A v B (Port Alert) [2021] EWHC 1716 (Fam)

This is a recent case in which the Judge, Mr Justice Mostyn, confirmed that the Family Court can make a freestanding port alert order, and provided guidance on applications for such orders. A port alert means that UK ports hold the name of a child who is at risk of unlawful removal from the jurisdiction for 28 days, to assist the police/ authorities in identifying that child if removal is attempted. 

Background

This case concerned a 4-year-old boy, Z, who lives in London with his father, a UK national. His mother also lives in London and is a Slovakian national. Z spends supervised time only with his mother. Z’s passport is held by his father.

Z was subject to private law proceedings in 2019 when a prohibited steps order (PSO) was made prohibiting each parent from removing Z from the jurisdiction without the written consent of the other parent or an order from the court. There were also live Children Act and Family Law Act proceedings at the Central Family Court.  

Current applications in the High Court

Z’s father also applied to the High Court for Z to be made a ward of the court, for a prohibited steps order preventing the mother from withdrawing funds held in a bank account for Z’s private school fees and a port alert order. Mostyn J’s judgment relates to these applications. 

The aim of the father’s application for Wardship was to prevent the mother from taking unilateral steps in relation to Z’s education and medical treatment. This application was dismissed as it is within the power of the Family Court to regulate such steps by making a prohibited steps order and Wardship does not add any extra power in relation to those issues. 

The father’s prohibited steps order application was also dismissed. Applications to the High Court should only be made where the Family Court does not have the power to grant the relief/ order sought. It was the father’s position that he only sought the Prohibited Steps Order in the High Court as he had already secured a hearing there because of his Wardship application. While the father was permitted to issue this application in the High Court by tacking it on to the Wardship application (which has to be issued in the High Court), it was not appropriate to make the PSO as the wardship application had been dismissed. There were no exceptional circumstances in which the case needed to be dealt with by the High Court, and the application could be heard in the ongoing proceedings before the Central Family Court. 

Z’s father sought a freestanding port alert order to prevent the mother from removing Z from the jurisdiction. A port alert can be issued by the court and, when the children is under the age of 16,  by the police.

The Father asked for this to be made for longer than the usual 28 day period and for the Judge to direct that his application for a port alert order should be listed to be reconsidered at the same time as the ongoing proceedings taking place at the Central Family Court.

Mostyn J therefore explored whether the Family Court has the power to make a freestanding, discrete port alert order, and concluded that it does. 

The Judge referred to guidance issued by Reunite and to the standard template draft port alert order, which both suggest that such an order can only be made in the High Court. 

The Judge disagreed with this and distinguished between a freestanding port alert order and a Tipstaff order, the latter of which can only be made in the High Court.  There are 3 Tipstaff orders; passport orders (which allows Tipstaff to remove passports and travel documents from your child and relevant adults), location orders (which allows the court to locate your child and relevant adult) and collection order (which allows Tipstaff to attend an address where your child is known to be present and collect the child and place them the care of a designated person). These orders contain a port alert order as a supplementary term and are independent forms of relief. 

The Judge is clear that a freestanding port alert order is not a Tipstaff order. While a port alert order is made under the High Court’s powers, “it is not an independent, substantive form of relief” and it is a supplemental measure to give effect to a substantive order. The Judge likened it to an interlocutory injunction or a bench warrant. 

As to the powers of the Family Court, the Judge sets out that it  may make any order which the High Court could make. This does not permit the Family Court to exercise original or substantive jurisdiction, but it can use the High Court’s inherent jurisdiction to make supplemental orders to give effect to its decisions.

The Judge therefore determined that the Family Court has the power to make a freestanding port alert order where such an order is justified on the facts and is an incidental and supplemental order to give effect to a decision of the Family Court, for example where the court has made a prohibited steps order preventing a parent taking a child out of the jurisdiction.  The Family Court should not make such orders routinely, and only where the applicant demonstrates with clear evidence that there is a real and imminent risk that the children in question will be removed. The probability of removal is not far short of “more likely than not”.

The Judge dismissed the application before him as it should have been made to the Family Court, and as he was not satisfied that there was a real and imminent risk that the mother was going to remove Z from the jurisdiction.

The Judge sets out the correct procedure for applying for a freestanding port alert order. He acknowledges that the Applicant will likely make such an application without first giving notice to the other party in the case. The application should be made at your local family court. If there is no one available to hear the application that day, there is no reason the application could not be made at another court. The Judge expressed the view that the applications should be allocated to the circuit judge level, or, in a complex case, to a judge of High Court judge level.

If a freestanding port alert order is granted, it should last for 28 days in the first instance. The Judge considered that it is key that any extension to this time limit should only be ordered at a subsequent hearing attended by both parties. 

The Judge appended to his judgment a modified template order for use in the Family Court. 

Emma Good is a solicitor in the Family department at TV Edwards. Emma specialises in cases concerning children, particularly public law proceedings including applications for Care, Supervision, Emergency Protection, and Special Guardianship Orders. Contact Emma on emma.good@tvedwards.com or 020 3440 8045 for advice on a related query.

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