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On appeal from [2015] EWCA Civ 833

This appeal considered whether, when varying a consent order, the court should apply the Matrimonial Causes Act 1973, s 31, or whether it is constrained by Court of Appeal authority to apply a narrower approach, even if that is inconsistent with the children’s interests.

The Supreme Court, by a majority of four to one, allowed the appeal, holding that jurisdiction exists to hear the wife’s application. The Court considered that the case law indicates that there is full jurisdiction to hear the wife’s application for release from her undertaking (and potential acceptance of a new undertaking), and that the courts below had failed to distinguish between the existence of the court’s jurisdiction to release the wife from her undertaking, and the exercise of its jurisdiction.

The Court remitted the inquiry into whether the court’s jurisdiction to vary the undertaking should be exercised to the lower court, stating that, in light of the equivalence of the wife’s undertaking with a s 24A order for sale, the inquiry will be conducted in accordance with s 31(7), giving first consideration to the welfare of the children, though this consideration may be outweighed by other factors.

For judgment, please download: [2017] UKSC 53
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (22 May 2017 morning session) (22 May 2017 afternoon session)