Re S (A Child) (Jurisdiction)

Jurisdiction under Family Law Act 1986, Part I, depends on the statutory circumstances existing on the relevant date. A general oral request during a hearing does not necessarily constitute an application for the purposes of section 7(c)(i), particularly where it is not recorded as a continuing application. A request for the court to act of its own motion under Children Act 1989, section 10(1)(b), is not thereby converted into a free-standing application. Where a child is habitually resident abroad, has only a brief and unilateral connection with England, and welfare proceedings are active in the home jurisdiction, a clear and substantial jurisdictional basis is required. In the absence of jurisdiction, and in any event in the absence of welfare grounds for intervention, the English proceedings should end.

The proceedings concerned a child born and habitually resident in Antigua. The father secretly brought her to England for about 10 days in December 2021. The mother obtained orders leading to the child’s return to Antigua and undertook to return her if required. The father later issued applications concerning the child’s living arrangements and contact.

The mother applied for the English proceedings, brought under the inherent jurisdiction, to conclude and for existing orders and undertakings to be discharged. The father argued that an oral request for contact during the December hearing constituted an application under Family Law Act 1986, section 7(c)(i), fixing the relevant date while the child was present in England. Alternatively, he relied on the mother’s undertaking as a basis for returning the child to England.

1. Application dismissed in substance; mother’s application succeeds. The court no longer had jurisdiction in relation to the child’s welfare. Existing orders and undertakings were to be discharged, subject to any outstanding question of costs.
2. Under Family Law Act 1986, section 3, jurisdiction depends on the child’s habitual residence or presence on the relevant date. The evidence did not establish that an oral application for a contact order had been made at the December hearing. The position statement expressed only a wish to re-establish contact, and the transcript did not record an application. The order’s limited provision for contact pending the Antigua hearing was inconsistent with an ongoing English application.
3. Although not determinative, the judge considered that an oral application would not, without more, satisfy section 7(c)(i). The statutory scheme requires clarity as to the relevant date. Family Procedure Rules 2010, rule 5.3, provides that proceedings start when a court officer issues an application and that the application is issued on the date entered in the application form.
4. Section 10(1)(b) of Children Act 1989 permits the court to make a section 8 order of its own motion. It does not create a free-standing party application. An oral request remains live only during the hearing unless further provision carries it forward.
5. The proposed reliance on the mother’s undertaking could not justify requiring her and the child to return to England. The child’s home, habitual residence, and welfare proceedings were in Antigua. Her brief presence in England resulted from the father’s unilateral removal. Even if jurisdiction existed, there were no welfare grounds for intervention.

The judgment records earlier proceedings before Sir Jonathan Cohen and Russell J, followed by refusal of permission to appeal by Lord Justice Moylan. The present judgment determined the continuing jurisdiction issue at first instance.