The Children (Northern Ireland) Order 1995

The Family Law Act 1986 (c. 55)

124.  For section 19 (jurisdiction in cases other than divorce, etc.) substitute the following sections—

“19.    Jurisdiction: general.

(1) A court in Northern Ireland shall not have jurisdiction to make a section 1(1)(c) order with respect to a child in or in connection with matrimonial proceedings in Northern Ireland unless the condition in section 19A of this Act is satisfied.

(2) A court in Northern Ireland shall not have jurisdiction to make a section 1(1)(c) order in a non-matrimonial case (that is to say, where the condition in section 19A is not satisfied) unless the condition in section 20 of this Act is satisfied.

(3) A court in Northern Ireland shall not have jurisdiction to make a section 1(1)(e) order unless—

(a)the condition in section 20 of this Act is satisfied, or

(b)the child concerned is present in Northern Ireland on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection.

19A.    Jurisdiction in or in connection with matrimonial proceedings.

(1) The condition referred to in section 19(1) of this Act is that the matrimonial proceedings are proceedings in respect of the marriage of the parents of the child concerned and—

(a)the proceedings—

(i)are proceedings for divorce or nullity of marriage, and

(ii)are continuing;

(b)the proceedings—

(i)are proceedings for judicial separation,

(ii)are continuing,

and the jurisdiction of the court is not excluded by subsection (2) below; or

(c)the proceedings have been dismissed after the beginning of the trial but—

(i)the section 1(1)(c) order is being made forthwith, or

(ii)the application for the order was made on or before the dismissal.

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 England and Wales or Scotland.

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

(a)an order under section 2A(4) or 13(6) of this Act (not being an order made by virtue of section 13(6)(a)(i)), or

(b)an order under section 5(2) or 14(2) of this Act which is recorded as being made for the purpose of enabling Part I proceedings to be taken in Northern Ireland with respect to the child concerned.

(4) Where a court—

(a)has jurisdiction to make a section 1(1)(c) order in or in connection with matrimonial proceedings, but

(b)considers that it would be more appropriate for Part I matters relating to the child to be determined outside Northern Ireland,

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

125.  In section 20 (habitual residence or presence of child concerned)—

(a)in subsection (1), for “section 19” substitute “section 19(2)”;

(b)in subsection (2), for “proceedings for divorce, nullity or judicial separation” substitute “matrimonial proceedings”.

126.—(1) Section 23 (duration and variation of Part I orders) shall be amended as follows.

(2) For subsection (3) substitute the following subsections—

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

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

(a)the Part I order was made in or in connection with proceedings for divorce or nullity in Northern Ireland in respect of the marriage of the parents of the child concerned; and

(b)those proceedings are continuing.

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

(a)the Part I order was made in or in connection with proceedings for judicial separation in Northern Ireland;

(b)those proceedings are continuing; and

(c)the decree of judicial separation has not yet been granted.”.

(3) In subsection (5), for the words from “variation of” to “if the ward” substitute “variation of a section 1(1)(e) order if the child concerned”.

(4) For subsections (6) and (7) substitute the following subsections—

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

(a) a residence order (within the meaning of the Children (Northern Ireland) Order 1995) in favour of a person with respect to a child,

(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

(c) an order—

(i)of a kind mentioned in section 1(3)(a) of this Act,

(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 Article 16 of the Children (Northern Ireland) Order 1995 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 Article 16 of the Children (Northern Ireland) Order 1995 shall be deemed to include a reference to an order for the supervision of a child made under—

(a)Article 47 of the Matrimonial Causes (Northern Ireland) Order 1978, or

(b)Article 11 of the Domestic Proceedings (Northern Ireland) Order 1980;

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 8 to the Children (Northern Ireland) Order 1995.”.

127.  For section 24 (interpretation of Chapter IV) substitute the following section—

“24.    Interpretation of Chapter IV.

In this Chapter—

(a)“child” means a person who has not attained the age of eighteen;

(b)“matrimonial proceedings” means proceedings for divorce, nullity of marriage or judicial separation;

(c)“the relevant date” means, in relation to the making or variation of an order—

(i)where an application is made for an order to be made or varied, the date of the application (or first application, if two or more are determined together), and

(ii)where no such application is made, the date on which the court is considering whether to make or, as the case may be, vary the order; and

(d)“section 1(1)(c) order” and “section 1(1)(e) order” mean orders falling within section 1(1)(c) and (e) of this Act respectively.”.