Legalize / United Kingdom / Public General Act

Family Law Act 1986

Type Public General Act

Publication 1986-11-07

State In force

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part I — Child Custody

Chapter I — Preliminary

Orders to which Part I applies.

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

(ac) an order made under section 51A of the Adoption and Children Act 2002 (post-adoption 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 tutory or curatory of a child;

(x) an adoption order (as defined in section28(1) of the Adoption and Children (Scotland) Act 2007 (asp4));

(xi) a permanence order (as defined in subsection(2) of section80 of that Act) which includes provision such as is mentioned in paragraph(c) of that subsection.

(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;

(d) an order made 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;

(e) an order made by the High Court in Northern Ireland in the exercise of its inherent jurisdiction 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 discharging such an order;

(2) In this Part “Part I order” does not include—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In this Part, “Part I order”—

(a) includes any order which would have been a custody order by virtue of this section in any form in which it was in force at any time before its amendment by the Children Act 1989 or the Children (Northern Ireland) Order 1995, as the case may be; and

(b) (subject to section 32 and 40 of this Act) excludes any order which would have been excluded from being a custody order by virtue of this section in any such form.

(3A) In subsection (1)(b)(xi) “permanence order” includes a deemed permanence order having effect by virtue of article 13(1), 14(2), 17(1) or 19(2) of the Adoption and Children (Scotland) Act 2007 (Commencement No. 4, Transitional and Savings Provisions) Order 2009.

(6) Provision may be made by act of sederunt prescribing, in relation to orders within subsection (1)(b) above, what constitutes an application for the purposes of this Part.

Chapter II — Jurisdiction of Courts in England and Wales

Jurisdiction in cases other than divorce, etc.

2

(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 Hague Convention , or

(b) the Hague Convention 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.

(2A) A court in England and Wales shall not have jurisdiction to make a special guardianship order under the Children Act 1989 unless the condition in section 3 of this Act is satisfied.

(2B) A court in England and Wales shall not have jurisdiction to make an order under section 26 of the Adoption and Children Act 2002 unless the condition in section 3 of this Act is satisfied.

(2C) A court in England and Wales shall not have jurisdiction to make an order under section 51A of the Adoption and Children Act 2002 unless—

(a) it has jurisdiction under ... the Hague Convention, or

(b) the Hague Convention does not apply but the condition in section 3 of this Act is satisfied.

(3) A court in England and Wales shall not make a section 1(1)(d) order unless—

(a) it has jurisdiction under ... the Hague Convention , or

(b) the Hague Convention does not apply 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.

Habitual residence or presence of child.

3

(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.

(2) For the purposes of subsection (1) above, the jurisdiction of the court is excluded if, on the relevant date, matrimonial proceedings or civil partnership proceedings are continuing in a court in Scotland or Northern Ireland in respect of the marriage or civil partnership of the parents of the child concerned.

(3) Subsection (2) above shall not apply if the court in which the other proceedings there referred to are continuing has made—

(a) an order under section 13(6) or 19A(4) of this Act (not being an order made by virtue of section 13(6)(a)(i)), or

(b) an order under section 14(2) or 22(2) of this Act which is recorded as made for the purpose of enabling Part I proceedings with respect to the child concerned to be taken in England and Wales,

and that order is in force.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Jurisdiction in divorce proceedings, etc.

4

Power of court to refuse application or stay proceedings.

5

(1) A court in England and Wales 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 England and Wales.

(2) Where, at any stage of the proceedings on an application made to a court in England and Wales for a Part I order, or for the variation of a Part I order, ... it appears to the court—

(a) that proceedings with respect to the matters to which the application relates are continuing outside England and Wales, ...

(b) that it would be more appropriate for those matters to be determined in proceedings to be taken outside England and Wales, or

(d) that it should exercise its powers under Article 8 of the Hague Convention (request to authority in another Contracting State to assume jurisdiction),

the court may stay the proceedings on the application or (as the case may be) exercise its powers under ... Article 8 of the Hague Convention.

(2A) If the proceedings on the application are proceedings in which an activity direction has been made under section 11A of the Children Act 1989 (or an enforcement order has been made under section 11J of that Act), the court may when granting a stay under or by virtue of subsection (2) also suspend the activity direction (or the enforcement order).

(3) The court may remove a stay granted by virtue of subsection (2)(a) or (b) above if it appears to the court that there has been unreasonable delay in the taking or prosecution of the other proceedings referred to in that subsection, or that those proceedings are stayed, sisted or concluded.

(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3AA) The court may remove a stay granted in order for it to exercise its powers under Article 8 of the Hague Convention, and withdraw any request made by it to an authority in another Contracting State to assume jurisdiction, if—

(a) the authority in the other Contracting State does not assume jurisdiction within the period for which the court granted the stay, or

(b) the parties do not, within the period specified by the court, request the authority in the other Contracting State to assume jurisdiction.

(3B) If the stay removed under subsection (3) ... is a stay in relation to which the court suspended an activity direction made under section 11A of the Children Act 1989 (or an enforcement order made under section 11J of that Act), the court may when removing the stay under subsection (3) ... or (3AA) also bring the suspension to an end.

(4) Nothing in this section so far as it relates to proceedings not governed by the Hague Convention shall affect any power exercisable apart from this section to refuse an application or to grant or remove a stay.

Duration and variation of custody orders.

6

(1) 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 or Wales shall not have jurisdiction to vary that order so as to make provision for that matter.

(3) A court in England and Wales shall not have jurisdiction to vary a Part I order if, on the relevant date, matrimonial proceedings or civil partnership proceedings are continuing in Scotland or Northern Ireland in respect of the marriage or civil partnership of the parents of the child concerned.

(3A) Subsection (3) shall not apply if—

(a) the Part 1 order was made in or in connection with proceedings—

(i) for divorce or nullity in England and Wales in respect of the marriage of the parents of the child concerned; or

(ii) for dissolution or annulment in England and Wales in respect of the civil partnership of the parents of the child concerned; and

(b) those proceedings are continuing.

(3B) Subsection (3) shall not apply if—

(a) the Part 1 order was made in or in connection with proceedings—

(i) for judicial separation in England and Wales; or

(ii) for a separation order in England and Wales; and

(b) those proceedings are continuing; and

(4) Subsection (3) above shall not apply if the court in which the proceedings there referred to are continuing has made—

(a) an order under section 13(6) or 19A(4) of this Act (not being an order made by virtue of section 13(6)(a)(i)), or

(b) an order under section 14(2) or 22(2) of this Act which is recorded as made for the purpose of enabling Part I proceedings with respect to the child concerned to be taken in England and Wales,

and that order is in force.

(5) Subsection (3) above shall not apply in the case of a variation of a section 1(1)(d) order if 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.

(5A) Subsection (7) below applies where a Part I order which is a child arrangements order (within the meaning of section 8(1) of the Children Act 1989) ceases by virtue of subsection (1) above to name a person as someone with whom a child is to live.

(6) Subsection (7) below also applies where a Part I order which is—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) an order made in the exercise of the High Court’s inherent jurisdiction with respect to children by virtue of which a person has care of a child, or

(i) of a kind mentioned in section 1(3)(a) of this Act,

(ii) under which a person is entitled to the actual possession of a child,

ceases to have effect in relation to that person by virtue of subsection (1) above.

(7) Where this subsection applies, any family assistance order made under section 16 of the Children Act 1989 with respect to the child shall also cease to have effect.

(8) For the purposes of subsection (7) above the reference to a family assistance order under section 16 of the Children Act 1989 shall be deemed to include a reference to an order for the supervision of a child made under—

(a) section 7(4) of the Family Law Reform Act 1969,

(b) section 44 of the Matrimonial Causes Act 1973,

(d) section 34(5) or 36(3)(b) of the Children Act 1975, or

(e) section 9 of the Domestic Proceedings and Magistrates’ Courts Act 1978;

but this subsection shall cease to have effect once all such orders for the supervision of children have ceased to have effect in accordance with Schedule 14 to the Children Act 1989.

Interpretation of Chapter II.

7

In this Chapter—

(a) “child” means a person who has not attained the age of eighteen;

(aa) “civil partnership proceedings” means proceedings for the dissolution or annulment of a civil partnership or for legal separation of the civil partners;

(b) “matrimonial proceedings” means proceedings for divorce, nullity of marriage or judicial separation;

(i) where an application is made for an order to be made or varied, the date of the application (or first application, if two or more are determined together), and

(ii) where no such application is made, the date on which the court is considering whether to make or, as the case may be, vary the order; and

(d) “section 1(1)(a) order” and “section 1(1)(d) order” mean orders falling within section 1(1)(a) and (d) of this Act respectively.

Chapter III — Jurisdiction of Courts in Scotland

Jurisdiction in independent proceedings.

8

A court in Scotland may entertain an application for a Part I order otherwise than in matrimonial or civil partnership proceedings only if it has jurisdiction under section 9, 10, 12 or 15(2) of this Act.

Habitual residence.

9

Subject to section 11 of this Act, an application for a Part I order otherwise than in matrimonial or civil partnership proceedings may be entertained by—

(a) the Court of Session if, on the date of the application, the child concerned is habitually resident in Scotland;

(b) the sheriff if, on the date of the application, the child concerned is habitually resident in the sheriffdom.

Presence of child.

10

Subject to section 11 of this Act, an application for a Part I order otherwise than in matrimonial or civil partnership proceedings may be entertained by—

(a) the Court of Session if, on the date of the application, the child concerned—

(i) is present in Scotland; and

(ii) is not habitually resident in any part of the United Kingdom;

(b) the sheriff if, on the date of the application,—

(i) the child is present in Scotland;

(ii) the child is not habitually resident in any part of the United Kingdom; and

(iii) either the pursuer or the defender in the application is habitually resident in the sheriffdom.

Provisions supplementary to sections 9 and 10.

11

(1) Subject to subsection (2) below, the jurisdiction of the court to entertain an application for a Part I order with respect to a child by virtue of section 9, 10 or 15(2) of this Act is excluded if, on the date of the application, matrimonial or civil partnership proceedings are continuing in a court in any part of the United Kingdom in respect of the marriage or civil partnership of the parents of the child.

(2) Subsection (1) above shall not apply in relation to an application for a Part I order if the court in which the matrimonial or civil partnership proceedings are continuing has made one of the following orders, that is to say—

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