Jurisdiction

The issue of jurisdiction should be addressed at the outset of the proceedings and dealt with in a procedurally appropriate manner.

Inherent and statutory jurisdiction

Statutory jurisdiction is found in a wide range of domestic legislation including the Matrimonial Causes Act 1973, the Civil Partnership Act 2004 (CPA 2004), the Children Act 1989 and the Domicile and Matrimonial Proceedings Act 1973 (DMPA 1973).

Most aspects of family law are governed by domestic statute and statutory instruments together with various Hague Conventions. See practice Note: Hague Conventions—toolkit for family practitioners. However, there remain cases where recourse will be made to the inherent jurisdiction. The inherent jurisdiction is not confined to the wardship jurisdiction, thus it is not necessary for a child to be a ward of court before the inherent jurisdiction may be exercised. The procedure in relation to wardship proceedings is governed by the Family Procedure Rules 2010, SI 2010/2955. In relation to children proceedings the High Court inherent jurisdiction derives from the Royal Prerogative, as parens patriae, ie to take care of those who are not able to take care of themselves.

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High Court judgment demonstrates usefulness of section 423 of the Insolvency Act 1986 in Schedule 1 claims (Re P (A Child) (Financial Provision))

Family analysis: In this Schedule 1 case the mother received, for her son’s benefit: a housing fund of nearly £1m (the property to be held on trust); child maintenance (including ‘HECSA’/carer’s allowance) until completion of his first degree; and lump sums in respect of his capital needs and her own substantial liabilities (chiefly relating to her unpaid legal fees). The father (whose resources could be measured in the ‘tens of millions of pounds’) had sought to prejudice the mother’s claims via transferring his valuable shares to family members, who then transferred the same into a trust structure (settled under Czech law). A further onwards transfer was then made of the trust’s assets into a Liechtenstein foundation. Inferences were drawn by the court in respect of the level of the father’s wealth, and specifically as to the value of the transferred shares. Detailed findings were made against him in respect of the identified transactions, which had been the focus of the mother’s section 423 application. Although a section 423(2) order was not actually made, the application was adjourned pending the father’s compliance with the award, with security in the sum of £600,000 also ordered, alongside a continuation of the freezing orders made earlier in the proceedings. David Wilkinson, solicitor at Slater Heelis, considers the issues.

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