A (Jurisdiction: Family Law Act 1986) (Application for Amplification), Re

Factual and Procedural Background

This judgment concerns a preliminary issue regarding the jurisdiction of the Family Court in England and Wales to hear an application for a child arrangements order under section 8 of the Children Act 1989 when the child and parents all reside abroad. The Applicant is the father and the Respondent the mother of two children, aged 15 and 10. Both parties and children are British citizens. The parties married in The City in 2013, separated three years later, and divorced by decree absolute in 2017. Currently, the older child lives with the father in Country B, and the younger child lives with the mother in Country C, both countries being in the Middle East and not signatories to the 1996 Hague Convention. The father's application, dated September 2021, seeks an order for the younger child to live with him in Country B. The court directed a preliminary hearing to determine the jurisdictional issue.

Legal Issues Presented

1. Does the question of making the child arrangements order arise "in connection with" matrimonial proceedings under section 2(1)(b)(i) of the Family Law Act 1986?
2. If so, are the matrimonial proceedings "continuing" notwithstanding the decree absolute, pursuant to sections 2A(1)(a)(ii) and 42(2) of the Family Law Act 1986?
3. If the court has jurisdiction under the Family Law Act 1986, would it nevertheless be more appropriate for the application to be determined outside the jurisdiction of England and Wales such that no order should be made under section 2A(4) of the Family Law Act 1986?

Arguments of the Parties

Appellant's Arguments

• The father contends that the child arrangements order sought arises "in connection with" the divorce proceedings, notwithstanding their conclusion, relying on the broad interpretation endorsed by the Court of Appeal in Lachaux v Lachaux [2019] 2 FLR 712.
• He argues that the parties are the parents of the child concerned, the divorce took place in England and Wales, and the application is made because the marriage has been dissolved.
• The father also submits that financial remedy proceedings are latent and ancillary to the divorce proceedings, thus constituting "matrimonial proceedings," and that there is a connection between unresolved financial matters and the child arrangements application.
• The father intends to issue Form A for financial relief after resolution of the Children Act jurisdiction issue.
• He suggests that the mother's behaviour towards the child mirrors conduct that prompted the divorce, thus linking the child arrangements application to the matrimonial proceedings.

Respondent's Arguments

• The mother submits that the father's application is not made "because the marriage has been dissolved" and that there is no causal or temporal link between the divorce and the child arrangements application.
• She argues that there must be a degree of temporal proximity or factual nexus for the application to arise "in connection with" matrimonial proceedings, referencing the decision in J v U [2016] EWHC 2481 (Fam).
• The mother contends that financial remedy applications do not constitute continuing matrimonial proceedings and that no Form A has been issued to indicate a pending financial order application.
• She asserts that the financial positions of the parties have changed significantly and that there is no connection between financial matters and the grounds for the child arrangements order.
• The mother denies the father's allegations of abuse and disputes any link between those allegations and the divorce petition.
• She also submits that there has been no application to exercise the court's parens patriae jurisdiction and that the circumstances do not justify such exercise.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lachaux v Lachaux [2019] 2 FLR 712	Broad interpretation of "in connection with" matrimonial proceedings under s.2(1)(b)(i) Family Law Act 1986; preservation of jurisdiction for child arrangements orders post-divorce.	The court adopted the broad view approach advocated by Moylan LJ in this case to interpret jurisdictional connection.
J v U [2016] EWHC 2481 (Fam)	Requirement of some nexus or connection beyond mere existence of divorce proceedings; temporal proximity and factual nexus as relevant factors.	The court considered this case in assessing whether a causal or temporal link was required to establish connection with matrimonial proceedings.
TK v ML [2021] EWFC 8	Requirement of a clear causal link and temporal proximity between child arrangements application and divorce proceedings for jurisdiction under s.2(1)(b)(i).	The court reviewed Mostyn J's reasoning but ultimately rejected a strict causal link requirement in favour of a broader connection test.
AP v TD [2010] EWHC 2040 (Fam)	Discussion of the need for a connection between child arrangements applications and matrimonial proceedings; emphasis on fact and degree.	Referenced in evaluating the nature of the connection required for jurisdiction.
English v Emery Reimbold and Strick [2002] EWCA Civ 605	Principles governing applications for amplification or reconsideration of judgments.	The court applied the principles to reject the father's application for amplification as an attempt to introduce new arguments post-hearing.
Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 1002	Limits on reopening or reconsidering judgments based on new submissions after draft judgment circulation.	Supported the court's decision to decline reconsideration based on new arguments not raised at hearing.
Gosvenor London Limited v Aygun Aluminium UK Limited [2018] EWHC 227	Judgment adequacy and proper procedure for raising new arguments post-judgment.	Referenced to underline procedural impropriety of father's amplification application.
Re M (A Child) [2020] EWCA Civ 922	Caution in exercising parens patriae jurisdiction; requirement for compelling circumstances.	The court noted the high threshold for exercising parens patriae jurisdiction and the lack of evidence to justify it in this case.
FA v MA [2021] EWHC 3024	Interpretation of "in or in connection with" as requiring some nexus, but not a boundless discretion.	Supported the court's adoption of a fact-sensitive approach to jurisdictional connection.

Court's Reasoning and Analysis

The court analysed the statutory framework under the Family Law Act 1986 and the Children Act 1989, focusing on whether the father's application for a child arrangements order arises "in connection with" matrimonial proceedings. The court recognized the legislative intent, reflected in Law Commission recommendations, to preserve jurisdiction for welfare orders in divorce proceedings until the child reaches 18, even if the divorce is concluded and the child is habitually resident abroad.

The court considered three possible approaches to the connection test: requiring a clear causal link; requiring some connection beyond mere existence of divorce proceedings; or requiring only that the parties be parents involved in divorce proceedings in England and Wales. The court adopted the second approach, emphasizing that "in connection with" does not demand a strict causal or temporal link but requires some factual nexus, which is a question of degree.

Applying this to the facts, the court found no sufficient connection between the father's application and the concluded divorce proceedings. The child arrangements application was triggered by changed circumstances and concerns about the child's welfare years after the decree absolute, not by the divorce itself. Previous court orders had been made on habitual residence grounds without invoking matrimonial jurisdiction. The father's attempt to link the application to latent financial remedy proceedings was rejected due to lack of evidence and procedural irregularity.

The court also addressed but declined to consider the exercise of parens patriae jurisdiction, noting the absence of evidence and submissions on this point and the high threshold for such jurisdiction.

Consequently, the court concluded that the application does not arise "in connection with" matrimonial proceedings, and therefore the Family Court lacks jurisdiction to hear the father's application.

Holding and Implications

The court's final decision is that the Family Court does not have jurisdiction to hear the father's application for a child arrangements order under section 8 of the Children Act 1989 in these circumstances.

This ruling means the father's application is dismissed on jurisdictional grounds. No determination was made on the merits of the welfare issues. The decision does not set new precedent but clarifies the application of the "in connection with" test under the Family Law Act 1986, emphasizing the requirement for a factual nexus beyond mere existence of prior matrimonial proceedings, especially where those proceedings have concluded and subsequent child arrangements have been settled by consent or order.