Child abduction: A cautious approach

Matt Foster and Dhara Shah examine the power of the courts to make port alert orders and best practice when dealing with cases involving an abduction risk.

In A v B (Port Alert) [2021], Mostyn J considered the jurisdictional basis and proper procedure for an application for a port alert order. This article will look at that decision and also the practical steps that should be taken by practitioners in cases where there is an imminent and real risk of abduction such that a port alert order would be justified.

Background

The court was concerned with the parties’ four-year-old son. The father was age 36 and a UK national. The mother was age 32 and a Slovakian national. Proceedings under the Children Act 1989 (ChA 1989) first took place in the High Court in 2019, within which anagreement was reached and enshrined in a consent order by Cobb J. The orders included provision that the child live with both parents at their shared home in South London and a prohibited steps order that neither parent remove the child from the jurisdiction without the written consent of the other or an order of the court.

By the summer of 2021, there were extant proceedings under both ChA 1989 (it appears for cross-applications for a ‘lives with’ child arrangements order) and the Family Law Act 1996 (FLA 1996) (with the parties making cross-applications for non molestation and occupation orders). A three-day hearing was due to commence on 18 August 2021, to be used as a fact-finding hearing in the ChA 1989 proceedings and a final hearing in the FLA 1996 proceedings.

At the time of the hearing, the child was living with the father and having supervised contact with the mother. The prohibited steps order made by Cobb J was still in force and the father held the child’s passport, this being the only identification/travel document that would permit the child to leave the country.

It is against this backdrop that on 3 June 2021 the father made an urgent without notice application in the High Court for the following:

• an order that the child be made a ward of the court, so as to prevent the mother from exercising her parental responsibility unilaterally in respect of education and medical decisions;
• a prohibited steps order preventing the mother from withdrawing funds (circa £3,000) from a designated school fees account; and
• a port alert order.

Judgment

Peel J had initially heard the application and listed it for an inter partes hearing, which took place before Mostyn J. The issues were addressed as follows:

Wardship

Mostyn J dismissed the wardship application on the basis that it would ‘add nothing’ to the powers already vested in the family court under ChA 1989. In this case, the concerns raised by the father could be addressed by way of a prohibited steps order under s8, ChA 1989.

Mostyn J quoted himself in AS v CPW [2020], in which he said (at para 31) that ‘[i]n many cases of this type wardship is sought almost as a reflex’ and that a person making a wardship application needs to ask what wardship will add to the invocation of the inherent and/or statutory jurisdiction, in relation to which ‘[t]he answer is, in many cases, nothing’ (para 32).

Prohibited steps order

Mostyn J stressed that applications should only be made to the High Court where the relief sought does not lie within the statutory powers of the Family Court or where the law allows or requires the application to be made in the High Court. A detailed explanation of this issue is set out in the president of the Family Division’s guidance Jurisdiction of the Family Court: Allocation of cases within the Family Court to High Court judge level and transfer of cases from the Family Court to the High Court, dated 24 May 2021, which includes a helpful schedule setting out the applications that must be made in the High Court and the applications that may be made in the High Court (on the basis that all other applications should be made in the Family Court in the first instance).

While r5.4, Family Procedure Rules 2010 (FPR 2010) technically allowed the father to ‘tack on’ the prohibited steps order application to the wardship application, the father conceded that he was only seeking the prohibited steps order application at this stage as he had already secured a hearing in respect of his wardship application.

In circumstances where the wardship application had been dismissed, Mostyn J said it would not be appropriate to deal with the application for a prohibited steps order. In the absence of exceptional circumstances justifying resolution in the High Court, the application should be heard alongside the existing proceedings in the Family Court, and indeed the judgment refers to the president’s allocation guidance that the Family Court should be ‘seen as the sole, specialist, court to deal with virtually all family litigation’ (para 13 of the judgment).

Port alert

The father’s application for a port alert order was also dismissed for two reasons: first, because the application should have been made to the Family Court and not to the High Court and second, because there was no real and imminent risk that the mother was going to remove the child from the jurisdiction.

In relation to the first ground for refusal as to the choice of court, Mostyn J explained the interplay between the jurisdiction of the High Court and the Family Court. Under s31(E)(1)(a), the Matrimonial and Family Proceedings Act 1984 provides that ‘[i]n any proceedings in the Family Court, the court may make any order… which could be made by the High Court if the proceedings were in the High Court’. Mostyn J explained (with reference to the president’s allocation guidance) that this gives the Family Court the power
to use the High Court’s inherent jurisdiction to make incidental or supplemental orders to give effect to a decision within its own jurisdiction. He gave the example of the issue of a bench warrant to secure attendance of a judgment creditor. He made clear that this does not allow the Family Court to exercise original or substantive jurisdiction in respect of those exceptional matters that must be commenced and heard in the High Court, for example a Tipstaff order (as distinct from a port alert order), which can only be made by the High Court and which the Family Court has no jurisdiction to order.

Mostyn J concluded that the Family Court has the power to issue a port alert order, but only in circumstances where it is an incidental measure to give effect to a substantive order, for example, a prohibited steps order to prevent the removal of the child from the jurisdiction. Mostyn J referred to these orders as ‘freestanding’ port alert orders, so as to distinguish them from a port alert order ancillary to a Tipstaff order, however this terminology is arguably unhelpful in circumstances where the jurisdictional basis for the Family Court to make such orders requires the order to be ancillary or supplemental to a substantive order of the Family Court, and for that reason this terminology has not been adopted for the purpose of this article. The port alert simply serves to secure the efficacy of the prohibited steps order. The judge noted that the police have the power to put in place a port alert for children under the age of 16 (by virtue of s1, Child Abduction Act 1984 (CAA 1984)) and so it would be odd if the Family Court did not also have the ability to order a port alert.

As to the second ground for refusal, ie that there was no real and imminent risk, the father was concerned that the mother would remove the child to Slovakia (her homeland) or the Czech Republic (where she had connections). He said that the mother had frequently made threats to abduct the child and that she had no reason to stay in England (having lost her job and being subject to possible charges from the CPS in relation to allegations of domestic violence raised by the father). The father said that the mother had a lucrative business in Europe and that her attempt to withdraw funds from the designated school fees account was a sign she was thinking of leaving the country.

Despite this, Mostyn J was not satisfied that there was a ‘real and imminent’ risk that the mother would remove the child from the jurisdiction. He noted that the father held the child’s passport and that there was no evidence to suggest that the mother had procured other travel or identity documents. Moreover, her contact with the child was supervised and Mostyn J felt it unlikely that she would be able to ‘thwart the watchful eye of the supervisor’ in order to abduct the child (para 41).

Guidance on applications for port alert orders

Mostyn J gave clear guidance for cases going forward and said that the initial application is likely to be made without notice and that there should be a ‘transparent and accessible facility’ to make these applications in each designated family judge area (para 42). He said such applications should be allocated to a circuit judge, or in complex cases to a judge of High Court level (presumably sitting in the Family Court).

Mostyn J noted that the heading of the existing standard template for a port alert order was misleading, as it referred to proceedings in the High Court. He therefore appended a pro forma order for use in the Family Court to his judgment and this is now part of the compendium of standard orders to be used in family proceedings.

As to substantive guidance, Mostyn J said that he did not expect port alert orders to be made by the Family Court routinely and that they should only be made where there is clear evidence that there is a real and imminent risk that the children in question will be removed from the jurisdiction. The court should not demand proof that shows on the balance of probabilities that the children will be removed, but the evidence should be of a degree of probability not far short of that standard.

He also stressed that applications should not be made in reliance on evidence that is ‘flimsy or unsubstantiated’ or a ‘mere assertion’ (para 39). If the court is minded to make an order, the default position is that it should last for only 28 days and that any extension should only be ordered at a subsequent inter partes hearing. Mostyn J stressed that this is a key provision which needs to be adhered to strictly.

Practical tips

The judgment in A v B (Port Alert) is of significant practical importance and when applying for a port alert order practitioners should bear the following in mind:

• It must be shown that the risk of abduction is both ‘real’ and ‘imminent’. FPR 2010, PD 12F, para 4.6 expressly states that a port alert order should not be sought as insurance.
• It is important to be aware of what a port alert actually entails: there are no global embarkation controls in the UK and so there is no database against which every person is checked when they leave the UK (similarly, there is no central record of who has left). A port alert involves placing the name of a child on the child abduction warning list (which lasts for 28 days before being removed automatically, so a return date for the application should be lined up if appropriate) and the issue of an all ports broadcast (ie a message sent to every international port in the UK directing police officers to attempt to see if they can locate the child).
• Practitioners should advise clients of the mechanics of a port alert and the scope of what can actually be achieved within the current system. While a port alert is one of the best ways of preventing abduction, it is not watertight and relies on various agencies carrying out their roles properly and diligently (which may not be so at, for example, private airfields, where PDF accessed 8 October 2021 travel requirements/checks can be relaxed for travellers). Moreover, a port alert is the last line of defence and so should not be relied on in isolation
• Consideration should be given to whether to go directly to the police for a port alert, as they can issue a standalone port alert without the involvement of the court under s1, CAA 1984, however practitioners should only consider this approach in cases where there is a real and imminent risk that the child is about to be abducted (considered to be within 24 to 48 hours). FPR 2010, PD 12F, paras 4.2 to 4.8 set out the parameters of the police powers in this respect. If such a situation does arise, the applicant should generally seek the assistance of their local police station and provide the specified information set out in FPR 2010, PD 12F, para 4.7, ie details of the child, the person likely to abduct the child, likely destination and time/place of embarkation etc. It should be kept in mind that a police-enforced port alert will only stand for 28 days, and the matter will then usually need to be heard by the court if an extension is sought
• If applying for a port alert or a prohibited steps order, an order may also be sought under s37, Family Law Act 1986 requiring any person to surrender any UK passport of the child (this does not apply to foreign passports). The further issue or replacement of the child’s UK passport may also be prevented by serving HM Passport Office with a court order specifying the same. FPR 2010, PD 12F, paras 4.9 and 4.10 contain further details, including a template letter.
• It may also be prudent to contact any relevant foreign embassy or consulate to tell them not to issue replacement passports or travel documentation in respect of a child, or at least to establish whether they have a practice of doing so. While such bodies cannot be compelled not to issue travel documents, they may be amenable to requests. Some embassies/consulates accept applications for their own internal alert system, for example if new travel documentation is requested for the child.
• In order to place the name of the child on the child abduction warning list, it will be necessary for the police to record the child on the Police National Computer (PNC) and to obtain a PNC number for the child from the police, which allows the child to be identified by the warning list. The police will only provide a PNC number if they have been personally served with the sealed court order containing the port alert. Practitioners should therefore ensure that the judge/their clerk is aware that a sealed order will be required immediately after the hearing and that they have organised and instructed a process server in advance in readiness for the day of the court hearing to avoid any delay in implementing the port alert.
• Practitioners should ensure that the order refers specifically to the National Border Targeting Centre (NBTC). This is the centralised body that activates the port alert on the child abduction warning list. The NBTC will only accept (sealed) orders that specifically mention it. Practitioners should consult the pro forma order appended to Mostyn J’s judgment, which refers to the NBTC.
• Consideration should be given to submitting photographs of the child to the police and NBTC to help them identify the child. This is not required information under FPR 2010, PD 12F, para 4.7, but may greatly assist the police in the event of an abduction.

This article was first featured in the Family Law Journal (Legalease) www.lawjournals.co.uk.