Family Law

Timothy Scott QC and Jonathan Tod, Barristers, 29 Bedford Row Chambers.
In most areas of family finance the jurisdictional basis upon which the English court is entitled to entertain an application is set out in the statute. The jurisdictional basis for divorce and other matrimonial suits (and hence for ancillary relief) is to be found in the Domicile and Matrimonial Proceedings Act 1973 which, in its amended form, gives effect to Brussels II Revised (Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility, repealing Regulation (EC) No 1347/2000 (2003) OJ L 338/1). Similarly, the jurisdictional basis for applications for financial relief pursuant to a foreign divorce is set out in s 15 of the Matrimonial and Family Proceedings Act 1984.

Subject to one possible limited exception (which we consider below), there is no equivalent jurisdictional provision governing applications under Sch 1 to the Children Act 1989. The statute is largely silent on who is or is not entitled to make applications. The reasons for this are not clear. It is possible that the framers of the 1989 Act had in mind that 'maintenance' fell within the ambit of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1988) OJ L 319/9, which were then in force in England and Wales by virtue of the Civil Jurisdiction and Judgments Act 1982. Article 5(2) of the Conventions provided that a maintenance creditor could be sued in the courts of the place where he was domiciled or habitually resident. It is therefore possible that those drafting the Act felt that no jurisdictional provisions were necessary because of that provision. However, we think this is unlikely for various reasons. There is no evidence to support such a conjecture and if jurisdiction under the Act had been intended to be based on the Conventions, the Act could have said so.

The absence of a general jurisdictional provision is made all the stranger by para 14 of Sch 1: the possible limited exception referred to above. This provides that where the applicant and the child(ren) live outside England and Wales and the respondent lives in England and Wales, the court shall have power to make orders for periodical payments and secured provision; but (by omission) not for a lump sum or settlement of property. Although para 14 is couched in positive terms ('the court shall have power'), its real effect is the limitation which it imposes on the court, where it applies, so as to prevent lump sum or property settlement orders. Indeed, a potentially difficult question of construction arises as to whether it is truly a provision which confers jurisdiction on the court, or merely a provision which delimits the powers of the court if the court is already cloaked with jurisdiction. This narrow point could have important consequences if the respondent to an application made under para 14 is seeking to stay the application at common law (see below).

Against this difficult and enigmatic background we hope to provide guidance in a range of jurisdictional and forum issues which could arise in Sch 1 cases. These issues naturally arise at the outset of proceedings. It is therefore vital in any case with an international element to be aware of them and to advise at an early stage. As a generalisation, the provision made by English courts under Sch 1, particularly in cases concerning wealthy fathers and in the light of Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865, is very generous. Of course, there may be circumstances where a mother would be better off seeking provision in another jurisdiction and every case must be examined on its own facts with the assistance of a lawyer who can advise in respect of any other relevant jurisdiction.

For the full article, see September [2008] Family Law journal.

To log on to Family Law Online or to request a free trial click here.