J v U

Where children are habitually resident abroad, pending English divorce proceedings do not automatically confer jurisdiction to determine their welfare. The phrase “in or in connection with” matrimonial proceedings requires a sufficient nexus between the matrimonial and child proceedings. A freestanding application arising from unrelated events will not satisfy that requirement. The inherent jurisdiction based on the children’s nationality is also subject to the statutory limits in the Family Law Act 1986. Urgency, British nationality and the practical difficulties facing a parent cannot create jurisdiction where the statutory conditions are absent. Even if jurisdiction exists, the court may decline to exercise it where the children’s habitual residence and relevant evidence are abroad and the foreign court is an appropriate forum.

The mother sought urgent orders under the Children Act 1989 permitting her to relocate with the parties’ two children from Bosnia to Serbia. The children were British nationals but habitually resident and settled in Bosnia, where the father had initiated divorce proceedings involving child matters. The mother’s English divorce petition remained pending, but the father challenged the English court’s jurisdiction. The central issues were whether the child proceedings arose in or in connection with the English matrimonial proceedings, whether the inherent jurisdiction could be invoked, and, alternatively, whether Bosnia was the more appropriate forum.

1. The application for child arrangements and relocation was not made in, and had no sufficient connection with, the pending English matrimonial proceedings for the purposes of section 2(1)(b)(i) of the Family Law Act 1986. The divorce petition contained no issue concerning the children’s welfare or upbringing. The child application was freestanding, arose from events occurring nine months later, and could have been made whether or not the parties were married or divorcing.

2. The phrase “in or in connection with” required a nexus beyond the mere existence of two proceedings involving the same parties. The question was one of fact and degree. A sufficient connection might arise where the matrimonial petition and child application raised the same issues at about the same time, but that was not the position here.

3. The proposed inherent-jurisdiction orders were in substance orders determining with which parent the children should reside, followed by a decision whether they should relocate. They were therefore excluded by the combined effect of sections 1(1)(d) and 2(3) of the Family Law Act 1986. None of the statutory conditions permitting an inherent-jurisdiction order was satisfied. In any event, the circumstances did not show that the children required the protective exercise of the nationality-based jurisdiction described in A v A [2014] AC 1 and Re B [2016] 2 WLR 556.

4. Alternatively, if jurisdiction existed under section 2(1)(b)(i), the court would decline to exercise it under section 2(4). Bosnia was the children’s habitual-residence forum. The family had lived there for many years, the children were settled there, and the relevant evidence and welfare issues were centred there. The mother had not established, by expert evidence, that a discrete relocation or residence application could not be determined in Bosnia.

5. Urgency and the mother’s employment difficulties could not clothe the English court with jurisdiction. English jurisdiction, if found, would be ongoing rather than limited to the immediate crisis, creating difficulties concerning evidence, delay, enforcement and the use of cross-border reporting services.

6. The court declined jurisdiction. The mother was directed to contribute £15,000 towards the father’s assessed costs, with enforcement deferred until the financial proceedings were resolved.