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Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 33290
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
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Does a District court judge have jurisdiction over a foreign

Customer Question

Does a District court judge have jurisdiction over a foreign (Irish) passport in the English family courts? i.e. can they make an order requesting me to surrender my son's Irish passport to my ex-partner? Please can you firm up your response with any relevant case law.
Submitted: 2 years ago.
Category: Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
For clarity is the child resident in England and Wales
Clare
Customer: replied 2 years ago.

Hi Clare,

Yes the child is resident in England. He was born in Dublin, Ireland and only has an Irish passport. The Judge (without a formal application being made) is trying to make an order, that I must surrender the passport 10 days before my ex (who has PR) leaves for any holiday. I have agreed to an undertaking (or something in the preamble of the order) that I will hand over the passport, but not for it to be made into an order, on condition that I am given details on flight intinerary, where my son will be staying and emergenct contact info. My ex is refusing to agree to this. We have case law which states this is not an unreasonable request. The judge now wants a hearing on the matter of whether he has jurdisdiction before deciding whether the order can be made. My solicitor has legislation which indicates only a high court judge can make such an order, but she seems unsure of it.

Yvonne

Expert:  Clare replied 2 years ago.
Hi
For clarity - you have agreed an Undertaking but your ex wants it in the order?
Clare
Customer: replied 2 years ago.
Yes. My ex wants it in the order. I will agree to an undertaking or for it to appear in the preamble to the order provided I get travel information. But I disagree for it to be put into an order as we believe a district court judge does not have the authority/jurisdiction over a foreign passport. (Btw no formal application was even made by my ex for such a request during the hearing!) so we are also quoting the no order principle. But in essence I my question is does a district court judge even have jurisdiction to make such an order?)
Expert:  Clare replied 2 years ago.
Hi
Wow that is an unusual position.
The HIgh Court certainly has Jurisdiction to do so as it is done in Abduction cases and has been done in financial cases
There is even a set form for a Passport Order
All the case law that I have found refers to decisions of the High Court - but that could simply be the nature of the reported cases.
HOWEVER in fact it is clear that a Circuit Judge DOES have to deal with the matter - although that could still be dealt with in the family Court
The appropriate legislation is here
http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part25/pd_part25a
I hope that this is of assistance
Clare
Customer: replied 2 years ago.

I'm afraid I do not know what you mean by:

"HOWEVER in fact it is clear that a Circuit Judge DOES have to deal with the matter - although that could still be dealt with in the family Court"

Can you explain please?

Expert:  Clare replied 2 years ago.
Hi
My apologies
That should read 'Does have the power to deal with the matter" - and since a Circuit Judge also sits in the Family Court it could be dealt there
Clare
Customer: replied 2 years ago.

Hi,

Many thanks for your responses. However I still haven't got the answer I am looking for. I was really try to get to the bottom of my original question, with something to back up the response as to whether a DJ did have jurisdiction over a foreign passport. Perhaps there is no answer. But I would be happy enough to accept an answer that included how he might look to enforce the order, despite not having jurisdiction.

Thank you,

Yvonne

Expert:  Clare replied 2 years ago.
Hi
A Circuit Judge can certainly make such an Order - but there appears to be no legal basis on which a District Judge can do so
This can be dealt with by the Order being made by a Circuit Judge in the Family Court.
However the issue of enforcement is relatively simple - it can be enforced by making future contact contingent on the production of the passport; with the threat of imprisonment for Contempt of Court as the most extreme enforcement method
Clare

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