ENGLAND & WALES Law and Practice Contributed by: Jeremy Levison, Miranda Green and Alexander Bartlett, Levison Meltzer Pigott
The Convention provides a set of articles to which various countries have subscribed, to provide the mutual protection of children as well as enforcement and recognition of orders. The first question to deter ‑ mine jurisdiction under the Convention is whether or not a child is habitually resident in a signatory country. If the answer is not found via the Convention, ie, because a country is not signatory to it, then consid ‑ eration will turn to the provisions of the domestic Fam ‑ ily Law Act 1986. The Act will also consider whether or not a child is habitually resident in England or Wales. If that is not the case, and the matter is not dealt with via any exceptions set out under the Convention, then Section 2 (1) of the Act provides that the court may make certain orders in respect of a child if the order arises in connection with divorce or civil partnership proceedings between that child’s parents and/or the child is present in England and Wales (but not neces ‑ sarily habitually resident) and is not habitually resi ‑ dent in another part of the UK. In circumstances where there are no local divorce or civil partnership proceed ‑ ings in England and Wales, then it is a requirement that there are not equivalent proceedings in Scotland or Northern Ireland. In rare instances, the High Court may exercise its inherent jurisdiction to make an order in respect of a child, notwithstanding that it fails to find jurisdiction under the above provisions. In Re M (A Child) (Exercise of Inherent Jurisdiction) , the Court of Appeal referred to a need to exercise it as a protective form of juris ‑ diction only in circumstances which are “sufficiently compelling”. Contesting Habitual Residence Of course, there may be instances in which the par ‑ ties disagree as to where a child is habitually resident – particularly where one parent has removed a child from the jurisdiction without the other parent’s con ‑ sent. The courts will apply a factual examination of all the available evidence and there is no one factor that will be determinative. Guarding against delay can be vital in such circumstances. Domicile, Residence and Nationality Article 8 of the Convention provides for a situation in which a court, notwithstanding that it may have juris ‑
diction to hear a case, considers that another jurisdic ‑ tion may be better placed to do so: • the other jurisdiction must also be a signatory to the Convention; • the child must be a national of that country; • property of the child must be located there; • the country must have a divorce application for the child’s parents; or • the child must have a substantial connection – this is a term that is seen in other places within the Convention. That other jurisdiction may then assume jurisdiction if it considers that it would be in the child’s best inter ‑ ests. When evaluating whether a child has a “substan ‑ tial connection” to a jurisdiction, the court will con ‑ sider all relevant factors. Where a child is a national, where they are domiciled and where they reside shall all be relevant factors weighing in that decision. 3.2 Living/Contact Arrangements and Child Maintenance Making a Court Application If a child’s parents do not agree as to the contact arrangements that will be in the child’s best interests, then either of them may make an application to the court. In considering the application, the court’s para ‑ mount consideration will be the welfare of the child. A welfare checklist, guiding the court’s discretion, is set out at Section 1 (3) of the Children Act 1989. It is mandatory to consider the checklist when the court is making certain orders and remains a valuable refer ‑ ence point in all children applications. The checklist provides the following non-exhaustive factors: • the ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding); • their physical, emotional and educational needs; • the likely effect on them of any change in their circumstances; • their age, sex, background and any characteristics of theirs that the court considers relevant; • any harm that they have suffered or are at risk of suffering;
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