High Court of Justice (England and Wales), King's Bench Division, Administrative Court

High Court of Justice (England and Wales), King's Bench Division, Administrative Court

United Kingdom - England and Wales

12 April 2021

R (Mother and Others) v Secretary of State for the Home Department

[2021] EWHC 868 (Admin)

First instance

• Article 16
• Article 22

• Article 1
• Article 3
• Article 4
• Article 15
• Article 17
• Article 20

Private International Law (Implementation of Agreements) Act 2020, Civil Jurisdiction and Judgments Act 1982, Borders, Citizenship and Immigration Act 2009, Royal Prerogative relating to passports, Human Rights Act 1998

Not provided

The case concerned a mother and her four children, all British citizens living abroad in Country X. The three eldest children had lived in Country X throughout their lives. Their father, a national of Country X, had allegedly subjected the mother and children to serious domestic abuse. HM Passport Office refused to process the children’s passport applications without the father’s consent, on the basis that, under the law of the children’s habitual residence, the father had sole parental responsibility. The mother had left Country X, leaving the children with their grandparents, but later returned with her fourth child in an unsuccessful attempt to obtain the father’s consent. The Administrative Court held that Article 16 of the 1996 Hague Convention designated the law of the children’s habitual residence as the applicable law governing parental responsibility. However, on the facts, applying the law of Country X would be manifestly contrary to public policy under Article 22, taking into account the children’s best interests. The court further held that applying a rule requiring the father’s consent would amount to direct sex discrimination against the mother, contrary to Article 14 ECHR read with Article 8.

The Administrative Court held that HM Passport Office was entitled to look to the law of the children's habitual residence under Article 16 of the 1996 Hague Convention when determining parental responsibility. However, on the particular facts, application of that foreign law would be manifestly contrary to public policy within the meaning of Article 22. HMPO had therefore erred in insisting upon the father's consent before processing the children's passport applications.