, generally based on habitual residence. If no Contracting State has substantive jurisdiction (e.g., child in a non‑Contracting State), a domestic court can act under its own law, although other countries may not be bound to recognise those orders.
“Sufficiently compelling” test: The court will order a British child’s return from abroad only when circumstances make it necessary to exercise the protective jurisdiction—more than a general “best interests” preference and with other available measures shown to be insufficient.
Comity: Respect between legal systems. The court approached Thailand’s role with deference, used a respectful request, and took account of the Thai authorities’ stance.

Practice points and checklists

For local authorities seeking a return order

Confirm the child’s British nationality and that no 1996 Convention State has Article 5/6 jurisdiction. If the child is in a non‑Contracting State, be prepared to rely on the inherent jurisdiction (paras 42, 81).
Apply under section 100 CA 1989:
- Seek leave expressly; evidence that no alternative statutory order can achieve return; and set out the “reasonable cause to believe likely significant harm” basis (paras 41, 82–83, 89).
- Keep the order “bare”: avoid purporting to place the child in care or regulate contact under inherent powers (paras 80–82, 88).
Evidence why circumstances are “sufficiently compelling”:
- Recent, robust child protection findings, especially concerning siblings;
- Any deceit/evasion of safeguarding and failure to engage (e.g., refusal of drug testing with adverse inferences);
- Instability and informality of overseas care arrangements; risk of frustration of professional oversight (paras 68, 85–88).
Address comity and practicality:
- Engage the FCDO and relevant overseas authorities; provide full whereabouts;
- Seek directions for ETDs, travel escorts, and an early post‑return listing (paras 12–13, 16, 19, 88).

For respondents opposing return

Focus on whether overseas protection is reliable and sufficient, but be ready to confront evidence of parental evasion and refusal to engage (paras 69–70).
Avoid relying solely on FLA 1986 arguments; in public law return cases they carry limited weight (paras 26–28, 80–81, 85).
Demonstrate why circumstances are not “sufficiently compelling” and propose concrete overseas safeguards and oversight arrangements that are realistically available.

Unresolved or flagged issues

Future reconsideration of “cutting across” obiter: The court signals that obiter in Re B/Re M about cutting across the statutory scheme has caused uncertainty and may merit reconsideration; however, this case falls outside FLA 1986 and is not the vehicle (para 85).
Formal section 100 leave orders: Although the court was content to infer leave from recitals (para 89), best practice remains to include an explicit section 100(3)–(5) leave order to avoid argument on appeal.
International recognition and enforcement: Orders made outside the 1996 Convention’s scheme may not be recognised abroad (para 81); practitioner planning should anticipate this and secure co‑operation (as here, via the FCDO and Thai authorities).

Conclusion

JK provides clear and authoritative guidance for cases in which a local authority seeks the return of a British child from a non‑Contracting State under the inherent jurisdiction. The decision makes four central points:

For public law return applications, the FLA 1986 is largely irrelevant; the controlling framework is the 1996 Hague Convention (if applicable) and section 100 CA 1989 (paras 26–28, 42, 80–83).
The inherent jurisdiction allows the court to order the return of a British child abroad where “sufficiently compelling” circumstances make it necessary to do so; the test in Re M [105] governs and is not confined to “dire and exceptional” cases (paras 57–58, 84–85).
A local authority’s intention to issue care proceedings on the child’s return does not preclude nor undermine a return order; the focus is on protective necessity, not on “cutting across” a statutory scheme that is not engaged (paras 86–88, 95).
Careful case‑management and comity‑sensitive, practical ancillary directions are permissible and prudent in making such orders effective (para 88).

The Court of Appeal’s analysis restores clarity to an area clouded by over‑reading of obiter in earlier authorities. It reaffirms that, where the statutory and treaty frameworks provide no other route, the ancient protective jurisdiction remains available to secure a British child’s safety. For practitioners and judges, the message is straightforward: satisfy section 100; prove “sufficiently compelling” protective need; keep the order “bare”; and respect international comity in execution.

JK [2025] EWCA Civ 1309 — Local authorities may use the parens patriae jurisdiction to secure a British child’s return from a non‑Contracting State notwithstanding an intention to issue care proceedings (Re M “sufficiently compelling” test affirmed; FLA 1986 largely irrelevant)