SS v MCP (No 2): FD 3 Nov 2021

Children – Custody rights – Jurisdiction – Allegation that mother wrongfully removing child born in England to India
As to an application for security for costs, ‘It is clear from the judgment of Moylan LJ in Re M that the burden of surmounting the substantive threshold falls on the applicant. He has to show that there are circumstances here which are sufficiently compelling to require or make it necessary that the court should exercise its protective jurisdiction. The burden is to demonstrate that a crisis has erupted and that in consequence the child has suffered, or is at risk of suffering, serious harm, of the type, as Sir James Munby P suggested, that would engage articles 2 or 3 (i.e. a threat to life or of inhuman or degrading treatment). In Re M (Wardship: Jurisdiction and Powers) [2015] EWHC 1433, the President stated that he did not need to consider whether the jurisdiction would be exercisable where the risk to the child is of harm falling short of harm of the type that would engage Articles 2 or 3 of the Convention. In my judgment, if Moylan LJ’s substantive threshold is not to be robbed of meaningful content, the bar must be set at that level of harm. That level is not positioned at the ‘very extreme end of the spectrum’ (see Re M at [105]) but rather at a point which rightly reflects the criteria of caution, circumspection and necessity. It also gives effect to the key underlying principle that the jurisdiction is protective in nature to be exercised in a supporting, residual role (ibid at [107]).’

Mr Justice Mostyn
[2021] EWHC 2898 (Fam), [2021] WLR(D) 558
Bailii, WLRD
England and Wales
Cited by:
CitedMG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .

Lists of cited by and citing cases may be incomplete.

Children, Costs

Updated: 22 November 2021; Ref: scu.669926