Case No. SE21P00182

14.During the hearing I asked Counsel whether any point was taken about whether the father’s s.8 application fell within s.1(1)(a) of the FLA 1986. Counsel agreed that it did. A s.1(1)(a) order is “a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order.” The father’s s.8 application is a fresh application made in different circumstances than those that pertained at the time of the last order in July 2020. It is not an application within the same proceedings. It is not an application to vary or discharge that order.15.Although the passages in the Moylan LJ’s judgment in Lachaux dealing with s.2(1)(b)(i) of the FLA 1986 are obiter dicta, they provide the most authoritative statement of how the court should interpret and apply the test of “in connection with” under that provision. I therefore adopt the “broad view” approach. Can it be said, taking a broad view, that the question in the current s.8 application arises “in connection with” the divorce proceedings?16.Moylan LJ explained that if the parties to the earlier proceedings (here the divorce proceedings) are the parents of the child, and the earlier proceedings were in England and Wales, then “all that is required” is that the s.1(1)(a) order is being sought “because” the marriage is being or has been dissolved. That has been interpreted by Mostyn J in TK v ML as a requirement for a “clear causal link” but Mostyn J also agreed with Parker J’s view that a temporal connection was probably required to establish the necessary connection with the divorce proceedings. In J v U, Bodey J referred to the question of a connection being one of “fact and degree” without specifying requirements for a close temporal or causal link. Likewise, more recently, in FA v MA [2021] EWHC 3024, Williams J held,“34. It seems to me that it must be right that the phrase ‘in or in connection with’ must mean something more than the mere existence for a child arrangements order being made whilst a divorce petition is continuing. The Court of Appeal in Lachaux refers to the application being made because the marriage is being dissolved. Thus one is looking for something which creates some nexus or connection even perhaps a tenuous connection in order for the wording of the statutory provision to be fulfilled. Ms Halsall emphasised that the Court of Appeal had supported a broad construction of the phrase not a narrow one. Ultimately it is probably a question of fact.”And when applying that approach at [47] he held:“Although I accept that the Court of Appeal decision in Lachaux supports the court taking a broad approach [to] this issue I do not read the decision as amounting to a boundless discretion where the mere existence of a divorce petition at the same time as applications in respect of children satisfy the condition.”17.I do not accept the mother’s submission that there must be a close temporal connection between the divorce and the s.8 application in order for the “in connection with” test to be met. The question of whether the matrimonial proceedings are “continuing” is dealt with later in this judgment, but the FLA 1986 enacts the proposals of the Law Commission and Scottish Law Commission report: the Act provides for the possibility of the s.8 application being “in connection with” divorce proceedings which have concluded many years earlier. It is not for the court to interpret “in connection with” as imposing a requirement that the s.8 application must have been made within a certain time after the divorce proceedings when s.42(2) of the FLA 1986 provides that matrimonial proceedings are “continuing” even after decree absolute, for so long as the child concerned is under the age of 18. Nevertheless, in my judgment, the time between a decree absolute and the later s.8 application may be one of a number of relevant factors to take into account when determining whether the application is “in connection with” the divorce.18.A more difficult question is whether “in connection with” requires a causal link between the question arising in the application and the divorce or other proceedings. Paragraph 4.11 of the Law Commission and Scottish Law Commission’s report recommended that where a court has jurisdiction in relation to divorce proceedings, as here, it should continue to have jurisdiction to make custody orders in the course of those proceedings. Accordingly it might be contended that if the divorce proceedings are regarded as “continuing” (see s.42(2) of the FLA 1986), then the mere fact that there are divorce proceedings in England and Wales would be sufficient to provide jurisdiction for what we would now call child arrangements orders. If the relevant provisions of the FLA 1986 faithfully enact the recommendations, then the use of the term “in connection with” in s.2(1)(b)(i) was used simply to distinguish cases where there were ongoing matrimonial proceedings from those where the matrimonial proceedings had come to an end, albeit they were to be treated as “continuing” by operation of s.42(2) of the FLA 1986.19.On the other hand, Moylan LJ’s use of the word “because” might imply a causal link between proceedings, as Mostyn J held in TK v ML. If a causal link were a requirement for jurisdiction to be established, then that might produce a narrow test, rather than allowing for a “broad view”. As Bodey J’s analysis in J v U shows, a causal connection may be difficult to find because divorce proceedings and a child welfare applications seek “quite different reliefs.” He gave an example of a divorce being based on unreasonable behaviour by reason of conduct towards a child. In such a case the connection is not causal but is created by an overlap in the content or subject matter in the proceedings, particularly when the proceedings are close in time. At [186] of his judgment in Lachaux, Moylan LJ gave the example of parents wanting the courts of England and Wales to exercise jurisdiction “for a number of reasons” where there is a connection, stating that it would be regrettable if there was no scope to accommodate such a case. 20.Hence, discarding the notion that a close temporal link is a necessary condition, there appear to me to be three different approaches that might be taken to determining whether the issues in the application arise in connection with the divorce proceedings:i)There must be a clear causal link between the issues raised and the divorce proceedings.ii)There needs to be some connection between the issues raised in the application and the divorce proceedings that goes beyond the mere fact that the divorce proceeded in this jurisdiction. The connection may exist due to one or more factors such as proximity in time, an overlap in the relevant facts or subject-matter, a causal link, or some other matter. However, there is no necessary condition and the sufficiency of any factors to establish a connection will be a question of fact and degree.iii)All that is required is that there are issues of child arrangements raised by the application and the courts of England and Wales have previously assumed jurisdiction in divorce proceedings between the parties who are parents of the child or children concerned. For the reasons that follow I adopt the second of these three approaches.21.On the face of it, “in connection with” is a different requirement from “caused by”: it does not connote a causal link between the divorce proceedings and the later application. Nor do I read Moylan LJ’s use of the word “because” as importing a requirement of a causal link. To do so would be contrary to the “broad view” approach he advocated. For the reasons given by Bodey J in J v U, it will almost always be difficult to find a causal link between divorce proceedings and a later s.8 application – they are applications for different forms of relief. In my judgment, Moylan LJ was simply highlighting that there must be some form of connection: the term “because of” merely highlights the need for there to be a reason for the application that is connected with the matrimonial proceedings. The object of the statutory provisions, enacting the recommendations of the report of the Law Commission and the Scottish Law Commission, was to preserve the jurisdiction of the courts to make “custody orders” (welfare orders) in proceedings for divorce, including until the child is 18, and even if the parents or child become habitually resident outside the jurisdiction. As the report stated, “Our main reason for reaching this conclusion is the impossibility of devising any general rule to the contrary effect which would not sometimes operate against the interests of the child’s welfare or against those of the parents.”If, notwithstanding the fact that there are or were divorce proceedings, those divorce proceedings have no connection at all with the question raised by the s.8 application, then s.2(1)(b)(i) is not satisfied. The mere fact that jurisdiction as to welfare issues is preserved in proceedings for divorce, and that welfare issues concerning a child are the basis for the s.8 application, does not mean that the reason for the s.8 application can be found in the divorce. In particular, if, during a period of years since a decree absolute, child arrangements have been settled by consent or court order, then the connection between the divorce proceedings and the s.8 application is likely to have been broken. In such circumstances, the reason for any welfare application is not connected to the matrimonial proceedings: the s.8 application has not been made “because of” those proceedings.22.The requirement for a clear causal link is too stringent and not consistent with the broad view advocated by Moylan LJ in Lachaux. On the other hand, the words “in connection with” do require something more than the bare fact that there are or have been divorce proceedings within the jurisdiction involving the parents of the child concerned. There must be one or more factors that establish a sufficient link between the divorce and the s.8 application, be they temporal, factual, causal, or something else. The reason for the application should be connected to the matrimonial proceedings. The implications of there being no requirement for a link between the welfare application and the matrimonial proceedings was discussed by Mostyn J at first instance in Lachaux, by Bodey J in J v U, and by Parker J in AP v TD [2010] EWHC 2040 (Fam).23.Since the dissolution of the marriage in the present case, there have been two further court orders regarding arrangements for the children. In each case the court recorded that it had jurisdiction on the basis of the habitual residence of the child or children. As noted, A was not habitually resident in England and Wales when the child arrangements order affecting her was made, by consent, in 2020. No point was taken in 2020 that the court did not have jurisdiction with respect of A because the application was not “in connection with” the divorce proceedings. However, it appears to me that the point was not considered in part because the parties had come to agreement as to child arrangements and the main reason for the father having made the application at that time was for permission to remove J from the jurisdiction to Country B. In the circumstances the mother should not be prevented now from contending that the court has no jurisdiction just because she did not take the point, about A, in 2020.24.Those two previous court orders nevertheless highlight how much has happened within this family since the decree absolute. At the time of the divorce the parties and the children were living in Country D, but the parties were domiciled in the jurisdiction of England and Wales, which gave the Family Court in Newport jurisdiction. Subsequent to the decree absolute the parties and children returned to England, J then went to live in Scotland for a year, the mother and A moved to Country C, and then the father and J moved to Country B. These events over the past four years have followed the breakdown of the parties’ relationship but they are not related to the divorce proceedings themselves. On the facts of the present case, it does not appear that the children are necessarily living abroad on a temporary basis. They might well remain living in the Middle East for the remainder of their childhoods. The father’s s.8 application is very much a free-standing application made because of changes of circumstances, and because of his concerns for the welfare of his daughter. The divorce four years ago is not the context within which the application is now being made. It is not the reason or basis for the application. In 2018, the court recorded the father’s agreement that it was in A’s best interests to live with the mother in Country C. It is the alleged subsequent disclosure of abuse, long after the decree absolute, which has triggered his current application. 25.I accept that a broad view should be taken of “in connection with” in particular because s.2A(4) of the FLA 1986 balances the broad scope by allowing the court to choose not to exercise its jurisdiction. However, in the circumstances I find that the question of making the order sought by the father in his s.8 application does not arise in or in connection with the matrimonial proceedings. There is no factual, temporal, causal or other connection. The application has not been made because the marriage has been dissolved. It does not offend against the principle that the power to make welfare orders within divorce proceedings should be preserved, to find that there is no connection between the divorce proceedings and the application in this case.26.I can deal more concisely with the second issue I have identified, namely whether the divorce proceedings are continuing. This question is answered by a plain reading of s.42(2) of the FLA 1986. The divorce proceedings are treated as continuing for the purposes of the Act until the child concerned reaches the age of eighteen. A is under the age of eighteen and therefore the divorce proceedings are treated as continuing for the purposes of the Act notwithstanding the decree absolute.