W-B (A Child) [2012] EWCA Civ 592

Appeal as to whether proceedings, concerning the residence of the parties’ child, should take place in Scotland, where she now lived with the mother, or England. Appeal allowed.

This was an appeal by a mother in private law proceedings.  The parents were separated and the father had been having contact until the mother removed the child, A, to Scotland without the father's knowledge or consent.  The father issued proceedings in the Southend County Court and the mother was eventually traced and the proceedings continued in Southend.  This ultimately led to an order for residence to the mother and a contact order to the father.  These proceedings concluded in 2009.  A and her mother had remained living in Scotland throughout the proceedings and so they had become habitually resident there.

Some 15 months later, the father issued further applications to vary the original contact order and for its enforcement.  The enforcement application was doomed to fail as an order to punish a breach of a contact order could not be made against someone who was not habitually resident in England and Wales and the contact application was concluded by consent.

The father then made a further application in June 2011 for residence and to vary the consent order.  At a two-day hearing, the question of jurisdiction was raised on behalf of the mother for the first time.  The Family Law Act 1986 deals with matters of jurisdiction between the respective constituent parts of the UK.  The key to determining jurisdiction in this case was to consider the child's habitual residence on 'the relevant date'.  The relevant date is defined in s.7(c) Family Law Act 1986:

"the relevant date" means in relation to the making or variation of an order –

(i) Where the application is made for an order to be made or varied, the date of the application (or first application, if 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.

However, Section 41 of the same Act provides that where a child has acquired habitual residence in another part of the UK because they were removed without the consent of everyone entitled to determine where they reside, they retain the habitual residence of the part of the UK from which they were removed for a period of 12 months from the removal.

The decision subject to appeal was that the father's prompt application following A's removal meant that on the relevant date, she remained habitually resident in England and Wales.  The Court of Appeal expressed some sympathy for the Recorder hearing the case in relation to how the application had been presented.  Whilst he had been correct to identify that the relevant question was that of the 'relevant date', he had erred in his conclusion because the original proceedings had concluded in 2009. 

The 'relevant date' for the father's later application to vary this order was the date of that application (s.7(c) Family Law Act 1986).  Consequently, all of the proceedings following the final order in the original proceedings were without jurisdiction.  The appeal was therefore allowed, the orders made after March 2009 were set aside and the order of March 2009 remained in force.