Part 1 of the Children (Scotland) Act 1995: review

Part 14: Domicile of persons under 16

Background

14.01 We are seeking views on whether section 22 of the Family Law (Scotland) Act 2006 (the 2006 Act), on domicile of persons under 16, needs to be clarified. This follows written evidence provided to the Justice Committee of the Scottish Parliament when it carried out post-legislative scrutiny on the 2006 Act.

14.02 Section 22 of the 2006 Act provides that where the parents of a child are domiciled in the same country as each other and the child has a home with a parent or homes with both of them then the child shall be domiciled in the same country as their parents. It goes on to provide that where this is not the case, the child shall be domiciled in the country with which the child has for the time being the closest connection.

14.03 In the post legislative scrutiny of the 2006 Act carried out by the Justice Committee, written evidence was submitted on section 22. This noted that there had been no reported case on the interpretation and operation of section 22 of the 2006 Act ^[124] . In addition, the evidence noted that the 2006 Act makes no reference to “domicile of origin” and “domicile of choice”. The evidence also said the time at which the section 22 rule is to take effect was uncertain.

Pros/Cons

14.04 The benefit of amending the legislation is that any changes could help clarify the position which could be in the best interests of the child. However, as these provisions have not, so far as we are aware, been tested in court it may be premature to make any changes.

Question 52): Should section 22 of the Family Law (Scotland) Act 2006 which prescribes where a child is deemed to be domiciled be amended?
Yes
No
Why did you select your answer above?