In today’s mobile society, cross-border families are commonplace—and with them come complex legal challenges when disputes involve children. In such private international law cases, jurisdiction isn’t just a procedural detail—it often becomes the central battlefield.
What makes jurisdiction a critical issue?
Jurisdiction refers to whether English courts can hear a case involving parties or children with connections outside England and Wales. It dictates:
- Which court is first to act—a race that often triggers “forum shopping.”
- Which laws apply, including the Children Act 1989 or international instruments.
- How enforcement works, both in the UK and abroad.
This forms the backdrop of the jurisdictional struggle.
Determining jurisdiction: Key legal tests
English courts use multiple bridges to establish jurisdiction:
- Habitual residence, particularly vital in child cases—where the child “normally lives and intends to stay”.
- Domicile, nationality and, in matrimonial matters, residence or domicile of spouses.
- International conventions, most notably:
- The 1996 Hague Convention on Child Protection for jurisdiction and transfer.
- The 1980 Hague Abduction Convention, ensuring swift child returns.
The Hague 1996 Convention even allows jurisdiction transfers to courts better positioned to decide the case.
When jurisdiction turns into a strategic arena
Forum shopping—seeking out the most favourable jurisdiction—is common in cross-border disputes. Parties may:
- Issue proceedings in multiple jurisdictions.
- Use anti-suit injunctions to block foreign cases.
- Argue that another court is better suited (“forum non conveniens”).
Additionally, post‑Brexit shifts—for instance, from Brussels II to the Hague 1996 framework—have reshaped the jurisdictional landscape significantly.
Case law highlights
LB of Hackney v P (2023)
The Court of Appeal examined the “relevant date” for determining habitual residence under the 1996 Hague Convention. The decision clarified whether it’s at the date proceedings are issued or heard.
Re N & A (Ukraine)
This High Court case involved Ukrainian children in the UK. The court dismissed jurisdiction in favour of Ukraine under the Hague Convention, reinforcing principles that jurisdiction lies with the state where proceedings are first issued.
Potanin v Potanina (2023)
Though a divorce finance case, Potanin v Potanina illustrates how English courts scrutinise the strength of a party’s connection before accepting jurisdiction under Part III MFP Act.
What determines the “right” jurisdiction?
English courts assess several factors when jurisdiction iś contested:
- Strength of connecting factors—who is habitually resident or domiciled in England & Wales.
- Whether another jurisdiction is more appropriate, including foreign proceedings.
- Convention obligations, such as under the 1996 Hague Convention.
- The welfare of the child, which remains paramount under the Children Act.
Practical implications for Family lawyers
Clients need clarity on where and how proceedings should start:
- Accurate jurisdiction assessment is essential—considering habits of residence and convention links.
- Awareness of timing tactically matters, especially under Hague 1996 regarding transfer or acceptance of cases.
- Navigating multiple proceedings involves considering anti‑suit relief or seeking stays under the doctrine of forum non conveniens.
Final thoughts
In the world of private international family law, jurisdiction is far more than a gatekeeper—it’s the main playing field. Recognising its battleground-like dynamics equips you to guide clients effectively. Our role as lawyers is pivotal in mapping out the jurisdictional landscape—maximising your client’s position and ensuring the best interests of children stand front and centre.
How can we help?
Rina Mistry is a Legal Director in our Family Law team, advising on a wide range of family law work, and in particular specialising in private children law, international family matters, and domestic abuse.
If you need any advice concerning the subjects discussed above, please contact us and we will be happy to discuss your circumstances in more detail and give you more information about the services that our solicitors can provide, along with details of our hourly rates.
For more information or advice, please call Rina or another member of our team in Derby, Leicester, or Nottingham on 0808 258 0461 or contact us via our online form.
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