Passports and other orders against third parties: coercion and legitimate use.

In the matter of B (A Child) [2014] EWCA Civ 814 Many of the Family Division judges have expressed reservations over recent years about the way in which the powers of the court, in particular those under the inherent jurisdiction, have been deployed without sufficient consideration to the often draconian impact they have on the rights of individuals who have not been heard and who may be entirely innocent of any role in the abduction: KY v DD (injunctions) [2011] EWHC Fam 1277, [2012] 2 FLR 200 and B v A [2012] EWHC 3127 (Fam), [2012] All ER (D) 87 (Dec), per Charles J.. Im this case the President identifies the question of general public importance, namely to what extent can a court compel third parties without parental responsibility to take steps to assist in the return of an abducted child, but only gives a partial answer. On the facts of the case he did not need to give the issue a complete review and restatement of the principles; indeed he specifically refrained from doing so and expressed himself in terms which did not seek to place strict parameters around the courts powers. That being said Munby P did make some very clear statements about certain aspects of the use of the supposedly unlimited powers of the inherent jurisdiction. In particular he made very clear that the court cannot deploy its powers as a means of placing pressure on relatives or friends in order to coerce them to assist or to coerce the abducting parent into taking action. He made clear that this was simply unacceptable. Orders can only be made against third parties if they are lawful, have a legitimate purpose and are necessary and proportionate. What the case does not tell us, and deliberately so, are the extent to which the court can make orders preventing a third party from assisting an abductor (by sending money for instance) or requiring them to take steps which might have an effect on the mind of the abductor. Great care needs to be taken in regard to these sorts of orders as in respect of any close family member of the abductor, they will impact on the ability of that person to exercise ordinary rights to family life with the abductor. Care also needs to be taken in respect of the ambit of disclosure orders. The Court of Appeal made clear that a passport order is a form of deprivation of liberty. It restricts the right to freedom of movement which is guaranteed by domestic and EU law. The removal or restriction of that right is a serious matter which can only be applied if it is in support of some other legitimate obligation which the ‘target’ is under. Thus a passport order can be made to prevent an anticipated abduction. A passport could be removed (probably) if there was evidence the ‘target’ had assisted in the abduction and might be guilty of contempt (but only to ensure they remain subject to the court’s jurisdiction). A passport can be removed pending compliance by the target with a disclosure order. A passport could be removed to ensure the target remains within the jurisdiction pending compliance with another legitimate order or until any court process to which the ‘target’ was subject was completed. A passport cannot be removed to restrict the ‘target’s movement in order to induce the abductor to return. When applying for such orders great care should be taken to ensure that it is not applied for or granted on the basis that restricting international movement might induce the abductor to return because they cant see their family or it might result in the target putting pressure on the abductor. The particular issue in the case was that the non-subject child might have been able to provide information about the whereabouts of his mother and sister. The judge required him to give evidence. The Court of Appeal were clear that if a child was to give evidence the court had to carry out a balancing exercise considering the welfare of the child and any harm that giving evidence might result in against the benefit to the court process of such evidence being given. In particular with a child who has Article 8 rights in respect of his family life with the abductor great care needs to be taken to ensure that the child is not put in the invidious position of ‘snitching’ on his parent/sibling with the possible result that all remaining communications are cut. The President was careful to ensure that the decision was not interpreted as a sea-change in the way the powers of the court are deployed in abduction situations. It is unlikely that we will see a dramatic change in the approach of judges or practitioners. What the case should result in is a more measured assessment of the ambit of the orders sought and their potential impact on the target and the reason why they are being sought. In the heat of an abduction situation with the focus on the harm to the child and the left behind parent it is very easy to lose sight of the fact that others, in particular family members also are effected and have rights that are engaged. When considering what orders should be sought the practitioner should be applying (in the background at least) a mental cross check of (a) is the order I am contemplating lawful, (b) is there a legitimate purpose in seeking this order against this individual (c) What rights of that party are engaged? (d) What is the extent to which it is necessary to over-ride those rights in order to protect the child. (e) Where the ‘target’ is a child there must be very careful consideration given to the welfare of the child and the interference with his own Article 8 rights. (f) Is the order proportionate? Bearing in mind applications for these orders will often be done ex parte where the target has no say the duty on practitioners to ensure that only those orders are made which are lawful, have a legitimate purpose, are necessary and proportionate is enhanced.