Family Law Act 1986

JurisdictionUK Non-devolved
Citation1986 c. 55


Family Law Act 1986

1986 CHAPTER 55

An Act to amend the law relating to the jurisdiction of courts in the United Kingdom to make orders with regard to the custody of children; to make provision as to the recognition and enforcement of such orders throughout the United Kingdom; to make further provision as to the imposition, effect and enforcement of restrictions on the removal of children from the United Kingdom or from any part of the United Kingdom; to amend the law relating to the jurisdiction of courts in Scotland as to tutory and curatory; to amend the law relating to the recognition of divorces, annulments and legal separations; to make further provision with respect to the effect of divorces and annulments on wills; to amend the law relating to the powers of courts to make declarations relating to the status of a person; to abolish the right to petition for jactitation of marriage; to repeal the Greek Marriages Act 1884; to make further provision with respect to family proceedings rules; to amend the Child Abduction Act 1984, the Child Abduction (Northern Ireland) Order 1985 and the Child Abduction and Custody Act 1985; and for connected purposes.

[7th November 1986]

B e it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

I Child Custody

Part I

Child Custody

Chapter I

Preliminary

S-1 Orders to which Part I applies.

1 Orders to which Part I applies.

(1) Subject to the following provisions of this section, in this Part ‘custody order’ means—

a ) an order made by a court in England and Wales under any of the following enactments—

(i)section 9(1), 10(1)(a ), 11( a ) or 14A(2) of the Guardianship of Minors Act 1971or section 2(4)(b )or 2(5) of the Guardianship Act 1973;
(ii)section 42(1) of the Matrimonial Causes Act 1973;

(iii) section 42(2) of the Matrimonial Causes Act 1973;

(iv)section 33(1) of the Children Act 1975or section 2(4)(b ) of the Guardianship Act 1973 as applied by section 34(5) of the Children Act 1975
(v)section 8(2) or 19(1)(ii) of the Domestic Proceedings and Magistrates' Courts Act 1978;

( b ) an order made by a court of civil jurisdiction in Scotland under any enactment or rule of law with respect to the custody, care or control of a child, 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)an adoption order as defined in section 12(1) of the Adoption (Scotland) Act 1978;

(iii) an order freeing a child for adoption made under section 18 of the said Act of 1978;

(iv) an order for the custody of 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 custody order;

(ix) an order relating to the tutory or curatory of a child;

( c ) an order made by a court in Northern Ireland under any of the following enactments—

(i)section 5 of the Guardianship of Infants Act 1886(exceptso far as it relates to costs);
(ii)Article 45(1) of the Matrimonial Causes (Northern Ireland) Order 1978;

(iii) Article 45(2) of the Matrimonial Causes (Northern Ireland) Order 1978;

(iv)Article 10(2) or 20(1)(ii) of the Domestic Proceedings (Northern Ireland) Order 1980;

( d ) an order made by the High Court in the exercise of its jurisdiction relating to wardship so far as it gives the care and control of a child to any person or provides for the education of, or for access to, a child, excluding an order relating to a child of whom care or care and control is (immediately after the making of the order) vested in a local authority or in the Northern Ireland Department of Health and Social Services.

(2) In this Part ‘custody order’ does not include—

( a ) an order within subsection (1)( a ) or ( c ) above which varies or revokes a previous order made under the same enactment;

( b ) an order under section 14A(2) of the Guardianship of Minors Act 1971 which varies a previous custody order; or

( c ) an order within paragraph ( d ) of subsection (1) above which varies or revokes a previous order within that paragraph.

(3) Subject to sections 32 and 40 of this Act, in this Part ‘custody order’ does not include any order which—

( a ) was made before the date of the commencement of this Part;

( b ) in the case of an order within subsection (1)( b ) or ( d )above or an order under any of the enactments mentioned in subsection (4) below, is made on or after that date on an application made before that date; or

( c ) in any other case, is made on or after that date in proceedings commenced before that date.

(4) The said enactments are—

( a ) sections 9(1) and 14A(2) of the Guardianship of Minors Act 1971 and section 33(1) of the Children Act 1975 ;and

( b ) section 5 of the Guardianship of Infants Act 1886 .

(5) For the purposes of subsection (3) above an order made on two or more applications which are determined together shall be regarded as made on the first of those applications.

(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

S-2 Jurisdiction in cases other than divorce, etc.

2 Jurisdiction in cases other than divorce, etc.

(1) A court in England and Wales shall not have jurisdiction to make a custody order within section 1(1)( a of the Matrimonial Causes Act 1973 , unless the condition in section 3 of this Act is satisfied.

(2) The High Court in England and Wales shall have jurisdiction to make a custody order within section 1(1)( d ) of this Act if, and only if,—

( a ) the condition in section 3 of this Act is satisfied, or

( b ) the ward is present in England and Wales on the relevant date (within the meaning of section 3(6) of this Act) and the court considers that the immediate exercise of its powers is necessary for his protection.

S-3 Habitual residence or presence of child.

3 Habitual residence or presence of child.

(1) The condition referred to in section 2 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, proceedings for divorce, nullity or judicial separation are continuing in a court in Scotland or Northern Ireland in respect of the marriage 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 21(5) 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 proceedings with respect to the custody of the child concerned to be taken in England and Wales,

and that order is in force.

(4) Subject to subsections (5) and (6) below, in this section ‘the relevant date’ means the date of the commencement of the proceedings in which the custody order falls to be made.

(5) In a case where an application is made for a custody order under section 9(1) or 14A(2) of the Guardianship of Minors Act 1971 or section 33(1) of the Children Act 1975 , ‘the relevant date’ means the date of the application (or first application, if two or more are determined together).

(6) In the case of a custody order within section 1(1)( d ) of this Act ‘the relevant date’ means—

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

( b ) where no such...

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