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Judge says no location order for nine year-old girl on holiday

A High Court Judge has refused an application for an order stating that a girl on holiday abroad with her mother must be returned immediately to the UK.

The nine year-old in question ‘S’, was born in September 2006. She had a number of older brothers and sisters, some of whom had come to the attention of social workers. In the High Court, Mr Justice Baker referred to “difficulties that are said to have occurred within the home”, adding:

“The local authority’s case in general, with regard to this family, is that S’s parents struggle, in particular, to look after older children.”

S’s older brother, referred to as ‘R’, alleged that their father had assaulted him. His school reported this claim to the authorities and the boy was placed in police protection. The father strongly denied the allegation and claimed that ‘R’ had since recanted too. Nevertheless, the local authority began proceedings under the Children Act, seeking to place both R and S under emergency protection. They then discovered that S was on the Caribbean island of Saint Kitts in the West Indies, having travelled there with her mother for an extended Christmas holiday.

Believing that the situation was urgent, social workers applied over the subsequent weekend for a legal order that S be located on the island and returned to the UK. This was refused. Mr Justice Mostyn said the order was unnecessary given the given the emergency protection order already in place and insisted that the case could wait till Monday.

When the authority returned to court the following week, pressing for a location order that would be issued without notice to the family, a judge ordered the father to appear in court and reveal what he knew about the trip.

But a simultaneous application for an interim care order for the R was also underway. The father gave a court hearing concerning the latter information concerning his daughter’s whereabouts. The hearing was then adjourned to allow the father to hire a lawyer.

Meanwhile, the local authority pressed for a location order under the ‘inherent jurisdiction’ of the High Court – i.e. its built-in legal authority, as opposed to authority deriving from a particular act. In addition, they sought a temporary supervision order.

Mr Justice Baker explained:

“The father strongly opposes all orders and before me read out a lengthy statement setting out a history of grievances and fully developed legal arguments as to why the court should refuse any orders in this case.”

The Judge concluded that the authority had failed to demonstrate a clear need for the orders it sought. He referred to Section 100 of the Children Act, which sets out restrictions on the use of inherent jurisdiction in relation to vulnerable children. Paragraph 4(b) states that there must be:

“…reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.”

Mr Justice Baker declared:

“…in the absence of any evidence as to the situation in Saint Kitts, it seems to me to be impossible for the local authority to satisfy me that the test set out in s.100(4)(b) is satisfied…”

Proceedings concerning S should run alongside that of her older brother R, he said, the case back to the district judge who had overseen earlier hearings. However, he added:

“I do not wish to criticise the local authority for the course it has taken in this difficult case.”

SA (A Child) can be read here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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