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FAMILY LAW ACT 1986

UK Public General Acts

Version 22/04/2014

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)

Modifications etc. (not altering text)

C1 Act restricted by 1986 c. 55, s. 2(2A) (as 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))

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)

C2 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]
[F3 (aa) a special guardianship order made by a court in England and Wales under the Children Act 1989;
(ab) an order made under section 26 of the Adoption and Children Act 2002 (contact) , other than an order varying or revoking such an order]
[F4 (ac) an order made under section 51A of the Adoption and Children Act 2002 (post-adoption contact) , other than an order varying or revoking 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 [F5 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;
F6 (ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F6 (iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iv) an order [F7 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 M1 Education (Scotland) Act 1980;
(vi) an order made under Part II or III of the M2 Social Work (Scotland) Act 1968;
(vii) an order made under the M3 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;
[F8 (x) an adoption order (as defined in section 28(1) of the Adoption and Children (Scotland) Act 2007 (asp 4) ) ;
(xi) a permanence order (as defined in subsection (2) of section 80 of that Act) which includes provision such as is mentioned in paragraph (c) of that subsection.]
[F9 (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;]
[F10 (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;]
[F11 (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—

F12 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F13 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F14 (c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F15 (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 [F16 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.]
[F17 (3A) In subsection (1) (b) (xi) “permanence order” includes a deemed permanence order having effect by virtue of article 13(1) , 14(2) , 17(1) or 19(2) of the Adoption and Children (Scotland) Act 2007 (Commencement No. 4, Transitional and Savings Provisions) Order 2009.]

(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 S. 1(1)(aa)(ab) inserted (30.12.2005) by Adoption and Children Act 2002 (c. 38), s. 148(1), Sch. 3 para. 47 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(o)

F4 S. 1(1)(ac) inserted (22.4.2014) by Children and Families Act 2014 (c. 6), ss. 9(5), 139(6); S.I. 2014/889, art. 4(a) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

F5 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.

F6 S. 1(1)(b)(ii)(iii) repealed (15.7.2011) by The Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011 (S.I. 2011/1740), art. 1(2), Sch. 2 Pt. 3

F7 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.

F8 S. 1(1)(b)(x)(xi) inserted (15.7.2011) by The Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011 (S.I. 2011/1740), art. 1(2), Sch. 2 para. 2(2)

F9 S. 1(1)(c) substituted (4.11.1996) by S.I. 1995/756, art. 12(2)(a)(i); S.R. 1996/297, para. 3

F10 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)

F11 S. 1(1)(e) substituted (4.11.1996) by S.I. 1995/756, art. 12(2)(a)(ii); S.R. 1996/297, para. 3

F12 S. 1(2)(a) repealed (4.11.1996) by S.I. 1995/756, art. 15, Sch.; S.R. 1996/297, para. 3

F13 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)

F14 S. 1(2)(c) repealed (4.11.1996) by S.I. 1995/756, art. 15, Sch.; S.R. 1996/297, para. 3

F15 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)

F16 Words in s. 1(3) inserted (4.11.1996) by S.I. 1995/756, art. 12(2)(b); S.R. 1996/297, para. 3

F17 S. 1(3A) inserted (15.7.2011) by The Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011 (S.I. 2011/1740), art. 1(2), Sch. 2 para. 2(3)

Marginal Citations

M1 1980 c. 44.

M2 1968 c. 49.

M3 1985 c. 60.


1 Orders to which Part I applies. (S)

(1) Subject to the following provisions of this section, in this Part “ [F264 Part I order] ” means—

[F265 (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]
[F3 (aa) a special guardianship order made by a court in England and Wales under the Children Act 1989;
(ab) an order made under section 26 of the Adoption and Children Act 2002 (contact) , other than an order varying or revoking such an order]
[F4 (ac) an order made under section 51A of the Adoption and Children Act 2002 (post-adoption contact) , other than an order varying or revoking 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 [F266 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;
F267 F6 (ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F268 F6 (iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(iv) an order [F269 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 M20 Education (Scotland) Act 1980;
(vi) an order made under Part II or III of the M21 Social Work (Scotland) Act 1968;
(vii) an order made under the M22 Child Abduction and Custody Act 1985;
(viii) an order for the delivery of a child or other order for the enforcement of a [F264 Part I order] ;
(ix) an order relating to the [F270 guardianship] of a child;
[F271 [F8 (x) an adoption order (as defined in section 28(1) of the Adoption and Children (Scotland) Act 2007 (asp 4) ;
(xi) a permanence order (as defined in subsection (2) of section 80 of that Act) which includes provision such as is mentioned in paragraph (c) of that subsection]
[F272 (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;]
[F273 (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;]
[F274 (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 “ [F264 Part I order] ” does not include—

F275 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F276 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F277 (c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F278 (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 [F279 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.]
[F17 (3A) In subsection (1) (b) (xi) “permanence order” includes a deemed permanence order having effect by virtue of article 13(1) , 14(2) , 17(1) or 19(2) of the Adoption and Children (Scotland) Act 2007 (Commencement No. 4, Transitional and Savings Provisions) Order 2009.]

(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)

F3 S. 1(1)(aa)(ab) inserted (30.12.2005) by Adoption and Children Act 2002 (c. 38), s. 148(1), Sch. 3 para. 47 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(o)

F4 S. 1(1)(ac) inserted (22.4.2014) by Children and Families Act 2014 (c. 6), ss. 9(5), 139(6); S.I. 2014/889, art. 4(a) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

F6 S. 1(1)(b)(ii)(iii) repealed (15.7.2011) by The Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011 (S.I. 2011/1740), art. 1(2), Sch. 2 Pt. 3

F8 S. 1(1)(b)(x)(xi) inserted (15.7.2011) by The Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011 (S.I. 2011/1740), art. 1(2), Sch. 2 para. 2(2)

F17 S. 1(3A) inserted (15.7.2011) by The Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011 (S.I. 2011/1740), art. 1(2), Sch. 2 para. 2(3)

F264 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)

F265 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)

F266 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.

F267 S. 1(1)(b)(ii) repealed (S.) (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), s. 121(2), sch. 3; S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21) (as amended (7.5.2012) by S.S.I. 2012/99, art. 2)

F268 S. 1(1)(b)(iii) repealed (S.) (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), s. 121(2), sch. 3; S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21) (as amended (7.5.2012) by S.S.I. 2012/99, art. 2)

F269 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.

F270 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.

F271 S. 1(1)(b)(x)(xi) inserted (S.) (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), s. 121(2), sch. 2 para. 5; S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21) (as amended (7.5.2012) by S.S.I. 2012/99, art. 2)

F272 S. 1(1)(c) substituted (4.11.1996) by S.I. 1995/756, art. 12(2)(a)(i); S.R. 1996/297, para. 3

F273 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)

F274 S. 1(1)(e) substituted (4.11.1996) by S.I. 1995/756, art. 12(2)(a)(ii); S.R. 1996/297, para. 3

F275 S. 1(2)(a) repealed (4.11.1996) by S.I. 1995/756, art. 15, Sch.; S.R. 1996/297, para. 3

F276 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)

F277 S. 1(2)(c) repealed (4.11.1996) by S.I. 1995/756, art. 15, Sch.; S.R. 1996/297, para. 3

F278 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)

F279 Words in s. 1(3) inserted (4.11.1996) by S.I. 1995/756, art. 12(2)(b); S.R. 1996/297, para. 3

Modifications etc. (not altering text)

C11 S. 1(1)(b)(x) modified (6.4.2010) by The Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (S.I. 2010/985), regs. 1(1), 5, Sch. 4

Marginal Citations

M20 1980 c. 44.

M21 1968 c. 49.

M22 1985 c. 60.


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



[F18 [ 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 [F20 or the Hague Convention] , or
(b) [F21 neither the Council Regulation nor the Hague Convention applies] but—
(i) the question of making the order arises in or in connection with matrimonial proceedings [F22 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.]
[F23 (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.]

[F24 (2C) A court in England and Wales shall not have jurisdiction to make an order under section 51A of the Adoption and Children Act 2002 unless—

(a) it has jurisdiction under the Council Regulation or the Hague Convention, or
(b) neither the Council Regulation nor the Hague Convention applies but the condition in section 3 of this Act is satisfied.]
[F25 (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 [F26 or the Hague Convention] , or
(b) [F27 neither the Council Regulation nor the Hague Convention applies] 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)

F18 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)

F19 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)

F20 Words in s. 2(1)(a) 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. 5(a)

F21 Words in s. 2(1)(b) substituted (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. 5(b)

F22 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))

F23 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)

F24 S. 2(2C) inserted (22.4.2014) by Children and Families Act 2014 (c. 6), ss. 9(6), 139(6); S.I. 2014/889, art. 4(a) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

F25 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)

F26 Words in s. 2(3)(a) 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. 5(c)

F27 Words in s. 2(3)(b) substituted (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. 5(d)


[F28 2A Jurisdiction in or in connection with matrimonial proceedings [F29 or civil partnership proceedings] . (E+W)

(1) The condition referred to in section 2(1) of this Act is that the F30 ... proceedings are proceedings in respect of the marriage [F31 or civil partnership] of the parents of the child concerned and—

(a) the proceedings—
(i) are proceedings for divorce or nullity of marriage [F32 , or dissolution or annulment of a civil partnership] , and
(ii) are continuing;
(b) the proceedings—
(i) are proceedings for judicial separation [F33 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.
[F34 (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 [F35 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 [F36 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 [F37 by virtue of section 2(1) (b) (i) of this Act] .]
Annotations:

Amendments (Textual)

F28 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)

F29 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))

F30 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))

F31 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))

F32 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))

F33 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))

F34 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))

F35 Words in s. 2A(3)(a) substituted (4.11.1996) by S.I. 1995/756, art. 12(5); S.R. 1996/297, para. 3

F36 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)

F37 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 [F38 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, [F39 matrimonial proceedings] [F40 or civil partnership proceedings] are continuing in a court in Scotland or Northern Ireland in respect of the marriage [F41 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 [F42 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 [F43 Part I proceedings with respect to] the child concerned to be taken in England and Wales,
and that order is in force.
F44 (4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

Annotations:

Amendments (Textual)

F38 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)

F39 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)

F40 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))

F41 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))

F42 Words in s. 3(3)(a) substituted (4.11.1996) by S.I. 1995/756, art. 12(5); S.R. 1996/297, art. 3

F43 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)

F44 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)


F45 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (E+W)

Annotations:

Amendments (Textual)

F45 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 [F46 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 [F46 Part I order] , or for the variation of a [F46 Part I order] , F47 ... it appears to the court—

(a) that proceedings with respect to the matters to which the application relates are continuing outside England and Wales, F48 ...
(b) that it would be more appropriate for those matters to be determined in proceedings to be taken outside England and Wales, F49 [F50 ...
(c) that it should exercise its powers under Article 15 of the Council Regulation (transfer to a court better placed to hear the case) ] [F51 , 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 [F52 or (as the case may be) exercise its powers under Article 15 [F53 of the Council Regulation or Article 8 of the Hague Convention] ] .
[F54 (2A) If the proceedings on the application are proceedings in which [F55 an] 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 [F56 the] activity direction (or the enforcement order).]

(3) The court may remove a stay granted [F57 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.

[F58 (3A) The court may remove a stay granted under Article 15 of the Council Regulation only in accordance with that Article.]

[F59 (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.]
[F60 (3B) If the stay removed under subsection (3) or (3A) is a stay in relation to which the court suspended [F61 an] 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) [F62 , (3A) or (3AA) ] also bring the suspension to an end.]

(4) Nothing in this section [F63 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)

F46 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)

F47 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)

F48 Word 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)

F49 Word 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)

F50 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)

F51 S. 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)

F52 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)

F53 Words 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)

F54 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)

F55 Word 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)

F56 Word 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)

F57 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)

F58 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)

F59 S. 5(3AA) 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(2)

F60 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)

F61 Word in s. 5(3B) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 50(3); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

F62 Words in s. 5(3B) substituted (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(3)

F63 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) [F64 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 [F64 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 [F64 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.

[F65 (3) A court in England and Wales shall not have jurisdiction to vary a Part I order if, on the relevant date, matrimonial proceedings [F66 or civil partnership proceedings] are continuing in Scotland or Northern Ireland in respect of the marriage [F67 or civil partnership] of the parents of the child concerned.

[F68 (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.]
[F68 (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 [F69 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 [F70 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 [F71 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.

[F72 (5A) Subsection (7) below applies where a Part I order which is a child arrangements order (within the meaning of section 8(1) of the Children Act 1989) ceases by virtue of subsection (1) above to name a person as someone with whom a child is to live.]

[F73 (6) Subsection (7) below [F74 also] applies where a Part I order which is—

F75 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(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)

F64 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)

F65 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)

F66 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))

F67 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))

F68 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))

F69 Words in s. 6(4)(a) substituted (4.11.1996) by S.I. 1995/756, art. 12(5); S.R. 1996/297, para. 3

F70 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)

F71 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)

F72 S. 6(5A) inserted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 51(2); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

F73 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)

F74 Word in s. 6(6) inserted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 51(3)(a); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)

F75 S. 6(6)(a) omitted (22.4.2014) by virtue of Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 51(3)(b); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)


[F76 7 Interpretation of Chapter II. (E+W)

In this Chapter—

(a) “child” means a person who has not attained the age of eighteen;
[F77 (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)

F76 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)

F77 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 [F78 Part I order] otherwise than in matrimonial [F79 or civil partnership] proceedings only if it has jurisdiction under section 9, 10, 12 or 15(2) of this Act.

Annotations:

Amendments (Textual)

F78 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)

F79 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