AS v TH (No 2) (Jurisdiction to Make Final Orders)

Jurisdiction under the Family Law Act 1986 is assessed at the relevant procedural date. Where the court is considering making an order, that date may be earlier than the date of the final order. A court which has acquired jurisdiction while the child is present in England and Wales and not habitually resident in any part of the United Kingdom does not lose it merely because the child later moves and becomes habitually resident elsewhere. The protective jurisdiction is an emergency jurisdiction, but exceptional circumstances may justify extensive proceedings under it. The court may retain and exercise substantive jurisdiction where it has conducted the fact-finding process and is best placed to determine welfare issues.

The proceedings concerned two children who had been removed from Scotland to England by their mother. Earlier proceedings included Scottish orders, wardship proceedings in England, an extensive fact-finding hearing, and interim arrangements. The children returned to Scotland in April 2016, after the court made orders placing each child in the care of his respective father.

The father of one child then challenged the English court’s jurisdiction to make final orders regulating the mother’s contact. The issues were whether the court had acquired substantive jurisdiction under the Family Law Act 1986, whether that jurisdiction continued after the children returned to Scotland, whether the proceedings should be stayed, and what contact arrangements served the children’s welfare.

1. The court had jurisdiction to make final child arrangements orders for both children. Each child had initially been habitually resident in Scotland, later lost that habitual residence, and had not acquired habitual residence in England. By March 2016 each child was present in England and was not habitually resident in any part of the United Kingdom.

2. The jurisdiction under s 2(3)(b)(ii) of the Family Law Act 1986 is properly characterised as an emergency or protective jurisdiction. It is directed to situations requiring immediate protective measures and swift action. The court had exercised that jurisdiction at the earlier stages of the proceedings.

3. On 26 April 2016 the court was “considering” whether to make orders placing the children in their fathers’ care for the purposes of s 7(c)(ii). The relevant date was therefore 26 April 2016. On that date both children were present in England and Wales and neither was habitually resident in any part of the United Kingdom. The conditions in s 3(1)(b) were consequently satisfied, giving jurisdiction under s 2(1)(b)(ii) and s 2(3)(b)(i).

4. Having acquired jurisdiction, the court did not lose it when the children returned to Scotland and likely reacquired habitual residence there. The Family Law Act 1986 contained no provision requiring the court to relinquish jurisdiction in those circumstances.

5. A stay under s 5(2)(b) was refused. Although Scotland had substantial connections with the children, the English court had been seised since January 2015, had completed an extensive fact-finding exercise, and was best placed to determine welfare issues informed by that history.

6. Final child arrangements orders were made for supervised contact between the mother and each child once a month for three hours. The orders were to be registered in Scotland. There was no order as to costs, subject to a detailed public funding assessment of the children’s costs.