Kolah v Kolah

Where the Council Regulation does not apply, the courts of England and Wales have jurisdiction to make a child arrangements order if the child is habitually resident in England and Wales, or is present here without being habitually resident in another part of the United Kingdom or a specified dependent territory. The court’s jurisdiction is not dependent on the court exercising a discretionary choice to accept jurisdiction. Once the statutory conditions are satisfied, the court is bound to entertain the application. Questions about habitual residence may remain arguable, but presence in England and Wales and absence of habitual residence in the specified alternative jurisdictions may independently satisfy the statutory condition.

The father applied for a child arrangements order concerning the parties’ three children. The application was transferred from the West London Family Court to the Family Division because of ongoing proceedings in Singapore and an issue concerning jurisdiction.

The mother and children had been living in Singapore before travelling to England, where they had then lived for about six months and the children attended school. The central issue was whether the courts of England and Wales had jurisdiction, despite possible uncertainty about the children’s habitual residence and the Singapore proceedings.

1. Jurisdiction. The court determined that the courts of England and Wales had jurisdiction in relation to the children. Under section 2 of the Family Law Act 1986, where the Council Regulation did not apply, jurisdiction could arise under section 3.
2. There was room for argument about whether the children had become habitually resident in England and Wales. However, they were present in England and Wales and were not habitually resident in another Member State of the European Union, another part of the United Kingdom, or a specified dependent territory. The statutory condition was therefore satisfied on either basis.
3. The court rejected the description of the court as choosing to “take” jurisdiction. The father had issued an application which the court was bound to entertain unless it concluded that it lacked jurisdiction. Having found that jurisdiction existed, the judge had no discretion to refuse to accept and entertain the application.
4. The highly contentious substantive and financial issues should be resolved in the local Family Court, where the mother and children were living and where judicial continuity could be maintained. The matter was transferred back to the West London Family Court for directions and determination by a full-time circuit judge.
5. The judge did not determine interim contact because the hearing had substantially exceeded its allotted time. Interim contact was left to agreement or to a short hearing before the allocated circuit judge. The existing Singapore maintenance order remained in force, and the judge had no jurisdiction on that occasion to order a different or greater amount.

The application was issued in the West London Family Court and transferred by an order of DDJ Carter dated 19 October 2015 for determination of jurisdiction. The High Court determined that the courts of England and Wales had jurisdiction and transferred the matter back to the West London Family Court.