CA-2024-001698 - [2025] EWCA Civ 1136

In order for an application under Part III of the 1984 Act to be “entertained” in the English court, the applicant must show that they meet the statutory “jurisdictional requirements” (both quotes are from section 15 of the 1984 Act). In this particular case, this required consideration of both section 15(1) and section 15(1A) of the 1984 Act (as then in force); at the time of the decision, section 15(1A) led to Article 3 of the Council Regulation (EC) No 4/2009 of 18 December 2008 on ‘Jurisdiction, Applicable law, Recognition and Enforcement of Decisions and Cooperation in Matters relating to Maintenance Obligations’ (hereafter the ‘Maintenance Regulation’). If the Maintenance Regulation did not apply (and it will in fact not apply to any case issued after 31 December 2020) then (subject to a more limited reservation – namely, article 18 of the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance) section 15(1) of the 1984 Act will set the jurisdictional requirements. In that event, jurisdiction will be established by either:

It may well be that the court is not able to make any final determination of the jurisdictional requirements test at the leave stage, but (applying the “substantial ground” test discussed below) is sufficiently satisfied to allow the case to proceed, allowing full argument on this issue at the substantive hearing. In this regard, I note that section 14(2) of the 1984 Act contemplates that a final determination of the jurisdictional requirements test may not necessarily be reached at that stage;

The jurisdictional requirements listed above are assessed as at “the date of the application for leave” under Part III, or the earlier date of divorce etc. (section 15(1) of the 1984 Act);

As to the merits-based threshold test, the applicant must show that they have “substantial ground” (section 13 of the 1984 Act) for making “the application”; the word “substantial” is not defined in the 1984 Act and in this context it is accepted that it “means solid” (Lord Collins in Agbaje v Agbaje [2010] UKSC 13; [2010] 1 AC 628 (‘Agbaje’) at [33], confirmed by Lord Leggatt for the majority of the court in Potanina (SC) at [89]-[92], and endorsed by the minority at [110]); (see, for discussion, §73 below);

In considering ‘substantial’ or ‘solid’ ground, the court will consider a theoretically unlimited range of factors, including the applicant’s fulfilment of the jurisdictional requirements test (above); the court will have regard to the matters set out in section 16 of the 1984 Act at this stage to assess whether the application is ‘substantial’ or ‘solid’;

In this regard, the court will consider the prospect of it being shown to be “appropriate” for an order to be made by a court in England and Wales (section 16(1) of the 1984 Act). Section 16(1) expressly requires the court to have regard to “all the circumstances” of the case, including specifically the matters set out in section 16(2) ibid; although not part of the statutory checklist, hardship and injustice may well be relevant (see, for discussion, §81 below);

There is no hierarchy of factors in section 16(2) of the 1984 Act. Among those factors, the court will consider “the connection which the parties to the marriage have with England and Wales”; it is not a statutory requirement that this should be a substantial connection. However, plainly the stronger the connection, the stronger the application; indeed as Lord Collins observed in Agbaje, “where the English connections of the case are very strong there may be no reason why the application should not be treated as if it were made in purely English proceedings” (ibid at [73]); (see, for further discussion, §78-§80 below);

Within the introductory words of section 16 of the 1984 Act there is a clear pointer to its further role in the determination of the application – namely, if the court grants leave and moves on to consider the case substantively (i.e., the section contemplates that the court will have regard to the factors “before making an order”). At that point, there is an obvious mutual interplay with section 18. For instance, section 16(2)(e) refers the court to the financial provision which has been made by the foreign court. Plainly that would be relevant under section 18. So also the direction in section 18(6) to the court, in considering the financial resources of a party, to have regard to whether an order of a foreign court has been complied with would plainly be relevant in considering whether England is the appropriate venue (see generally Agbaje);

Overall, the applicant for leave needs to be able to show that they have something analogous to a real prospect of success in the substantive claim; this is said to require more than a demonstration that the prospective claim is not totally without merit or an abuse of process, but it is not as demanding a requirement as showing a good arguable case for the purposes of the jurisdictional gateways (Potanina (SC) at [89]-[90]); (see, for discussion, §77 below, and see also Dos Santos v Unitel SA [2024] EWCA Civ 1109));

In contrast to the position in relation to the jurisdictional requirements (see (iii) above), in an application for leave the court assesses the “substantial ground”, “connection”, and the other section 16 factors as they exist at the date of the hearing of that application, not as at the date of the application (see also in this regard TY v XA [2024] EWFC 96: Moor J at [58]). The court also looks forward to the future in making its assessment, and will consider whether there is a real prospect that further material supporting the applicant’s case would emerge, through disclosure or otherwise, if the case were to proceed to a substantive hearing (see, for further discussion, §77 and §85 below).