ENGLAND & WALES Law and Practice Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
3. Child Law 3.1 Choice of Jurisdiction Jurisdictional Grounds
• the child is present in England and Wales and not habitually resident in any other country of the UK. The court can also make orders under its “inher - ent jurisdiction”, which is a broad power that the court has to protect children in areas where statutory remedies are inadequate. Domicile, Residence and Nationality The concepts of domicile, residence and nation - ality are relevant considerations when determin - ing jurisdiction upon a reading of the articles contained in the Hague Convention. Article 5(1) of the Hague Convention provides that the judicial or administrative authorities of the contracting state of the habitual residence of the child have jurisdiction to take measures directed at the protection of the child’s person or property. Article 8(1) provides that the authority of a con - tracting state having jurisdiction under Article 5 or Article 6 of the Hague Convention, if it consid - ers that the authority of another contracting state would be better placed in the particular case to assess the best interests of the child, may either: • request that other authority, directly or with the assistance of the central authority of its state, to assume jurisdiction to take such measures of protection as it considers to be necessary; or • suspend consideration of the case and invite the parties to introduce such a request before the authority of that other state. Article 8(2) of the Hague Convention provides that the contracting states whose authorities may be addressed as provided in the preceding paragraph are:
Commonly, Children Act proceedings are brought on the ground that a child is habitually resident in England and Wales. This is a com - plex area of law, however, and the case of Re: S (A Child) (Jurisdiction) (2022) EWHC 1720 (Fam) provides a useful analysis of the jurisdictional framework in Children Act proceedings, now that the UK is not in the EU. The provisions of Brussels II Regulation No 1347/2000 (“Brussels II”) no longer apply to Eng - land and Wales. The 1996 Hague Convention and the Family Law Act 1986 set out the law of jurisdiction in Children Act proceedings. Under the Hague Convention, the country in which the child is habitually resident will have jurisdiction – although there are exceptions to this rule. The rules relating to jurisdiction are found in Articles 5—14 of the Hague Convention. If the Hague Convention does not apply because one of the relevant countries is not a signatory, then the provisions of the Family Law Act 1986 will be used by the courts. Section 2(1) of the Family Law Act 1986 states that welfare orders (which would include Section 8 child arrangements orders) can only be made if one of the following four conditions is satisfied: • the court has jurisdiction under the Hague Convention (as above); • the Hague Convention does not apply but the order sought arises in connection with divorce proceedings; • the child is habitually resident in England and Wales; or
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