The recent case of SS v MCP  EWHC 2898 (Fam) illustrates the complexity of returning a child who has, according to one parent, been abducted by the other parent to reside in India. Furthermore, it provides an excellent discussion of parens patriae jurisdiction, a Latin term for an ancient principle of law which gives the High Court jurisdiction to make, among other things, protective orders over British children even when they have lived in another country for many years.
Before discussing the case it is important to note that India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction which is an international treaty that provides a quick legal route to allow the return of children wrongfully taken from one country to another by their parents. In July 2021 the Foreign and Commonwealth Office (FCO) and the Foreign, Commonwealth and Development Office (FCDO) published updated guidance on child abduction to India. It states that parental child abduction is not a criminal offence in India as under Indian law parents are seen as the natural guardians of their children. They cannot, therefore, be treated as abductors and criminal action will not be taken against them should they remove their child from one location to bring them to another. In addition, Indian courts do not automatically recognise Court orders made in foreign jurisdictions, however, it may help your case if you obtain one.
Background to the case of SS v MCP
In 2018 the mother of the then one-year-old girl at the centre of the case took her daughter to India. The child, who was aged four at the time of the Court’s decision and also a British Citizen, was left to live with her grandmother whilst the mother returned to the UK.
The girl’s father applied for a return order. As the child had lived in India for three years the Court concluded she was habitually resident in that country.
The child was made a ward of the Court and Mr Justice Mostyn referred the following question to the European Court of Justice (ECJ):-
"Does Article 10 of Brussels II retain jurisdiction, without limit of time, in a member state if a child habitually resident in that member state was wrongfully removed to (or retained in) a non-member state where she, following such removal (or retention), in due course became habitually resident?"
Note - Before 1 January 2021, intra-EU disputes relating to children were decided under Brussels IIa Regulation (or Brussels II). This provided for jurisdiction, recognition, and enforcement of orders relating to parental responsibility. The proceedings in SS v MCP were filed before 1 January 2021, therefore, Brussels II applied. The EU regulation no longer applies to any proceedings filed after the aforementioned date.
The ECJ concluded that art.10 did not mean that the original Member State (in this case the UK) would retain jurisdiction if the child became habitually resident in a non-Member State (in this case, India).
As Brussels II was held not to apply to his case, the father submitted that the Court should exercise its parens patriae jurisdiction to require the mother and grandmother to return his daughter to the UK.
The Court’s decision
The father’s application was refused. The Hon. Mr Justice Mostyn examined the decision in the earlier case of M (A Child) (Exercise of Inherent Jurisdiction), Re  EWCA Civ 922,  Fam. 163,  7 WLUK 263 which provided the following guidelines for use of the parens patriae jurisdiction:
- The use of the parens patriae jurisdiction was to be approached with great caution and circumspection.
- There had to be circumstances which were sufficiently compelling to require or make it necessary that the Court should exercise its protective jurisdiction; that requirement constituted a substantive threshold.
- The substantive threshold was needed because a lower one based only on a welfare analysis of what was in the child's best interests would conflict with the principle that the use of the jurisdiction was to be approached with great caution and circumspection.
- Furthermore, to trigger the parens patriae jurisdiction on the welfare of the child test alone would be patronising and disrespectful to the Court that had primary jurisdiction because the child was a habitual resident of that country (in this case India) as it would suggest that that country did not have a robust enough legal system to protect the welfare of the child in question.
Mr Justice Mostyn ruled that it was for the father to establish that his daughter was subject to a crisis which could put her at grave risk of suffering serious harm of the type that would engage the European Convention on Human Rights art.2 (right to life) or art.3 (which prohibits torture, and "inhuman or degrading treatment or punishment"). There was no evidence of such risk of harm in this case.
Due to the difficulty in successfully returning children who are taken to India by one parent without the consent of the other, it is vital that the left-behind parent contacts seeks specialist family law advice. A specialist Child Abduction lawyer can inform you if parens patriae jurisdiction is an option and also work with the Indian authorities and Courts to negotiate the return of your child. Equally if you suspect the other parent plans to remove your child from the UK without your permission a Child Abduction Solicitor can take several steps to prevent this from happening, including applying to the Court for a range of Orders and protective measures and safeguards.
Simon Craddock is a Partner in our Children and Domestic Violence Team. He is on the on the International Child Abduction and Contact Unit (ICACU) and Reunite panels of recommended lawyers. He has a wealth of experience in relation to international children matters and abductions. To contactSimon for more information, please phone 01788 579579 or email: