Family Law Act 1986

Chapter II E+W Jurisdiction of Courts in England and Wales

[F1 X1 2 Jurisdiction in cases other than divorce, etc. E+W

(1) A court in England and Wales shall not have jurisdiction to make a custody order within section 1(1)(a) of this Act, other than one under section 42(1) of the M1 Matrimonial Causes Act 1973, unless the condition in section 3 of this Act is satisfied.

(2) The High Court in England and Wales shall have jurisdiction to make a custody order within section 1(1)(d) of this Act if, and only if,—

(a) the condition in section 3 of this Act is satisfied, or

(b) the ward is present in England and Wales on the relevant date (within the meaning of section 3(6) of this Act) and the court considers that the immediate exercise of its powers is necessary for his protection.]

Editorial Information

X1 Ss. 2, 2A substituted (prosp.) for s. 2 by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 64 (with Sch. 14 para. 1(1))

Textual Amendments

F1 Ss. 2, 2A substituted (prosp.) for s. 2 by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 64 (with Sch. 14 para. 1(1))

Marginal Citations

M1 1973 c. 18.

[F2 F3 2 Jurisdiction: general. E+W

(1) A court in England and Wales shall not have jurisdiction to make a section 1(1)(a) order with respect to a child in or in connection with matrimonial proceedings in England and Wales unless the condition in section 2A of this Act is satisfied.

(2) A court in England and Wales shall not have jurisdiction to make a section 1(1)(a) order in a non-matrimonial case (that is to say, where the condition in section 2A of this Act is not satisfied) unless the condition in section 3 of this Act is satisfied.

(3) A court in England and Wales shall not have jurisdiction to make a section 1(1)(d) order unless—

(a) the condition in section 3 of this Act is satisfied, or

(b) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection.]

Textual Amendments

F2 Ss. 2, 2A substituted (prosp.) for s. 2 by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 64 (with Sch. 14 para. 1(1))

F3 Ss. 2, 2A substituted (prosp.) for s. 2 by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 64 (with Sch. 14 para. 1(1))

[F4 F5 2A Jurisdiction in or in connection with matrimonial proceedings. E+W

(1) The condition referred to in section 2(1) of this Act is that the matrimonial proceedings are proceedings in respect of the marriage of the parents of the child concerned and—

(a) the proceedings—

(i) are proceedings for divorce or nullity of marriage, and

(ii) are continuing;

(b) the proceedings—

(i) are proceedings for judicial separation,

(ii) are continuing,

and the jurisdiction of the court is not excluded by subsection (2) below; or

(c) the proceedings have been dismissed after the beginning of the trial but—

(i) the section 1(1)(a) order is being made forthwith, or

(ii) the application for the order was made on or before the dismissal.

(2) For the purposes of subsection (1)(b) above, the jurisdiction of the court is excluded if, after the grant of a decree of judicial separation, on the relevant date, proceedings for divorce or nullity in respect of the marriage are continuing in Scotland or Northern Ireland.

(3) Subsection (2) above shall not apply if the court in which the other proceedings there referred to are continuing has made—

(a) an order under section 13(6) or 21(5) of this Act (not being an order made by virtue of section 13(6)(a)(i)), or

(b) an order under section 14(2) or 22(2) of this Act which is recorded as being made for the purpose of enabling Part I proceedings to be taken in England and Wales with respect to the child concerned.

(4) Where a court—

(a) has jurisdiction to make a section 1(1)(a) order in or in connection with matrimonial proceedings, but

(b) considers that it would be more appropriate for Part I matters relating to the child to be determined outside England and Wales,

the court may by order direct that, while the order under this subsection is in force, no section 1(1)(a) order shall be made by any court in or in connection with those proceedings.]

Textual Amendments

F4 Ss. 2, 2A substituted (prosp.) for s. 2 by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 64 (with Sch. 14 para. 1(1))

F5 Ss. 2, 2A substituted (prosp.) for s. 2 by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 64 (with Sch. 14 para. 1(1))

3 Habitual residence or presence of child. E+W

(1) The condition referred to in [F6 section 2][F6 section 2(2)] of this Act is that on the relevant date the child concerned—

(a) is habitually resident in England and Wales, or

(b) is present in England and Wales and is not habitually resident in any part of the United Kingdom,

and, in either case, the jurisdiction of the court is not excluded by subsection (2) below.

(2) For the purposes of subsection (1) above, the jurisdiction of the court is excluded if, on the relevant date, [F7 proceedings for divorce, nullity or judicial separation][F7 matrimonial proceedings] are continuing in a court in Scotland or Northern Ireland in respect of the marriage of the parents of the child concerned.

(3) Subsection (2) above shall not apply if the court in which the other proceedings there referred to are continuing has made—

(a) an order under section 13(6) or 21(5) of this Act (not being an order made by virtue of section 13(6)(a)(i)), or

(b) an order under section 14(2) or 22(2) of this Act which is recorded as made for the purpose of enabling [F8 proceedings with respect to the custody of][F8 Part I proceedings with respect to] the child concerned to be taken in England and Wales,

and that order is in force.

[F9 (4) Subject to subsections (5) and (6) below, in this section “the relevant date” means the date of the commencement of the proceedings in which the custody order falls to be made.

(5) In a case where an application is made for a custody order under [F10 section 9] or 14A(2) of the M2 Guardianship of Minors Act 1971 or section 33(1) of the M3 Children Act 1975, “the relevant date” means the date of the application (or first application, if two or more are determined together).

(6) In the case of a custody order within section 1(1)(d) of this Act “the relevant date” means—

(a) where an application is made for an order, the date of the application (or first application, if two or more are determined together), and

(b) where no such application is made, the date of the order.]

Textual Amendments

F6 Words “section 2(2)” substituted (prosp.) for “section 2” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 65(1) (with Sch. 14 para. 1(1))

F7 “matrimonial proceedings” substituted (prosp.) for “proceedings for divorce, nullity or judicial separation” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 65(2) (with Sch. 14 para. 1(1))

F8 Words commencing “Part I proceedings” substituted (prosp.) for words commencing “proceedings with respect to” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(b) (with Sch. 14 para. 1(1))

F9 S. 3(4)–(6) repealed (prosp.) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4))

F10 Words substituted by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1), Sch. 2 para. 95

Marginal Citations

M2 1971 c. 3.

M3 1975 c. 72.

[F11 4 Jurisdiction in divorce proceedings, etc. E+W

(1) The enactments relating to the jurisdiction of courts in England and Wales to make orders under section 42(1) of the M4 Matrimonial Causes Act 1973 shall have effect subject to the modifications provided for by this section.

(2) In section 42(1)(b) of that Act (which enables orders as to custody and education to be made immediately, or within a reasonable period, after the dismissal of proceedings for divorce, etc.) for the words “within a reasonable period” there shall be substituted the words “(if an application for the order is made on or before the dismissal)”.

(3) A court shall not have jurisdiction to make a custody order under section 42(1)(a) of that Act after the grant of a decree of judicial separation if, on the relevant date, proceedings for divorce or nullity in respect of the marriage concerned are continuing in Scotland or Northern Ireland.

(4) Subsection (3) above shall not apply if the court in which the other proceedings there referred to are continuing has made—

(a) an order under section 13(6) or 21(5) of this Act (not being an order made by virtue of section 13(6)(a)(i)), or

(b) an order under section 14(2) or 22(2) of this Act which is recorded as made for the purpose of enabling proceedings with respect to the custody of the child concerned to be taken in England and Wales,

and that order is in force.

(5) Where a court—

(a) has jurisdiction to make a custody order under section 42(1) of the Matrimonial Causes Act 1973 in or in connection with proceedings for divorce, nullity of marriage or judicial separation, but

(b) considers that it would be more appropriate for matters relating to the custody of the child to be determined outside England and Wales,

the court may by order direct that, while the order under this subsection is in force, no custody order under section 42(1) with respect to the child shall be made by any court in or in connection with those proceedings.

(6) In this section “the relevant date” means—

(a) where an application is made for a custody order under section 42(1)(a), the date of the application (or first application, if two or more are determined together), and

(b) where no such application is made, the date of the order.]

Textual Amendments

F11 S. 4 repealed (prosp.) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4))

Marginal Citations

M4 1973 c. 18.

5 Power of court to refuse application or stay proceedings. E+W

(1) A court in England and Wales which has jurisdiction to make a [F12 custody order][F12 Part I order] may refuse an application for the order in any case where the matter in question has already been determined in proceedings outside England and Wales.

(2) Where, at any stage of the proceedings on an application made to a court in England and Wales for a [F12 custody order][F12 Part I order], or for the variation of a [F12 custody order][F12 Part I order], it appears to the court—

(a) that proceedings with respect to the matters to which the application relates are continuing outside England and Wales, or

(b) that it would be more appropriate for those matters to be determined in proceedings to be taken outside England and Wales,

the court may stay the proceedings on the application.

(3) The court may remove a stay granted in accordance with subsection (2) above if it appears to the court that there has been unreasonable delay in the taking or prosecution of the other proceedings referred to in that subsection, or that those proceedings are stayed, sisted or concluded.

(4) Nothing in this section shall affect any power exercisable apart from this section to refuse an application or to grant or remove a stay.

Textual Amendments

F12 Words “Part I order” substituted (prosp.) for “custody order” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(a) (with Sch. 14 para. 1(1))

6 Duration and variation of custody orders. E+W

(1) If a [F13 custody order][F13 Part I order] made by a court in Scotland or Northern Ireland (or a variation of such an order) comes into force with respect to a child at a time when a [F13 custody order][F13 Part I order] made by a court in England and Wales has effect with respect to him, the latter order shall cease to have effect so far as it makes provision for any matter for which the same or different provision is made by (or by the variation of) the order made by the court in Scotland or Northern Ireland.

(2) Where by virtue of subsection (1) above a [F13 custody order][F13 Part I order] has ceased to have effect so far as it makes provision for any matter, a court in England or Wales shall not have jurisdiction to vary that order so as to make provision for that matter.

[F14 (3) A court in England and Wales shall not have jurisdiction—

(a) to vary a custody order, other than one made under section 42(1)(a) of the M5 Matrimonial Causes Act 1973, or

(b) after the grant of a decree of judicial separation, to vary a custody order made under section 42(1)(a) of that Act,

if, on the relevant date, proceedings for divorce, nullity or judicial separation are continuing in Scotland or Northern Ireland in respect of the marriage of the parents of the child concerned.]

[F14 (3) A court in England and Wales shall not have jurisdiction to vary a Part I order if, on the relevant date, matrimonial proceedings are continuing in Scotland or Northern Ireland in respect of the marriage of the parents of the child concerned.

(3A) Subsection (3) above shall not apply if—

(a) the Part I order was made in or in connection with proceedings for divorce or nullity in England and Wales in respect of the marriage of the parents of the child concerned; and

(b) those proceedings are continuing.

(3B) Subsection (3) above shall not apply if—

(a) the Part I order was made in or in connection with proceedings for judicial separation in England and Wales;

(b) those proceedings are continuing; and

(c) the decree of judicial separation has not yet been granted.]

(4) Subsection (3) above shall not apply if the court in which the proceedings there referred to are continuing has made—

(a) an order under section 13(6) or 21(5) of this Act (not being an order made by virtue of section 13(6)(a)(i)), or

(b) an order under section 14(2) or 22(2) of this Act which is recorded as made for the purpose of enabling [F15 proceedings with respect to the custody of][F15 Part I proceedings with respect to] the child concerned to be taken in England and Wales,

and that order is in force.

(5) Subsection (3) above shall not apply in the case of a [F16 variation of a custody order within section 1(1)(d) of this Act if the ward][F16 variation of a section 1(1)(d) order if the child concerned] is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection.

[F17 (6) Where any person who is entitled to the actual possession of a child under a custody order made by a court in England and Wales ceases to be entitled by virtue of subsection (1) above, then, if there is in force an order for the supervision of that child made under—

(a) section 7(4) of the M6 Family Law Reform Act 1969,

(b) section 44 of the Matrimonial Causes Act 1973,

(c) section 2(2)(a) of the M7 Guardianship Act 1973,

(d) section 34(5) or 36(3)(b) of the M8 Children Act 1975, or

(e) section 9 of the M9 Domestic Proceedings and Magistrates’ Courts Act 1978,

that order shall cease to have effect.

(7) In this section “the relevant date” means—

(a) where an application is made for a variation, the date of the application (or first application, if two or more are determined together), and

(b) where no such application is made, the date of the variation.]

[F17 (6) Subsection (7) below applies where a Part I order which is—

(a) a residence order (within the meaning of the Children Act 1989) in favour of a person with respect to a child,

(b) an order made in the exercise of the High Court’s inherent jurisdiction with respect to children by virtue of which a person has care of a child, or

(c) an order—

(i) of a kind mentioned in section 1(3)(a) of this Act,

(ii) under which a person is entitled to the actual possession of a child,

ceases to have effect in relation to that person by virtue of subsection (1) above.

(7) Where this subsection applies, any family assistance order made under section 16 of the Children Act 1989 with respect to the child shall also cease to have effect.

(8) For the purposes of subsection (7) above the reference to a family assistance order under section 16 of the Children Act 1989 shall be deemed to include a reference to an order for the supervision of a child made under—

(a) section 7(4) of the Family Law Reform Act 1969,

(b) section 44 of the Matrimonial Causes Act 1973,

(c) section 2(2)(a) of the Guardianship Act 1973,

(d) section 34(5) or 36(3)(b) of the Children Act 1975, or

(e) section 9 of the Domestic Proceedings and Magistrates’ Courts Act 1978;

but this subsection shall cease to have effect once all such orders for the supervision of children have ceased to have effect in accordance with Schedule 14 to the Children Act 1989.]

Textual Amendments

F13 Words “Part I order” substituted (prosp.) for “custody order” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(a) (with Sch. 14 para. 1(1))

F14 S. 6(3)–(3B) substituted (prosp.) for subsection (3) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 66(1) (with Sch. 14 para. 1(1))

F15 Words commencing “Part I proceedings” substituted (prosp.) for words commencing “proceedings with respect to” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(b) (with Sch. 14 para. 1(1))

F16 Words “variation of a section 1(1)(d) order if the child concerned” substituted (prosp.) for words commencing “variation of a custody” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 66(2) (with Sch. 14 para. 1(1))

F17 S. 6(6)–(8) substituted (prosp.) for subsections (6)(7) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 66(3) (with Sch. 14 para. 1(1))

Marginal Citations

M5 1973 c. 18.

M6 1969 c. 46

M7 1973 c. 29.

M8 1975 c. 72.

M9 1978 c. 22.

[F18 X2 7 Interpretation of Chapter II. E+W

In this Chapter “child” means a person who has not attained the age of eighteen.]

Editorial Information

X2 S. 7 commencing “In this Chapter—” substituted (prosp.) for s. 7 commencing “In this Chapter “child”” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 67 (with Sch. 14 para. 1(1))

Textual Amendments

F18 S. 7 commencing “In this Chapter—” substituted (prosp.) for s. 7 commencing “In this Chapter “child”” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 67 (with Sch. 14 para. 1(1))

[F19 X3 7 Interpretation of Chapter II. E+W

In this Chapter—

(a) “child” means a person who has not attained the age of eighteen;

(b) “matrimonial proceedings” means proceedings for divorce, nullity of marriage or judicial separation;

(c) “the relevant date” means, in relation to the making or variation of an order—

(i) where an application is made for an order to be made or varied, the date of the application (or first application, if two or more are determined together), and

(ii) where no such application is made, the date on which the court is considering whether to make or, as the case may be, vary the order; and

(d) “section 1(1)(a) order” and “section 1(1)(d) order” mean orders falling within section 1(1)(a) and (d) of this Act respectively.]

Editorial Information

X3 S. 7 commencing “In this Chapter—” substituted (prosp.) for s. 7 commencing “In this Chapter “child”” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 67 (with Sch. 14 para. 1(1))

Textual Amendments

F19 S. 7 commencing “In this Chapter—” substituted (prosp.) for s. 7 commencing “In this Chapter “child”” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 67 (with Sch. 14 para. 1(1))