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FAMILY LAW ACT 1986

UK Public General Acts

Version 05/12/2005

1986 CHAPTER 55

Default Geographical Extent: E+W+S+N.I.


  • Part I. Child Custody
    • Chapter I. Preliminary
    • Chapter II (E+W). Jurisdiction of Courts in England and Wales
    • Chapter III (S). Jurisdiction of Courts in Scotland
    • Chapter IV (N.I.). Jurisdiction of Courts in Northern Ireland
    • Chapter V. Recognition and Enforcement
    • Chapter VI. Miscellaneous and Supplemental
  • Part II. Recognition of Divorces, Annulments and Legal Separations
    • Divorces, annulments and judicial separations granted in the British Islands
    • Overseas divorces, annulments and legal separations
    • Supplemental
  • Part III (E+W). Declarations of Status
  • Part IV. Miscellaneous and General
  • Part IV. Miscellaneous and General
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  • Version 01/02/1991

Introductory Text

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]

X1Be 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:—

Annotations:

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
Child Custody



Annotations:

Modifications etc. (not altering text)

C1 Pt. I applied by S.I. 1991/1723, art. 3(2), Sch. 2 and art. 3(3), Sch. 3.


Chapter I
Preliminary



1 Orders to which Part I applies. (E+W+N.I.)

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

[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 [F3 residence, custody, care or control of a child, contact with or] , 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 M1 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 [F4 giving parental responsibilities and parental rights in relation to] 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 M2 Education (Scotland) Act 1980;
(vi) an order made under Part II or III of the M3 Social Work (Scotland) Act 1968;
(vii) an order made under the M4 Child Abduction and Custody Act 1985;
(viii) an order for the delivery of a child or other order for the enforcement of a [F1 Part I order] ;
(ix) an order relating to the tutory or curatory of a child;
[F5 (c) an Article 8 order made by a court in Northern Ireland under the Children (Northern Ireland) Order 1995, other than an order varying or discharging such an order;]
[F6 (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;]
[F7 (e) an order made by the High Court in Northern Ireland in the exercise of its inherent jurisdiction 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 discharging such an order;]
(2) In this Part “ [F1 Part I order] ” does not include—

F8 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F9 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F10 (c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F11 (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 [F12 or the Children (Northern Ireland) Order 1995, as the case may be] ; 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.

Annotations:

Extent Information

E2 This version of this provision extends to England and Wales and Northern Ireland only; a separate version has been created for Scotland only

Amendments (Textual)

F1 Words in S. 1(1) 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)

F2 S. 1(1)(a) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 63(1)(a) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F3 Words in s. 1(1)(b) substituted (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 41(2)(a); S.I. 1996/2203, art. 3, Sch.

F4 Words in s. 1(1)(b)(iv) substituted (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 41(2)(b); S.I. 1996/2203, art. 3, Sch.

F5 S. 1(1)(c) substituted (4.11.1996) by S.I. 1995/756, art. 12(2)(a)(i); S.R. 1996/297, para. 3

F6 S. 1(1)(d)(e) substituted (14.10.1991) for s. 1(1)(d) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 63(1)(b) (with Sch. 14 para. 1(1); S.I. 1991/828, art. 3(2)

F7 S. 1(1)(e) substituted (4.11.1996) by S.I. 1995/756, art. 12(2)(a)(ii); S.R. 1996/297, para. 3

F8 S. 1(2)(a) repealed (4.11.1996) by S.I. 1995/756, art. 15, Sch.; S.R. 1996/297, para. 3

F9 S. 1(2)(b) 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)

F10 S. 1(2)(c) repealed (4.11.1996) by S.I. 1995/756, art. 15, Sch.; S.R. 1996/297, para. 3

F11 S. 1(3) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 63(3) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F12 Words in s. 1(3) inserted (4.11.1996) by S.I. 1995/756, art. 12(2)(b); S.R. 1996/297, para. 3

Marginal Citations

M1 1978 c. 28.

M2 1980 c. 44.

M3 1968 c. 49.

M4 1985 c. 60.


1 Orders to which Part I applies. (S)

(1) Subject to the following provisions of this section, in this Part “ [F211 Part I order] ” means—

[F212 (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 [F213 residence, custody, care or control of a child, contact with or] , 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 M21 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 [F214 giving parental responsibilities and parental rights in relation to] 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 M22 Education (Scotland) Act 1980;
(vi) an order made under Part II or III of the M23 Social Work (Scotland) Act 1968;
(vii) an order made under the M24 Child Abduction and Custody Act 1985;
(viii) an order for the delivery of a child or other order for the enforcement of a [F211 Part I order] ;
(ix) an order relating to the [F215 guardianship] of a child;
[F216 (c) an Article 8 order made by a court in Northern Ireland under the Children (Northern Ireland) Order 1995, other than an order varying or discharging such an order;]
[F217 (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;]
[F218 (e) an order made by the High Court in Northern Ireland in the exercise of its inherent jurisdiction 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 discharging such an order;]
(2) In this Part “ [F211 Part I order] ” does not include—

F219 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F220 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F221 (c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F222 (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 [F223 or the Children (Northern Ireland) Order 1995, as the case may be] ; 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.

Annotations:

Extent Information

E3 This version of this provision extends to Scotland only; a separate version has been created for England and Wales and Northern Ireland only

Amendments (Textual)

F211 Words in S. 1(1) 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)

F212 S. 1(1)(a) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 63(1)(a) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F213 Words in s. 1(1)(b) substituted (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 41(2)(a); S.I. 1996/2203, art. 3(3), Sch.

F214 Words in s. 1(1)(b)(iv) substituted (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 41(2)(b); S.I. 1996/2203, art. 3(3), Sch.

F215 Words in s. 1(1)(b)(ix) substituted (S.) (25.9.1991) by Age of Legal Capacity (Scotland) Act 1991 (c. 50, SIF 49:8), ss. 10(1), 11(2), Sch. 1 para. 44.

F216 S. 1(1)(c) substituted (4.11.1996) by S.I. 1995/756, art. 12(2)(a)(i); S.R. 1996/297, para. 3

F217 S. 1(1)(d)(e) substituted (14.10.1991) for s. 1(1)(d) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 63(1)(b) (with Sch. 14 para. 1(1); S.I. 1991/828, art. 3(2)

F218 S. 1(1)(e) substituted (4.11.1996) by S.I. 1995/756, art. 12(2)(a)(ii); S.R. 1996/297, para. 3

F219 S. 1(2)(a) repealed (4.11.1996) by S.I. 1995/756, art. 15, Sch.; S.R. 1996/297, para. 3

F220 S. 1(2)(b) 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)

F221 S. 1(2)(c) repealed (4.11.1996) by S.I. 1995/756, art. 15, Sch.; S.R. 1996/297, para. 3

F222 S. 1(3) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 63(3) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F223 Words in s. 1(3) inserted (4.11.1996) by S.I. 1995/756, art. 12(2)(b); S.R. 1996/297, para. 3

Marginal Citations

M21 1978 c. 28.

M22 1980 c. 44.

M23 1968 c. 49.

M24 1985 c. 60.


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



[F14 [ 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 [F15 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.]
[F16 (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.] ]
Annotations:

Amendments (Textual)

F13 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)

F14 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)

F15 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))

F16 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)


[F17 2A Jurisdiction in or in connection with matrimonial proceedings [F18 or civil partnership proceedings] . (E+W)

(1) The condition referred to in section 2(1) of this Act is that the F19 ... proceedings are proceedings in respect of the marriage [F20 or civil partnership] of the parents of the child concerned and—

(a) the proceedings—
(i) are proceedings for divorce or nullity of marriage [F21 , or dissolution or annulment of a civil partnership] , and
(ii) are continuing;
(b) the proceedings—
(i) are proceedings for judicial separation [F22 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.
[F23 (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 [F24 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 [F25 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 [F26 by virtue of section 2(1) (b) (i) of this Act] .]
Annotations:

Amendments (Textual)

F17 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)

F18 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))

F19 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))

F20 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))

F21 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))

F22 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))

F23 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))

F24 Words in s. 2A(3)(a) substituted (4.11.1996) by S.I. 1995/756, art. 12(5); S.R. 1996/297, para. 3

F25 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)

F26 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 [F27 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, [F28 matrimonial proceedings] [F29 or civil partnership proceedings] are continuing in a court in Scotland or Northern Ireland in respect of the marriage [F30 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 [F31 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 [F32 Part I proceedings with respect to] the child concerned to be taken in England and Wales,
and that order is in force.
F33 (4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

Annotations:

Amendments (Textual)

F27 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)

F28 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)

F29 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))

F30 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))

F31 Words in s. 3(3)(a) substituted (4.11.1996) by S.I. 1995/756, art. 12(5); S.R. 1996/297, art. 3

F32 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)

F33 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)


F34 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (E+W)

Annotations:

Amendments (Textual)

F34 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 [F35 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 [F35 Part I order] , or for the variation of a [F35 Part I order] , F36 ... 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, [F37 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 [F38 or (as the case may be) exercise its powers under Article 15] .
(3) The court may remove a stay granted [F39 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.

[F40 (3A) The court may remove a stay granted under Article 15 of the Council Regulation only in accordance with that Article.]

(4) Nothing in this section [F41 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.

Annotations:

Amendments (Textual)

F35 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)

F36 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)

F37 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)

F38 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)

F39 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)

F40 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)

F41 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) [F42 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 [F42 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 [F42 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.

[F43 (3) A court in England and Wales shall not have jurisdiction to vary a Part I order if, on the relevant date, matrimonial proceedings [F44 or civil partnership proceedings] are continuing in Scotland or Northern Ireland in respect of the marriage [F45 or civil partnership] of the parents of the child concerned.

[F46 (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.]
[F46 (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 [F47 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 [F48 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 [F49 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.

[F50 (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.]
Annotations:

Amendments (Textual)

F42 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)

F43 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)

F44 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))

F45 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))

F46 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))

F47 Words in s. 6(4)(a) substituted (4.11.1996) by S.I. 1995/756, art. 12(5); S.R. 1996/297, para. 3

F48 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)

F49 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)

F50 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)


[F51 7 Interpretation of Chapter II. (E+W)

In this Chapter—

(a) “child” means a person who has not attained the age of eighteen;
[F52 (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.]
Annotations:

Amendments (Textual)

F51 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)

F52 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))


Chapter III (S)
Jurisdiction of Courts in Scotland



8 Jurisdiction in independent proceedings. (S)

A court in Scotland may entertain an application for a [F53 Part I order] otherwise than in matrimonial [F54 or civil partnership] proceedings only if it has jurisdiction under section 9, 10, 12 or 15(2) of this Act.

Annotations:

Amendments (Textual)

F53 Words in S. 8 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)

F54 Words in s. 8 inserted (5.12.2005) by The Civil Partnership Act 2004 (Consequential Amendments) (Scotland) Order 2005 (S.S.I. 2005/623), arts. 1, 13