High Court of Justice in Northern Ireland Family Division Decisions

The background and previous orders

"27. - (1) A person on whom any rights are conferred by a Part I order may apply to the court which made it for the order to be registered in another part of the United Kingdom under this section.

(2) Application under this section shall be made in the prescribed manner and shall contain the prescribed information and be accompanied by such documents as may be prescribed.

(3) On receiving an application under this section the court which made the Part I order shall, unless it appears to the court that the order is no longer in force, cause the following documents to be sent to the appropriate court in the part of the United Kingdom specified in the application, namely-

(a) a certified copy of the order, and

(b) where the order has been varied, prescribed particulars of any variation which is in force, and

(c) a copy of the application and of any accompanying documents.

(4) Where the prescribed officer of the appropriate court receives a certified copy of the order under subsection (3) above he shall forthwith cause the order with particulars of any variation, to be registered in that court in the prescribed manner."

Belfast County Court has no record of the registration of any such order in Northern Ireland.

"6 Duration and variation of [Part I orders]

(1)     If a [Part I order] made by a court in Scotland or Northern Ireland (or a variation of such an order) comes into force with respect to a child at a time when a [Part I order] made by a court in England and Wales has effect with respect to him, the latter order shall cease to have effect so far as it makes provision for any matter for which the same or different provision is made by (or by the variation of) the order made by the court in Scotland or Northern Ireland.

(2)     Where by virtue of subsection (1) above a [Part I order] has ceased to have effect so far as it makes provision for any matter, a court in England and Wales shall not have jurisdiction to vary that order so as to make provision for that matter."

The Larne order did not purport to affect the contact arrangements between the child and the father. I consider, therefore, that the effect of the Larne order was to leave in place the contact arrangements within the order of October 2005 but to replace the residence order provisions within that order.

"Upon hearing counsel for both parties;

And upon the court having considered the issue of jurisdiction;

And it being recorded that pursuant to article 15 (b) (sic) of Council Regulation (EC) No. 2201/20003 this court will communicate with Antrim Family Proceedings Court in relation to the order made on 7 January 2008 to request that the same is revoked and a further hearing on 7 February 2008 is vacated;

And it being recorded the mother is considering making an application to remove the child from the jurisdiction, to be heard on 4 February 2008."

The court made an interim residence and contact order and gave various directions. Even though there does not appear to have been jurisdiction to make that order the effect of s.23 of the Family law Act is that the order, if valid, superseded the Larne order. On 24 January 2008 the mother made an application for transfer of the proceedings at Larne Family Proceedings Court to the High Court in Belfast and those proceedings have duly been transferred. The residence application launched by the father on 9 January came back before Caernarfon County Court on 4 February 2008 where the issue of jurisdiction was once again considered and the order records:

"Upon hearing Counsel for the mother and father

And upon it being recorded that:

1. The court having heard argument by and on behalf of the parties has concluded that the mother has not accepted the jurisdiction of this court expressly or otherwise in an unequivocal manner and therefore the provisions of Article 12(3) Council Regulation (EC) Number 2201/2003 have not been invoked.

2. This court today hereby applies to either (a) The Family Carers Centre, Laganside, Belfast, or (b) the High Court of Justice of Northern Ireland (Family Division), to consider the making of a request under Article 15(1) (b) of Council regulation (EC) number 2201/2003 to this court to assume jurisdiction for the making of a residence order it appearing to this court:

(i) that the father as the holder of a parental responsibility order has his habitual residence in England and Wales;

(ii) that ESJ was habitually resident within England and Wales prior to her residence in Northern Ireland; and

(iii) that this court may be better placed to hear the application and

(iv) this may be in the best interests of the child…"

The court discharged the residence order made on 11 January 2008 and noted that the parties had made arrangements for contact between the mother and child.

The issues

Does the Council regulation apply?

"(13) In the interests of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case. However, in this case the second court should not be allowed to transfer the case to a third court."

That recital again strongly suggests that the provisions in relation to transfer only apply where a transfer is to occur between one Member State and another.

"Transfer to a court better placed to hear the case

1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or

(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

2. Paragraph 1 shall apply:

(a) upon application from a party; or

(b) of the court's own motion; or

(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.

A transfer made of the court's own motion or by application of a court of another Member State must be accepted by at least one of the parties.

3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b) is the former habitual residence of the child; or

(c) is the place of the child's nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property."

"Member States with two or more legal systems

With regard to a Member State in which two or more systems of law or sets of rules concerning matters governed by this Regulation apply in different territorial units:

(a) any reference to habitual residence in that Member State shall refer to habitual residence in a territorial unit;

(b) any reference to nationality, or in the case of the United Kingdom 'domicile', shall refer to the territorial unit designated by the law of that State;

(c) any reference to the authority of a Member State shall refer to the authority of a territorial unit within that State which is concerned;

(d) any reference to the rules of the requested Member State shall refer to the rules of the territorial unit in which jurisdiction, recognition or enforcement is invoked."

It is suggested in particular that Article 66 (c) in conjunction with the definition in Article 2 requires the word "authority" to be substituted by the word "courts". In that way it is suggested that Article 15 should be read within the United Kingdom as applying to transfers between different territorial units.

"determines merely the Member State whose courts have jurisdiction, but not the court which is competent within the Member State. This question is left to domestic procedural law."

Should this court decline jurisdiction under the Family law Act 1986?

"1. - (1) Subject to the following provisions of this section, in this Part ["Part I order"] means-

(a) a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order;

(aa) a special guardianship order made by a court in England and Wales under the Children Act 1989;

(ab) an order made under section 26 of the Adoption and Children Act 2002 (contact), other than an order varying or revoking such an order;

(b) an order made by a court of civil jurisdiction in Scotland under any enactment or rule of law with respect to the residence, custody, care or control of a child, contact with or, access to a child or the education or upbringing of a child, excluding-

(i) an order committing the care of a child to a local authority or placing a child under the supervision of a local authority;

(ii) an adoption order as defined in section 12(1) of the Adoption (Scotland) Act 1978;

(iii) an order freeing a child for adoption made under section 18 of the said Act of 1978;

(iv) an order giving parental responsibilities and parental rights in relation to a child made in the course of proceedings for the adoption of the child (other than an order made following the making of a direction under section 53(1) of the Children Act 1975);

(v) an order made under the Education (Scotland) Act 1980;

(vi) an order made under Part II or III of the Social Work (Scotland) Act 1968;

(vii) an order made under the Child Abduction and Custody Act 1985;

(viii) an order for the delivery of a child or other order for the enforcement of a Part I order;

(ix) an order relating to the guardianship of a child;

(c) an Article 8 order made by a court in Northern Ireland under the Children (Northern Ireland) Order 1995, other than an order varying or discharging such an order."

The parties have accepted before me that the application by the father was for a section 8 order under section 1(1)(a) of the 1986 Act and the application by the mother for an Article 8 order by virtue of section 1 (1) (c) of the Act. Neither party has contended that either application constituted an application for an order varying or discharging the order of October 2005. The jurisdiction of a court in England and Wales is set out in sections 2 and 3 of the 1986 Act.

"2. Jurisdiction: general

(1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless—

(a) it has jurisdiction under the Council Regulation, or

(b) the Council Regulation does not apply but—

(i) the question of making the order arises in or in connection with matrimonial proceedings [or civil partnership proceedings] and the condition in section 2A of this Act is satisfied, or

(ii)     the condition in section 3 of this Act is satisfied].

3. Habitual residence or presence of child

(1) The condition referred to in [section 2(1)(b)(ii)] of this Act is that on the relevant date the child concerned—

(a) is habitually resident in England and Wales, or

(b) is present in England and Wales and is not habitually resident in any part of the United Kingdom,

and, in either case, the jurisdiction of the court is not excluded by subsection (2) below."

As the child was habitually resident in Northern Ireland throughout the material time these provisions do not give the Welsh court jurisdiction.

"19. - (1) A court in Northern Ireland shall not make a section 1(1)(c) order with respect to a child unless -

(a) it has jurisdiction under the Council Regulation, or

(b) the Council Regulation does not apply but

(i) the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings and the condition in section 19A of this Act is satisfied, or

(ii) the condition in section 20 of this Act is satisfied.

(3) A court in Northern Ireland shall not make a section 1(1)(e) order unless -

(a) it has jurisdiction under the Council Regulation, or

(b) the Council Regulation does not apply but

(i) the condition in section 20 of this Act is satisfied, or

(ii) the child concerned is present in Northern Ireland on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection.

20.– (1) The condition referred to in section 19(1)(b)(ii) of this Act is that on the relevant date the child concerned-

(a) is habitually resident in Northern Ireland; or

(b) is present in Northern Ireland and is not habitually resident in any part of the United Kingdom,

and, in either case, the jurisdiction of the court is not excluded by subsection (2) below."

It appears, therefore, that the Northern Ireland court has jurisdiction to deal with the residence order application before it. By virtue of section 22(2) of the Family Law Act 1986 a court in Northern Ireland may stay proceedings before it in favour of another jurisdiction.

"22. - (1) A court in Northern Ireland which has jurisdiction to make a Part I order may refuse an application for the order in any case where the matter-in question has already been determined in proceedings outside Northern Ireland.

(2) Where, at any stage of the proceedings on an application made to a court in Northern Ireland for a Part I order, or for the variation of a Part I order -

(a) that proceedings with respect to the matters to which the application relates are continuing outside Northern Ireland, or

(b) that it would be more appropriate for those matters to be determined in proceedings to be taken outside Northern Ireland, the court may stay the proceedings on the application; or

(c) that it should exercise its powers under Article 15 of the Council Regulation (transfer to a court better placed to hear the case),

or (as the case may be) exercise its powers under Article 15."

The test under s. 22(2) of the 1986 Act is similar to the test under Article 15 of the Regulation and the outcome in this case would in my view be identical. The reference in s. 22(2) of the 1986 Act to the Regulation is not of assistance on the issue of the applicability of the Regulation as the Act in a number of places is merely confirmatory of the fact that the Regulation, if applicable, must take precedence.