Key Facts
- •Mother appeals orders dismissing her application for welfare orders regarding her three children taken to Albania by the father.
- •Judge initially ruled Scottish courts had jurisdiction due to children's habitual residence in Scotland.
- •Father's subsequent divorce proceedings in England were discovered.
- •Mother argued English court had jurisdiction under section 2(1)(b)(i) of the Family Law Act 1986 (FLA 1986).
- •Judge maintained lack of English jurisdiction, citing the 1996 Hague Child Protection Convention and lack of connection between the application and divorce proceedings.
- •Children returned to England after the orders.
- •Appeal deemed not academic due to ongoing adverse consequences for the mother.
Legal Principles
The 1996 Hague Child Protection Convention does not determine intra-UK jurisdiction.
Re W-B (Family Proceedings: Appropriate Jurisdiction Within the UK) [2013] 1 FLR 394, Re PC, YC and KM (Brussels IIR: Jurisdiction Within United Kingdom) [2014] 1 FLR 605
Jurisdiction under FLA 1986 section 2(1)(b)(i) requires the question of making a section 1(1)(a) order to arise in or in connection with matrimonial proceedings.
Family Law Act 1986, sections 2(1)(b)(i), 2A, 42(2)
Habitual residence is a question of fact, considering all relevant factors.
Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] 1 FLR 561, A v A and another (Children: Habitual Residence) [2014] AC 1
Outcomes
Appeal allowed.
FLA 1986, not the 1996 Convention, governs intra-UK jurisdiction. The English court has jurisdiction under section 2(1)(b)(i) due to the ongoing divorce proceedings. The children's habitual residence was in England.