Review of Children (Scotland) Act 1995 consultation: analysis

6 Cross Border cases within the UK: Jurisdictional Issues

6.1.1 Section 27 of the Family Law Act 1986 allows any person on whom any rights are conferred by an order to apply to the court which made it for the order to be registered in another part of the UK.  In Scotland, the “appropriate court” is currently the Court of Session which has the same powers for the purpose of enforcing the order as it would have if it had made the original order itself.

6.2 Definition of “Appropriate Court”

6.2.1 As part of the main consultation, views were sought on whether the definition of “appropriate court” should be widened to include Sheriff Courts as well as the Court of Session.  This would require an amendment to primary legislation.

Q12. Should the definition of “appropriate court” in the Family Law Act 1986 be changed to include the Sheriff Court as well as the Court of Session?

	Number	Percentage
Yes	104	41%
No	25	10%
No response	125	49%
Total	254	100%

6.2.2 Almost half (49%) of respondents did not answer this question.  Among those who did, most agreed that the definition should be changed.  This included individuals and organisations, with organisational agreement being expressed by local authorities, third sector organisations and the legal profession alike.

Reasons for Support

6.2.3 The main reasons given in support (by organisations) were that Sheriffs working in local courts would already have considerable experience of dealing with child contact and child welfare or protection cases.  Sheriffs’ familiarity with local communities/geographies would also mean that they were able to determine if orders were workable relative to the context in which they were being applied.  Some respondents noted that this type of case was not overly complex and therefore, including Sheriff Courts in the definition would free up time for those working in the Court of Session to dedicate to more challenging cases.

6.2.4 Other key reasons for agreement (among organisations) included the potential for cost savings (including legal costs for clients), improved accessibility for parties (i.e. improved access to justice), and increased speed or efficiency in dealing with such cases if the workload was more widely dispersed:

“For convenience and cost purposes and to allow cases to be heard in the appropriate court.  This would ensure Court of Session resources are utilised to best effect.” (Legal Profession)

“By changing the definition to include Sheriff Courts this would make the associated costs more manageable for parties, and would enable them to access the court more easily.” (Legal Profession)

6.2.5 The main reasons given in support by individuals were largely the same, i.e. widening access to justice, convenience/speed, potential cost savings and acknowledged expertise of Sheriffs to deal with such cases:

“This would help ensure greater access to justice, by enabling parties to select the court most appropriate to them.” (Individual)

6.2.6 Other reasons given (typically by organisations) included that involving Sheriff Courts may strengthen working relationships between Sheriffs and local solicitors, lead to more consistency in how such cases are dealt with and would make family cases “more open” per se.  One local authority expressed that, if changing the definition was advantageous to children and families, this should outweigh other considerations.  Some individuals also suggested that Sheriffs may be perceived as more accessible to parties and that it may make the system “fairer” and more consistent.

Caveats to Support

6.2.7 While generally supportive of the change, some organisations did stress that they would only wish Sheriffs or judges with experience and training in child contact and child welfare cases to be involved, and another stressed that the option of Court of Session involvement should remain for complex cases.  One family support organisation also stressed that any change should be accompanied by guidance for Sheriffs, judges and court officials on how such cases should be handled.  A small number of individuals also indicated that up-to-date training on family law was important to accompany any change, to ensure that Sheriffs were adequately prepared.

6.2.8 Only one organisation (a local authority) caveated their support by suggesting that any change would need to be achieved with minimal cost and fuss.  They felt that the UK-wide implications may make it uneconomical, particularly as it would affect only a small number of cases.

Reasons for No Change

6.2.9 Among those who did not agree with changing the definition the main reasons given (by organisations) were that the small volume of cases where the legislation was relevant would not warrant what some perceived to be a complex legal and legislative move, requiring liaison with other governments.  Similarly, a few individuals also commented that the small volume of cases affected meant that the change was not warranted, with one suggesting it may cause more confusion than clarity:

“Additional legislative change would likely be required which will require liaison with the UK Government and Northern Irish administration. The benefits derived from the amendment, appear to be limited and may not be realised given the need for further enabling legislation.” (Local Authority)

“The Family Law Act 1986 is a piece of UK legislation. It is difficult to see how Scotland could have a different definition of the “appropriate court” from all the other parts of the UK affected by the Act.” (Other Organisation)

6.2.10 The complexity of some of these cases was also seen as a reason for always ensuring that they were heard in the Court of Session, at the most senior judicial level.  Similarly, two individuals commented that the Court of Session should remain the only “appropriate court” as they felt that it had developed expertise in what they perceived as a specialist field (including expertise in ensuring that the law is used in the best interests of the child).  The need for Court of Session involvement was cited as being entirely appropriate in some cases and so its inclusion should be retained.

6.2.11 Only one respondent (an individual) commented that the definition should include Sheriff Courts only, removing the need to decide which level of court would be best suited for the case in hand.

6.2.12 Some organisations also pointed out that maintaining a register of orders under a widened definition would be challenging, whereas a central register is currently maintained in the Court of Session.  This was felt to make it easier to keep track of all court orders currently registered for enforcement in Scotland.

6.2.13 Others, mainly from the legal profession, stressed that the change may be inappropriate on the basis that it may weaken the system, especially around enforcement of orders:

“The jurisdiction of the Sheriff Court is generally limited to the Sheriffdom in which it is situated. A litigant could therefore defeat the jurisdiction of the Sheriff Court by moving outwith the Sheriffdom. The jurisdiction of the Court of Session is Scotland wide.” (Legal Profession)

6.2.14 The same respondent noted that the current arrangement was consistent with other international measures such as the Hague Convention on the Civil Aspects of Child Abduction, where the Court of Session has exclusive jurisdiction in relation to enforcement measures.  The provision should continue, they felt, as a stronger law enforcement option.

6.2.15 One domestic abuse support service also expressed a view that there was potential for considerations around the welfare of the child and their safety having been overlooked in the jurisdiction making the order (if outwith Scotland), and that this meant that the Court of Session should be involved to ensure adherence to Scot’s law:

“…de-prioritising these considerations to a lower court runs the risk of facilitating perpetrators using the legal system to access children without due process being followed.”  (Domestic Abuse Support Service)

6.2.16 Other organisations disagreed with the change on the basis that the current system was unproblematic and already allowed for a consistent approach to be taken to cases.  Two individuals also commented that there seemed no need for change as current legislation already worked “fairly well” in practice:

“We are not aware of any issues with the current situation. The Court of Session aligns with the High Court in England and Wales, providing consistency across the UK. It also provides a single court covering Scotland, simplifying issues by providing one place to check for orders, and allowing people to move around Scotland without complicating the arrangements for registering, searching for, or enforcing orders.”  (Legal Profession)

6.3 Other Steps to Tackle Jurisdictional Issues

6.3.1 The consultation set out plans by the Scottish Government to prepare a guidance note regarding section 41 of the 1986 Act.  Section 41 provides that a child under the age of 16 who is habitually resident in a part of the UK and becomes habitually resident in another part of the UK without the agreement of all persons who have the right to determine where the child is to reside, or in contravention of a court order, is to be treated as continuing to be habitually resident in the original part of the UK for one year. The proposed guidance would be issued to various interested parties, including legal practitioners, in both Scotland and further afield.  Views were sought on whether any other steps were required by the Scottish Government to further guide understanding of issues in cross-UK border family cases.

Q13. Are there any other steps the Scottish Government should be taking on jurisdictional issues in cross-UK border family cases?

	Number	Percentage
Yes	62	24%
No	56	22%
No response	136	54%
Total	254	100%

6.3.2 More than half (54%) of respondents did not answer this question and, among those who did, there was a split in opinion as to whether other steps were needed.

Suggested Other Steps

6.3.3 Suggestions put forward for ‘other steps’, each put forward by just one organisation, included:

• Scottish Orders such as Guardianship Orders and Compulsory Supervision Orders (CSOs) being recognised cross borders;
• Steps being taken to provide a clear legislative basis for the jurisdiction of a Children’s Hearing in cases involving cross-UK issues;
• That it would be useful to allow an order from England or elsewhere to be recognised and valid in Scots Law until there is an opportunity for a Hearing or Court in Scotland to consider and judge on a family law matter;
• Reducing the time taken to process cross border cases;
• Improving mechanisms for transferring a case from one territorial jurisdiction to another/simpler mechanisms to determine the court with jurisdiction and, if necessary, to effect transfer of the action to the most appropriate part of the UK;
• More to be done to determine the reasons for re-location that occurs without the agreement of all parties;
• Further attention being given to the issue of cross-UK border placements for children and young people placed in secure care, particularly those being placed from England into Scottish secure care centres;
• Greater focus on understanding the needs, experiences and outcomes of all children and young people looked after away from home in a placement which is a cross-UK border placement;
• Addressing inconsistencies for unmarried fathers registering parental rights in different parts of the UK; and
• Addressing section 11 and section 42 of the 1986 Family Law Act which can prevent a father raising a contact action in Scotland if a divorce, nullity or judicial separation has previously been obtained in England or Wales.

Need for Change

6.3.4 Several organisations noted more generally that guidance would be beneficial as long as it was clear and flexible, was developed in consultation with stakeholders across different jurisdictions, and included consideration and safeguards to protect children (especially those experiencing domestic abuse):

“Guidance note would be beneficial, depending on what it would include.  We need to consider what makes sense for families and children in terms of where they are residing.  It should make it easier for families to access justice, be flexible and ensure access to the right support.”  (Local Authority)

6.3.5 One legal organisation (that did not provide a quantitative response) also commented that they perceived that “the jurisdiction provisions for child cases within the UK are overly complex, cause considerable confusion, and legislative re-drafting is required.” (Legal Profession).  This was echoed by a children’s organisation (who also did not provide a quantitative response):

“We are aware of instances where other UK courts have taken jurisdiction inappropriately and agree that consistent rules are needed across the UK, along with the flexibility to transfer a case as is possible within European jurisdiction under Brussels BIS II.  This will require joint working across UK jurisdictions.” (Children’s Organisation)

6.3.6 Many individuals who suggested that ‘other steps’ were required commented that there was a general need to ensure that all court orders are enforced no matter which legal system they originate in.  A residence change should be considered in court before it is accepted, it was suggested, and there should be independent investigation into cross border cases to ensure that the child’s best interests are always upheld:

“Prior to the child being moved over the border the parent should apply to the court to make a decision in the best interest of the child and the non-resident parent. If two parents are in agreement for the child to be moved then there is no need to go to court, but an agreed parenting plan to be held in the files in the event of later disagreement.”  (Individual)

6.3.7 There seemed to be general consensus among individuals that the current system was not sufficiently stringent, but also that greater flexibility needed to be built in, where appropriate.  The shared view of individuals was that the current system allowed for some inequity and imbalance of power, with some parents benefiting to the detriment of others.  This led to some contrast in views (many of which did not directly address the question).  While some individuals supported the need for resident parents to be able to move for their own/the child’s wellbeing, others felt that cross border movement without consent should be prevented:

“Preventing movement between Scotland and other parts of the UK should only be done in exceptional circumstances. There should not be the current practice which allows parents to be prevented from removing their child from a Sheriffdom almost immediately on petition of the other party. There is too much focus upon parental rights in this part of the law. Child autonomy does not feature until too late in the process.” (Individual)

“The removal of children from their habitually residential area needs to be dealt with swiftly and cannot be allowed without full agreement by both parents. Speed is key when bringing these matters to court to minimise the disruption to children.”  (Individual)

Suggested Amendments to Section 41

6.3.8 One domestic abuse support service questioned whether section 41 provision of one year is a reasonable amount of time before residency was changed.  They felt that this was insufficient time for a parent to contest it, especially given what they perceived to be a lack of solicitors who can practice cross-jurisdiction.

6.3.9 One individual urged that section 41 of the 1986 Act should be revised in line with recent UK Supreme Court case law on habitual residence (e.g. In re R [2015] UKSC 35) and suggested that clarity should be provided on the (non-)application of Brussels II bis pre- and post-Brexit.

No Further Steps Needed

6.3.10 Among both organisations and individuals who felt that no further steps were needed, the main views were that the current legislation was already satisfactory/worked well, that the proposed guidance would be sufficient to help clarify things further for practitioners, and that any significant changes to the 1986 Act would require wider consultation across the UK.  Some did suggest that the legislation may need to be reconsidered in the future as political contexts changed:

“The current legislation makes sufficient provision but may require to be considered in the context of potential Brexit implications on definitions for example of domicile.” (Legal Profession)

“Jurisdiction is a well-established principle and I agree that section 41 does not require to be amended, however a guidance note is something to be welcomed.”  (Individual)

6.3.11 Finally, a small number of individuals stressed that, while the guidance was welcomed, and they saw no need to change the legislation, it was essential that, going forward, the legislation was applied rigorously and fairly in practice.