Family Law Act 1986

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

[F1 [F2 2 Jurisdiction: general. E+W

(1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless—

(a) it has jurisdiction under the Council Regulation, or

(b) the Council Regulation does not apply but—

(i) the question of making the order arises in or in connection with matrimonial proceedings [F3 or civil partnership proceedings] and the condition in section 2A of this Act is satisfied, or

(ii) the condition in section 3 of this Act is satisfied.]

[F4 (2A) A court in England and Wales shall not have jurisdiction to make a special guardianship order under the Children Act 1989 unless the condition in section 3 of this Act is satisfied.

(2B) A court in England and Wales shall not have jurisdiction to make an order under section 26 of the Adoption and Children Act 2002 unless the condition in section 3 of this Act is satisfied.]

[F5 (3) A court in England and Wales shall not make a section 1(1)(d) order unless—

(a) it has jurisdiction under the Council Regulation, or

(b) the Council Regulation does not apply but—

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

(ii) 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

F1 S. 2 substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 64 (with Sch. 14 para. 1(1)); S.I. 1991/828,art. 3(2)

F2 S. 2(1) substituted for s. 2(1)(2) (1.3.2005) by The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 8(2) (with reg. 20)

F3 Words in s. 2(1)(b)(i) inserted (5.12.2005) by The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (S.I. 2005/3336), arts. 1, 5 (with art. 2(4))

F4 S. 2(2A)(2B) inserted (30.12.2005) by Adoption and Children Act 2002 (c. 38), s. 148(1), Sch. 3 para. 48 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(o)

F5 S. 2(3) substituted (1.3.2005) by The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 8(3) (with reg. 20)

[F6 2A Jurisdiction in or in connection with matrimonial proceedings [F7 or civil partnership proceedings] . E+W

(1) The condition referred to in section 2(1) of this Act is that the F8 ... proceedings are proceedings in respect of the marriage [F9 or civil partnership] of the parents of the child concerned and—

(a) the proceedings—

(i) are proceedings for divorce or nullity of marriage [F10 , or dissolution or annulment of a civil partnership], and

(ii) are continuing;

(b) the proceedings—

(i) are proceedings for judicial separation [F11 or legal separation of civil partners],

(ii) are continuing,

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

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

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

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

[F12 (2) For the purposes of subsection (1)(b) above, the jurisdiction of the court is excluded if—

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

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

are continuing in 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 [F13 19A(4)] 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 [F14 by virtue of section 2(1)(b)(i) of this Act], but

(b) considers that it would be more appropriate for Part I matters relating to the child to be determined outside 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 [F15 by virtue of section 2(1)(b)(i) of this Act].]

Textual Amendments

F6 S. 2A substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 64 (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F7 Words in s. 2A heading inserted (5.12.2005) by The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (S.I. 2005/3336), arts. 1, 6 (with art. 2(4))

F8 Word in s. 2A(1) omitted (5.12.2005) by virtue of The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (S.I. 2005/3336), arts. 1, 7(2)(a) (with art. 2(4))

F9 Words in s. 2A(1) inserted (5.12.2005) by The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (S.I. 2005/3336), arts. 1, 7(2)(b) (with art. 2(4))

F10 Words in s. 2A(1)(a)(i) inserted (5.12.2005) by The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (S.I. 2005/3336), arts. 1, 7(2)(c) (with art. 2(4))

F11 Words in s. 2A(1)(b)(i) inserted (5.12.2005) by The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (S.I. 2005/3336), arts. 1, 7(2)(d) (with art. 2(4))

F12 S. 2A(2) substituted (5.12.2005) by The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (S.I. 2005/3336), arts. 1, 7(3) (with art. 2(4))

F13 Words in s. 2A(3)(a) substituted (4.11.1996) by S.I. 1995/756, art. 12(5); S.R. 1996/297, para. 3

F14 Words in s. 2A(4) substituted (1.3.2005) by The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 9(a) (with reg. 20)

F15 Words in s. 2A(4) substituted (1.3.2005) by The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 9(b) (with reg. 20)

3 Habitual residence or presence of child. E+W

(1) The condition referred to in [F16 section 2(1)(b)(ii)] 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 matrimonial proceedings] [F18 or civil partnership proceedings] are continuing in a court in Scotland or Northern Ireland in respect of the marriage [F19 or civil partnership] of the parents of the child concerned.

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

(a) an order under section 13(6) or [F20 19A(4)] 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 [F21 Part I proceedings with respect to] the child concerned to be taken in England and Wales,

and that order is in force.

F22 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

Textual Amendments

F16 Words in s. 3(1) substituted (1.3.2005) by The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 10 (with reg. 20)

F17 Words in s. 3(2) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 65(2) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F18 Words in s. 3(2) inserted (5.12.2005) by The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (S.I. 2005/3336), arts. 1, 8(a) (with art. 2(4))

F19 Words in s. 3(2) inserted (5.12.2005) by The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (S.I. 2005/3336), arts. 1, 8(b) (with art. 2(4))

F20 Words in s. 3(3)(a) substituted (4.11.1996) by S.I. 1995/756, art. 12(5); S.R. 1996/297, art. 3

F21 Words in s. 3(3)(b) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(b) (with Sch. 14 para. 1(1); S.I. 1991/828, art. 3(2)

F22 S. 3(4)–(6) repealed (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 paras. 1(1), 27(4)); S.I. 1991/828, art. 3(2)

F23 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W

Textual Amendments

F23 S. 4 repealed (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 15 (with Sch. 14 para. 1(1), 27(4)); S.I. 1991/828, art. 3(2)

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 [F24 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 [F24 Part I order], or for the variation of a [F24 Part I order], F25 ... 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, [F26 or

(c) that it should exercise its powers under Article 15 of the Council Regulation (transfer to a court better placed to hear the case),]

the court may stay the proceedings on the application [F27 or (as the case may be) exercise its powers under Article 15].

[F28 (2A) If the proceedings on the application are proceedings in which a contact activity direction has been made under section 11A of the Children Act 1989 (or an enforcement order has been made under section 11J of that Act), the court may when granting a stay under or by virtue of subsection (2) also suspend the contact activity direction (or the enforcement order).]

(3) The court may remove a stay granted [F29 by virtue of subsection (2)(a) or (b) above] if it appears to the court that there has been unreasonable delay in the taking or prosecution of the other proceedings referred to in that subsection, or that those proceedings are stayed, sisted or concluded.

[F30 (3A) The court may remove a stay granted under Article 15 of the Council Regulation only in accordance with that Article.]

[F31 (3B) If the stay removed under subsection (3) or (3A) is a stay in relation to which the court suspended a contact activity direction made under section 11A of the Children Act 1989 (or an enforcement order made under section 11J of that Act), the court may when removing the stay under subsection (3) or (3A) also bring the suspension to an end.]

(4) Nothing in this section [F32 so far as it relates to proceedings not governed by the Council Regulation] shall affect any power exercisable apart from this section to refuse an application or to grant or remove a stay.

Textual Amendments

F24 Words in S. 5(1)(2) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(a) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F25 Words in s. 5(2) omitted (1.3.2005) by virtue of The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 11(2) (with reg. 20)

F26 S. 5(2)(c) and word inserted (1.3.2005) by The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 11(3) (with reg. 20)

F27 Words in s. 5(2) inserted (1.3.2005) by The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 11(4) (with reg. 20)

F28 S. 5(2A) inserted (8.12.2008) by Children and Adoption Act 2006 (c. 20), s. 17(2), Sch. 2 para. 3(2); S.I. 2008/2870, art. 2(2)(e)

F29 Words in s. 5(3) substituted (1.3.2005) by The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 11(5) (with reg. 20)

F30 S. 5(3A) inserted (1.3.2005) by The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 11(6) (with reg. 20)

F31 S. 5(3B) inserted (8.12.2008) by Children and Adoption Act 2006 (c. 20), s. 17(2), Sch. 2 para. 3(3); S.I. 2008/2870, art. 2(2)(e)

F32 Words in s. 5(4) inserted (1.3.2005) by The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 11(7) (with reg. 20)

6 Duration and variation of custody orders. E+W

(1) [F33 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 [F33 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 [F33 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.

[F34 (3) A court in England and Wales shall not have jurisdiction to vary a Part I order if, on the relevant date, matrimonial proceedings [F35 or civil partnership proceedings] are continuing in Scotland or Northern Ireland in respect of the marriage [F36 or civil partnership] of the parents of the child concerned.

[F37 (3A) Subsection (3) shall not apply if—

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

(i) for divorce or nullity in England and Wales in respect of the marriage of the parents of the child concerned; or

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

(b) those proceedings are continuing.]

[F37 (3B) Subsection (3) shall not apply if—

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

(i) for judicial separation in England and Wales; or

(ii) for a separation order in England and Wales; and

(b) those proceedings are continuing; and

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

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

(a) an order under section 13(6) or [F38 19A(4)] 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 [F39 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 [F40 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.

[F41 (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

F33 Words in S. 6(1)(2) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(a) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F34 S. 6(3)–(3B) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 66(1) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F35 Words in s. 6(3) inserted (5.12.2005) by The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (S.I. 2005/3336), arts. 1, 9(2)(a) (with art. 2(4))

F36 Words in s. 6(3) inserted (5.12.2005) by The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (S.I. 2005/3336), arts. 1, 9(2)(b) (with art. 2(4))

F37 S. 6(3A)(3B) substituted (5.12.2005) by The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (S.I. 2005/3336), arts. 1, 9(3) (with art. 2(4))

F38 Words in s. 6(4)(a) substituted (4.11.1996) by S.I. 1995/756, art. 12(5); S.R. 1996/297, para. 3

F39 Words in S. 6(4) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(b) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F40 Words in S. 6(5) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 66(2) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F41 S. 6(6)–(8) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 66(3) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

[F42 7 Interpretation of Chapter II. E+W

In this Chapter—

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

[F43 (aa) “civil partnership proceedings” means proceedings for the dissolution or annulment of a civil partnership or for legal separation of the civil partners;]

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

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

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

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

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

Textual Amendments

F42 S. 7 substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 67 (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F43 S. 7(aa) inserted (5.12.2005) by The Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (S.I. 2005/3336), arts. 1, 10 (with art. 2(4))