The Limits to the High Court in Exercising its Inherent Jurisdiction under the Family Law Act 1986

Private Law (Child Arrangements Programme (CAP))

06 September 2022

The recent case of Re S (a Child) (Jurisdiction) [2022] EWHC 1720 demonstrates the extent of the High Court’s inherent jurisdiction under the Family Law Act 1986.

The Act gives the right to the High Court to make ‘Part 1’ Orders in relation to children. Section 1(1) sets out the definition of a Part 1 order and of particular relevance to this article is Section 1(1)(a) and Section 1(1)(b).

  • Section 1(1)(a) defines a Part 1 order as:

“a section 8 order made in a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order.”

  • Section 1 (1)(b) is defined as:

“an order by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children-

(i) so far as it gives care of a child to any person or provides for contact with, or the education of a child; but

(ii) excluding an order varying or revoking such an order.”

The facts of Re S are these. The parties were involved in proceedings concerning their child, in their native country, Antigua, in December 2021. The child at that time was aged 13 months old and at the time of judgment 18 months old. Despite that, the father covertly brought the child to England. The mother on 15th December 2021 immediately upon finding out, made an application to the High Court seeking an order for the child to be returned immediately to Antigua.

The matter came before the High Court initially, on 16th December 2021, when a location order was made and was followed speedily with a collection order, which was made and executed on 22nd December 2021, once the child’s location was known. The following day on 23rd December 2021, the matter came before Ms Justice Russell, when she granted permission to the mother to return with the child to Antigua, on the basis that she undertook to return with her to England and Wales, if the court so ordered. The matter was adjourned to 19th January 2022. As it happened that hearing did not go ahead, as the father sought permission to appeal against the orders of 23rd December 2021 and was unsuccessful.

The father then made an application for a Child Arrangements Order on 19th January 2022, and the mother in turn made an application for an order for all proceedings at the High Court to be concluded, with the orders made and undertakings given by the mother on 23rd December 2021 be discharged.

The issue for the High Court, therefore, was what if any continuing jurisdiction it had with respect to the child under its inherent jurisdiction.

In reaching its decision, the court went through a review of all the relevant provisions of the Family Law Act 1986, in relation to a child under its inherent jurisdiction, where there are competing jurisdictional issues.

  • Section 2(3) of the Act states:

“A court in England and Wales shall not make a Section 1(1) (d) order unless –

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

(b) neither the Council Regulation nor The Hague Convention applies but

(i) the condition in section 3 of this Act is satisfied, or

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

Reference is made to the condition in Section 3 of the Act being satisfied. Simply put the condition is that either the child is habitually resident in England and Wales or if not, is present in England and Wales and not habitually resident in the United Kingdom, at the time the application is made.

For completion, the relevant date, referred to in Section 2(3)(ii), is defined in Section 7(c) of the Act and means the date an application for an order relating to a child was made, or where no application has been made the date that the court is considering whether to make an order.

It was conceded at the outset by the father that the child was not habitually resident in England and Wales, as she had spent only ten days of her life here. Of relevance also is the fact that Antigua is not a signatory to the Hague Convention.

The main argument on behalf of the father was that at the hearing on 23rd December 2021, an oral application for contact was made on his behalf at a time when the child was present in the jurisdiction and therefore the High Court could make orders in relation to her under its inherent jurisdiction, despite the fact that there were ongoing proceedings in Antigua.

The court found for the father’s argument to succeed it would have to identify a clear and substantial basis for the High Court to make ancillary orders, where there were ongoing substantive proceedings in another jurisdiction and on the facts the opposite was the case.

That determination was enough to find against the father.  The court however went further, in an effort to give guidance in future application of a similar nature and identified three factors, which would point towards an oral application being outside the ambit of Section 7(c) of the Act. They are:

  1. The Family Law Act, Part 1 is concerned with jurisdiction, and the establishment of circumstances existing on the ‘relevant date’ is an important matter with significant consequences, the outcome of which is likely to determine whether the court of England and Wales does, or does not have jurisdiction;
  2. An oral application, without more, has an altogether imprecise and unclear character in circumstances where the statutory provision requires the opposite in terms of clarity with regard to a specific single date and the child’s physical presence in the jurisdiction; and
  3. Under the Family Procedure Rules 2010 proceedings begin upon an application being issued on the date entered in the application form.

As such the court found that even if an oral application had been made on 23rd December 2021, that step alone would not be sufficient to establish that that was the relevant date for the purposes of determining jurisdiction under Part 1 of the Act.

In conclusion therefore it is clear that while the High Court has inherent jurisdiction to make orders in relation to children under the Family Law Act 1986, its jurisdiction is not unfettered and there are a number of hoops that will have to be negotiated before it will become involved. This application however provided a good opportunity for the court to apply the provisions of the Family Law Act 1986 on jurisdictional issues relating to children and provide some guidance to practitioners for similar cases in the future.

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