O v P

Jurisdiction to entertain an application for financial relief under Schedule 1 to the Children Act 1989 may arise under the 1968 Convention, including through the respondent’s domicile or a properly entered appearance. Where the Convention does not apply, domestic jurisdiction may arise concurrently with the welfare jurisdiction or from the child’s habitual residence in England and Wales. The court’s financial jurisdiction is distinct from the later discretion whether to exercise it, including on forum non conveniens grounds. A respondent’s informal awareness of proceedings does not amount to an appearance proroguing jurisdiction; procedural formalities must be clearly and properly followed.

The mother sought financial relief under Schedule 1 to the Children Act 1989 for the parties’ daughter. The application was filed in February 2000 while the father and child were in Australia following separate abductions and related family proceedings in England, Scotland and Australia. The preliminary issue was whether the English court had jurisdiction to entertain the application. The court also identified a possible subsequent issue concerning a stay on forum non conveniens grounds, but that issue was not argued and was adjourned.

The central questions were whether jurisdiction arose under the 1968 Convention through the father’s domicile or appearance, and, alternatively, under domestic law through the court’s welfare jurisdiction or the child’s habitual residence.

1. Jurisdiction established. The court had jurisdiction under Article 2 of the 1968 Convention, incorporated through the Civil Jurisdiction and Judgments Act 1982, because the father remained domiciled in England and Wales when the Schedule 1 application was filed. His evidence showed no settled intention to make Australia his domicile.
2. The court held that the Schedule 1 jurisdiction is closely linked to the welfare jurisdiction under the Children Act 1989. It may therefore arise concurrently where the court has jurisdiction to make welfare orders. Alternatively, domestic jurisdiction exists where the child was habitually resident in England and Wales when the application was made. This residual domestic jurisdiction applies where no jurisdiction arises under the European instruments.
3. The child remained habitually resident in England and Wales. The temporary move to Scotland, the mother’s removal of the child to Australia and the father’s later removal to Australia did not alter that habitual residence. The court applied the ordinary meaning of habitual residence and the principles summarised in Re PJ (Abduction) (Habitual resident: consent) [2009] ECWA Civ 588.
4. An appearance under Article 18 must be clearly and properly entered. The father’s letter notifying the court that he was acting in person and acknowledging awareness of the application did not amount to a formal appearance. Article 18 therefore supplied no independent jurisdiction.
5. The inherent jurisdiction could in appropriate cases support financial provision for a ward of court, but its practical use where other jurisdictional grounds are absent would be limited, particularly to urgent remedies. No such circumstances arose.
6. The court’s conclusion on jurisdiction did not determine whether the application would proceed. The forum non conveniens issue was adjourned for a further hearing.