The case involved a mother who, in 2006, removed the child from England to Scotland, without the consent of the father. The father immediately issued proceedings for residence and contact in the Southend County Court, where the following subsequent orders and applications were made:
April 2008 - Residence order in favour of mother (the father accepted that the child became habitually resident in Scotland in or around 2006).
11th March 2009 - Contact order.
15th July 2010 - Father applied to vary the contact order (he also sought a contact enforcement order, but such orders are only available against anyone habitually resident in England and Wales - see Children Act 1989, s.11K(4)).
28th July 2010 - Mother applied to discharge the contact order.
22nd February 2011 - Consent order made providing for variation of the contact order, with a review in September 2011.
June 2011 - Father applied for a residence order and to vary the consent order.
September 2011 - At the hearing of the father's application, the mother raised the issue of jurisdiction. Initially Brussells II was erroneously referred to but that is not of course relevant, as both England and Scotland are part of one member state, namely the United Kingdom. However, the Family Law Act 1986 is relevant. Under that Act, the crucial question is the habitual residence of the child at the 'relevant date'. The court found that the relevant date for determining the court's jurisdiction was the beginning of the whole process, namely the applications made by the father in 2006, at which time the child was not yet habitually resident in Scotland. Accordingly, the English court had jurisdiction throughout. The mother appealed against this decision.
Giving the leading judgment in the Court of Appeal, Lord Justice McFarlane began by referring to the relevant provisions in the 1986 Act. Firstly, under s.1(1)(a) a section 8 order made under the Children Act is "a Part 1 order" to which the relevant provisions apply. Jurisdiction is dealt with under s.2, which states that a court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless it has jurisdiction under the Council regulation, or the Council regulation does not apply but 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 the Act is satisfied, or the condition in section 3 of the Act is satisfied. Here, s.3 was the relevant provision, and that essentially states that on the 'relevant date' the child must be habitually resident in England and Wales.
The 'relevant date' is defined in section 7(c):
"'the relevant date' means in relation to the making or variation of an order –Lord Justice McFarlane then referred to one other relevant provision, s.41, which deals with the issue of habitual residence where, as here, the child had been removed without consent. In such cases s.41 provides that the child should be treated as still being habitually resident in the original part of the United Kingdom for one year after their removal.
(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"
Applying the above, His Lordship found that, pursuant to s.41, the English court had jurisdiction to deal with the original proceedings in 2006. However, those proceedings came to an end when the contact order was made in March 2009. Accordingly, all further proceedings were without jurisdiction as the relevant date for them was the date of the application under s.7(c)(i), by which time the child was habitually resident in Scotland. His Lordship therefore allowed the appeal and set aside any orders made by Southend County Court since March 2009, leaving the March 2009 contact order in force. Any further applications would have to be made before the court in Scotland.
Lord Justice Hughes and Lord Justice Thorpe gave concurring judgments.