AS v TH (No 2) (Jurisdiction to Make Final Orders)

AS v TH (No 2) (Jurisdiction to Make Final Orders)

The court has jurisdiction to make final child arrangements orders for NC and SH under s 2(1)(b)(ii) and s 2(3)(b)(i) of the Family Law Act 1986, as at the relevant date both children were present in England and Wales and not habitually resident in any part of the UK; this jurisdiction is retained despite their subsequent return to Scotland. The court is the most appropriate forum to determine welfare issues, having conducted extensive fact-finding.

Parties
Applicant: AS; First Respondent: TH; Second Respondent: BC; Third and Fourth Respondents: NC and SH (by their Children’s Guardian)
Jurisdiction
England and Wales
Judgment Date
04 November 2016
Procedural Posture
Family / Final Judgment
Outcome
Final child arrangements orders granted.
Legal Topics
Habitual Residence, Child Arrangements Orders, Emergency Jurisdiction, Forum Conveniens
Family Law Child Custody Jurisdiction Habitual Residence Child Arrangements Orders Emergency Jurisdiction Forum Conveniens

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Parties

AS

Applicant

TH

First Respondent

BC

Second Respondent

NC and SH (by their Children’s Guardian)

Third and Fourth Respondents

Procedural Posture

Family / Final Judgment

Legal Issues

  1. 1 Does the High Court of England and Wales have jurisdiction to make final child arrangements orders for NC and SH?
  2. 2 What is the habitual residence of NC and SH at relevant procedural stages?
  3. 3 Should the proceedings be stayed in favour of the Scottish courts?

Ratio Decidendi

The court has jurisdiction to make final child arrangements orders for NC and SH under s 2(1)(b)(ii) and s 2(3)(b)(i) of the Family Law Act 1986, as at the relevant date both children were present in England and Wales and not habitually resident in any part of the UK; this jurisdiction is retained despite their subsequent return to Scotland. The court is the most appropriate forum to determine welfare issues, having conducted extensive fact-finding.

Court Disposition

Final child arrangements orders granted.

Orders

  • Mother to have supervised contact with SH for three hours once per month.
  • Mother to have supervised contact with NC for three hours once per month.