Case No. SE21P00182

7.The first issue for the court is whether the question of making the s.8 order which the father seeks arises “in or in connection with matrimonial proceedings”. The parties agree that there were matrimonial proceedings but they ended with the decree absolute in 2017. The father does not seek to argue that the question of making the s.8 order now sought arises “in” matrimonial proceedings, even if they are regarded as “continuing” proceedings under s.42(2) of the FLA 1986. Hence, the issue is whether it arises “in connection” with the concluded matrimonial proceedings.8.For the father, Ms Cayoun relies on the Court of Appeal decision in Lachaux v Lachaux [2019] 2FLR 712. In that case the mother was British, the father, French. The parties had divorced in Dubai and the father was granted custody of the child. The French courts refused to recognise the Dubai divorce. The mother petitioned for divorce in England and applied for a child arrangements order. At first instance Mostyn J recognised the Dubai divorce and set aside the mother’s petition. In any event he would have dismissed her application for a child arrangements order on the basis that the English court did not have jurisdiction under s.2(1)(b)(i) of the FLA 1986. The Court of Appeal held that Mostyn J had been entitled to recognise the Dubai divorce but had been wrong in his interpretation of s.2(1)(b)(i) of the FLA 1986. Moylan LJ said at [185] that the relevant statutory provisions,“were included in the 1986 Act specifically to replace the jurisdiction which previously been provided by s 42 of the 1973 Act. They were not made redundant by the repeal of ss 41 and 42, as Mostyn J determined, but were introduced to replace the latter. This was expressly considered by the Law Commissions and, for the reasons given, it was recommended that this jurisdiction should continue. In my view, the reasons they gave, and which were clearly accepted, remain equally valid today. It would be difficult to justify the court having financial remedy jurisdiction but not, even potentially, having parental responsibility jurisdiction”.And at [187]“The courts should take a broad view as to whether the question arises in or in connection with the other proceedings. In broad terms all that is required is that the parties to those proceedings are ‘the parents of the child concerned’, that the proceedings are taking place or did take place in England and Wales, and that one or other or both of the parents seek a s 1(1)(a) order because their marriage or civil partnership is being or has been dissolved. The reason the court can take a broad view is because this provision only applies if neither BIIA nor the 1996 Hague Convention apply and because s 2A(4) balances the broad scope of s 2(1)(b)(i) by giving the court the power not to exercise this jurisdiction.”9.Prior to the FLA 1986, the Law Commission and The Scottish Law Commission Report (Law Com. No. 138) (Scot Law Com, No. 91) Family Law, Custody of Children – Jurisdiction and Enforcement within the United Kingdom, recommended that where a United Kingdom court has jurisdiction in relation proceedings for divorce, it should retain jurisdiction to make “custody orders” in those proceedings. The report then addressed the implications of that principle for concluded matrimonial proceedings:“4.8 The practical application of this general principle raises a problem as to when, for the purpose of custody jurisdiction, proceedings for divorce, nullity or judicial separation should be regarded as coming to an end. The effect of existing law in all three United Kingdom countries is that once the court is duly seised of the matrimonial dispute, it retains jurisdiction to deal with questions relating to custody of and access to the children. This jurisdiction is retained however long ago the divorce was granted, however distant the connection of the child with the country in which the divorce took place, and however close and long-standing the child’s connection with some other part of the United Kingdom. The question we have to answer is whether, for the purposes of our scheme, the jurisdiction of the divorce court to make custody orders should continue so long as the child is within the appropriate age limit, i.e. 18 in England and Wales and Northern Ireland and 16 in Scotland. “4.9 We have reached the conclusion that a court dealing with divorce, nullity or judicial separation proceedings should remain entitled to exercise custody jurisdiction until the child attains the appropriate age, even where the child or his parents are or have become habitually resident elsewhere in the United Kingdom. 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.“4.10 Nevertheless, we recognise that in some cases it will be advantageous for issues as to custody and access to be determined by a court in a United Kingdom country other than that in which the proceedings for dissolution of the marriage are brought …“4.11 We therefore recommend as follows- Where a court in the United Kingdom has jurisdiction in proceedings for divorce, nullity of marriage or judicial separation, that court should continue to have jurisdiction to make custody orders in the course of those proceedings.”10.The report’s recommendations were accepted, as Moylan LJ noted in Lachaux, and enacted in the FLA 1986. Ms Cayoun submits that applying the broad view referred to by Moylan LJ, the question of making the s.8 order for which the father now applies is “in connection with” the divorce proceedings, notwithstanding that they were concluded over four years ago. The parties are the parents of the child concerned, the divorce proceedings took place within the jurisdiction of England and Wales, and the father now seeks s.1(1)(a) order (under the FLA 1986) because the marriage has been dissolved. 11.For the mother, Dr Proudman submits that the father’s application is not now made “because the marriage has been dissolved.” His application is not connected with the previous, concluded matrimonial proceedings. There is no causal link between them. She submits that there must be a temporal link between the matrimonial proceedings and the question in the current proceedings. I understood her to mean that there must be a degree of proximity in time between the s.8 application and the earlier divorce. Dr Proudman referred to J v U (Child Arrangements Order: Jurisdiction) [2016] EWHC 2481 (Fam), [2017] Fam 235, [2017] 2 WLR 760 in which Bodey J said:“[16] Since the words in question (“in or in connection with”) remain in the section, I must clearly apply them and Mr Scott is not suggesting otherwise. That said, his submissions are persuasive as to the fact that, if the mere existence of divorce proceedings here can clothe the court with jurisdiction to make child welfare orders in respect of children habitually resident elsewhere, then it would drive a coach and horses, or at least a coach, through the now generally accepted approach to the issue of jurisdiction. Clearly, if Parliament had wanted to say that, whenever there are pending matrimonial proceedings here, this court should without more have jurisdiction in respect of issues regarding the parties’ children, then it could have done so. But it did not; and yet the criterion for jurisdiction remains “in or in connection with” matrimonial proceedings.“[17] It is self-evident on the face of the petition that the application which the mother now wishes to make is not “in” her matrimonial proceedings, because no application is nor could have been made there. But what does “in connection with” actually mean? Mr Hale submits it merely means that if there are pending divorce proceedings, then any application regarding the children is automatically connected with them; but I cannot accept that. I consider, as did Judith Parker J obiter in AP v TD [2011] 1 FLR 1851, paras 122–123 that there must be some nexus more than just the mere existence of the two sets of proceedings and the fact that the parties to them are the same. It is not entirely easy to see what nexus there can or could be between proceedings seeking quite different reliefs; but it may be that the question is simply one of fact and degree. As a proposition which I put to Mr Scott and he accepted (and from which Mr Hale did not dissent), one can envisage a petition which raises the same issues as a Children Act application made at about the same time (for example “unreasonable behaviour” allegations against the respondent involving his behaviour towards the children). Such issues would be “connected” both as to content and in point of time. But that is not the case here. The mother’s application regarding the children arises out of events in June 2016 and raises issues wholly unrelated to the issues in the divorce proceeding issued nine months previously in September 2015. As Mr Scott submits, her application relating to the children could have been made if the parties had not been married or, indeed, if they were not getting divorced; it is freestanding.”12.In J v U, the mother’s application was for permission to relocate with the parties’ two children, then living in Bosnia, to Serbia. Bodey J noted that issues relating to arrangements for divorcing parties’ children are no longer required to be dealt with within the divorce, but by way of free-standing applications for child arrangements orders under the Children Act 1989. In his view, the mere fact of divorce proceedings could not, without more, provide the necessary connection between those proceedings and a s.8 application.13.In TK v ML [2021] EWFC 8, Mostyn J, seeking to apply the Court of Appeal’s decision in Lachaux held that,“41. On this analysis the residual jurisdiction can, at any rate in theory, be invoked years after the divorce provided that the applicant parent can earnestly claim that the child arrangements application is being made “because” the marriage has been dissolved. “42. I agree that there must be a clear causal link demonstrated between the child arrangements application and the divorce. A causal link requires the facts giving rise to the present application to be fairly traceable to the now concluded divorce. This must be so because any other interpretation would make a mockery of the statutory requirement that the question of making the child arrangements order arises “in connection with” divorce proceedings. I would suggest that taking “a broad view” of the words of the statute does nonetheless require fidelity to their plain intention.“43. In this regard I completely agree with Parker J in AP v TD [2010] EWHC 2040 (Fam) at [122] where she stated: “Therefore I conclude that section 2(1)(b)(i) does qualify section 42(2) and does require a connection, probably a temporal connection, to be established between "the question of making the order" and the matrimonial proceedings, but how that connection is to be defined is more difficult. In the light of the Explanatory Note to the Rules introducing the amendments consequent on Brussels II Revised, a purposive construction of Section 2(1)(b)(i) would support an interpretation of the provisions bringing it into line with the provisions of Brussels II Revised, and away from the UK based "continuing proceedings" jurisdiction. The time frame of the revoked FPR 2.40 is similar to the time frame for continuing jurisdiction based on divorce in Brussels II and Article 12 of Brussels II Revised. In my judgment to fall within the residual jurisdiction there must be proximity between the divorce proceedings and the court being asked to determine a question of making an order in relation to children. In any case it may be that essentially the same application or issue has been before the court, unresolved, for some time, but once an order has been made, then in my view the connection with the matrimonial proceedings would terminate.” I see the criterion of temporal proximity as being the prime (but not only) metric for establishing whether there is a causal link between the child arrangements application and the earlier, now concluded, divorce. Relying on these cases, Dr Proudman says that there is no temporal or causal link between the divorce and the question that arises in the father’s application.