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

Part 5: Cross border cases within the UK: jurisdictional issues

Introduction

5.01 In this section of the consultation, we are seeking views on:

• Registration of orders from elsewhere in the UK; and
• Whether we should take any action on other issues about cross- UK border jurisdiction in family cases.

5.02 In this section of the consultation, we are also providing an update on planned guidance on section 41 of the Family Law Act 1986 (the 1986 Act) on habitual residence.

Registration of orders from elsewhere in the UK

Background

5.03 Part 1 of the 1986 Act on “child custody” applies to a range of orders issued across the UK such as contact and residence.

5.04 Section 27 of the 1986 Act 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. Registration has to be “sent to the appropriate court in the part of the UK specified in the application”.

5.05 The “appropriate court” in Scotland is defined by section 32 of the 1986 Act as the Court of Session. In England, Wales or Northern Ireland the High Court is the appropriate court.

5.06 Section 29 of the 1986 Act gives the court in which the order has been registered the same powers for the purpose of enforcing the order as it would have if it had itself made the order. This means that action could be taken in the Court of Session to enforce the court order. Chapter 71 of the Court of Session Rules sets out the procedure for how orders made elsewhere in the UK which are registered with the Court of Session can be enforced ^[50] .

5.07 We are seeking views as to whether the appropriate court in Scotland should be defined as the Sheriff Court as well as the Court of Session. This would require an amendment to primary legislation.

Pros/Cons

5.08 An advantage is that there could be cost savings, but these would be modest due to the low number of cases. As the majority of contact cases are already heard in the Sheriff Court rather than the Court of Session, there may be benefits to allowing court decisions from elsewhere in the UK to be registered in the Sheriff Court.

5.09 However, any change may lead to calls for a similar change elsewhere in the UK. If we do decide to change the definition of “appropriate court” then we would discuss the implications of the change with the UK Government and the Northern Irish administration. We would also need to consider whether further legislation would be needed so that registration in a Sheriff Court could be enforced in any other Sheriffdom in Scotland.

Question 12): 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?
Yes
No
Why did you select your answer above?

Cross UK border cases

5.10 We have received correspondence in the past on jurisdiction in cross- UK border cases on matters such as contact and residence.

5.11 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.

5.12 We do not consider that section 41 of the 1986 Act needs to be amended. However, we are preparing a guidance note on section 41 which we intend to issue to legal practitioners and other interested bodies in Scotland. We also plan to send it to our counterparts in the other jurisdictions of the UK and to publish it on our website.

Question 13): Are there any other steps the Scottish Government should be taking on jurisdictional issues in cross- UK border family cases?
Yes
No
Why did you select your answer above?