Family Justice Modernisation Strategy

Part 9: Cross UK and international cases and international child abduction Background

9.1 The consultation on the review of the 1995 Act sought views on a number of areas in relation to cross UK and international cases and international child abduction including:

• registration of orders from elsewhere in the UK;
• cross UK border jurisdiction; and
• international child abduction.

Registration of orders from elsewhere in the UK

9.2 Under the current law, certain kinds of court order (“Part I orders” – a reference to Part 1 of the Family Law Act 1986 (the 1986 Act)) on family matters from England and Wales or Northern Ireland, can be registered in the Court of Session and must also be enforced in that court. Data from SCTS suggests that in 2017, 24 orders were registered in the Court of Session.

Cross UK border cases

9.3 Section 41 of the 1986 Act makes provision on jurisdiction for the purposes of Part 1 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.

International child abduction

9.4 In Scotland, there is a common law offence (one not defined in statute) of plagium. This is a crime of child stealing which may be committed against children below the age of puberty. It is also a crime (abduction) to carry off or confine any person against their will without lawful authority.

9.5 There are also specific statutory offences in the Child Abduction Act 1984 (the 1984 Act). This extends to England and Wales and Scotland, but makes different provision for Scotland.

9.6 Section 1 of the 1984 Act makes it a criminal offence in the law of England and Wales for a person connected with a child under the age of 16, such as a parent, to take or send the child out of the United Kingdom without the appropriate consent.

9.7 Section 6 of the 1984 Act makes it a criminal offence in the law of Scotland for a person connected with a child under 16 to take or send the child out of the United Kingdom without the appropriate consent, but only where there is a court order from a court in the UK on custody or from a court in England, Wales or Northern Ireland making the child a ward of court. In addition, under section 6 of the 1984 Act, it is a criminal offence in Scotland to take a child out of the United Kingdom if there is an order from a court in the UK prohibiting the removal of the child from the UK or any part of it.

9.8 The 1984 Act was initially intended to only cover England and Wales. However, its remit was extended during the Committee stages and it became apparent that the provisions relating to the removal of a child abroad would be ineffective if a parent was able to simply move the child to Scotland. The provisions relating to Scotland were added at a later stage and were not consulted upon.

Aim

Registration of orders from elsewhere in the UK

9.9 The Scottish Government believes that parties should be able to enforce any Part 1 order in the sheriff court as well as in the Court of Session, because enforcement in the sheriff court will be less costly to parties.

Cross UK border cases

9.10 The Scottish Government aims to clarify section 41 of the 1986 Act in relation to jurisdiction of family court cases.

International child abduction

9.11 The Scottish Government considers that further work needs to be done on international child abduction to consider the implications of changing the criminal offence.

Actions

Registration of orders from elsewhere in the UK

9.12 Section 20 of the Children (Scotland) Bill allows orders from elsewhere in the UK that are registered in the Court of Session to be enforced in the sheriff court (as well as in the Court of Session). If a person wishes to enforce a Part 1 order in a sheriff court, the court will have jurisdiction if the child is habitually resident in the sheriffdom or the child is physically present in Scotland and is not habitually resident elsewhere in the UK and either the pursuer or the defender is habitually resident in the sheriffdom.

Cross UK border cases

9.13 The Scottish Government will produce guidance in 2020 on section 41 of the 1986 Act. The Scottish Government will seek input from stakeholders on the draft guidance. The guidance will be shared with stakeholders and published on the Scottish Government website.

International child abduction

9.14 When identifying areas for inclusion in the Bill the Scottish Government considered whether to amend the 1984 Act to specify that it is a criminal offence for a person with PRRs or a contact order to remove that child without the appropriate consent of anyone else with PRRs whether or not there is a court order in place. This would reflect the position in England & Wales.

9.15 After further consideration of stakeholder concerns raised during the consultation, the Scottish Government believe that significant further work is required in this area. In particular, consideration is needed in relation to the procedure for obtaining formal consent, proving consent and corroboration of evidence. This work will be taken forward and further consideration will be undertaken as to whether amendments are required to the 1984 Act.