Family Law Act 1986

Chapter IVN.I. Jurisdiction of Courts in Northern Ireland

[F1[F219 Jurisdiction: general.N.I.

(1)A court in Northern Ireland shall not make a section 1(1)(c) order with respect to a child unless—

(a)it has jurisdiction under F3... [F4 the Hague Convention] , or

(b)[F5the Hague Convention does not apply] but—

(i)the question of making the order arises in or in connection with matrimonial proceedings [F6or civil partnership proceedings] and the condition in section 19A of this Act is satisfied, or

(ii)the condition in section 20 of this Act is satisfied.]

[F7(3)A court in Northern Ireland shall not make a section 1(1)(e) order unless—

(a)it has jurisdiction under F8... [F9 the Hague Convention] , or

(b)[F10the Hague Convention does not apply] but—

(i)the condition in section 20 of this Act is satisfied, or

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

Textual Amendments

F1S. 19, 19A substituted for s. 19 (N.I.) (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 124; S.R. 1996/297, art. 2

F1219A Jurisdiction in or in connection with matrimonial proceedings [F11or civil partnership proceedings] .N.I.

(1)The condition referred to in section 19(1) of this Act is that the F13... proceedings are proceedings in respect of the marriage [F14or civil partnership] of the parents of the child concerned and—

(a)the proceedings—

(i)are proceedings for divorce or nullity of marriage [F15, or dissolution or annulment of a civil partnership], and

(ii)are continuing;

(b)the proceedings—

(i)are proceedings for judicial separation [F16or legal separation of civil partners],

(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)(c) order is being made forthwith, or

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

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 England and Wales or Scotland.

[F17(2)For the purposes of subsection (1)(b) above, the jurisdiction of the court is excluded if—

(a)after the grant of a decree of judicial separation, on the relevant date, proceedings for divorce or nullity in respect of the marriage, or

(b)after the making of a separation order, on the relevant date, proceedings for dissolution or annulment in respect of the civil partnership,

are continuing in England and Wales or Scotland.]

(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 2A(4) or 13(6) of this Act (not being an order made by virtue of section 13(6)(a)(i)), or

(b)an order under section 5(2) or 14(2) of this Act which is recorded as being made for the purpose of enabling Part I proceedings to be taken in Northern Ireland with respect to the child concerned.

(4)Where a court—

(a)has jurisdiction to make a section 1(1)(c) order [F18by virtue of section 19(1)(b)(i) of this Act] , but

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

the court may by order direct that, while the order under this subsection is in force, no section 1(1)(c) order shall be made by any court [F19by virtue of section 19(1)(b)(i) of this Act] .

Textual Amendments

F12Ss. 19, 19A substituted for s. 19 (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 124; S.R. 1996/297, art. 2(2)

20 Habitual residence or presence of child.N.I.

(1)The condition referred to in [F20section 19(1)(b)(ii)] of this Act is that on the relevant date the child concerned—

(a)is habitually resident in Northern Ireland, or

(b)is present in Northern Ireland 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 or the court is excluded if, on the relevant date, [F21matrimonial proceedings] [F22or civil partnership proceedings] are continuing in a court in England and Wales or Scotland in respect of the marriage [F23or civil partnership] 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 [F242A(4)] or 13(6) of this Act (not being an order made by virtue of section 13(6)(a)(i)), or

(b)an order under section 5(2) or 14(2) of this Act which is recorded as made for the purpose of enabling [F25Part I proceedings with respect to] the child concerned to be taken in Northern Ireland,

and that order is in force.

F26(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F26(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F26(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F21Words in s. 20(2) substituted (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 125(b); S.R. 1996/297, art. 2(2)

F26S. 20(4)-(6) repealed (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(2), Sch. 10; S.R. 1996/297, art. 2(2)

F2721. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .N.I.

Textual Amendments

22 Power of court to refuse application or stay proceedings.N.I.

(1)A court in Northern Ireland which has jurisdiction to make a [F28Part I order] may refuse an application for the order in any case where the matter in question has already been determined in proceedings outside Northern Ireland.

(2)Where, at any stage of the proceedings on an application made to a court in Northern Ireland for a [F28Part I order], or for the variation of a [F28Part I order], F29..., it appears to the court—

(a)that proceedings with respect to the matters to which the application relates are continuing outside Northern Ireland, F30...

(b)that it would be more appropriate for those matters to be determined in proceedings to be taken outside Northern Ireland, F31 [F32or]

F33(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F34(d)that it should exercise its powers under Article 8 of the Hague Convention (request to authority in another Contracting State to assume jurisdiction),]

the court may stay the proceedings on the application [F35or (as the case may be) exercise its powers under F36... [F37 Article 8 of the Hague Convention].

(3)The court may remove a stay granted [F38by virtue of subsection (2)(a) or (b) 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.

F39(3A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F40(3B)The court may remove a stay granted in order for it to exercise its powers under Article 8 of the Hague Convention, and withdraw any request made by it to an authority in another Contracting State to assume jurisdiction, if—

(a)the authority in the other Contracting State does not assume jurisdiction within the period for which the court granted the stay, or

(b)the parties do not, within the period specified by the court, request the authority in the other Contracting State to assume jurisdiction.]

(4)Nothing in this section [F41so far as it relates to proceedings not governed by the [F42Hague Convention]] shall affect any power exercisable apart from this section to refuse an application or to grant or remove a stay.]

Textual Amendments

F42Words in s. 22(4) substituted (31.12.2020) by S.I. 2019/519, Sch. para. 15(5)(c) (as amended by The Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1574), regs. 1, 5(3)(f)(ii))

23 Duration and variation of custody orders.N.I.

(1)If a [F43Part I order] made by a court in England and Wales or Scotland (or a variation of such an order) comes into force with respect to a child at a time when a [F43Part I order] made by a court in Northern Ireland 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 England and Wales or Scotland.

(2)Where by virtue of subsection (1) above a [F43Part I order] has ceased to have effect so far as it makes provision for any matter, a court in Northern Ireland shall not have jurisdiction to vary that order so as to make provision for that matter.

[F44(3)A court in Northern Ireland shall not have jurisdiction to vary a Part I order if, on the relevant date, matrimonial proceedings [F45or civil partnership proceedings] are continuing in England and Wales or Scotland in respect of the marriage [F46or civil partnership] of the parents of the child concerned.

[F47(3A)Subsection (3) shall not apply if—

(a)the Part 1 order was made in or in connection with proceedings—

(i)for divorce or nullity in Northern Ireland in respect of the marriage of the parents of the child concerned; or

(ii)for dissolution or annulment in Northern Ireland in respect of the civil partnership of the parents of the child concerned; and

(b)those proceedings are continuing.]

[F47(3B)Subsection (3) shall not apply if—

(a)the Part 1 order was made in or in connection with proceedings—

(i) for judicial separation in Northern Ireland; or

(ii)for a separation order in Northern Ireland; and

(b)those proceedings are continuing; and

(c)as the case may be, the decree of judicial separation has not yet been granted or the separation order has not yet been made.]]

(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 [F482A(4)] or 13(6) of this Act (not being an order made by virtue of section 13(6)(a)(i)), or

(b)an order under section 5(2) or 14(2) of this Act which is recorded as made for the purpose of enabling [F49Part I proceedings with respect to] the child concerned to be taken in Northern Ireland,

and that order is in force.

(5)Subsection (3) above shall not apply in the case of a [F50variation of a section 1(1)(e) order if the child concerned] is present in Northern Ireland on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection.

[F51(6)Subsection (7) below applies where a Part I order which is—

(a)a residence order (within the meaning of the Children (Northern Ireland) Order 1995) 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 Article 16 of the Children (Northern Ireland) Order 1995 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 Article 16 of the Children (Northern Ireland) Order 1995 shall be deemed to include a reference to an order for the supervision of a child made under—

(a)Article 47 of the Matrimonial Causes (Northern Ireland) Order 1978, or

(b)Article 11 of the Domestic Proceedings (Northern Ireland) Order 1980;

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 8 to the Children (Northern Ireland) Order 1995.]

Textual Amendments

F43Words in s. 23(1)-(3)(5)-(6) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(a) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F44S. 23(3)(3A)(3B) substituted for s. 23(3) (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 126(2); S.R. 1996/297, art. 2(2)

F50Words in s. 23(5) substituted (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 126(3); S.R. 1996/297, art. 2(2)

F51S. 23(6)-(8) substituted for s. 23(6)(7) (4.11.1996) by S.I. 1995/755 (N.I. 2), art. 185(1), Sch. 9 para. 126(4); S.R. 1996/297, art. 2(2)

[F5224 Interpretation of Chapter IV.N.I.

In this Chapter—

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

[F53(aa)“civil partnership proceedings” means proceedings for the dissolution or annulment of a civil partnership or for legal separation of the civil partners;]

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

Textual Amendments