Judge discharges orders prohibiting family from taking children abroad, noting “clear boundaries have been overstepped”

In S (Children) (Interim Threshold), Re Neutral Citation Number (Rev1) [2025] EWFC 281 (01 September 2025), His Honour Judge Sharpe concluded that although local authorities have “important responsibilities” in terms of child protection, the boundaries in the present case had been “overstepped”.

He concluded: “The parents were being restricted from exercising their own judgement in relation to where they should take their children by operation of court orders which were imposed upon them, but which will now be discharged given that I have determined that the legal basis for such restrictions is not made out.

“That should not be read simply as a 'green light' to go straight to [country] X. A significant factor in that determination was the clear evidence of the parents' love, commitment and care for their children and their obvious desire for them to be kept safe and well. It is in the confidence that the parents will not take their children to X if they consider that it is not safe for them to be there that I discharge the orders restricting them from making that choice.”

The case concerned four children - A, B, C and D. They are the only children of father (F) and mother (M).

The judge noted: “The parents are nationals of a country which I shall refer to as X and were born and brought up in that country where they also met and married and where their elder two children were born. Just over a decade ago, the parents made the hard decision to leave X on account of the civil disorder in that society and the regime in place at the time.

“It has never been suggested that the parents were forced to leave X because of anything they were doing there or as a result of any targeting of them by anyone else, simply that they did not like how things were going. Accordingly, the parents sold their home and moved to a nearby state where they lived for three years.

“A move to this country then took place and the family, by now increased by two younger children, came to the northwest of England where, in due course, settled status was granted to them by the Home Office. The parents say that as part of the process of acquiring a right of residence in this country they had to surrender their X passports and since that time the family have all used only UK passports when travelling abroad subsequently.”

The judge observed that the family was barely known to the local authority prior to the proceedings.

On 23 May 2025, F spoke with D's school to ask permission to remove D prior to the conclusion of the school term for the purpose of taking him, with his siblings, to X.

At or around the same time, the school recorded that D had informed his teacher that not only was he 'going on holiday with his Dad' but that 'me and my dad are going to kill the bad people'. Following this, the school made contact with the local authority.

The local authority spoke with both parents who explained that as emigres of X they each have family members there, some of whom have never met the younger children, and that F's own father had now been diagnosed with an illness which they understood to be life-limiting and therefore had only added impetus to their desire to make a trip to their homeland.

The judge said: “Notwithstanding D's comments about going to X to kill bad people - a comment which has never been further explored, supplemented or otherwise better deciphered - the Local Authority's concern was and has remained that the children would be spending time in X rather than any assumption of what they might do once they were there.”

He added: “That concern was neither irrational nor unreasonable. X is a country which has had a history of difficulties including armed conflict, civil war and social upheaval. That history reaches into its present. Understandably given this context, X is a country which the Foreign, Commonwealth and Development Office (FCDO) advises UK nationals against travelling to at all.”

In a conversation with the council, F acknowledged the local authority's concerns but was clear in his own view that the capital city, where he intended to stay, was not an inherently unsafe place for his family.

Notwithstanding his view, however, F indicated that if the local authority was not so persuaded he would not go to X but instead travel to an adjoining country, Y, and there meet family members who would travel from X to see them.

The judge said: “There the matter appears to have been left until.... when a further discussion took place as the Local Authority had now formed the view that travel to Y was also contrary to the advice of the FCDO. In fact this was not accurate, the FCDO website is clear that some parts were red but some parts were also amber and some even green.”

In an attempt to placate the local authority and to ensure that the family could travel, F suggested that the family would travel to a third country, Z, which was neither adjoining nor even adjacent to X but where M had family and to which paternal family might travel.

Z was not a country in respect of which the FCDO advised against travelling to.

In July, the school (attended by two of the children) contacted the local authority to inform them that F had been in contact to explain that the children would be missing the final few days of term as they were planning to see the paternal grandfather.

The school informed the local authority that it understood that the plan was to travel to country Y on one way tickets.

The local authority visited the family home accompanied by the police. The judge said: “The Local Authority have averred that upon arrival 13 suitcases were clearly visible packed and ready for a departure, the inference being that a very significant amount of luggage was being taken, far greater than would be expected for a holiday even for a family of six, which might give rise to a concern about leaving permanently.”

The local authority sought the children’s passports.

Despite having secured control over the children's passports, the local authority was concerned that the parents might attempt to travel by means other than on flights and that F may have already acquired second passports from X on his earlier visit or be in a position to do so, and so enable the family to leave the jurisdiction despite the local authority holding their UK passports.

In July 2025, the local authority applied for a number of orders. Care proceedings were immediately issued and a hearing that day obtained where interim care orders were sought with a plan of separation of all four children from their parents.

In addition, a parallel application was made to the High Court for permission to invoke the inherent jurisdiction for the purpose of securing a Port Alert order and an injunction prohibiting the children being removed from the jurisdiction and the parents from attempting to obtain any international travel documents.

The matter came before a judge. As a holding position, interim care orders were made but separation was not sanctioned, and the children remained at home with their parents.

The inherent jurisdiction was invoked, and a Port Alert order was granted together with an injunction prohibiting removal of the children nor the securing of any alternative international travel documents. The matter was transferred from the Family Division to the Family Court to be heard by His Honour Judge Sharpe sitting as a s.9(1) judge.

Considering the case, he said: “Parental responsibility creates an expectation that parents, not the state, bear primary responsibility for their children and it is parents who should look to meet the welfare of their child, by meeting their needs and making the significant decisions about the key aspects of their child's upbringing. The point was made by MacFarlane LJ (as he then was) in Re W (Direct Contact) [2012] EWCA Civ 999:

“it is the parents, rather than the court or more generally the State, who are the primary decision makers and actors for determining and delivering the upbringing that the welfare of their child requires ... the courts are entitled to look to each parent to use their best endeavours to deliver what their child needs, hard or burdensome or downright tough though that may be. The statute places the primary responsibility for delivering a good outcome for a child upon each of his or her parents, rather than upon the courts or some other agency [21].”

He continued: “[…] In this case, and despite the evidence of the risks posed in being in X, the wider evidential picture conclusively demonstrates in my judgement that the parents are alive to that risk, that they have carefully factored it into their decision-making, that they are not determined to go to X come what may and have always prioritised the welfare of their children, including taking the difficult decision to leave X when it appeared that it was not a place where they wished their children to be and that to conclude that their wish to go to X is indicative of actions which will expose their children to risks which cannot sensibly be ignored is not the case. In fact, the evidence is clear that the parents, far from ignoring the risks, have sensibly considered and evaluated them in their plans for the children.

“For all of those reasons I do not find that the Local Authority have established that there are reasonable grounds for believing that the children would be at risk of significant harm by being taken to X by their parents. It follows that the application for a care order is dismissed.”

The judge noted that in addition to the interim care order and the care proceedings as a whole, there was a Port Alert order and an injunction to prevent the parents from securing international travel documents nor removing the children from the jurisdiction. He said: “The question therefore is whether those orders should continue.”

Considering this, His Honour Judge Sharpe said: “When the orders were made at the initial hearing the information available to the court was significantly more limited and the opportunity available for proper investigation of the position was non-existent due to the concerns of the Local Authority of the need for protective orders and the lack of representation of the parents at that hearing.

“[…] For the reasons set out above I have concluded that it is not the case that the children are likely to suffer significant harm even if the parents were to decide to take them to X and therefore the orders should not continue and I discharge them. It follows that the children's passports should be returned to the parents immediately and the restrictions upon travel or upon securing new international travel documents are discharged.”

In his concluding remarks, the judge accused the council of heavy-handedness in its dealings with the parents and a failure to see matters from their perspective.

He added: “The Local Authority formed a view that going to X was unacceptable, based largely upon the advice of the FCDO, and then set about imposing its will on the parents to not going there and then to not going to a second country which it wrongly miscategorised as being equally dangerous.

“[…] That dictatorial approach has continued to characterise the Local Authority's applications and their positions.”

Discharging the orders, His Honour Judge Sharpe concluded: “I hope the parents do not read this judgment as any indicator that they should go to X regardless of the situation there. It is not intended as such. The parents were being restricted from exercising their own judgement in relation to where they should take their children by operation of court orders which were imposed upon them but which will now be discharged given that I have determined that the legal basis for such restrictions is not made out. That should not be read simply as a 'green light' to go straight to X.

“A significant factor in that determination was the clear evidence of the parents' love, commitment and care for their children and their obvious desire for them to be kept safe and well. It is in the confidence that the parents will not take their children to X if they consider that it is not safe for them to be there that I discharge the orders restricting them from making that choice. The court is statutorily required to regard the children's welfare as being its paramount consideration but it is clear to me that the parents operate to that same standard. The difference is that in their case the parents act not out of duty but out of love for their children. It is my clear conclusion that their parents' judgement is the best determinator of what is right for these children.”

Lottie Winson