B v B

A child wrongfully removed between parts of the United Kingdom remains deemed habitually resident in the original part for one year under section 41 of the Family Law Act 1986. Once that period expires, jurisdiction may arise from the child’s actual habitual residence. An earlier assumption of jurisdiction does not permanently taint later proceedings.

An apparently regular court order made without jurisdiction remains effective until discharged. Matrimonial proceedings which have been stayed are not “continuing” proceedings capable of excluding jurisdiction elsewhere. In deciding whether to decline an established jurisdiction, the court may consider the child’s welfare, the progress of existing proceedings and practical convenience.

Following the parents’ separation, the mother took their child from Scotland to England without the father’s agreement. In November 2000 the Willesden County Court made residence and prohibited steps orders under the Children Act 1989. Because section 41 of the Family Law Act 1986 deemed the child habitually resident in Scotland for one year, the residence order was made without jurisdiction.

The father did not challenge the order or institute Scottish proceedings during that year. He subsequently applied for residence and contact in England, but later began divorce proceedings in Scotland. Those proceedings were sisted so that the child issues could be determined in England.

Sumner J refused to dismiss or stay the English proceedings. The father appealed, contending that the original jurisdictional defect permanently tainted them and that the child issues should be determined in Scotland.

1. Disposition. The appeal was dismissed. Wall LJ gave the principal judgment, with which Arden LJ agreed. The English court had jurisdiction under the Children Act 1989, and England and Wales remained the proper forum.
2. Section 41 of the Family Law Act 1986 deemed the child habitually resident in Scotland only for one year after her removal without the father’s agreement. Had the father acted during that period, the Scottish court would have had jurisdiction and the English residence order would have had to be discharged. He first applied in November 2001, after the statutory period had ended and when the child was habitually resident in England. The original defect therefore did not permanently taint the later proceedings: paras 65–71.
3. Although the November 2000 residence order was made without jurisdiction, it was not a nullity. An order regular on its face remains binding until discharged, even where the affected person considers it void or irregular. The court applied Hadkinson v Hadkinson [1952] 285, together with the same principle stated in Chuck v Cremer, Grafton Isaacs v Emery Robertson [1985] 1 AC 97 and Johnson v Walton [1990] 1 FLR 350: paras 67–70.
4. The later Scottish divorce proceedings did not displace English jurisdiction. Proceedings which have been sisted are not “continuing” for section 2A(2) or section 3 of the Family Law Act 1986. The sist also demonstrated that the Scottish court had declined to exercise jurisdiction under section 13(6). The two jurisdictions were therefore effectively agreed that England and Wales was the proper forum: paras 72–76 and 92.
5. Section 14(1) of the 1986 Act merely gives the Scottish court discretion to refuse, stay or sist proceedings in the stated circumstances. It did not prevent the father from applying in Scotland during the initial one-year period. After years of English proceedings, the judge properly considered the child’s settled circumstances, the progress of the case and the parties’ comparative inconvenience: paras 79–84. M v M (Abduction: England and Scotland) [1997] 2FLR 263 was distinguished because its governing statutory framework expressly required the English proceedings to yield to Scottish matrimonial proceedings: paras 85–90.
6. Arden LJ added that section 36(2)(a) of the 1986 Act ensures inter-UK recognition and enforcement. It does not validate an order made without jurisdiction or prevent its discharge. The point was unnecessary to the decision because the order remained effective under Hadkinson: paras 101–103.

1. Court of Appeal (Civil Division): By [2004] EWCA Civ 681, dismissed the father’s appeal and upheld the refusal to dismiss or stay the English proceedings.
2. High Court, Family Division: Sumner J dismissed the father’s application to discharge the existing English orders and have future child proceedings dealt with in Scotland. No citation is stated.
3. Scottish proceedings: The Aberdeen Sheriff Court sisted the divorce proceedings for the child issues to be determined in England. The Sheriff Principal dismissed the father’s appeal and continued the sist. No citation is stated.