Introduction
1.This is a judgment on the preliminary issue of whether this court has jurisdiction to hear an application for a child arrangements order under s.8 of the Children Act 1989 when the child and parents concerned all live abroad. The Applicant is the father and the Respondent the mother of two children: J, aged 15, and A, aged 10. The parties and their children are all British citizens. The parties married in August 2013 in Nottingham but separated three years later and divorced, the decree absolute having been made by the Family Court in Newport, Gwent, in August 2017. Currently, J lives with the father in Country B, whilst A lives with the mother in Country C. Both countries are in the Middle East and neither are signatories to the 1996 Hague Convention. The application before the court is the father’s dated 30 September 2021 for an order that A should live with him in country B. By order of HHJ Lynch on 2 November 2021, the matter was listed for a hearing of the preliminary issue of jurisdiction.2.The parties agree that,i)The matrimonial proceedings between the parties ended with the decree absolute in 2017.ii)The father’s application is for an order under s.8 of the Children Act 1989 which falls within the category of orders within s.1(1)(a) of the Family Law Act 1986 (FLA 1986). iii)Neither child is habitually resident or present in the jurisdiction of England and Wales.iv)The father’s application was made after Britain left the European Union and Council Regulation No. 2201/200 (“Brussels II”) has no application to the present case.3.Accordingly, the preliminary issues which require determination are:i)Does the question of making the order arise “in connection with” matrimonial proceedings (s.2(1)(b)(i) of the FLA 1986)?ii)If so, are the proceedings “continuing” (ss.2A(1)(a)(ii) and 42(2) of the FLA 1986) notwithstanding the decree absolute?iii)If the court does have jurisdiction under the FLA 1986, would it nevertheless be more appropriate for the application to be determined outside the jurisdiction of England and Wales such that the court should direct that no order should be made (s.2A(4) of the FLA 1986)?4.The direction given on 2 November 2021 was for a hearing “on the question of jurisdiction only, to be heard on submissions.” No provision was made for evidence to be filed and served. Dr Proudman, for the mother, urged the court to determine the third issue, which is one of appropriate forum, but Ms Cayoun, for the father, cautioned that the court should require evidence, for example as to the operation of family law in Country C, before determining that question.