Family Law Act 1986 (c. 55)

Part I U.K. Child Custody

Chapter I U.K. Preliminary

1 Orders to which Part I applies. E+W+N.I.

(1) Subject to the following provisions of this section, in this Part “custody order” means—

(a) an order made by a court in England and Wales under any of the following enactments—

(i) section 9(1), 10(1)(a), 11(a) or 14A(2) of the M1 Guardianship of Minors Act 1971 or section 2(4)(b) or (2)(5) of the M2 Guardianship Act 1973;

(ii) section 42(1) of the M3 Matrimonial Causes Act 1973;

(iii) section 42(2) of the Matrimonial Causes Act 1973;

(iv) section 33(1) of the M4 Children Act 1975 or section 2(4)(b) of the Guardianship Act 1973 as applied by section 34(5) of the Children Act 1975;

(v) section 8(2) or 19(1)(ii) of the M5 Domestic Proceedings and Magistrates’ Courts Act 1978;

(b) an order made by a court of civil jurisdiction in Scotland under any enactment or rule of law with respect to the custody, care or control of a child, access to a child or the education or upbringing of a child, excluding—

(i) an order committing the care of a child to a local authority or placing a child under the supervision of a local authority;

(ii) an adoption order as defined in section 12(1) of the M6 Adoption (Scotland) Act 1978;

(iii) an order freeing a child for adoption made under section 18 of the said Act of 1978;

(iv) an order for the custody of a child made in the course of proceedings for the adoption of the child (other than an order made following the making of a direction under section 53(1) of the Children Act 1975);

(v) an order made under the M7 Education (Scotland) Act 1980;

(vi) an order made under Part II or III of the M8 Social Work (Scotland) Act 1968;

(vii) an order made under the M9 Child Abduction and Custody Act 1985;

(viii) an order for the delivery of a child or other order for the enforcement of a custody order;

(ix) an order relating to the tutory or curatory of a child;

(c) an order made by a court in Northern Ireland under any of the following enactments—

(i) section 5 of the M10 Guardianship of Infants Act 1886 (except so far as it relates to costs);

(ii) Article 45(1) of the M11 Matrimonial Causes (Northern Ireland) Order 1978;

(iii) Article 45(2) of the Matrimonial Causes (Northern Ireland) Order 1978;

(iv) Article 10(2) or 20(1)(ii) of the M12 Domestic Proceedings (Northern Ireland) Order 1980;

(d) an order made by the High Court in the exercise of its jurisdiction relating to wardship so far as it gives the care and control of a child to any person or provides for the education of, or for access to, a child, excluding an order relating to a child of whom care or care and control is (immediately after the making of the order) vested in a local authority or in the Northern Ireland Department of Health and Social Services.

(2) In this Part “custody order” does not include—

(a) an order within subsection (1) (a) or (c) above which varies or revokes a previous order made under the same enactment;

(b) an order under section 14A(2) of the M13 Guardianship of Minors Act 1971 which varies a previous custody order; or

(c) an order within paragraphs (d) o f subsection (1) above which varies or revokes a previous order within that paragraph.

(3) Subject to sections 32 and 40 of this Act, in this Part “custody order” does not include any order which—

(a) was made before the date of the commencement of this Part;

(b) in the case of an order within subsection (1)(b) or (d) above or an order under any of the enactments mentioned in subsection (4) below, is made on or after that date on an application made before that date; or

(c) in any other case, is made on or after that date in proceedings commenced before that date.

(4) The said enactments are—

(a) sections 9(1) and 14A(2) of the Guardianship of Minors Act 1971 and section 33(1) of the M14 Children Act 1975; and

(b) section 5 of the M15 Guardianship of Infants Act 1886.

(5) For the purposes of subsection (3) above an order made on two or more applications which are determined together shall be regarded as made on the first of those applications.

(6) Provision may be made by act of sederunt prescribing, in relation to orders within subsection (1)(b) above, what constitutes an application for the purposes of this Part.

Extent Information

E1 This version of this provision extends to England and Wales and Northern Ireland only; a separate version has been created for Scotland only

Marginal Citations

M1 1971 c. 3

M2 1973 c. 29

M3 1973 c. 18

M4 1975 c. 72

M5 1978 c. 22

M6 1978 c. 28

M7 1980 c. 44

M8 1968 c. 49

M9 1985 c. 60

M10 1886 c. 27

M11 S.I. 1978/1045 (N.I. 15)

M12 S.I. 1980/563 (N.I. 5)

M13 1971 c. 3

M14 1975 c. 72

M15 1886 c. 27

1 Orders to which Part I applies. S

(1) Subject to the following provisions of this section, in this Part “custody order” means—

(a) an order made by a court in England and Wales under any of the following enactments—

(i) section 9(1), 10(1)(a), 11(a) or 14A(2) of the M16 Guardianship of Minors Act 1971 or section 2(4)(b) or (2)(5) of the M17 Guardianship Act 1973;

(ii) section 42(1) of the M18 Matrimonial Causes Act 1973;

(iii) section 42(2) of the Matrimonial Causes Act 1973;

(iv) section 33(1) of the M19 Children Act 1975 or section 2(4)(b) of the Guardianship Act 1973 as applied by section 34(5) of the Children Act 1975;

(v) section 8(2) or 19(1)(ii) of the M20 Domestic Proceedings and Magistrates’ Courts Act 1978;

(b) an order made by a court of civil jurisdiction in Scotland under any enactment or rule of law with respect to the custody, care or control of a child, access to a child or the education or upbringing of a child, excluding—

(i) an order committing the care of a child to a local authority or placing a child under the supervision of a local authority;

(ii) an adoption order as defined in section 12(1) of the M21 Adoption (Scotland) Act 1978;

(iii) an order freeing a child for adoption made under section 18 of the said Act of 1978;

(iv) an order for the custody of a child made in the course of proceedings for the adoption of the child (other than an order made following the making of a direction under section 53(1) of the Children Act 1975);

(v) an order made under the M22 Education (Scotland) Act 1980;

(vi) an order made under Part II or III of the M23 Social Work (Scotland) Act 1968;

(vii) an order made under the M24 Child Abduction and Custody Act 1985;

(viii) an order for the delivery of a child or other order for the enforcement of a custody order;

(ix) an order relating to [F1 guardianship] a child;

(c) an order made by a court in Northern Ireland under any of the following enactments—

(i) section 5 of the M25 Guardianship of Infants Act 1886 (except so far as it relates to costs);

(ii) Article 45(1) of the M26 Matrimonial Causes (Northern Ireland) Order 1978;

(iii) Article 45(2) of the Matrimonial Causes (Northern Ireland) Order 1978;

(iv) Article 10(2) or 20(1)(ii) of the M27 Domestic Proceedings (Northern Ireland) Order 1980;

(d) an order made by the High Court in the exercise of its jurisdiction relating to wardship so far as it gives the care and control of a child to any person or provides for the education of, or for access to, a child, excluding an order relating to a child of whom care or care and control is (immediately after the making of the order) vested in a local authority or in the Northern Ireland Department of Health and Social Services.

(2) In this Part “custody order” does not include—

(a) an order within subsection (1) (a) or (c) above which varies or revokes a previous order made under the same enactment;

(b) an order under section 14A(2) of the M28 Guardianship of Minors Act 1971 which varies a previous custody order; or

(c) an order within paragraphs (d) o f subsection (1) above which varies or revokes a previous order within that paragraph.

(3) Subject to sections 32 and 40 of this Act, in this Part “custody order” does not include any order which—

(a) was made before the date of the commencement of this Part;

(b) in the case of an order within subsection (1)(b) or (d) above or an order under any of the enactments mentioned in subsection (4) below, is made on or after that date on an application made before that date; or

(c) in any other case, is made on or after that date in proceedings commenced before that date.

(4) The said enactments are—

(a) sections 9(1) and 14A(2) of the Guardianship of Minors Act 1971 and section 33(1) of the M29 Children Act 1975; and

(b) section 5 of the M30 Guardianship of Infants Act 1886.

(5) For the purposes of subsection (3) above an order made on two or more applications which are determined together shall be regarded as made on the first of those applications.

(6) Provision may be made by act of sederunt prescribing, in relation to orders within subsection (1)(b) above, what constitutes an application for the purposes of this Part.

Extent Information

E2 This version of this provision extends to Scotland only; a separate version has been created for England and Wales and Northern Ireland only

Textual Amendments

F1 Words in s. 1(1)(b)(ix) substituted (S.) (25.9.1991) by Age of Legal Capacity (Scotland) Act 1991 (c. 50, SIF 49:8), ss. 10(1), 11(2), Sch. 1 para. 44

Marginal Citations

M16 1971 c. 3

M17 1973 c. 29

M18 1973 c. 18

M19 1975 c. 72

M20 1978 c. 22

M21 1978 c. 28

M22 1980 c. 44

M23 1968 c. 49

M24 1985 c. 60

M25 1886 c. 27

M26 S.I. 1978/1045 (N.I. 15)

M27 S.I. 1980/563 (N.I. 5)

M28 1971 c. 3

M29 1975 c. 72

M30 1886 c. 27