HC Deb 23 October 1989 vol 158 cc536-7

2A.—(1) The condition referred to in section 2(1) of this Act is that the matrimonial proceedings are proceedings in respect of the marriage of the parents of the child concerned and—

  1. (a) the proceedings—
    1. (i) are proceedings for divorce or nullity of marriage, and
    2. (ii) are continuing;
  2. (b) the proceedings—
    1. (i) are proceedings for judicial separation,
    2. (ii) are continuing,and the jurisdiction of the court is not excluded by subsection (2) below; o
  3. (c) the proceedings have been dismissed after the beginning of the trial but—
    1. (i) the section 1(1)(a) order is being made forthwith, or
    2. (ii) the application for the order was made on or before the dismissal.

(2) For the purposes of subsection (1)(b) above, the jurisdiction of the court is excluded if, after the grant of a decree of judicial separation, on the relevant date, proceedings for divorce or nullity in respect of the marriage are continuing in Scotland or Northern Ireland.

(3) Subsection (2) above shall not apply if the court in which the other proceedings there referred to are continuing has made—

  1. (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
  2. (b) an order under section 14(2) or 22(2) of this Act which is recorded as being made for the purpose of enabling Part I proceedings to be taken in England and Wales with respect to the child concerned.

(4) Where a court—

  1. (a) has jurisdiction to make a section 1(1)(a) order in or in connection with matrimonial proceedings, but
  2. (b) considers that it would be more appropriate for Part I matters relating to the child to be determined outside England and Wales,

the court may by order direct that, while the order under this subsection is in force, no section 1(1)(a) order shall be made by any court in or in connection with those proceedings."

35D.—(1) In section 3 (habitual residence or presence of child concerned) in subsection (1) for "section 2" there shall be substituted "section 2(2)".

(2) In subsection (2) of that section for the words "proceedings for divorce, nullity or judicial separation" there shall be substituted "matrimonial proceedings".

35E.—(1) In section 6 (duration and variation of Part I orders), for subsection (3) there shall be substituted the following subsections—

"(3) A court in England and Wales shall not have jurisdiction to vary a Part I order if, on the relevant date, matrimonial proceedings are continuing in Scotland or Northern Ireland in respect of the marriage of the parents of the child concerned.

(3A) Subsection (3) above shall not apply if—

  1. (a) the Part I order was made in or in connection with proceedings for divorce or nullity in England and Wales in respect of the marriage of the parents of the child concerned; and
  2. (b) those proceedings are continuing.

(3B) Subsection (3) above shall not apply if—

  1. (a) the Part I order was made in or in connection with proceedings for judicial separation in England and Wales;
  2. (b)those proceedings are continuing; and
  3. (c) the decree of judicial separation has not yet been granted."

(2) In subsection (5) of that section for the words from "variation or' to "if the ward" there shall be substituted "variation of a section 1(1)(d) order if the child concerned".

(3) For subsections (6) and (7) of that section there shall be substituted the following subsections—

"(6) Subsection (7) below applies where a Part I order which is—

  1. (a) a residence order (within the meaning of the Children Act 1989) in favour of a person with respect to a child,
  2. (b) an order made in the exercise of the High Court's inherent jurisdiction with respect to children by virtue of which a person has care of a child, or
  3. (c) an order—
    1. (i) of a kind mentioned in section 1(3)(a) of this Act,
    2. (ii) under which a person is entitled to the actual possession of a child,

ceases to have effect in relation to that person by virtue of subsection (1) above.

(7) Where this subsection applies, any family assistance order made under section 14 of the Children Act 1989 with respect to the child shall also cease to have effect.

(8) For the purposes of subsection (7) above the reference to a family assistance order under section 14 of the Children Act 1989 shall be deemed to include a reference to an order for the supervision of a child made under—

  1. (a) section 7(4) of the Family Law Reform Act 1969,
  2. (b) section 44 of the Matrimonial Causes Act 1973,
  3. (c) section 2(2)(a) of the Guardianship Act 1973,
  4. (d) section 34(5) or 36(3)(b) of the Children Act 1975, or
  5. (e) section 9 of the Domestic Proceedings and Magistrates' Courts Act 1978;

but this subsection shall cease to have effect once all such orders for the supervision of children have ceased to have effect in accordance with Schedule 12 to the Children Act 1989."

35F. For section 7 (interpretation of Chapter II) there shall be substituted—