Family Law Act 1986

Changes over time for: Section 5

Version Superseded: 31/12/2020

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Family Law Act 1986, Section 5 is up to date with all changes known to be in force on or before 02 November 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.

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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 [F1Part 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 [F1Part I order], or for the variation of a [F1Part I order], F2... it appears to the court—

(a)that proceedings with respect to the matters to which the application relates are continuing outside England and Wales, F3...

(b)that it would be more appropriate for those matters to be determined in proceedings to be taken outside England and Wales, F4[F5...

(c)that it should exercise its powers under Article 15 of the Council Regulation (transfer to a court better placed to hear the case)][F6, or

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

the court may stay the proceedings on the application [F7or (as the case may be) exercise its powers under Article 15 [F8of the Council Regulation or Article 8 of the Hague Convention]] .

[F9(2A)If the proceedings on the application are proceedings in which [F10an] 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 [F11the] activity direction (or the enforcement order).]

(3)The court may remove a stay granted [F12by 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.

[F13(3A)The court may remove a stay granted under Article 15 of the Council Regulation only in accordance with that Article.]

[F14(3AA)The court may remove a stay granted in order for it to exercise its powers under Article 8 of the Hague Convention, and withdraw any request made by it to an authority in another Contracting State to assume jurisdiction, if—

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

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

[F15(3B)If the stay removed under subsection (3) or (3A) is a stay in relation to which the court suspended [F16an] 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) [F17, (3A) or (3AA)] also bring the suspension to an end.]

(4)Nothing in this section [F18so 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

F1Words 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)

F2Words 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)

F3Word in s. 5(2)(a) left out (1.11.2012) by virtue of The Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 (S.I. 2010/1898), reg. 1(2), Sch. para. 6(1)(a)

F4Word in s. 5(2)(b) left out (1.11.2012) by virtue of The Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 (S.I. 2010/1898), reg. 1(2), Sch. para. 6(1)(b)

F5S. 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)

F6S. 5(2)(d) and word inserted (1.11.2012) by The Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 (S.I. 2010/1898), reg. 1(2), Sch. para. 6(1)(c)

F7Words 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)

F8Words in s. 5(2) inserted (1.11.2012) by The Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 (S.I. 2010/1898), reg. 1(2), Sch. para. 6(1)(d)

F9S. 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)

F10Word in s. 5(2A) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 50(2)(a); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

F11Word in s. 5(2A) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 50(2)(b); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)