Section 5 Power of court to refuse application or stay proceedings.

England and Wales

(1)

A court in England and Wales which has jurisdiction to make a F1Part I order may refuse an application for the order in any case where the matter in question has already been determined in proceedings outside England and Wales.

(2)

Where, at any stage of the proceedings on an application made to a court in England and Wales for a Part I order, or for the variation of a Part I order, F2... it appears to the court—

(a)

that proceedings with respect to the matters to which the application relates are continuing outside England and Wales, F3...

(b)

that it would be more appropriate for those matters to be determined in proceedings to be taken outside England and Wales, F4or

F5(c)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F6( d)

that it should exercise its powers under Article 8 of the Hague Convention (request to authority in another Contracting State to assume jurisdiction),

the court may stay the proceedings on the application F7or (as the case may be) exercise its powers under F8... F9 Article 8 of the Hague Convention.

F10(2A)

If the proceedings on the application are proceedings in which F11an activity direction has been made under section 11A of the Children Act 1989 (or an enforcement order has been made under section 11J of that Act), the court may when granting a stay under or by virtue of subsection (2) also suspend F12the activity direction (or the enforcement order).

(3)

The court may remove a stay granted F13by virtue of subsection (2)(a) or (b) above if it appears to the court that there has been unreasonable delay in the taking or prosecution of the other proceedings referred to in that subsection, or that those proceedings are stayed, sisted or concluded.

F14(3A)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F15(3AA)

The court may remove a stay granted in order for it to exercise its powers under Article 8 of the Hague Convention, and withdraw any request made by it to an authority in another Contracting State to assume jurisdiction, if—

(a)

the authority in the other Contracting State does not assume jurisdiction within the period for which the court granted the stay, or

(b)

the parties do not, within the period specified by the court, request the authority in the other Contracting State to assume jurisdiction.

F16(3B)

If the stay removed under subsection (3) F17... is a stay in relation to which the court suspended F18an activity direction made under section 11A of the Children Act 1989 (or an enforcement order made under section 11J of that Act), the court may when removing the stay under subsection (3) F19F20... or (3AA) also bring the suspension to an end.

(4)

Nothing in this section F21so far as it relates to proceedings not governed by the F22Hague Convention shall affect any power exercisable apart from this section to refuse an application or to grant or remove a stay.

Annotations

Textual amendments

F1: Words in S. 5(1)(2) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(a) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)
F2: Words in s. 5(2) omitted (1.3.2005) by virtue of The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 11(2) (with reg. 20)
F3: Word in s. 5(2)(a) left out (1.11.2012) by virtue of The Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 (S.I. 2010/1898), reg. 1(2), Sch. para. 6(1)(a)
F4: Word in s. 5(2)(b) inserted (31.12.2020) by The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 15(3)(a)(i) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)
F5: S. 5(2)(c) omitted (31.12.2020) by virtue of The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 15(3)(a)(ii) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)
F6: S. 5(2)(d) and word inserted (1.11.2012) by The Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 (S.I. 2010/1898), reg. 1(2), Sch. para. 6(1)(c)
F7: Words in s. 5(2) inserted (1.3.2005) by The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 11(4) (with reg. 20)
F8: Words in s. 5(2) omitted (31.12.2020) by virtue of The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 15(3)(a)(iii) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)
F9: Words in s. 5(2) inserted (1.11.2012) by The Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 (S.I. 2010/1898), reg. 1(2), Sch. para. 6(1)(d)
F10: S. 5(2A) inserted (8.12.2008) by Children and Adoption Act 2006 (c. 20), s. 17(2), Sch. 2 para. 3(2); S.I. 2008/2870, art. 2(2)(e)
F11: Word in s. 5(2A) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 50(2)(a); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)
F12: Word in s. 5(2A) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 50(2)(b); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)
F13: Words in s. 5(3) substituted (1.3.2005) by The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 11(5) (with reg. 20)
F14: S. 5(3A) omitted (31.12.2020) by virtue of The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 15(3)(b) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)
F15: S. 5(3AA) inserted (1.11.2012) by The Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 (S.I. 2010/1898), reg. 1(2), Sch. para. 6(2)
F16: S. 5(3B) inserted (8.12.2008) by Children and Adoption Act 2006 (c. 20), s. 17(2), Sch. 2 para. 3(3); S.I. 2008/2870, art. 2(2)(e)
F17: Words in s. 5(3B) omitted (31.12.2020) by virtue of The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 15(3)(c)(i) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)
F18: Word in s. 5(3B) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 50(3); S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10)
F19: Word in s. 5(3B) omitted (31.12.2020) by virtue of The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/519), reg. 1(1), Sch. para. 15(3)(c)(ii) (with reg. 8) (as amended by S.I. 2020/1574, regs. 1, 5(2)); 2020 c. 1, Sch. 5 para. 1(1)
F20: Words in s. 5(3B) substituted (1.11.2012) by The Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 (S.I. 2010/1898), reg. 1(2), Sch. para. 6(3)
F21: Words in s. 5(4) inserted (1.3.2005) by The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (S.I. 2005/265), regs. 1, 11(7) (with reg. 20)
F22: Words in s. 5(4) substituted (31.12.2020) by S.I. 2019/519, Sch. para. 15(3)(d) (as amended by The Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1574), regs. 1, 5(3)(f)(i))

Notes on Part I

Modifications

C1: Pt. I applied by S.I. 1991/1723, art. 3(2), Sch. 2 and art. 3(3), Sch. 3.