Review of Children (Scotland) Act 1995 consultation: analysis

15 Domicile of Persons Under 16

15.1.1 The final substantive question in the consultation sought views on whether there was a need to clarify section 22 of the Family Law (Scotland) Act 2006 (2006 Act) which relates to domicile of persons under 16.

15.2 Where a child is deemed to be domiciled

15.2.1 Specifically, the consultation asked whether respondents felt that there was a need for the Act to be amended including, for example, making reference to “domicile of origin” and “domicile of choice”. This was set against a backdrop of no known problems with the existing Act but the prospect that this change may add clarity, in some cases.

Q52. Should section 22 of the 2006 Act which prescribes where a child is deemed to be domiciled be amended?

	Number	Percentage
Yes	54	21%
No	57	23%
No response	143	56%
Total	254	100%

15.2.2 Over half (56%) of respondents did not answer this question, and among those who did, there was an equal split in opinion as to whether the 2006 Act should be amended or not.

Support to Amend the Prescription of where a Child is Deemed to be Domiciled

15.2.3 Among those who supported an amendment, the general reasons given were that it would make the law more current, would remove any ambiguity (for parents and legal professionals), and that improved clarity may be in the best interests of the child:

“Clarity and simplification is always better, it provides expectation and allows for clearer follow through if a child is removed from their domicile.”  (Family Support Organisation)

15.2.4 More nuanced views expressed by individuals included that the temporal scope and transitional provisions of the 2006 Act could be clarified and that there would be benefit in considering how domicile would be defined in the case of recent movements:

“The Act does not make plain the time at which the section 22 rule is to take effect. Does it take effect from its date of commencement (4 May 2006) forward, to regulate the domiciles of those who, at the date of coming into force of the Act, were under 16 and those at that date not yet born? Or does the ultimate domicile of an octogenarian who dies after commencement of the Act fall to be determined according to the rules contained in the Act? The point is untested, and opportunity should be taken to clarify the matter if the provision is to be reviewed.”  (Individual)

“I believe the child is domicile with the parent who has custody.  Therefore, if that person moves then so does the domicile.”  (Individual)

15.2.5 A small number of respondents also felt that clarification was required around the precedence of domicile of origin or choice, with some suggesting that choice (of the child and both parents) be given more prominence:

“It should clarify that a child should be domicile in a place to which both parents agree - i.e. have equal access/opportunity to contact - until a time when the child is capable of making a decision on their own [re] being domicile.”  (Individual)

15.2.6 Some individuals and organisations who supported change perceived that the absence of the provisions ever having been tested in court did not justify a need for the Act to remain unchanged:

“If it is the best interest of child and even although no cases have been tested in court there may come a time when it is, so up-to-date clear rules should apply.” (Individual)

15.2.7 One individual suggested that there was scope for provisions of section 22 to become unclear if the UK left the EU.  Another noted that an increase in relationships between people who are from or live in different countries was a good reason for reviewing and clarifying the position by legislating in advance of any issues emerging.  One individual also commented that the opportunity should be taken to improve and clarify the meaning of section 22, specifically since the 2006 Act makes no reference to the terms ‘domicile of origin’ and ‘domicile of choice’:

“It is regrettable that full consideration was not given to the implications of this ad hoc statutory incursion into the framework of the domicile rules. Silence about the name of the under-16 domicile, and its place in the general scheme, is damaging to the coherence of the domicile rules, and opportunity should be taken to review it.”  (Individual)

No Change Required

15.2.8 Among those who felt there was no need for change, some individuals seem to have misunderstood the question and other individuals simply commented that they perceived the current Act to be adequate, sensible and workable.  Several organisations and individuals also described the change as “premature”.

15.2.9 Several organisations and some individuals who responded also commented that the absence of any testing in court to date was an indication that change was not required (unlike those who agreed and who felt that the absence of previous challenges should not block the change):

“Currently given the existing provisions have not been tested there does not seem to be a problem; if there is no problem then there is no need to amend existing legislation.”  (Family Support Organisation)

“There has been no reported case law of which I am aware on s.22, and I am not aware of any difficulties currently concerning the above provision.”  (Individual)

“There are no reported cases indicating difficulty on this point and in the absence of evidence the case cannot be made for change.”  (Legal Profession)

15.2.10 One individual commented that they perceived that amending the law of domicile would not resolve the wider problems which have historically been identified with the changes introduced by the 2006 Act and proposed that a better approach would be to implement all of the recommendations previously made by the Scottish Law Commission in this regard.  Another individual suggested that there was no sound basis for reviewing the Act on the basis of ‘time’ since they perceived that this was already well understood and unambiguous in the provisions:

“A child's domicile is determined according to the facts that exist when the issue becomes important…If the crucial date is before the coming into force of the 2006 Act then the previous rules determine the child's domicile… In sum, I see no ambiguity needing statutory amendment for its resolution.”  (Individual)

15.2.11 Overall, those who did not agree did so on the basis that there did not appear to be an evidence base to support any amendment and that further consideration and rationale was required before any amendments were made.

Need for Clarity Regarding Proposed Changes

15.2.12 A small number of respondents (who did not provide a response to the closed question) commented that it was unclear what changes were being proposed and that no formal proposal had been put forward regarding the amended wording.  They also felt that it was not clear whether this was an issue that needed to be addressed and that more information/further detail was needed around why the change was needed.