Solicitor Elizabeth Owen, in our Family Law team, provides an update on Port Alert Orders.
In June 2021 the High Court provided clarification in A v B (Port Alert) [2021] EWHC 1716 (Fam) (25 June 2021) (bailii.org) that the Family Court (not just the High Court) can make a freestanding Port Alert Order where that application is linked to an existing and substantive application and where the Port Alert Order is required to give effect to a decision of the family court. The Judge, Mostyn J, also annexed to his judgment a draft freestanding Port Alert Order template. That Order now forms part of the standard orders to be used by family law practitioners.
The freestanding Port Alert Order annexed to Mostyn J’s judgment has now been reviewed by the Tipstaff (the Tipstaff is the enforcement officer for all orders made in the High Court). At the beginning of October 2022 the Judge in Charge of Standard Orders, with the authority of the President of the Family Division, released an advisory notice clarifying that the practice for the implementation of a Port Alert Order has been simplified; now the order only needs to be sent to the National Border Targeting Centre. Previously it had to be sent to both the Police and to the National Border Targeting Centre and required both organisations to implement the order.
In his judgment in A v B, as well as providing helpful clarifications about the law, Mostyn J gives guidance on some of the practical consideration on obtaining a Port Alert Order.
The main takeaways are:
- The Family Court has the power to issue a freestanding port alert order where such an order is justified on the facts, relates to a pre-existing application or decision in the family court, and is needed to give effect to a decision of the Family Court (i.e. where the court has already made a Prohibited Steps Order).
- Such applications will usually be made ex parte i.e. without notice – this means the respondent will not know about the application or attend the hearing.
- A freestanding port alert order should last for a maximum 28 days in the first instance and any extension should only be ordered after a further hearing where all parties are present.
- An applicant should make the application to their local family court. However, if that court does not have capacity to hear the matter urgently there is no reason the applicant should not make the application in another court.
- Mostyn J sets out the test that should be used by the court when considering an application for a freestanding Port Alert Order: the court should only grant a freestanding Port Alert Order ‘where the applicant demonstrates with clear evidence that there is a real and imminent risk that the children in question will be removed from England and Wales. When assessing that risk the court will not demand proof that it is more likely than not that the children will be removed; it will, nonetheless, still expect proof of a degree of probability not far short of that standard. It is important that applications for these orders are not made in reliance on evidence which amounts to no more than mere assertion or which is otherwise flimsy or unsubstantiated.’
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
