Re T (Children) (Jurisdiction: Matrimonial Proceedings)

The 1996 Hague Child Protection Convention determines international jurisdiction but does not allocate child-welfare jurisdiction between England and Wales and Scotland. That intra-UK question is governed by the Family Law Act 1986.

Under sections 2(1)(b)(i) and 2A, jurisdiction exists where the parents are or were parties to English matrimonial proceedings and either parent seeks a section 1(1)(a) order. No temporal proximity, causal link, or separate factual nexus between the welfare application and the divorce is required. The court may instead use its statutory powers to stay or decline jurisdiction where another forum is more appropriate.

The mother appealed orders of Arbuthnot J which had dismissed her application concerning the parties’ three children, including their return from Albania, and had declared that the courts of England and Wales lacked jurisdiction.

The High Court held that the children were habitually resident in Scotland when they left for Albania. After it emerged that the father had commenced divorce proceedings in England, the judge also held that the 1996 Hague Child Protection Convention gave Scotland jurisdiction and that the mother’s proposed section 8 application did not arise in connection with the divorce.

The appeal concerned the allocation of jurisdiction within the United Kingdom, the meaning of “in or in connection with matrimonial proceedings” in section 2(1)(b)(i) of the Family Law Act 1986, and the children’s habitual residence.

1. Appeal allowed unanimously. The English court had jurisdiction to make an order under section 8 of the Children Act 1989.

2. The 1996 Hague Child Protection Convention allocates jurisdiction between Contracting States. It does not determine which territorial unit within the United Kingdom has jurisdiction. Article 46 confirms that the Convention need not be applied to internal conflicts. The intra-UK scheme in the Family Law Act 1986 therefore governed the issue. In section 2(1)(b), the words that the Hague Convention does not apply mean that it does not apply to determine that internal question.

3. The court reaffirmed the broad approach stated in Lachaux v Lachaux [2019] 2 FLR 712. Sections 2(1)(b)(i) and 2A give jurisdiction where the matrimonial proceedings concern the parents of the child, took place or are taking place in England and Wales, and either parent seeks a section 1(1)(a) order. The statutory scheme does not require temporal proximity, a clear causal link, or a separate nexus between the divorce and the welfare application. Section 42(2), which treats divorce proceedings as continuing until the child is 18, was incompatible with such restrictions. Sections 2A(4) and 5 supply the appropriate safeguards where another forum is more suitable.

4. The father’s English divorce proceedings excluded Scottish jurisdiction under section 11(1). It followed that the proposed section 8 application arose in connection with those proceedings and that English jurisdiction existed.

5. Although unnecessary to the result, the judge’s habitual-residence finding could not stand. Habitual residence requires an open-ended assessment of all relevant circumstances. The judge had wrongly excluded the children’s short three-month stay in Scotland and their permanent departure from it. On the evidence, they remained habitually resident in England and Wales on 3 April 2022.

• Court of Appeal (Civil Division): Allowed the mother’s appeal and held that the courts of England and Wales had jurisdiction to make a section 8 order: [2023] EWCA Civ 285.
• High Court, Family Division (Arbuthnot J): Held that the children were habitually resident in Scotland and dismissed the mother’s application. On reconsideration, it held that the English court lacked jurisdiction under sections 2 and 2A of the Family Law Act 1986.