Family Law Act 1986

1986 CHAPTER 55

An Act to amend the law relating to the jurisdiction of courts in the United Kingdom to make orders with regard to the custody of children; to make provision as to the recognition and enforcement of such orders throughout the United Kingdom; to make further provision as to the imposition, effect and enforcement of restrictions on the removal of children from the United Kingdom or from any part of the United Kingdom; to amend the law relating to the jurisdiction of courts in Scotland as to tutory and curatory; to amend the law relating to the recognition of divorces, annulments and legal separations; to make further provision with respect to the effect of divorces and annulments on wills; to amend the law relating to the powers of courts to make declarations relating to the status of a person; to abolish the right to petition for jactitation of marriage; to repeal the Greek Marriages Act 1884; to make further provision with respect to family proceedings rules; to amend the Child Abduction Act 1984, the Child Abduction (Northern Ireland) Order 1985 and the Child Abduction and Custody Act 1985; and for connected purposes.

[7th November 1986]

X1 Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Editorial Information

X1 The text of ss. 55, 58 to 63, 68, 69 was taken from S.I.F. Group 49:1 (Family Law: Marriage, England and Wales and Abroad), ss. 44 to 54, 64, 68, 69, Schs. 1, 2 from S.I.F. Group 49:3 (Family Law: Matrimonial Proceedings), ss. 56, 58 to 60, 63, 68, 69 from S.I.F. Group 49:7 (Family Law: Legitimacy, Affiliation and Age of Majority, England and Wales), ss. 1 to 7, 19 to 43, 65 to 69 from S.I.F. Group 49:9 (Family Law: Guardianship, England and Wales and Northern Ireland), ss. 1, 8 to 18, 25 to 43, 67 to 69 from S.I.F. Group 49:10 (Family Law: Guardianship and Aliment, Scotland), and ss. 57, 58 to 60, 63, 68, 69 from S.I.F. Group 49:11 (Family Law: Adoption).

Extent Information

E1 Act extends to the United Kingdom but for exceptions see s. 69(5)(6)(7)

Commencement Information

I1 Act not in force at Royal Assent see s. 69(2)(3); Act partly in force at 7.1.1987 see s. 69(2)

Part I U.K. Child Custody

Chapter I U.K. Preliminary

1 Orders to which Part I applies. U.K.

(1) Subject to the following provisions of this section, in this Part “ [F1 custody order][F1 Part I order]” means—

[F2 (a) an order made by a court in England and Wales under any of the following enactments—

(i) [F3 section 9, 10] or 14A(2) of the M1 Guardianship of Minors Act 1971 or [F3 section 2(4) or (5)(a)] of the M2 Guardianship Act 1973;

(ii) section 42(1) of the M3 Matrimonial Causes Act 1973;

(iii) section 42(2) of the Matrimonial Causes Act 1973;

(iv) section 33(1) of the M4 Children Act 1975 or [F4 section 2(4)(b)] of the Guardianship Act 1973 as applied by section 34(5) of the Children Act 1975;

(v) section 8(2) or 19(1)(ii) of the M5 Domestic Proceedings and Magistrates’ Courts Act 1978;]

[F2 (a) a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order]

(b) an order made by a court of civil jurisdiction in Scotland under any enactment or rule of law with respect to the custody, care or control of a child, access to a child or the education or upbringing of a child, excluding—

(i) an order committing the care of a child to a local authority or placing a child under the supervision of a local authority;

(ii) an adoption order as defined in section 12(1) of the M6 Adoption (Scotland) Act 1978;

(iii) an order freeing a child for adoption made under section 18 of the said Act of 1978;

(iv) an order for the custody of a child made in the course of proceedings for the adoption of the child (other than an order made following the making of a direction under section 53(1) of the Children Act 1975);

(v) an order made under the M7 Education (Scotland) Act 1980;

(vi) an order made under Part II or III of the M8 Social Work (Scotland) Act 1968;

(vii) an order made under the M9 Child Abduction and Custody Act 1985;

(viii) an order for the delivery of a child or other order for the enforcement of a [F1 custody order][F1 Part I order];

(ix) an order relating to the tutory or curatory of a child;

(c) an order made by a court in Northern Ireland under any of the following enactments—

(i) section 5 of the M10 Guardianship of Infants Act 1886 (except so far as it relates to costs);

(ii) Article 45(1) of the M11 Matrimonial Causes (Northern Ireland) Order 1978;

(iii) Article 45(2) of the Matrimonial Causes (Northern Ireland) Order 1978;

(iv) Article 10(2) or 20(1)(ii) of the M12 Domestic Proceedings (Northern Ireland) Order 1980;

[F5 (d) an order made by the High Court in the exercise of its jurisdiction relating to wardship so far as it gives the care and control of a child to any person or provides for the education of, or for access to, a child, excluding an order relating to a child of whom care or care and control is (immediately after the making of the order) vested in a local authority or in the Northern Ireland Department of Health and Social Services.]

[F5 (d) an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children—

(i) so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but

(ii) excluding an order varying or revoking such an order;

(e) an order made by the High Court in Northern Ireland in the exercise of its jurisdiction relating to wardship—

(i) so far as it gives care and control of a child to any person or provides for the education of or access to a child; but

(ii) excluding an order relating to a child of whom care or care and control is (immediately after the making of the order) vested in the Department of Health and Social Services or a Health and Social Services Board.]

(2) In this Part “ [F1 custody order][F1 Part I order]” does not include—

(a) an order within subsection (1) [F6 (a) or] (c) above which varies or revokes a previous order made under the same enactment;

[F7 (b) an order under section 14A(2) of the M13 Guardianship of Minors Act 1971 which varies a previous custody order; or]

(c) an order within paragraphs [F8 (d)][F8 (e)] of subsection (1) above which varies or revokes a previous order within that paragraph.

[F9 (3) Subject to sections 32 and 40 of this Act, in this Part “custody order” does not include any order which—

(a) was made before the date of the commencement of this Part;

(b) in the case of an order within subsection (1)(b) or (d) above or an order under any of the enactments mentioned in subsection (4) below, is made on or after that date on an application made before that date; or

(c) in any other case, is made on or after that date in proceedings commenced before that date.

(4) The said enactments are—

(a) [F10 sections 9] and 14A(2) of the Guardianship of Minors Act 1971 and section 33(1) of the M14 Children Act 1975; and

(b) section 5 of the M15 Guardianship of Infants Act 1886.

(5) For the purposes of subsection (3) above an order made on two or more applications which are determined together shall be regarded as made on the first of those applications.]

[F9 (3) In this Part, “Part I order”—

(a) includes any order which would have been a custody order by virtue of this section in any form in which it was in force at any time before its amendment by the Children Act 1989; and

(b) (subject to section 32 and 40 of this Act) excludes any order which would have been excluded from being a custody order by virtue of this section in any such form.]

(6) Provision may be made by act of sederunt prescribing, in relation to orders within subsection (1)(b) above, what constitutes an application for the purposes of this Part.

Textual Amendments

F1 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))

F2 S. 1(1)(a) commencing “a section 8 order” substituted (prosp.) for s. 1(1)(a) commencing “an order” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 63(1)(a) (with Sch. 14 para. 1(1))

F3 Words substituted by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1), Sch. 2 para. 94(a)

F4 Words substituted by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1), Sch. 2 para. 94(b)

F5 S. 1(1)(d)(e) commencing “an order made by a Court” substituted (prosp.) for s. 1(1)(d) commencing “an order made by the High Court” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 63(1)(b) (with Sch. 14 para. 1(1))

F6 Words repealed (prosp.) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4))

F7 S. 1(2)(b) repealed (prosp.) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4))

F8 “(e)” substituted (prosp.) for “(d)” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 63(2) (with Sch. 14 para. 1(1))

F9 S. 1(3) commencing “In this Part,” substituted (prosp.) for subsections (3) to (5) commencing “Subject to” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 63(3) (with Sch. 14 para. 1(1))

F10 Words substituted by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1), Sch. 2 para. 94(c)

Marginal Citations

M1 1971 c. 3.

M2 1973 c. 29.

M3 1973 c. 18.

M4 1975 c. 72.

M5 1978 c. 22.

M6 1978 c. 28.

M7 1980 c. 44.

M8 1968 c. 49.

M9 1985 c. 60.

M10 1886 c. 27.

M11 S.I. 1978/1045 (N.I. 15).

M12 S.I. 1980/563 (N.I. 5).

M13 1971 c. 3.

M14 1975 c. 72.

M15 1886 c. 27.

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

[F11 X2 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 M16 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

X2 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

F11 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

M16 1973 c. 18.

[F12 F13 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

F12 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))

F13 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))

[F14 F15 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

F14 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))

F15 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 [F16 section 2][F16 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, [F17 proceedings for divorce, nullity or judicial separation][F17 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 [F18 proceedings with respect to the custody of][F18 Part I proceedings with respect to] the child concerned to be taken in England and Wales,

and that order is in force.

[F19 (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 [F20 section 9] or 14A(2) of the M17 Guardianship of Minors Act 1971 or section 33(1) of the M18 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

F16 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))

F17 “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))

F18 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))

F19 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))

F20 Words substituted by Family Law Reform Act 1987 (c. 42, SIF 49:7), s. 33(1), Sch. 2 para. 95

Marginal Citations

M17 1971 c. 3.

M18 1975 c. 72.

[F21 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 M19 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

F21 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

M19 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 [F22 custody order][F22 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 [F22 custody order][F22 Part I order], or for the variation of a [F22 custody order][F22 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

F22 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 [F23 custody order][F23 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 [F23 custody order][F23 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 [F23 custody order][F23 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.

[F24 (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 M20 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.]

[F24 (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 [F25 proceedings with respect to the custody of][F25 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 [F26 variation of a custody order within section 1(1)(d) of this Act if the ward][F26 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.

[F27 (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 M21 Family Law Reform Act 1969,

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

(c) section 2(2)(a) of the M22 Guardianship Act 1973,

(d) section 34(5) or 36(3)(b) of the M23 Children Act 1975, or

(e) section 9 of the M24 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.]

[F27 (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

F23 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))

F24 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))

F25 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))

F26 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))

F27 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

M20 1973 c. 18.

M21 1969 c. 46

M22 1973 c. 29.

M23 1975 c. 72.

M24 1978 c. 22.

[F28 X3 7 Interpretation of Chapter II. E+W

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

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

F28 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))

[F29 X4 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

X4 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

F29 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))

Chapter III S Jurisdiction of Courts in Scotland

8 Jurisdiction in independent proceedings. S

A court in Scotland may entertain an application for a [F30 custody order][F30 Part I order] otherwise than in matrimonial proceedings only if it has jurisdiction under section 9, 10, 12 or 15(2) of this Act.

Textual Amendments

F30 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))

9 Habitual residence. S

Subject to section 11 of this Act, an application for a [F31 custody order][F31 Part I order] otherwise than in matrimonial proceedings may be entertained by—

(a) the Court of Session if, on the date of the application, the child concerned is habitually resident in Scotland;

(b) the sheriff if, on the date of the application, the child concerned is habitually resident in the sheriffdom.

Textual Amendments

F31 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))

10 Presence of child. S

Subject to section 11 of this Act, an application for a [F32 custody order][F32 Part I order] otherwise than in matrimonial proceedings may be entertained by—

(a) the Court of Session if, on the date of the application, the child concerned—

(i) is present in Scotland; and

(ii) is not habitually resident in any part of the United Kingdom;

(b) the sheriff if, on the date of the application,—

(i) the child is present in Scotland;

(ii) the child is not habitually resident in any part of the United Kingdom; and

(iii) either the pursuer or the defender in the application is habitually resident in the sheriffdom.

Textual Amendments

F32 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))

11 Provisions supplementary to sections 9 and 10. S

(1) Subject to subsection (2) below, the jurisdiction of the court to entertain an application for a [F33 custody order][F33 Part I order] with respect to a child by virtue of section 9, 10 or 15(2) of this Act is excluded if, on the date of the application, matrimonial proceedings are continuing in a court in any part of the United Kingdom in respect of the marriage of the parents of the child.

(2) Subsection (1) above shall not apply in relation to an application for a [F33 custody order][F33 Part I order] if the court in which the matrimonial proceedings are continuing has made one of the following orders, that is to say—

(a) an order under section [F34 4(5)][F34 2A(4)], 13(6) or 21(5) of this Act (not being an order made by virtue of section 13(6)(a)(ii)); or

(b) an order under section 5(2), 14(2) or 22(2) of this Act which is recorded as made for the purpose of enabling [F35 proceedings with respect to the custody of][F35 Part I proceedings with respect to] the child concerned to be taken in Scotland or, as the case may be, in another court in Scotland,

and that order is in force.

Textual Amendments

F33 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))

F34 “2A(4)” substituted (prosp.) for “4(5)” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 68(a) (with Sch. 14 para. 1(1))

F35 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))

12 Emergency jurisdiction. S

Notwithstanding that any other court, whether within or outside Scotland, has jurisdiction to entertain an application for a [F36 custody order][F36 Part I order], the Court of Session or the sheriff shall have jurisdiction to entertain such an application if—

(a) the child concerned is present in Scotland or, as the case may be, in the sheriffdom on the date of the application; and

(b) the Court of Session or sheriff considers that, for the protection of the child, it is necessary to make such an order immediately.

Textual Amendments

F36 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))

13 Jurisdiction ancillary to matrimonial proceedings. S

(1) The jurisdiction of a court in Scotland to entertain an application for a [F37 custody order][F37 Part I order] in matrimonial proceedings shall be modified by the following provisions of this section.

(2) A court in Scotland shall not have jurisdiction, after the dismissal of matrimonial proceedings or after decree of absolvitor is granted therein, to entertain an application for a [F37 custody order][F37 Part I order] under section 9(1) of the M25 Matrimonial Proceedings (Children) Act 1958 unless the application therefor was made on or before such dismissal or the granting of the decree of absolvitor.

(3) Where, after a decree of separation has been granted, an application is made in the separation process for a [F37 custody order][F37 Part I order], a court in Scotland shall not have jurisdiction to entertain that application if, on the date of the application, proceedings for divorce or nullity of marriage in respect of the marriage concerned are continuing in another court in the United Kingdom.

(4) A court in Scotland shall not have jurisdiction to entertain an application for the variation of a [F37 custody order][F37 Part I order] made under section 9(1) of the Matrimonial Proceedings (Children) Act 1958 if, on the date of the application, matrimonial proceedings in respect of the marriage concerned are continuing in another court in the United Kingdom.

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

(a) an order under section [F38 4(5)][F38 2A(4)] or 21(5) of this Act or under subsection (6) below (not being an order made by virtue of paragraph (a)(ii) of that subsection), or

(b) an order under section 5(2), 14(2) or 22(2) of this Act which is recorded as made for the purpose of enabling [F39 proceedings with respect to the custody of][F39 Part I proceedings with respect to] the child concerned to be taken in Scotland or, as the case may be, in another court in Scotland,

and that order is in force.

(6) A court in Scotland which has jurisdiction in matrimonial proceedings to entertain an application for a [F37 custody order][F37 Part I order] with respect to a child may make an order declining such jurisdiction if—

(a) it appears to the court with respect to that child that—

(i) but for section 11(1) of this Act, another court in Scotland would have jurisdiction to entertain an application for a [F37 custody order][F37 Part I order], or

(ii) but for section 3(2), 6(3), 20(2) or 23(3) of this Act, a court in another part of the United Kingdom would have jurisdiction to make a [F37 custody order][F37 Part I order] or an order varying a [F37 custody order][F37 Part I order]; and

(b) the court considers that it would be more appropriate for [F40 matters relating to the custody of][F40 Part I matters relating to] that child to be determined in that other court or part.

(7) The court may recall an order made under subsection (6) above.

Textual Amendments

F37 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))

F38 “2A(4)” substituted (prosp.) for “4(5)” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 68(b) (with Sch. 14 para. 1(1))

F39 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))

F40 Words commencing “Part I matters relating to” substituted (prosp.) for words “matters relating to the custody of” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(c) (with Sch. 14 para. 1(1))

Marginal Citations

M25 1958 c. 40.

14 Power of court to refuse application or sist proceedings. S

(1) A court in Scotland which has jurisdiction to entertain an application for a [F41 custody order][F41 Part I order] may refuse the application in any case where the matter in question has already been determined in other proceedings.

(2) Where, at any stage of the proceedings on an application made to a court in Scotland for a [F41 custody order][F41 Part I order], it appears to the court—

(a) that proceedings with respect to the matters to which the application relates are continuing outside Scotland or in another court in Scotland; or

(b) that it would be more appropriate for those matters to be determined in proceedings outside Scotland or in another court in Scotland and that such proceedings are likely to be taken there,

the court may sist the proceedings on that application.

Textual Amendments

F41 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))

15 Duration, variation and recall of orders. S

(1) Where, after the making by a court in Scotland of a [F42 custody order][F42 Part I order] (“the existing order”) with respect to a child,—

(a) a [F42 custody order][F42 Part I order], or an order varying a [F42 custody order][F42 Part I order], competently made by another court in any part of the United Kingdom with respect to that child; or

(b) an order for the custody of that child which is made outside the United Kingdom and recognised in Scotland by virtue of section 26 of this Act,

comes into force, the existing 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 the order of the other court in the United Kingdom or, as the case may be, the order so recognised.

(2) Subject to sections 11(1) and 13(3) and (4) of this Act, a court in Scotland which has made a [F42 custody order][F42 Part I order] (“the original order”) may, notwithstanding that it would no longer have jurisdiction to make the original order, make an order varying or recalling the original order; but if the original order has by virtue of subsection (1) above ceased to have effect so far as it makes provision for any matter, the court shall not have power to vary that order under this subsection so as to make provision for that matter.

(3) In subsection (2) above, an order varying an original order means any [F42 custody order][F42 Part I order] made with respect to the same child as the original order was made.

(4) Where any person who is entitled to the custody of a child under a [F42 custody order][F42 Part I order] made by a court in Scotland ceases to be so entitled by virtue of subsection (1) above, then, if there is in force an order made by a court in Scotland under section 12(1) of the M26 Matrimonial Proceedings (Children) Act 1958 or section 11(1)(b) of the M27 Guardianship Act 1973 providing for the supervision of that child by a local authority, that order shall cease to have effect.

Textual Amendments

F42 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))

Marginal Citations

M26 1958 c. 40.

M27 1973 c. 29.

16 Tutory and curatory. S

(1) Subject to subsections (2) and (3) below, an application made after the commencement of this Part for an order relating to the tutory or curatory of a pupil or minor may be entertained by—

(a) the Court of Session if, on the date of the application, the pupil or minor is habitually resident in Scotland,

(b) the sheriff if, on the date of the application, the pupil or minor is habitually resident in the sheriffdom.

(2) Subsection (1) above shall not apply to an application for the appointment or removal of a factor loco tutoris or of a curator bonis or any application made by such factor or curator.

(3) Subsection (1) above is without prejudice to any other ground of jurisdiction on which the Court of Session or the sheriff may entertain an application mentioned therein.

(4) Provision may be made by act of sederunt prescribing, in relation to orders relating to the tutory or curatory of a pupil or minor, what constitutes an application for the purposes of this Chapter.

17 Orders for delivery of child. S

(1) Subject to subsection (2) below, an application by one parent of a child for an order for the delivery of the child from the other parent, where the order is not sought to implement a [F43 custody order][F43 Part I order], may be entertained by the Court of Session or a sheriff if, but only if, the Court of Session or, as the case may be, the sheriff would have jurisdiction under this Chapter to make a [F43 custody order][F43 Part I order] with respect to the child concerned.

(2) Subsection (1) above is without prejudice to the grounds of jurisdiction on which the Court of Session or a sheriff may entertain an application by a parent who is entitled to the custody of a child for an order for the delivery of the child from a parent who is not so entitled.

(3) Subsection (1) above shall apply to an application by one party to a marriage for an order for the delivery of the child concerned from the other party where the child is the child of one of the parties and has been accepted as one of the family by the other party as it applies to an application by one parent of a child for an order for the delivery of the child from the other parent.

Textual Amendments

F43 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))

18 Interpretation of Chapter III. S

(1) In this Chapter—

• “child” means a person who has not attained the age of sixteen;

• “matrimonial proceedings” means proceedings for divorce, nullity of marriage or judicial separation.

(2) In this Chapter, “the date of the application” means, where two or more applications are pending, the date of the first of those applications; and, for the purposes of this subsection, an application is pending until a [F44 custody order][F44 Part I order] or, in the case of an application mentioned in section 16(1) of this Act, an order relating to the tutory or curatory of a pupil or minor, has been granted in pursuance of the application or the court has refused to grant such an order.

Textual Amendments

F44 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))

Chapter IV N.I. Jurisdiction of Courts in Northern Ireland

19 Jurisdiction in cases other than divorce, etc. N.I.

(1) A court in Northern Ireland shall not have jurisdiction to make a [F45 custody order][F45 Part I order] within section 1(1)(c) of this Act, other than one under Article 45(1) of the M28 Matrimonial Causes (Northern Ireland) Order 1978, unless the condition in section 20 of this Act is satisfied.

(2) The High Court in Northern Ireland shall have jurisdiction to make a [F45 custody order][F45 Part I order] within [F46 section 1(1)(d)][F46 section 1(1)(e)] of this Act if, and only if,—

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

(b) the ward is present in Northern Ireland on the relevant date (within the meaning of section 20(6) of this Act) and the court considers that the immediate exercise of its powers is necessary for his protection.

Textual Amendments

F45 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))

F46 “section 1(1)(e)” substituted (prosp.) for “section 1(1)(d)” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 69(a) (with Sch. 14 para. 1(1))

Marginal Citations

M28 S.I. 1978/1045 (N.I. 15.).

Valid from 04/11/1996

F47 19A Jurisdiction in or in connection with matrimonial proceedings. N.I.

(1) The condition referred to in section 19(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)(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.

(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 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 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 in or in connection with those proceedings.

Textual Amendments

F47 Ss. 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 section 19 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, proceedings for divorce, nullity or judicial separation are continuing in a court in England and Wales or Scotland 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 [F48 4(5)][F48 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 made for the purpose of enabling [F49 proceedings with respect to the custody of][F49 Part I proceedings with respect to] the child concerned to be taken in Northern Ireland,

and that order is in force.

(4) Subject to subsection (5) and (6) below, in this section “the relevant date” means the date of the commencement of the proceedings in which the [F50 custody order][F50 Part I order] falls to be made.

(5) In the case of a [F50 custody order][F50 Part I order] under section 5 of the M29 Guardianship of Infants Act 1886 “the relevant date” means the date of the application for the order (or first application, if two or more are determined together).

(6) In the case of a [F50 custody order][F50 Part I order] within [F51 section 1(1)(d)][F51 section 1(1)(e)] 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

F48 “2A(4)” substituted (prosp.) for “4(5)” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 68(c) (with Sch. 14 para. 1(1))

F49 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))

F50 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))

F51 “section 1(1)(e)” substituted (prosp.) for “section 1(1)(d)” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 69(b) (with Sch. 14 para. 1(1))

Marginal Citations

M29 1986 c. 27.

21 Jurisdiction in divorce proceedings, etc. N.I.

(1) The enactments relating to the jurisdiction of courts in Northern Ireland to make orders under Article 45(1) of the M30 Matrimonial Causes (Northern Ireland) Order 1978 shall have effect subject to the modifications provided for by this section.

(2) In Article 45(1)(b) of that Order (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 [F52 custody order][F52 Part I order] under Article 45(1)(a) of that Order 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 England and Wales or Scotland.

(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 [F53 4(5)][F53 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 made for the purpose of enabling [F54 proceedings with respect to the custody of][F54 Part I proceedings with respect to] the child concerned to be taken in Northern Ireland,

and that order is in force.

(5) Where a court—

(a) has jurisdiction to make a [F52 custody order][F52 Part I order] under Article 45(1) of the Matrimonial Causes (Northern Ireland) Order 1978 in or in connection with proceedings for divorce, nullity of marriage or judicial separation, but

(b) considers that it would be more appropriate for [F55 matters relating to the custody of][F55 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 [F52 custody order][F52 Part I order] under Article 45(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 [F52 custody order][F52 Part I order] under Article 45(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

F52 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))

F53 “2A(4)” substituted (prosp.) for “4(5)” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 68(d) (with Sch. 14 para. 1(1))

F54 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))

F55 Words commencing “Part I matters relating to” substituted (prosp.) for words “matters relating to the custody of” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(c) (with Sch. 14 para. 1(1))

Marginal Citations

M30 S.I. 1978/1045 (N.I. 15).

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

(1) A court in Northern Ireland which has jurisdiction to make a [F56 custody order][F56 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 Northern Ireland.

(2) Where, at any stage of the proceedings on an application made to a court in Northern Ireland for a [F56 custody order][F56 Part I order], or for the variation of a [F56 custody order][F56 Part I order], it appears to the court—

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

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

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

F56 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))

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

(1) If a [F57 custody order][F57 Part 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 [F57 custody order][F57 Part 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 [F57 custody order][F57 Part 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.

(3) A court in Northern Ireland shall not have jurisdiction—

(a) to vary a [F57 custody order][F57 Part I order], other than one made under Article 45(1)(a) of the M31 Matrimonial Causes (Northern Ireland) Order 1978, or

(b) after the grant of a decree of judicial separation, to vary a [F57 custody order][F57 Part I order] made under Article 45(1)(a) of that Order,

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

(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 [F58 4(5)][F58 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 made for the purpose of enabling [F59 proceedings with respect to the custody of][F59 Part 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 variation of a [F57 custody order][F57 Part I order] within [F60 section 1(1)(d)][F60 section 1(1)(e)] of this Act if the ward 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.

(6) Where any person who is entitled to the actual possession of a child under a [F57 custody order][F57 Part I order] made by a court in Northern Ireland ceases to be so entitled by virtue of subsection (1) above, then, if there is in force an order for the supervision of that child made under—

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

(b) Article 11 of the M32 Domestic Proceedings (Northern Ireland) Order 1980,

that order shall also 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.

Textual Amendments

F57 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))

F58 “2A(4)” substituted (prosp.) for “4(5)” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 68(e) (with Sch. 14 para. 1(1))

F59 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))

F60 “section 1(1)(e)” substituted (prosp.) for “section 1(1)(d)” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 69(b) (with Sch. 14 para. 1(1))

Marginal Citations

M31 S.I. 1978/1045 (N.I. 15).

M32 S.I. 1980/563 (N.I. 5).

24 Interpretation of Chapter IV. N.I.

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

Chapter V U.K. Recognition and Enforcement

25 Recognition of custody orders: general. U.K.

(1) Where a [F61 custody order][F61 Part I order] made by a court in any part of the United Kingdom is in force with respect to a child who has not attained the age of sixteen, then, subject to subsection (2) below, the order shall be recognised in any other part of the United Kingdom as having the same effect in that other part as if it had been made by the appropriate court in that other part and as if that court had had jurisdiction to make it.

(2) Where a [F61 custody order][F61 Part I order] includes provision as to the means by which rights conferred by the order are to be enforced, subsection (1) above shall not apply to that provision.

(3) A court in a part of the United Kingdom in which a [F61 custody order][F61 Part I order] is recognised in accordance with subsection (1) above shall not enforce the order unless it has been registered in that part of the United Kingdom under section 27 of this Act and proceedings for enforcement are taken in accordance with section 29 of this Act.

Textual Amendments

F61 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))

26 Recognition: special Scottish rule. S

Any rule of law whereby an order for the custody of a child made outside the United Kingdom is recognised in Scotland shall continue to have effect, except that, after the commencement of this Part, the ground for such recognition shall be that the order was made in the country where the child was habitually resident and not where he was domiciled.

27 Registration. U.K.

(1) Any person on whom any rights are conferred by a [F62 custody order][F62 Part I order] may apply to the court which made it for the order to be registered in another part of the United Kingdom under this section.

(2) An application under this section shall be made in the prescribed manner and shall contain the prescribed information and be accompanied by such documents as may be prescribed.

(3) On receiving an application under this section the court which made the [F62 custody order][F62 Part I order] shall, unless it appears to the court that the order is no longer in force, cause the following documents to be sent to the appropriate court in the part of the United Kingdom specified in the application, namely—

(a) a certified copy of the order, and

(b) where the order has been varied, prescribed particulars of any variation which is in force, and

(c) a copy of the application and of any accompanying documents.

(4) Where the prescribed officer of the appropriate court receives a certified copy of a [F62 custody order][F62 Part I order] under subsection (3) above, he shall forthwith cause the order, together with particulars of any variation, to be registered in that court in the prescribed manner.

(5) An order shall not be registered under this section in respect of a child who has attained the age of sixteen, and the registration of an order in respect of a child who has not attained the age of sixteen shall cease to have effect on the attainment by the child of that age.

Textual Amendments

F62 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))

28 Cancellation and variation of registration. U.K.

(1) A court which revokes, recalls or varies an order registered under section 27 of this Act shall cause notice of the revocation, recall or variation to be given in the prescribed manner to the prescribed officer of the court in which it is registered and, on receiving the notice, the prescribed officer—

(a) in the case of the revocation or recall of the order, shall cancel the registration, and

(b) in the case of the variation of the order, shall cause particulars of the variation to be registered in the prescribed manner.

(2) Where—

(a) an order registered under section 27 of this Act ceases (in whole or in part) to have effect in the part of the United Kingdom in which it was made, otherwise than because of its revocation, recall or variation, or

(b) an order registered under section 27 of this Act in Scotland ceases (in whole or in part) to have effect there as a result of the making of an order in proceedings outside the United Kingdom,

the court in which the order is registered may, of its own motion or on the application of any person who appears to the court to have an interest in the matter, cancel the registration (or, if the order has ceased to have effect in part, cancel the registration so far as it relates to the provisions which have ceased to have effect).

29 Enforcement. U.K.

(1) Where a [F63 custody order][F63 Part I order] has been registered under section 27 of this Act, the court in which it is registered shall have the same powers for the purpose of enforcing the order as it would have if it had itself made the order and had jurisdiction to make it; and proceedings for or with respect to enforcement may be taken accordingly.

(2) Where an application has been made to any court for the enforcement of an order registered in that court under section 27 of this Act, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.

(3) The references in subsection (1) above to a [F63 custody order][F63 Part I order] do not include references to any provision of the order as to the means by which rights conferred by the order are to be enforced.

Textual Amendments

F63 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))

30 Staying or sisting of enforcement proceedings. U.K.

(1) Where in accordance with section 29 of this Act proceedings are taken in any court for the enforcement of an order registered in that court, any person who appears to the court to have an interest in the matter may apply for the proceedings to be stayed or sisted on the ground that he has taken or intends to take other proceedings (in the United Kingdom or elsewhere) as a result of which the order may cease to have effect, or may have a different effect, in the part of the United Kingdom in which it is registered.

(2) If after considering an application under subsection (1) above the court considers that the proceedings for enforcement should be stayed or sisted in order that other proceedings may be taken or concluded, it shall stay or sist the proceedings for enforcement accordingly.

(3) The court may remove a stay or recall a sist granted in accordance with subsection (2) above if it appears to the court—

(a) that there has been unreasonable delay in the taking or prosecution of the other proceedings referred to in that subsection, or

(b) that those other proceedings are concluded and that the registered order, or a relevant part of it, is still in force.

(4) Nothing in this section shall affect any power exercisable apart from this section to grant, remove or recall a stay or sist.

31 Dismissal of enforcement proceedings. U.K.

(1) Where in accordance with section 29 of this Act proceedings are taken in any court for the enforcement of an order registered in that court, any person who appears to the court to have an interest in the matter may apply for those proceedings to be dismissed on the ground that the order has (in whole or in part) ceased to have effect in the part of the United Kingdom in which it was made.

(2) Where in accordance with section 29 of this Act proceedings are taken in the Court of Session for the enforcement of an order registered in that court, any person who appears to the court to have an interest in the matter may apply for those proceedings to be dismissed on the ground that the order has (in whole or in part) ceased to have effect in Scotland as a result of the making of an order in proceedings outside the United Kingdom.

(3) If, after considering an application under subsection (1) or (2) above, the court is satisfied that the registered order has ceased to have effect, it shall dismiss the proceedings for enforcement (or, if it is satisfied that the order has ceased to have effect in part, it shall dismiss the proceedings so far as they relate to the enforcement of provisions which have ceased to have effect).

32 Interpretation of Chapter V. U.K.

(1) In this Chapter—

• “the appropriate court”, in relation to England and Wales or Northern Ireland, means the High Court and, in relation to Scotland, means the Court of Session;

• “ [F64 custody order][F64 Part I order]” includes (except where the context otherwise requires) any order within section 1(3) of this Act which, on the assumptions mentioned in subsection (3) below—

(a) could have been made notwithstanding the provisions of this Part;

(b) would have been a [F64 custody order][F64 Part I order] for the purposes of this Part; and

(c) would not have ceased to have effect by virtue of section 6, 15 or 23 of this Act.

(2) In the application of this Chapter to Scotland, “ [F64 custody order][F64 Part I order]” also includes (except where the context otherwise requires) any order within section 1(3) of this Act which, on the assumptions mentioned in subsection (3) below—

(a) would have been a [F64 custody order][F64 Part I order] for the purposes of this Part; and

(b) would not have ceased to have effect by virtue of section 6 or 23 of this Act,

and which, but for the provisions of this Part, would be recognised in Scotland under any rule of law.

(3) The said assumptions are—

(a) that this Part had been in force at all material times; and

(b) that any reference in section 1 of this Act to any enactment included a reference to any corresponding enactment previously in force.

Textual Amendments

F64 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))

Chapter VI U.K. Miscellaneous and Supplemental

33 Power to order disclosure of child’s whereabouts. U.K.

(1) Where in proceedings for or relating to a [F65 custody order][F65 Part I order] in respect of a child there is not available to the court adequate information as to where the child is, the court may order any person who it has reason to believe may have relevant information to disclose it to the court.

(2) A person shall not be excused from complying with an order under subsection (1) above by reason that to do so may incriminate him or his spouse of an offence; but a statement or admission made in compliance with such an order shall not be admissible in evidence against either of them in proceedings for any offence other than perjury.

(3) A court in Scotland before which proceedings are pending for the enforcement of an order for the custody of a child made outside the United Kingdom which is recognised in Scotland shall have the same powers as it would have under subsection (1) above if the order were its own.

Textual Amendments

F65 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))

34 Power to order recovery of child. E+W+N.I.

(1) Where—

(a) a person is required by a [F66 custody order][F66 Part I order], or an order for the enforcement of a [F66 custody order][F66 Part I order], to give up a child to another person (“the person concerned”), and

(b) the court which made the order imposing the requirement is satisfied that the child has not been given up in accordance with the order,

the court may make an order authorising an officer of the court or a constable to take charge of the child and deliver him to the person concerned.

(2) The authority conferred by subsection (1) above includes authority—

(a) to enter and search any premises where the person acting in pursuance of the order has reason to believe the child may be found, and

(b) to use such force as may be necessary to give effect to the purpose of the order.

(3) Where by virtue of—

[F67 (a) section 13(1) of the M33 Guardianship of Minors Act 1971, section 43(1) of the M34 Children Act 1975 or section 33 of the M35 Domestic Proceedings and Magistrates’ Courts Act 1978, or]

[F67 (a) section 14 of the Children Act 1989]

(b) Article 37 of the M36 Domestic Proceedings (Northern Ireland) Order 1980,

a [F66 custody order][F66 Part I order] (or a provision of a [F66 custody order][F66 Part I order]) may be enforced as if it were an order requiring a person to give up a child to another person, subsection (1) above shall apply as if the [F66 custody order][F66 Part I order] had included such a requirement.

(4) This section is without prejudice to any power conferred on a court by or under any other enactment or rule of law.

Textual Amendments

F66 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))

F67 S. 34(3)(a) commencing “section 14” substituted (E.W. N.I.) (prosp.) for s. 34(3)(a) commencing “13(1)” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 70 (with Sch. 14 para. 1(1))

Marginal Citations

M33 1971 c. 3.

M34 1975 c. 72.

M35 1978 c. 22.

M36 S.I. 1980/563 (N.I. 5).

35 Powers to restrict removal of child from jurisdiction. U.K.

[F68 (1) In each of the following enactments (which enable courts to restrict the removal of a child from England and Wales)—

(a) section 13A(1) of the Guardianship of Minors Act 1971,

(b) section 43A(1) of the Children Act 1975, and

(c) section 34(1) of the Domestic Proceedings and Magistrates’ Courts Act 1978,

for the words “England and Wales” there shall be substituted the words “the United Kingdom, or out of any part of the United Kingdom specified in the order,”.]

(2) In Article 38(1) of the Domestic Proceedings (Northern Ireland) Order 1980 (which enables courts to restrict the removal of a child from Northern Ireland) for the words “Northern Ireland” there shall be substituted the words “the United Kingdom, or out of any part of the United Kingdom specified in the order,”.

(3) A court in Scotland—

(a) at any time after the commencement of proceedings in connection with which the court would have jurisdiction to make a [F69 custody order][F69 Part I order], or

(b) in any proceedings in which it would be competent for the court to grant an interdict prohibiting the removal of a child from its jurisdiction,

may, on an application by any of the persons mentioned in subsection (4) below, grant interdict or interim interdict prohibiting the removal of the child from the United Kingdom or any part of the United Kingdom, or out of the control of the person in whose custody the child is.

(4) The said persons are—

(a) any party to the proceedings,

(b) the tutor or curator of the child concerned, and

(c) any other person who has or wishes to obtain the custody or care of the child.

(5) In subsection (3) above “the court” means the Court of Session or the sheriff; and for the purposes of subsection (3)(a) above, proceedings shall be held to commence—

(a) in the Court of Session, when a summons is signeted or a petition is presented;

(b) in the sheriff court, when the warrant of citation is signed.

Textual Amendments

F68 S. 35(1) repealed (prosp.) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4))

F69 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))

36 Effect of orders restricting removal. U.K.

(1) This section applies to any order made by a court in the United Kingdom prohibiting the removal of a child from the United Kingdom or from any specified part of it.

(2) An order to which this section applies shall have effect in each part of the United Kingdom other than the part in which it was made—

(a) as if it had been made by the appropriate court in that other part, and

(b) in the case of an order which has the effect of prohibiting the child’s removal to that other part, as if it had included a prohibition on his further removal to any place except one to which he could be removed consistently with the order.

(3) The references in subsections (1) and (2) above to prohibitions on a child’s removal include references to prohibitions subject to exceptions; and in a case where removal is prohibited except with the consent of the court, nothing in subsection (2) above shall be construed as affecting the identity of the court whose consent is required.

(4) In this section “child” means a person who has not attained the age of sixteen; and this section shall cease to apply to an order relating to a child when he attains the age of sixteen.

37 Surrender of passports. U.K.

(1) Where there is in force an order prohibiting or otherwise restricting the removal of a child from the United Kingdom or from any specified part of it, the court by which the order was in fact made, or by which it is treated under section 36 of this Act as having been made, may require any person to surrender any United Kingdom passport which has been issued to, or contains particulars of, the child.

(2) In this section “United Kingdom passport” means a current passport issued by the Government of the United Kingdom.

38 Automatic restriction on removal of wards of court. E+W+N.I.

(1) The rule of law which (without any order of the court) restricts the removal of a ward of court from the jurisdiction of the court shall, in a case to which this section applies, have effect subject to the modifications in subsection (3) below.

(2) This section applies in relation to a ward of court if—

(a) proceedings for divorce, nullity or judicial separation in respect of the marriage of his parents are continuing in a court in another part of the United Kingdom (that is to say, in a part of the United Kingdom outside the jurisdiction of the court of which he is a ward), or

(b) he is habitually resident in another part of the United Kingdom,

except where that other part is Scotland and he has attained the age of sixteen.

(3) Where this section applies, the rule referred to in subsection (1) above shall not prevent—

(a) the removal of the ward of court, without the consent of any court, to the other part of the United Kingdom mentioned in subsection (2) above, or

(b) his removal to any other place with the consent of either the appropriate court in that other part of the United Kingdom or the court mentioned in subsection (2)(a) above.

39 Duty to furnish particulars of other proceedings. U.K.

Parties to proceedings for or relating to a [F70 custody order][F70 Part I order] shall, to such extent and in such manner as may be prescribed, give particulars of other proceedings known to them which relate to the child concerned (including proceedings instituted abroad and proceedings which are no longer continuing).

Textual Amendments

F70 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))

40 Interpretation of Chapter VI. U.K.

(1) In this Chapter—

• “the appropriate court” has the same meaning as in Chapter V;

• “ [F71 custody order][F71 Part I order]” includes (except where the context otherwise requires) any such order as is mentioned in section 32(1) of this Act.

(2) In the application of this Chapter to Scotland, “ [F71 custody order][F71 Part I order]” also includes (except where the context otherwise requires) any such order as is mentioned in section 32(2) of this Act.

Textual Amendments

F71 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))

41 Habitual residence after removal without consent, etc. U.K.

(1) Where a child who—

(a) has not attained the age of sixteen, and

(b) is habitually resident in a part of the United Kingdom,

becomes habitually resident outside that part of the United Kingdom in consequence of circumstances of the kind specified in subsection (2) below, he shall be treated for the purposes of this Part as continuing to be habitually resident in that part of the United Kingdom for the period of one year beginning with the date on which those circumstances arise.

(2) The circumstances referred to in subsection (1) above exist where the child is removed from or retained outside, or himself leaves or remains outside, the part of the United Kingdom in which he was habitually resident before his change of residence—

(a) without the agreement of the person or all the persons having, under the law of that part of the United Kingdom, the right to determine where he is to reside, or

(b) in contravention of an order made by a court in any part of the United Kingdom.

(3) A child shall cease to be treated by virtue of subsection (1) above as habitually resident in a part of the United Kingdom if, during the period there mentioned—

(a) he attains the age of sixteen, or

(b) he becomes habitually resident outside that part of the United Kingdom with the agreement of the person or persons mentioned in subsection (2)(a) above and not in contravention of an order made by a court in any part of the United Kingdom.

42 General interpretation of Part I. U.K.

(1) In this Part—

• “certified copy”, in relation to an order of any court, means a copy certified by the prescribed officer of the court to be a true copy of the order or of the official record of the order;

• “part of the United Kingdom” means England and Wales, Scotland or Northern Ireland;

• “prescribed” means prescribed by rules of court or act of sederunt.

(2) For the purposes of this Part proceedings in England and Wales or in Northern Ireland for divorce, nullity or judicial separation in respect of the marriage of the parents of a child shall, unless they have been dismissed, be treated as continuing until the child concerned attains the age of eighteen (whether or not a decree has been granted and whether or not, in the case of a decree of divorce or nullity of marriage, that decree has been made absolute).

(3) For the purposes of this Part, matrimonial proceedings in a court in Scotland which has jurisdiction in those proceedings to make a [F72 custody order][F72 Part I order] with respect to a child shall, unless they have been dismissed or decree of absolvitor has been granted therein, be treated as continuing until the child concerned attains the age of sixteen.

(4) Any reference in this Part to proceedings in respect of the marriage of the parents of a child shall, in relation to a child who, although not a child of both parties to the marriage, is a child of the family of those parties, be construed as a reference to proceedings in respect of that marriage; and for this purpose “child of the family”—

(a) if the proceedings are in England and Wales, means any child who has been treated by both parties as a child of their family, except a child who [F73 has been boarded out with those parties][F73 is placed with those parties as foster parents] by a local authority or a voluntary organisation;

(b) if the proceedings are in Scotland, means any child of one of the parties who has been accepted as one of the family by the other party;

(c) if the proceedings are in Northern Ireland, means any child who has been treated by both parties as a child of their family, except a child who has been boarded out with those parties by or on behalf of the Department of Health and Social Services or a voluntary organisation.

(5) References in this Part to custody orders include (except where the context otherwise requires) references to custody orders as varied.

(6) For the purposes of this Part each of the following orders shall be treated as varying the [F72 custody order][F72 Part I order] to which it relates—

(a) an order which provides for a person [F74 to be allowed contact with or] to be given access to a child who is the subject of a [F72 custody order][F72 Part I order], or which makes provision for the education of such a child,

(b) an order under [F75 section 42(6) of the M37 Matrimonial Causes Act 1973 or] Article 45(6) of the M38 Matrimonial Causes (Northern Ireland) Order 1978,

(c) an order under [F75 section 42(7) of that Act or] Article 45(7) of that Order, and

(d) an order under [F75 section 19(6) of the M39 Domestic Proceedings and Magistrates’ Courts Act 1978 or] Article 20(6) of the M40 Domestic Proceedings (Northern Ireland) Order 1980;

and for the purposes of Chapter V of this Part and this Chapter, this subsection shall have effect as if any reference to any enactment included a reference to any corresponding enactment previously in force.

[F76 (7) References in this Part to proceedings in respect of the custody of a child include, in relation to proceedings outside the United Kingdom, references to proceedings before a tribunal or other authority having power under the law having effect there to determine questions relating to the custody of children.]

[F76 (7) In this Part—

(a) references to Part I proceedings in respect of a child are references to any proceedings for a Part I order or an order corresponding to a Part I order and include, in relation to proceedings outside the United Kingdom, references to proceedings before a tribunal or other authority having power under the law having effect there to determine Part I matters; and

(b) references to Part I matters are references to matters that might be determined by a Part I order or an order corresponding to a Part I order.]

Textual Amendments

F72 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))

F73 Words commencing “is placed” substituted (prosp.) for words commencing “has been boarded” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 71(1) (with Sch. 14 para. 1(1))

F74 Words inserted (prosp.) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 71(2) (with Sch. 14 para. 1(1))

F75 Words repealed (prosp.) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4))

F76 S. 42(7) commencing “In this Part” substituted (prosp.) for s. 42(7) commencing “References in this Part” by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(3) (with Sch. 14 para. 1(1))

Marginal Citations

M37 1973 c. 18.

M38 S.I. 1978/1045 (N.I. 15).

M39 1978 c. 22.

M40 S.I. 1980/563 (N.I. 5).

43 Application of Part I to dependent territories. U.K.

(1) Her Majesty may by Order in Council make provision corresponding to or applying any of the foregoing provisions of this Part, with such modifications as appear to Her Majesty to be appropriate, for the purpose of regulating—

(a) in any dependent territory;

(b) as between any dependent territory and any part of the United Kingdom; or

(c) as between any dependent territory and any other such territory,

the jurisdiction of courts to make custody orders, or orders corresponding to custody orders, and the recognition and enforcement of such orders.

(2) In subsection (1) above “dependent territory” means any of the following territories—

(a) the Isle of Man,

(b) any of the Channel Islands, and

(c) any colony.

(3) An Order in Council under subsection (1) above may contain such consequential, incidental and supplementary provisions as appear to Her Majesty to be necessary or expedient.

(4) An Order in Council under subsection (1)(b) above which makes provision affecting the law of any part of the United Kingdom shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Subordinate Legislation Made

P1 S. 43: s. 43 power exercised by S.I. 1991/1723.

Part II U.K. Recognition of Divorces, Annulments and Legal Separations

Divorces, annulments and judicial separations granted in the British Islands U.K.

44 Recognition in United Kingdom of divorces, annulments and judicial separations granted in the British Islands. U.K.

(1) Subject to section 52(4) and (5)(a) of this Act, no divorce or annulment obtained in any part of the British Islands shall be regarded as effective in any part of the United Kingdom unless granted by a court of civil jurisdiction.

(2) Subject to section 51 of this Act, the validity of any divorce, annulment or judicial separation granted by a court of civil jurisdiction in any part of the British Islands shall be recognised throughout the United Kingdom.

Overseas divorces, annulments and legal separations U.K.

45 Recognition in the United Kingdom of overseas divorces, annulments and legal separations. U.K.

Subject to sections 51 and 52 of this Act, the validity of a divorce, annulment or legal separation obtained in a country outside the British Islands (in this Part referred to as an overseas divorce, annulment or legal separation) shall be recognised in the United Kingdom if, and only if, it is entitled to recognition—

(a) by virtue of sections 46 to 49 of this Act, or

(b) by virtue of any enactment other than this Part.

46 Grounds for recognition. U.K.

(1) The validity of an overseas divorce, annulment or legal separation obtained by means of proceedings shall be recognised if—

(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; and

(b) at the relevant date either party to the marriage—

(i) was habitually resident in the country in which the divorce, annulment or legal separation was obtained; or

(ii) was domiciled in that country; or

(iii) was a national of that country.

(2) The validity of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings shall be recognised if—

(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained;

(b) at the relevant date—

(i) each party to the marriage was domiciled in that country; or

(ii) either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce, annulment or legal separation is recognised as valid; and

(c) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date.

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

(a) in the case of an overseas divorce, annulment or legal separation obtained by means of proceedings, the date of the commencement of the proceedings;

(b) in the case of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings, the date on which it was obtained.

(4) Where in the case of an overseas annulment, the relevant date fell after the death of either party to the marriage, any reference in subsection (1) or (2) above to that date shall be construed in relation to that party as a reference to the date of death.

(5) For the purpose of this section, a party to a marriage shall be treated as domiciled in a country if he was domiciled in that country either according to the law of that country in family matters or according to the law of the part of the United Kingdom in which the question of recognition arises.

47 Cross-proceedings and divorces following legal separations. U.K.

(1) Where there have been cross-proceedings, the validity of an overseas divorce, annulment or legal separation obtained either in the original proceedings or in the cross-proceedings shall be recognised if—

(a) the requirements of section 46(1)(b)(i), (ii) or (iii) of this Act are satisfied in relation to the date of the commencement either of the original proceedings or of the cross-proceedings, and

(b) the validity of the divorce, annulment or legal separation is otherwise entitled to recognition by virtue of the provisions of this Part.

(2) Where a legal separation, the validity of which is entitled to recognition by virtue of the provisions of section 46 of this Act or of subsection (1) above is converted, in the country in which it was obtained, into a divorce which is effective under the law of that country, the validity of the divorce shall be recognised whether or not it would itself be entitled to recognition by virtue of those provisions.

48 Proof of facts relevant to recognition. U.K.

(1) For the purpose of deciding whether an overseas divorce, annulment or legal separation obtained by means of proceedings is entitled to recognition by virtue of section 46 and 47 of this Act, any finding of fact made (whether expressly or by implication) in the proceedings and on the basis of which jurisdiction was assumed in the proceedings shall—

(a) if both parties to the marriage took part in the proceedings, be conclusive evidence of the fact found; and

(b) in any other case, be sufficient proof of that fact unless the contrary is shown.

(2) In this section “finding of fact” includes a finding that either party to the marriage—

(a) was habitually resident in the country in which the divorce, annulment or legal separation was obtained; or

(b) was under the law of that country domiciled there; or

(c) was a national of that country.

(3) For the purposes of subsection (1)(a) above, a party to the marriage who has appeared in judicial proceedings shall be treated as having taken part in them.

Supplemental U.K.

49 Modifications of Part II in relation to countries comprising territories having different systems of law. U.K.

(1) In relation to a country comprising territories in which different systems of law are in force in matters of divorce, annulment or legal separation, the provisions of this Part mentioned in subsections (2) to (5) below shall have effect subject to the modifications there specified.

(2) In the case of a divorce, annulment or legal separation the recognition of the validity of which depends on whether the requirements of subsection (1)(b)(i) or (ii) of section 46 of this Act are satisfied, that section and, in the case of a legal separation, section 47(2) of this Act shall have effect as if each territory were a separate country.

(3) In the case of a divorce, annulment or legal separation the recognition of the validity of which depends on whether the requirements of subsection (1)(b)(iii) of section 46 of this Act are satisfied—

(a) that section shall have effect as if for paragraph (a) of subsection (1) there were substituted the following paragraph—

“(a) the divorce, annulment or legal separation is effective throughout the country in which it was obtained;”; and

(b) in the case of a legal separation, section 47(2) of this Act shall have effect as if for the words “is effective under the law of that country” there were substituted the words “is effective throughout that country”.

(4) In the case of a divorce, annulment or legal separation the recognition of the validity of which depends on whether the requirements of subsection (2)(b) of section 46 of this Act are satisfied, that section and section 52(3) and (4) of this Act and, in the case of a legal separation, section 47(2) of this Act shall have effect as if each territory were a separate country.

(5) Paragraphs (a) and (b) of section 48(2) of this Act shall each have effect as if each territory were a separate country.

50 Non-recognition of divorce or annulment in another jurisdiction no bar to remarriage. U.K.

Where, in any part of the United Kingdom—

(a) a divorce or annulment has been granted by a court of civil jurisdiction, or

(b) the validity of a divorce or annulment is recognised by virtue of this Part,

the fact that the divorce or annulment would not be recognised elsewhere shall not preclude either party to the marriage from re-marrying in that part of the United Kingdom or cause the re-marriage of either party (wherever the re-marriage takes place) to be treated as invalid in that part.

51 Refusal of recognition. U.K.

(1) Subject to section 52 of this Act, recognition of the validity of—

(a) a divorce, annulment or judicial separation granted by a court of civil jurisdiction in any part of the British Islands, or

(b) an overseas divorce, annulment or legal separation,

may be refused in any part of the United Kingdom if the divorce, annulment or separation was granted or obtained at a time when it was irreconcilable with a decision determining the question of the subsistence or validity of the marriage of the parties previously given (whether before or after the commencement of this Part) by a court of civil jurisdiction in that part of the United Kingdom or by a court elsewhere and recognised or entitled to be recognised in that part of the United Kingdom.

(2) Subject to section 52 of this Act, recognition of the validity of—

(a) a divorce or judicial separation granted by a court of civil jurisdiction in any part of the British Islands, or

(b) an overseas divorce or legal separation,

may be refused in any part of the United Kingdom if the divorce or separation was granted or obtained at a time when, according to the law of that part of the United Kingdom (including its rules of private international law and the provisions of this Part), there was no subsisting marriage between the parties.

(3) Subject to section 52 of this Act, recognition by virtue of section 45 of this Act of the validity of an overseas divorce, annulment or legal separation may be refused if—

(a) in the case of a divorce, annulment or legal separation obtained by means of proceedings, it was obtained—

(i) without such steps having been taken for giving notice of the proceedings to a party to the marriage as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken; or

(ii) without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to those matters, he should reasonably have been given; or

(b) in the case of a divorce, annulment or legal separation obtained otherwise than by means of proceedings—

(i) there is no official document certifying that the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; or

(ii) where either party to the marriage was domiciled in another country at the relevant date, there is no official document certifying that the divorce, annulment or legal separation is recognised as valid under the law of that other country; or

(c) in either case, recognition of the divorce, annulment or legal separation would be manifestly contrary to public policy.

(4) In this section—

• “official”, in relation to a document certifying that a divorce, annulment or legal separation is effective, or is recognised as valid, under the law of any country, means issued by a person or body appointed or recognised for the purpose under that law;

• “the relevant date” has the same meaning as in section 46 of this Act;

and subsection (5) of that section shall apply for the purposes of this section as it applies for the purposes of that section.

(5) Nothing in this Part shall be construed as requiring the recognition of any finding of fault made in any proceedings for divorce, annulment or separation or of any maintenance, custody or other ancillary order made in any such proceedings.

52 Provisions as to divorces, annulments etc. obtained before commencement of Part II. U.K.

(1) The provisions of this Part shall apply—

(a) to a divorce, annulment or judicial separation granted by a court of civil jurisdiction in the British Islands before the date of the commencement of this Part, and

(b) to an overseas divorce, annulment or legal separation obtained before that date,

as well as to one granted or obtained on or after that date.

(2) In the case of such a divorce, annulment or separation as is mentioned in subsection (1)(a) or (b) above, the provisions of this Part shall require or, as the case may be, preclude the recognition of its validity in relation to any time before that date as well as in relation to any subsequent time, but those provisions shall not—

(a) affect any property to which any person became entitled before that date, or

(b) affect the recognition of the validity of the divorce, annulment or separation if that matter has been decided by any competent court in the British Islands before that date.

(3) Subsections (1) and (2) above shall apply in relation to any divorce or judicial separation granted by a court of civil jurisdiction in the British Islands before the date of the commencement of this Part whether granted before or after the commencement of section 1 of the M41 Recognition of Divorces and Legal Separations Act 1971.

(4) The validity of any divorce, annulment or legal separation mentioned in subsection (5) below shall be recognised in the United Kingdom whether or not it is entitled to recognition by virtue of any of the foregoing provisions of this Part.

(5) The divorces, annulments and legal separations referred to in subsection (4) above are—

(a) a divorce which was obtained in the British Islands before 1st January 1974 and was recognised as valid under rules of law applicable before that date;

(b) an overseas divorce which was recognised as valid under the Recognition of Divorces and Legal Separations Act 1971 and was not affected by section 16(2) of the Domicile and M42 Matrimonial Proceedings Act 1973 (proceedings otherwise than in a court of law where both parties resident in United Kingdom);

(c) a divorce of which the decree was registered under section 1 of the M43 Indian and Colonial Divorce Jurisdiction Act 1926;

(d) a divorce or annulment which was recognised as valid under section 4 of the M44 Matrimonial Causes (War Marriages) Act 1944; and

(e) an overseas legal separation which was recognised as valid under the M45 Recognition of Divorces and Legal Separations Act 1971.

Marginal Citations

M41 1971 c. 53.

M42 1973 c. 45.

M43 1926 c. 40.

M44 1944 c. 43.

M45 1971 c. 53

53 Effect of divorces and annulments on wills. E+W

In subsection (1) of section 18A of the M46 Wills Act 1837 (effect of a decree of divorce or nullity of marriage on wills)—

(a) after the word “court” there shall be inserted the words “of civil jurisdiction in England and Wales”; and

(b) for the words “or declares it void” there shall be substituted the words “or his marriage is dissolved or annulled and the divorce or annulment is entitled to recognition in England and Wales by virtue of Part II of the Family Law Act 1986”.

Marginal Citations

M46 1837 c. 26.

54 Interpretation of Part II. U.K.

(1) In this Part—

• “annulment” includes any decree or declarator of nullity of marriage, however expressed;

• “part of the United Kingdom” means England and Wales, Scotland or Northern Ireland;

• “proceedings” means judicial or other proceedings.

(2) In this Part “country” includes a colony or other dependent territory of the United Kingdom but for the purposes of this Part a person shall be treated as a national of such a territory only if it has a law of citizenship or nationality separate from that of the United Kingdom and he is a citizen or national of that territory under that law.

Part III E+W Declarations of Status

55 Declarations as to marital status. E+W

(1) Subject to the following provisions of this section, any person may apply to the court for one or more of the following declarations in relation to a marriage specified in the application, that is to say—

(a) a declaration that the marriage was at its inception a valid marriage;

(b) a declaration that the marriage subsisted on a date specified in the application;

(c) a declaration that the marriage did not subsist on a date so specified;

(d) a declaration that the validity of a divorce, annulment or legal separation obtained in any country outside England and Wales in respect of the marriage is entitled to recognition in England and Wales;

(e) a declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in England and Wales.

(2) A court shall have jurisdiction to entertain an application under subsection (1) above if, and only if, either of the parties to the marriage to which the application relates-

(a) is domiciled in England and Wales on the date of the application, or

(b) has been habitually resident in England and Wales throughout the period of one year ending with that date, or

(c) died before that date and either—

(i) was at death domiciled in England and Wales, or

(ii) had been habitually resident in England and Wales throughout the period of one year ending with the date of death.

(3) Where an application under subsection (1) above is made by any person other than a party to the marriage to which the application relates, the court shall refuse to hear the application if it considers that the applicant does not have a sufficient interest in the determination of that application.

Valid from 01/04/2001

[F77 55A Declarations of parentage. E+W

(1) Subject to the following provisions of this section, any person may apply to the High Court, a county court or a magistrates’ court for a declaration as to whether or not a person named in the application is or was the parent of another person so named.

(2) A court shall have jurisdiction to entertain an application under subsection (1) above if, and only if, either of the persons named in it for the purposes of that subsection—

(a) is domiciled in England and Wales on the date of the application, or

(b) has been habitually resident in England and Wales throughout the period of one year ending with that date, or

(c) died before that date and either—

(i) was at death domiciled in England and Wales, or

(ii) had been habitually resident in England and Wales throughout the period of one year ending with the date of death.

(3) Except in a case falling within subsection (4) below, the court shall refuse to hear an application under subsection (1) above unless it considers that the applicant has a sufficient personal interest in the determination of the application (but this is subject to section 27 of the M47 Child Support Act 1991).

(4) The excepted cases are where the declaration sought is as to whether or not—

(a) the applicant is the parent of a named person;

(b) a named person is the parent of the applicant; or

(c) a named person is the other parent of a named child of the applicant.

(5) Where an application under subsection (1) above is made and one of the persons named in it for the purposes of that subsection is a child, the court may refuse to hear the application if it considers that the determination of the application would not be in the best interests of the child.

(6) Where a court refuses to hear an application under subsection (1) above it may order that the applicant may not apply again for the same declaration without leave of the court.

(7) Where a declaration is made by a court on an application under subsection (1) above, the prescribed officer of the court shall notify the Registrar General, in such a manner and within such period as may be prescribed, of the making of that declaration.]

Textual Amendments

F77 S. 55A inserted (1.4.2001) by 2000 c. 19, s. 83(2) (with s. 83(6)); S.I. 2001/774, art. 2(b)

Marginal Citations

M47 1991 c. 48.

[F78 56 Declarations as to parentage, legitimacy or legitimation. E+W

(1) Any person may apply to the court for a declaration—

(a) that a person named in the application is or was his parent; or

(b) that he is the legitimate child of his parents.

(2) Any person may apply to the court for one (or for one or, in the alternative, the other) of the following declarations, that is to say—

(a) a declaration that he has become a legitimated person;

(b) a declaration that he has not become a legitimated person.

(3) A court shall have jurisdiction to entertain an application under this section if, and only if, the applicant—

(a) is domiciled in England and Wales on the date of the application; or

(b) has been habitually resident in England and Wales throughout the period of one year ending with that date.

(4) Where a declaration is made on an application under subsection (1) above, the prescribed officer of the court shall notify the Registrar General, in such a manner and within such period as may be prescribed, of the making of that declaration.

(5) In this section “legitimated person” means a person legitimated or recognised as legitimated—

(a) under section 2 or 3 of the Legitimacy Act M48 1976;

(b) under section 1 or 8 of the Legitimacy Act M49 1926; or

(c) by a legitimation (whether or not by virtue of the subsequent marriage of his parents) recognised by the law of England and Wales and effected under the law of another country.]

Textual Amendments

F78 S. 56 substituted by Family Law Reform Act 1987 (c. 42, SIF 49:7), ss. 22, 34(5)

Marginal Citations

M48 1976 c.31(49:7).

M49 1926 c.60(49:7).

57 Declarations as to adoptions effected overseas. E+W

(1) Any person whose status as an adopted child of any person depends on whether he has been adopted by that person by either—

(a) an overseas adoption as defined by section 72(2) of the M50 Adoption Act 1976, or

(b) an adoption recognised by the law of England and Wales and effected under the law of any country outside the British Islands,

may apply to the court for one (or for one or, in the alternative, the other) of the declarations mentioned in subsection (2) below.

(2) The said declarations are—

(a) a declaration that the applicant is for the purposes of section 39 of the Adoption Act 1976 the adopted child of that person;

(b) a declaration that the applicant is not for the purposes of that section the adopted child of that person.

(3) A court shall have jurisdiction to entertain an application under subsection (1) above if, and only if, the applicant—

(a) is domiciled in England and Wales on the date of the application, or

(b) has been habitually resident in England and Wales throughout the period of one year ending with that date.

(4) Until the Adoption Act 1976 comes into force—

(a) subsection (1) above shall have effect as if for the reference to section 72(2) of that Act there were substituted a reference to section 4(3) of the M51 Adoption Act 1968; and

(b) subsection (2) above shall have effect as if for the reference to section 39 of that Act there were substituted a reference to Part II of Schedule I to the M52 Children Act 1975.

Marginal Citations

M50 1976 c. 36.

M51 1968 c. 53.

M52 1975 c. 72.

58 General provisions as to the making and effect of declarations. E+W

(1) Where on an application for a declaration under this Part the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy.

(2) Any declaration made under this Part shall be binding on Her Majesty and all other persons.

(3) The court, on the dismissal of an application for a declaration under this Part, shall not have power to make any declaration for which an application has not been made.

(4) No declaration which may be applied for under this Part may be made otherwise than under this Part by any court.

(5) No declaration may be made by any court, whether under this Part or otherwise—

(a) that a marriage was at its inception void;

(b) that any person is or was illegitimate.

(6) Nothing in this section shall effect the powers of any court to grant a decree of nullity of marriage.

59 Provisions relating to the Attorney-General. E+W

(1) On an application for a declaration under this Part the court may at any stage of the proceedings, of its own motion or on the application of any party to the proceedings, direct that all necessary papers in the matter be sent to the Attorney-General.

(2) The Attorney-General, whether or not he is sent papers in relation to an application for a declaration under this Part, may—

(a) intervene in the proceedings on that application in such manner as he thinks necessary or expedient, and

(b) argue before the court any question in relation to the application which the court considers it necessary to have fully argued.

(3) Where any costs are incurred by the Attorney-General in connection with any application for a declaration under this Part, the court may make such order as it considers just as to the payment of those costs by parties to the proceedings.

Modifications etc. (not altering text)

C1 S. 59 extended (prosp.) by 1976 c. 36, s. 39(3B) (as inserted (prosp.) by 1999 c. 18, ss. 4(3), 18(3) (with s. 17(1)))

60 Supplementary provisions as to declarations. E+W

(1) Any declaration made under this Part, and any application for such a declaration, shall be in the form prescribed by rules of court.

(2) Rules of court may make provision—

(a) as to the information required to be given by any applicant for a declaration under this Part;

(b) as to the persons who are to be parties to proceedings on an application under this Part;

(c) requiring notice of an application under this Part to be served on the Attorney-General [F79 and on persons who may be affected by any declaration applied for].

(3) No proceedings under this Part shall affect any final judgment or decree already pronounced or made by any court of competent jurisdiction.

(4) The court hearing an application under this Part may direct that the whole or any part of the proceedings shall be heard in camera, and an application for a direction under this subsection shall be heard in camera unless the court otherwise directs.

Textual Amendments

F79 Words added by Family Law Reform Act 1987 (c. 42, SIF 49:7), ss. 33(1), 34(2)(5), Sch. 2 para. 96

Modifications etc. (not altering text)

C2 S. 60 extended (prosp.) by 1976 c. 36, s. 39(3B) (as inserted (prosp.) by 1999 c. 18, ss. 4(3), 18(3) (with s. 17(1)))

61 Abolition of right to petition for jactitation of marriage. E+W

No person shall after the commencement of this Part be entitled to petition the High Court or a county court for jactitation of marriage.

62 Repeal of Greek Marriages Act 1884. E+W

(1) The Greek Marriages Act 1884 shall cease to have effect.

(2) Any marriage in respect of which a declaration that it was a valid marriage could before the commencement of this Part have been made under the M53 Greek Marriages Act 1884 is hereby declared to have been a valid marriage; but nothing in this subsection shall affect any status or right which would not have been affected by a declaration under that Act.

Marginal Citations

M53 1884 c. 20.

63 Interpretation of Part III. E+W

In this Part “the court” means the High Court or a county court.

Part IV U.K. Miscellaneous and General

64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F80 E+W

Textual Amendments

F80 S. 64 repealed by Legal Aid Act 1988 (c. 34, SIF 77:1), s. 45, Sch. 5 para. 21, Sch. 6

65 Amendments of Child Abduction Act 1984. E+W

In section 1(2)(b), (3)(a) and (5) of the M54 Child Abduction Act 1984 (offence of abduction of child by parent etc.), for the words “a court in England and Wales” there shall be substituted the words “a court in the United Kingdom”.

Marginal Citations

M54 1984 c. 37.

66 Amendments of Child Abduction (Northern Ireland) Order 1985. N.I.

In Article 3(2)(b), (3) and (5)(a) of the M55 Child Abduction (Northern Ireland) Order 1985 (offence of abduction of child by parents etc.), for the words “a court in Northern Ireland” there shall be substituted the words “a court in the United Kingdom”.

Marginal Citations

M55 S.I. 1985/1638 (N.I. 17).

Part IV U.K. Miscellaneous and General

67 Amendments of Child Abduction and Custody Act 1985. U.K.

(1) The M56 Child Abduction and Custody Act 1985 shall be amended as follows.

(2) In section 20 (suspension of court’s powers), after subsection (2) there shall be inserted the following subsection—

“(2A) Where it appears to the Secretary of State—

(a) that an application has been made for the registration of a decision in respect of a child under section 16 above (other than a decision mentioned in subsection (3) below); or

(b) that such a decision is registered,

the Secretary of State shall not make, vary or revoke any custody order in respect of the child unless, in the case of an application for registration, the application is refused.”

(3) In subsection (3) of that section, after the words “subsection (1)” there shall be inserted the words “or (2A)”.

(4) Immediately before section 25 there shall be inserted the following section—

“24A Power to order disclosure of child’s whereabouts.

(1) Where—

(a) in proceedings for the return of a child under Part I of this Act; or

(b) on an application for the recognition, registration or enforcement of a decision in respect of a child under Part II of this Act,

there is not available to the court adequate information as to where the child is, the court may order any person who it has reason to believe may have relevant information to disclose it to the court.

(2) A person shall not be excused from complying with an order under subsection (1) above by reason that to do so may incriminate him or his spouse of an offence; but a statement or admission made in compliance with such an order shall not be admissible in evidence against either of them in proceedings for any offence other than perjury.”

(5) In section 27(1) (interpretation), in the definition of “custody proceedings” for the words from “made” onwards there shall be substituted the words “made, varied or revoked”.

Marginal Citations

M56 1985 c. 60.

68 Minor and consequential amendments, repeals and savings. U.K.

(1) The enactments and orders mentioned in Schedule 1 to this Act shall have effect subject to the amendments specified in that Schedule, being minor amendments and amendments consequential on the provisions of this Act.

(2) The enactments mentioned in Schedule 2 to this Act (which include some that are spent or no longer of practical utility) are hereby repealed to the extent specified in the third column of that Schedule.

(3) Nothing in this Act shall affect—

(a) any proceedings under section 45 of the M57 Matrimonial Causes Act 1973 begun before the date of the commencement of Part III of this Act;

(b) any proceedings for jactitation of marriage begun before that date; or

(c) any proceedings for a declaration begun in the High Court before that date by virtue of rules of court relating to declaratory judgments.

(4) The repeal of section 2 of the M58 Legitimacy Declaration Act (Ireland) 1868 shall not affect any proceedings under that section begun before the commencement of that repeal.

Marginal Citations

M57 1973 c. 18.

M58 1868 c. 20.

69 Short title, commencement and extent. U.K.

(1) This Act may be cited as the Family Law Act 1986.

(2) Sections 64 to 67 of this Act shall come into force at the end of the period of two months beginning with the day on which this Act is passed.

(3) Subject to subsection (2) above, this Act shall come into force on such day as the relevant Minister or Ministers may by order made by statutory instrument appoint; and different days may be so appointed for different provisions or for different purposes.

(4) In subsection (3) above “the relevant Minister or Ministers” means—

(a) in the case of an order which appoints a day only for Part III of this Act and its associated amendments and repeals, the Lord Chancellor;

(b) in any other case, the Lord Chancellor and the Lord Advocate.

(5) The following provisions of this Act, namely—

• Chapter II of Part I;

• section 53;

• Part III;

• sections 64 and 65;

• section 68 (3); and

• paragraphs 9 to 17, 19 and 23 to 27 of Schedule 1 and section 68(1) so far as relating to those paragraphs,

extend to England and Wales only.

(6) The following provisions of this Act, namely—

• Chapter III of Part I;

• section 26; and

• paragraphs 1, 3 to 8, 18, 21 and 22 of Schedule 1 and section 68(1) so far as relating to those paragraphs,

extend to Scotland only; and sections 34 and 38 of this Act do not extend to Scotland.

(7) The following provisions of this Act, namely—

• Chapter IV of Part I;

• section 66;

• section 68(4); and

• paragraphs 2 and 32 to 34 of Schedule 1 and section 68(1) so far as relating to those paragraphs,

extend to Northern Ireland only; and paragraph 20 of Schedule 1 to this Act and section 68(1) of this Act so far as relating to that paragraph do not extend to Northern Ireland.

Modifications etc. (not altering text)

C3 Power of appointment conferred by s. 69(3) partly exercised: 4.4.1988 appointed for all the prospective provisions of the Act except Sch. 1 para. 10(3) by S.I. 1988/375, art. 2

SCHEDULES

Section 68(1).

SCHEDULE 1 U.K. Minor and Consequential Amendments Acts

ACTS U.K.

1 S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F81

Textual Amendments

F81 Sch. 1 para. 1 repealed by Court of Session Act 1988 (c. 36, SIF 36:1), s. 52(2), Sch. 2 Pt. I

The Guardianship of Infants Act 1886 (c. 27) N.I.

2 In section 9 of the Guardianship of Infants Act 1886, in the paragraph beginning “In Ireland” for the words from “the county court” to the end there shall be substituted the words “any county court, except that provision may be made by county court rules that in the case of such applications to county courts as are prescribed by county court rules only such county courts as are so prescribed shall be authorised to hear those applications”.

The Sheriff Courts (Scotland) Act 1907 (c. 51) S

3 S In section 6 of the Sheriff Courts (Scotland) Act 1907, after the words “Act 1973” there shall be inserted the words “and Chapter III of Part I of the Family Law Act 1986”.

The Matrimonial Proceedings (Children) Act 1958 (c. 40) S

4 S In section 8(1) of the Matrimonial Proceedings (Children) Act 1958—

(a) for the words from “custody” to “jurisdiction” there shall be substituted the words “custody the court has power”;

(b) at the end there shall be added the words “ In this subsection “child” does not include a child with respect to whom the court has made an order under section 13(6) or 14(2) of the Family Law Act 1986 ”.

5 S In section 9(1) of the said Act of 1958, for the words from “either forthwith” to “granted therein” there shall be substituted the words “, subject to section 13(2) of the Family Law Act 1986.”

6 S In section 10(1) of the said Act of 1958, for the words from “custody” to “jurisdiction” there shall be substituted the words “custody the court has power”.

7 S In section 11(1) of that Act, for the words from “custody” to “jurisdiction” there shall be substituted the words “custody the court has power”.

The Law Reform (Miscellaneous Provisions) (Scotland) Act 1966 (c. 19) S

8 S In section 8(6) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966, in the definition of “sheriff”—

(a) after the word “means” there shall be inserted the words—

“(a) in relation to an order under subsection (1)(a), (b) or (c) above or an order varying any such order”;

(b) at the end there shall be added the words—

“(b) in relation to an order mentioned in subsection (1)(d) above or an order varying any such order, the sheriff having jurisdiction under section 9, 10 or 12 of the Family Law Act 1986.”

The Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 (c. 63) E+W

9 E+W In section 2 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 (restriction of publicity for certain proceedings)—

(a) in subsection (1) paragraph (a) shall cease to have effect and there shall be inserted at the end the following paragraph—

“(d) proceedings under Part III of the Family Law Act 1986”;

(b) in subsection (3) for the words “subsection (1)(a)” there shall be substituted the words “subsection (1)(d)”.

The Guardianship of Minors Act 1971 (c. 3) E+W

[F82 10 (1) Section 15 of the Guardianship of Minors Act 1971 shall be amended as follows.

(2) For subsection (1) there shall be substituted the following subsection—

“(1) Subject to the provisions of this section “the court” for the purposes of this Act means the High Court, any county court or any magistrates’ court, except that provision may be made by rules of court that in the case of such applications to a county court, or such applications to a magistrates’ court, as are prescribed, only such county courts, or as the case may be such magistrates’ courts, as are prescribed shall be authorised to hear those applications.”

(3) After subsection (2) there shall be inserted the following subsections—

“(2A) It is hereby declared that any power conferred on a magistrates’ court under this Act is exercisable notwithstanding that any party to the proceedings is residing outside England and Wales.

(2B) Where any party to the proceedings on an application to a magistrates’ court under this Act resides outside the United Kingdom and does not appear at the time and place appointed for the hearing of the application, the court shall not hear the application unless it is proved to the satisfaction of the court, in such manner as is prescribed, that such steps as are prescribed have been taken to give to that party notice of the application and of the time and place appointed for the hearing of it.

(2C) In this section “prescribed” means prescribed by rules of court.”

(4) Subsections (3) to (6) shall cease to have effect.]

Textual Amendments

F82 Sch. 1 paras. 10, 11, 13, 16, 17, 20, 23 repealed (prosp.) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4))

[F83 11 After section 15 of that Act there shall be inserted the following section—

15A “ Financial provision for minor resident in country outside England and Wales.

15A (1) Where one parent of a minor resides in England and Wales and the other parent and the minor reside outside England and Wales, the court shall have power, on an application made by that other parent, to make one or both of the orders mentioned in section 9(2)(a) and (b) of this Act against the parent resident in England and Wales, notwithstanding that no order has been made under section 9(1) of this Act regarding the custody of the child; and in relation to such an application section 9(2)(a) and (b) shall have effect as if for any reference to the parent excluded from actual custody there were substituted a reference to the parent resident in England and Wales.

(2) Any reference in this Act to the powers of the court under section 9(2) of this Act or to an order made under the said section 9(2) shall include a reference to the powers which the court has by virtue of subsection (1) above or, as the case may be, to an order made by virtue of subsection (1) above.”]

Textual Amendments

F83 Sch. 1 paras. 10, 11, 13, 16, 17, 20, 23 repealed (prosp.) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4))

12 E+W In section 17 of that Act subsection (2) shall cease to have effect.

The Matrimonial Causes Act 1973 (c. 18) E+W

[F84 13 In section 41(1) of the Matrimonial Causes Act 1973, at the end of paragraph (b) there shall be inserted the following sub-paragraph—

“(iii) such arrangements have been made in respect of every child named in the order except any child with respect to whom the court has made an order under section 4(5) or 5(2) of the Family Law Act 1986 (orders precluding or staying proceedings for a custody order), or”.]

Textual Amendments

F84 Sch. 1 paras. 10, 11, 13, 16, 17, 20, 23 repealed (prosp.) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4))

14 E+W In section 47 of that Act (declarations in respect of polygamous marriages), for subsection (3) there shall be substituted the following subsection—

“(3) In this section “a declaration concerning the validity of a marriage” means any declaration under Part III of the Family Law Act 1986 involving a determination as to the validity of a marriage”.

15 E+W In section 50 of that Act (matrimonial causes rules)—

(a) in subsection (1) at the end of paragraph (a) there shall be inserted the words “and Part III of the Family Law Act 1986”;

(b) in subsection (2) in paragraph (a) for the words “38 or 45 above” there shall be substituted the words “or 38”, in paragraph (b) the words “proceedings in a county court under section 45 above or to” shall cease to have effect and in paragraph (c) the words “or to any aspect of section 47 above which is excepted by paragraph (b) above” shall cease to have effect.

The Guardianship Act 1973 (c. 29) E+W+S

[F85 16 The following provisions of the Guardianship Act 1973 shall cease to have effect—

(a) in section 1(6), the words from “except that” to the end of the subsection;

(b) in section 2(1), the words “15”, “and section 15(3) to (6)” and “they are”;

(c) section 5(3);

(d) in Part I of Schedule 2, paragraph 3;

(e) in Part II of Schedule 2, the text of section 15(3) to (6) of the M59 Guardianship of Minors Act 1971.]

Textual Amendments

F85 Sch. 1 paras. 10, 11, 13, 16, 17, 20, 23 repealed (prosp.) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4))

Marginal Citations

M59 1971 c. 3.

[F86 17 In section 1(6) of the said Act of 1973 for the words “15(1) to (3)” there shall be substituted the words “15(1) to (2A), section 15(2C)”.]

Textual Amendments

F86 Sch. 1 paras. 10, 11, 13, 16, 17, 20, 23 repealed (prosp.) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4))

18 S In section 10(3) of that Act, for the words from “any sheriff” to “1886” there shall be substituted the words “the sheriff court”.

The Children Act 1975 (c. 72) E+W+S

19 E+W In section 33(1) of the Children Act 1975 the words “if the child is in England or Wales at the time the application is made” shall cease to have effect.

[F87 20 (1) Section 100 of that Act shall be amended as follows.

(2) In subsection (2) after the word “If” there shall be inserted the words “in the case of an application for any order other than an order under Part II of this Act”.

(3) For subsection (7) there shall be substituted the following subsection—

“(7) In the case of an application for an order under Part II of this Act, the following are authorised courts—

(a) the High Court,

(b) for the purposes of such applications under the said Part II as are prescribed by rules made under section 75 of the County Courts Act 1984, any county courts so prescribed in relation to those applications;

(c) for the purposes of such applications under the said Part II as are prescribed by rules made under section 144 of the Magistrates’ Courts Act 1980, any magistrates’ court so prescribed in relation to those applications.”.

(4) In subsection (8) the words “or 42” shall cease to have effect.]

Textual Amendments

F87 Sch. 1 paras. 10, 11, 13, 16, 17, 20, 23 repealed (prosp.) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4))

The Marriage (Scotland) Act 1977 (c. 15) S

21 S In proviso (ii) to section 3(5) of the Marriage (Scotland) Act 1977 (certificate as to capacity to marry)—

(a) after the word “above” there shall be inserted the word “(a)”; and

(b) at the end there shall be added the words “or (b) if no such certificate has been issued only by reason of the fact that the validity of a divorce or annulment granted by a court of civil jurisdiction in Scotland or entitled to recognition in Scotland under section 44 or 45 of the Family Law Act 1986 is not recognised in the state in which the certificate would otherwise have been issued.”

22 S In section 26(2) of the said Act of 1977 there shall be inserted in the appropriate alphabetical position the following definition—

“ “annulment” includes any decree or declarator of nullity of marriage, however expressed.”

The Domestic Proceedings and Magistrates’ Courts Act 1978 (c. 22) E+W

[F88 23 In section 8(2) of the Domestic Proceedings and Magistrates’ Courts Act 1978, after the words “the said section 2, 6 or 7” there shall be inserted the words “(but subject to section 2 of the Family Law Act 1986)”.]

Textual Amendments

F88 Sch. 1 paras. 10, 11, 13, 16, 17, 20, 23 repealed (prosp.) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4))

24 E+W In section 30(1) of the said Act of 1978, after the words “subject to” there shall be inserted the words “section 2 of the Family Law Act 1986 and”.

The Supreme Court Act 1981 (c. 54) E+W

25 E+W In section 26(b) of the Supreme Court Act 1981 the words “or jactitation of marriage” shall cease to have effect.

26 E+W In paragraph 3 of Schedule 1 to that Act (business assigned to Family Division of the High Court) there shall be added at the end the following sub-paragraph—

“(e) applications under Part III of the Family Law Act 1986.”

The Matrimonial and Family Proceedings Act 1984 (c. 42) E+W

27 E+W In section 32 of the Matrimonial and Family Proceedings Act 1984 (what is family business), in the definition of “matrimonial cause” for the words “judicial separation or jactitation of marriage” there shall be substituted the words “or judicial separation”.

The Child Abduction and Custody Act 1985 (c. 60) U.K.

28 U.K. In section 9 of the Child Abduction and Custody Act 1985 (suspension of court’s powers in cases of wrongful removal), after paragraph (a) there shall be inserted the following paragraph—

“(aa) enforcing under section 29 of the Family Law Act 1986 a custody order within the meaning of Chapter V of Part I of that Act;”.

29 U.K. In section 20(2) of the said Act of 1985 (suspension of court’s powers), after paragraph (a) there shall be inserted the following paragraph—

“(aa) in the case of proceedings under section 29 of the Family Law Act 1986 for the enforcement of a custody order within the meaning of Chapter V of Part I of that Act, enforce that order;”.

30 U.K. In section 27(1) of the said Act of 1985 (interpretation), in the definition of “custody order” after the word “means” there shall be inserted the words “(unless the contrary intention appears)”.

31 U.K. In paragraph 5 of Schedule 3 of the said Act of 1985 (custody orders in Scotland), after sub-paragraph (ii) there shall be inserted the following sub-paragraph—

“(iia) an order freeing a child for adoption made under section 18 of the Adoption (Scotland) Act 1978”

ORDERS N.I.

The Matrimonial Causes (Northern Ireland) Order 1978 S.I. 1978/1045 (N.I. 15) N.I.

32 In Article 44(1) of the Matrimonial Causes (Northern Ireland) Order 1978, at the end of sub-paragraph (b) there shall be inserted the following head—

“(iii) such arrangements have been made in respect of every child named in the order except any child with respect to whom the court has made an order under section 21(5) or 22(2) of the Family Law Act 1986 (orders precluding or staying proceedings for a custody order); or”.

The Domestic Proceedings (Northern Ireland) Order 1980 S.I. 1980/563 (N.I. 5) N.I.

33 In Article 10(2) of the Domestic Proceedings (Northern Ireland) Order 1980, after the words “that Article” there shall be inserted the words “(but subject to section 19 of the Family Law Act 1986)”.

34 N.I. In Article 32(1) of that Order, for the words “Without prejudice” there shall be substituted the words “Subject to section 19 of the Family Law Act 1986 and without prejudice”.

Section 68(2).

SCHEDULE 2 U.K. Repeals

Chapter	Short title	Extent of repeal
31 & 32 Vict. c. 20.	The Legitimacy Declaration Act (Ireland) 1868.	Section 2.
47 & 48 Vict. c. 20.	The Greek Marriages Act 1884.	The whole Act.
49 & 50 Vict. c. 27.	The Guardianship of Infants Act 1886.	In section 9, the words from “court within” to “reside”.
16 & 17 Geo.5. c. 40.	Indian and Colonial Divorce Jurisdiction Act 1926.	The whole Act.
3 & 4 Geo. 6. c. 35.	Indian and Colonial Divorce Jurisdiction Act 1940.	The whole Act.
7 & 8 Geo. 6. c. 43.	Matrimonial Causes (War Marriages) Act 1944.	The whole Act.
10 & 11 Geo. 6. c. 30.	Indian Independence Act 1947.	Section 17.
11 & 12 Geo. 6. c. 3.	Burma Independence Act 1947.	Section 4(3).
11 & 12 Geo. 6. c. 7.	Ceylon Independence Act 1947.	Section 3.
		In Schedule 2, paragraph 9.
14 Geo. 6. c. 20.	Colonial and Other Territories (Divorce Jurisdiction) Act 1950.	The whole Act.
14 Geo. 6. c. 37.	The Maintenance Orders Act 1950.	Section 7.
6 & 7 Eliz. 2. c. 40.	The Matrimonial Proceedings (Children) Act 1958.	Section 13.
8 & 9 Eliz. 2. c. 52.	Cyprus Act 1960.	In the Schedule, paragraph 14.
8 & 9 Eliz. 2. c. 55.	Nigeria Independence Act 1960.	In Schedule 2, paragraph 14.
9 & 10 Eliz. 2. c. 16.	Sierra Leone Independence Act 1961.	In Schedule 3, paragraph 15.
10 & 11 Eliz. 2. c. 1.	Tanganyika Independence Act 1961.	In Schedule 2, paragraph 15.
10 & 11 Eliz. 2. c. 23.	South Africa Act 1962.	In Schedule 3, paragraph 9.
10 & 11 Eliz. 2. c. 40.	Jamaica Independence Act 1962.	In Schedule 2, paragraph 14.
10 & 11 Eliz. 2. c. 54.	Trinidad and Tobago Independence Act 1962.	In Schedule 2, paragraph 14.
10 & 11 Eliz. 2. c. 57.	Uganda Independence Act 1962.	In Schedule 3, paragraph 13.
1963 c. 54.	Kenya Independence Act 1963.	Section 7.
1964 c. 46.	Malawi Independence Act 1964.	Section 6.
1964 c. 65.	Zambia Independence Act 1964.	Section 7.
1966 c. 19.	The Law Reform (Miscellaneous Provisions) (Scotland) Act 1966.	In section 8(2), the words “made in a consistorial action”.
1966 c. 29.	Singapore Act 1966.	Section 2.
1968 c. 63.	The Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968.	Section 2(1)(a).
1969 c. 29.	Tanzania Act 1969.	Section 2.
		In section 4(3), the words “or the Divorce Jurisdiction Acts”.
		Section 7(1).
1971 c. 3.	The Guardianship of Minors Act 1971.	Section 15(3) to (6).
		Section 17(2).
1971 c. 53.	Recognition of Divorces and Legal Separations Act 1971.	The whole Act.
1973 c. 18.	The Matrimonial Causes Act 1973.	Section 45.
		In section 50(2), in paragraph (b), the words “proceedings in a county court under section 45 above or to” and, in paragraph (c), the words “or to any aspect of section 47 above which is excepted by paragraph (b) above”.
1973 c. 29.	The Guardianship Act 1973.	In section 1(6), the words from “except that” to the end.
		In section 2(1), the words “15”, “and section 15(3) to (6)” and “they are”.
		Section 5(3).
		In Schedule 2, in Part I, paragraph 3, and in Part II, the text of section 15(3) to (6) of the Guardianship of Minors Act 1971.
1973 c. 45.	Domicile and Matrimonial Proceedings Act 1973.	Section 2.
		Sections 15 and 16.
1973 c. 48.	The Pakistan Act 1973.	In section 4(5), the words from the beginning to “1940, and”.
1975 c. 72.	The Children Act 1975.	In section 33(1), the words from “if” to the end.
		In section 53(1), the words from “but where” to the end.
		Section 54.
		In section 100(8), the words “or 42”.
1981 c. 54.	The Supreme Court Act 1981.	In section 26(b), the words “or jactitation of marriage”.
1984 c. 42.	The Matrimonial and Family Proceedings Act 1984.	In Schedule 1, paragraph 14.
1985 c. 73.	The Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.	Section 16.