Child cases: who decides?

It has been said that the provisions dealing with conflicts of jurisdiction in family cases within the UK are difficult and complicated and have not prevented conflicting decisions concerning the same child being made in different jurisdictions within the UK: Lord Justice Thorpe in In the matter of W-B (A Child) [2012] EWCA Civ 592.

Lord Justice Thorpe suggests that these conflicts have resulted sometimes from factual ignorance and sometimes from misapplication of the Family Law Act 1986. However the terms of the Act, and its interaction with the provisions of the European Convention on Matrimonial and Parental Judgments, Jurisdiction, Recognition and Enforcement (Reg (EC) no 2001/2003, otherwise known as Brussels II-bis), do not make it easy to understand or apply the rules as to jurisdiction in family actions within the UK.

It has been argued that article 66 of Brussels II-bis leaves open the possibility that the regulation could be applied to jurisdictional disputes within the UK. If, as article 66(a) requires, the phase “habitual residence in a territorial unit” is substituted for “habitual residence in a member state”, for example in article 8, it could be argued that the phrase “the courts of a member state” must therefore mean “the courts of a territorial unit of a member state”. However, the recent cases in which this has been argued in England have not followed this approach, and this leaves the judgment of Sheriff McPartlin in S v D 2007 SLT (Sh Ct) 37 isolated in holding that Brussels II-bis operates to allocate jurisdiction not only between member states but also between courts of a particular legal system within a state.

PC (A Child) (Brussels-II revised), also known as Camden LBC v PC and reported at [2013] EWHC 2336 (Fam) and [2014] IFLR 605), was clear that Brussels II-bis did not apply to jurisdictional disputes or issues arising between the different jurisdictions of the UK, as did M v LA [2015] EWHC 2082 (Fam), a decision dated 16 July 2015. These cases both followed the Court of Appeal decision of Re W-B (appropriate jurisdiction within the UK), reported at [2013] IELR 394.

The only other Scottish case dealing with the issue is B v B 2009 SLT (Sh Ct) 24, a decision of Sheriff Dunbar in Dunfermline on 10 August 2008. Sheriff Dunbar similarly held that Brussels II-bis only applied where there was a question of jurisdiction between member states and not intra-UK.

Assuming therefore that article 66 does not have the effect of applying all the provisions of Brussels II-bis to intra-UK disputes, we need to look at the terms of the Family Law Act 1986 to determine jurisdiction in cases where children (and their parents!) move around the UK.

The 1986 Act not only determines jurisdiction in Scotland, England & Wales and Northern Ireland in family actions involving parental rights but also deals with the recognition and enforcement of what are known as "Part 1 orders", with respect to children under 16 and 18 in parts of the UK other than the jurisdiction/territorial unit where the order was made.

This article deals with the provisions of Part 1 of the Act relating to, broadly speaking, residence, custody, care or control of the child, contact with or access to a child or the education or upbringing of a child. In Scotland the 1986 Act does not govern jurisdiction in relation to adoption orders, orders placing children in the care of or under a supervision of a local authority, orders made under the Education (Scotland) Act 1980, orders made under Part II or III of the Social Work (Scotland) Act 1968, orders under the Child Abduction and Custody Act 1985, or permanence orders.

The 1986 Act has been heavily amended over time, making it very difficult to follow.

The definition of Part I orders is set out in s 1 of the Act. Numerous orders fall within the definition, but they include orders made in England & Wales under the Children Act 1989, and s 26 of the Adoption and Children Act 2002. Special guardianship orders made by a court in terms of the 1989 Act are also Part 1 orders, as are orders made by a court in the exercise of the inherent jurisdiction in England & Wales. Orders made by courts in Scotland under any enactment or rule of law with respect to the residence, custody, care or control of a child, contact with or access to a child or the education or upbringing of a child are Part 1 orders, with the exception of orders mentioned above. Part 1 orders in Northern Ireland are defined as article 8 orders made by a court under the Children (Northern Ireland) Order 1996, and orders made by the High Court in Northern Ireland in the exercise of its inherent jurisdiction with respect to children, insofar as they give care of a child to any person or provide for contact with or the education of a child.

Each and every one of the orders defined as Part 1 orders are followed by the words “excluding an order varying or discharging such an order”, which would on the face of it mean that such orders are not Part 1 orders. However s 42 (5) of the Act provides that references in Part 1 of the Act to Part 1 orders include (except where the context otherwise requires) references to Part 1 orders as varied.

The provisions of Part 1 dealing with jurisdiction in England & Wales (chapter II) and Northern Ireland (chapter IV) are very similar. The provisions relating to jurisdiction in Scotland (chapter III) are markedly different.

England & Wales

Section 2 provides that a court in England & Wales shall not make a s 1(1)(a) order with respect to a child unless it has jurisdiction under Brussels II-bis or the Hague Convention, or neither of these apply but the question of making the order arises in matrimonial or civil partnership proceedings or judicial separation proceedings between the child's parents which are continuing (s 2A(1)(a)(ii)) or the condition in s 3 is satisfied.

Matrimonial proceedings are defined as proceedings for divorce or nullity of marriage, or dissolution of or annulment of a civil partnership (s 2A(1)(a)(i)). Proceedings must be continuing for there to be jurisdiction. However s 42 (General interpretation) somewhat startlingly provides that for the purposes of Part 1 of the Act, proceedings in England, Wales or Northern Ireland for divorce, nullity or judicial separation in respect of the marriage or civil partnership of the parents of a child shall, unless they have been dismissed, be treated as continuing until the child concerned attains the age of 18 whether or not in the case of a decree of divorce or nullity of marriage, that decree has been made absolute.

The condition in s 3 is that on the relevant date the child concerned is habitually resident in England & Wales, or present in England & Wales and not habitually resident in any other part of the UK, and there are no matrimonial or civil partnership proceedings continuing in a court in Scotland or Northern Ireland in respect of the marriage or civil partnership of the child's parents. The Act allows a court dealing with matrimonial or civil partnership proceedings in Scotland or Northern Ireland to prorogate jurisdiction to allow the courts in England & Wales to make Part 1 orders in relation to a child who is presumably present or habitually resident there. The courts in England & Wales also have the ability to refuse to make a Part 1 order when the matter has already been determined elsewhere, or stay proceedings for a Part 1 order where proceedings in relation to the child are continuing elsewhere and the court feels that it would be more appropriate for the matters to be determined in those proceedings (s 5).

Part 1 orders made by a court in England & Wales cease to have effect if an order is subsequently made in relation to the child by a court in Scotland or Northern Ireland (s 6), and the court in England & Wales then no longer has jurisdiction to vary its own order. Jurisdiction to vary a Part 1 order in England & Wales is also lost if matrimonial or civil partnership proceedings are continuing in Scotland or Northern Ireland in respect of the civil partnership or marriage of the child's parents at the point when the application for variation is made – the relevant date. As these proceedings are deemed to continue until
the child is 16 in Scotland or 18 in Northern Ireland, jurisdiction is irretrievably lost unless the court in Northern Ireland or Scotland prorogate jurisdiction. However the courts in England & Wales retain jurisdiction to make emergency orders necessary for the protection of a child present in England & Wales.

The relevant date in relation to the making or variation of an order — which is crucial to determining whether the court has jurisdiction, is defined as the date of the application to the court, or of the first application if two or more are determined together. If no application has been made to the court for the making or variation of an order, the relevant date is the date on which the court is considering whether to make or vary the order.

Jurisdiction in Scotland

Chapter III deals with jurisdiction in Scotland. Outwith matrimonial (or civil partnership) proceedings, courts in Scotland only have jurisdiction to make orders in relation to children if on the date of the application the child is habitually resident in Scotland (s 9), is present in Scotland and not habitually resident in any other part of the UK (s 10) and, very importantly, there are no proceedings continuing in a court in any other part of the UK in respect of the marriage or civil partnership of the child's parents. As already mentioned, s 42 provides that matrimonial proceedings in respect of divorce, nullity or judicial separation relating to the marriage of the parents of a child in England, Wales or Northern Ireland are to be treated as continuing if not dismissed, until the child attains 18 years of age, whether or not decree of divorce has been granted or made absolute.

Jurisdiction in Scotland is not excluded if the court in which matrimonial proceedings are deemed to continue effectively prorogates jurisdiction to allow the court in Scotland to make orders (s 11). The sheriff court has jurisdiction where the child is habitually resident/present in the sheriffdom. The Court of Session and sheriff court both have jurisdiction to deal with applications where the child is in Scotland, or the sheriffdom, and the court or sheriff considers that for the protection of the child it is necessary to make a Part 1 order immediately (s 12).

In matrimonial or civil partnership proceedings, jurisdiction to make or vary orders in relation to children exists until the child is 16 (s 42), and exists while the proceedings are continuing. However, the child in respect of whom orders are sought must be habitually resident or present in Scotland at the time the application for these orders is made, as jurisdiction in relation to parental responsibility in Scotland in matrimonial proceedings in each constituent part of the UK is, in the first place, governed by Brussels II-bis (s 17A). This provides that the courts of a member state shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that member state at the time the court is seised (article 8).

Even if a court in Scotland has jurisdiction in matrimonial or civil partnership proceedings to entertain an application, it may decline jurisdiction if the court considers that it may be more appropriate for the application to be determined in another court in Scotland or in another part of the UK (s 13(6)), and has the power to sist proceedings to await the outcome of the other proceedings. The Act contains provisions dealing with the duration, variation and recall of orders. Broadly speaking, if another order in relation to a child is competently made elsewhere in the UK, the order made by the court in Scotland will cease to have effect (s 15).

Jurisdiction in cases relating to the guardianship of children is governed by s 16. The child must be habitually resident in Scotland or in the sheriffdom. Applications seeking orders for delivery of a child (unless they are sought to implement Part 1 orders) can only be entertained by the Court of Session or sheriff, if they would have had jurisdiction to make a Part 1 order in relation to the child concerned (s 17).

Jurisdiction in Northern Ireland

Chapter IV deals with jurisdiction in Northern Ireland. Courts in Northern Ireland do not have jurisdiction to make orders under the Children (Northern Ireland) Order 1995 (other than an order varying or discharging such an order with respect to a child), unless they have jurisdiction under Brussels II-bis or Brussels II-bis does not apply, and the request for the order arises in matrimonial or civil partnership proceedings which are continuing, or the child on the relevant date is habitually resident in Northern Ireland, or is present in Northern Ireland and not habitually resident in any other part of the UK. There must also be no matrimonial proceedings continuing in a court in England & Wales or Scotland in respect of the marriage or civil partnership of the parents of the child concerned for the courts in Northern Ireland to have jurisdiction (s 20).

The exercise of the inherent jurisdiction of the High Court in Northern Ireland is also governed by Brussels II-bis, or if Brussels II-bis does not apply, by the terms of s 20 of the Act. Finally the High Court also has jurisdiction if the child is present in Northern Ireland on the relevant date and the court considers that the immediate exercise of its powers is necessary for his or her protection.

Matrimonial proceedings are defined in s 24(b) as proceedings in respect of the marriage or civil partnership of the child's parents or for judicial separation. If the proceedings are for judicial separation, the jurisdiction of the courts in Northern Ireland is excluded, if after the grant of the decree, proceedings for divorce or nullity in respect of the marriage/civil partnership are continuing in a court in England & Wales or Scotland.

As in England, Wales and Scotland, a court in Northern Ireland which has jurisdiction can refuse an application to make a Part 1 order where the matter has already been determined in proceedings outside Northern Ireland. The courts in Northern Ireland have the power to stay proceedings where there are already proceedings continuing outside Northern Ireland and the court feels that these proceedings should determine the issue, or that the court should exercise its powers under the Act to transfer proceedings to a court better placed to hear the case.

As in England & Wales and Scotland, a Part 1 order made by a court in Northern Ireland, ceases to have effect if a subsequent order is made in relation to the child by a court in England & Wales or Scotland having jurisdiction to do so. A court in Northern Ireland will not have jurisdiction to vary a Part 1 order if on the relevant date matrimonial proceedings are continuing in England & Wales or Scotland in respect of the marriage or civil partnership of the child's parents, unless there are already matrimonial proceedings for divorce, dissolution or judicial separation in Northern Ireland which are continuing (s 23). The terms of s 23 are complicated and even if matrimonial proceedings are continuing elsewhere in the UK, the courts in Northern Ireland retain jurisdiction to make emergency orders if the child is present in Northern Ireland at the time of the application to the court and the court considers that immediate orders are required for the protection of the child.

Recognition and enforcement of Part 1 orders

Chapter V of Part 1 deals with recognition and enforcement of Part 1 orders made in one part of the UK elsewhere in the UK. An order made in one part of the UK requires to be registered before it becomes effective and can be enforced in another part of the UK. Section 27 requires an application to be made to the court which made the order in a prescribed form. That court then sends a certified copy interlocutor, particulars of any variation of the order in force, and a copy of the application to the court which is to enforce the order, which must then register the order.

The procedures governing an application to enforce an English order are contained within rule 32 of the Family Procedure Rules. However, it appears that it may be possible to avoid the necessity for an application to the court in England, as the Court of Session has registered English orders on being presented with copies of the application for the order and the order itself.

The procedure for an application for registration of a sheriff court order in England & Wales or Northern Ireland is contained within the Act of Sederunt (Rules for the registration of custody orders of the Sheriff Court) 1988, and the procedure for registration of Court of Session orders elsewhere in the UK is set out in Chapter 71 of the Rules of the Court of Session.

Once an order has been registered under s 27 of the Act, the court in which it is registered has the same power to enforce the order as if the order had been made by that court, and appropriate proceedings for enforcement may be taken (s 29). In Scotland applications for enforcement are presented to the court by way of petition to the Court of Session. Obviously this requires the involvement of either an advocate or solicitor advocate.

Any person having an interest may apply for those enforcement proceedings to be stayed or sisted on the ground that he or she has taken or intends to take other proceedings in the UK or elsewhere which result in the order being varied or ceasing to have effect. Apart from arguing that the order is no longer in force, this is the only defence to an application for enforcement. The court may stay or sist the enforcement proceedings to allow those variation proceedings to be taken or concluded (s 30), but the court may remove a stay or recall a sist if it considers that there is unreasonable delay in bringing or concluding those variation proceedings. If the variation proceedings are unsuccessful and the relevant order or part of it remains in force, the sist can be recalled. If the variation proceedings are successful and the order ceases to have effect, anyone having an interest can apply to the court to dismiss the enforcement proceedings.

Finally, s 36 of the Act provides that an order made by any court in the UK prohibiting removal of a child from the UK or a specified part of the UK, applies in each part of the UK other than the part where it was made and shall have effect as if it had been made by the appropriate court in that other part. Section 37 allows a court in these circumstances to require any person to surrender the child's passport.

The provisions of the 1986 Act are not widely known, and there are very few reported cases which provide guidance as to how the courts will deal with applications for enforcement in practice. However, as the courts in each part of the UK can almost certainly be expected to seek to actively enforce orders made de recenti by courts in other parts of the UK, those seeking to oppose enforcement have to assume that they will have an uphill battle on their hands unless significant time has passed since the order to be enforced was made.

With the current levels of mobility within the UK, it seems likely that we are going to have to deal with more applications to courts where intra-UK jurisdiction has to be determined, and more applications for enforcement of such orders. Time to get an up-to-date copy of Brussels II-bis and the Family Law Act 1986?