W-B (A Child), Re

Under the Family Law Act 1986, jurisdiction to make or vary a section 8 children order is determined by the statutory conditions on the relevant date. For an application to vary an existing order, that date is the date of the variation application, not the date of earlier proceedings. The one-year deeming rule for a child removed without consent preserves jurisdiction for proceedings begun within that period, but does not keep later proceedings alive after a final order. Jurisdiction cannot be created by parental consent, undertakings or a court’s pragmatic approach. Orders made without jurisdiction must be set aside, while the earlier valid order remains in force and may be registered and enforced in Scotland.

The child was removed by her mother from England to Scotland in 2006. Proceedings brought by the father in Southend resulted in residence and contact orders, with the final order made on 11 March 2009. In 2010 and 2011 the father sought variation and enforcement, while the mother sought discharge; a consent order and further applications followed. At the September 2011 hearing, the mother challenged jurisdiction under the Family Law Act 1986. Mr Recorder Clover held that the relevant date was in 2006 and that the English court retained jurisdiction. The appeal concerned whether later variation proceedings could rely on the original jurisdiction and whether Southend retained jurisdiction after the child became habitually resident in Scotland.

1. Appeal allowed. The proceedings in Southend after 11 March 2009 were without jurisdiction. Orders made after that date were set aside, but the order of 11 March 2009 remained in force.

2. The Brussels II (Revised) Regulation did not govern jurisdiction between England and Wales and Scotland, since both are parts of the United Kingdom. The applicable scheme was Part I of the Family Law Act 1986. Its jurisdictional prohibition is mandatory: an English court cannot make a section 8 order unless one of the statutory gateways applies.

3. Under section 7(c), the relevant date for an application to make or vary an order is the date of that application, or the first application where several are determined together. If no application is made, it is the date on which the court considers making or varying the order. The 2006 proceedings were validly constituted because section 41 treated the child as remaining habitually resident in England and Wales for one year after her removal without the father’s consent.

4. The original proceedings ended when the final order was made on 11 March 2009. The father’s later application to vary that order therefore had its own relevant date. By then the child was habitually resident in Scotland, and the Southend court lacked jurisdiction. The original proceedings could not be treated as continuing indefinitely.

5. The strict statutory scheme meant that jurisdiction could not be conferred by the mother’s later applications, the consent order, undertakings, or decisions of the Southend judges. The 2009 contact order remained enforceable, and the father could seek registration and enforcement in Scotland under sections 27 to 29. Either parent could apply to the Scottish court.

6. Lord Justice Hughes agreed. Lord Justice Thorpe also agreed, emphasising that section 7(c) was straightforward and required the application date to be used.

• Southend County Court: Mr Recorder Clover, after a hearing on 15–16 September 2011, held that the relevant date was in 2006 and that the English court retained jurisdiction.
• Court of Appeal (Civil Division): In [2012] EWCA Civ 592, the appeal was allowed. The court held that proceedings after 11 March 2009 were without jurisdiction and set aside the subsequent orders.