EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations make provision to facilitate the application of the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance done at The Hague on 23 November 2007 (“the Convention”) in Scotland. The Convention will be concluded by the European Union on a date yet to be determined pursuant to Council Decision 2011/432/EU (OJ L 192, 22.07.2011, p.39-50). Member States of the European Union (apart from Denmark) are bound to apply the Convention by virtue of conclusion by the European Union. The Convention contains rules on the recognition and enforcement of maintenance decisions between Contracting Parties, and administrative co-operation to facilitate the recovery of such maintenance.
Regulation 3 designates the Scottish Ministers as the Central Authority in relation to Scotland for the purposes of Article 4 of the Convention.
Regulation 4 makes provision for the recognition and enforcement in Scotland of maintenance decisions made by courts in Contracting States. Jurisdiction lies with the courts of Scotland where the person against whom enforcement is sought is resident in Scotland or assets belonging to that person and which are susceptible to enforcement are situated or held in Scotland (regulation 4(2)). The relevant court to which an application should be made is the sheriff court (regulation 4(1) and (3)). An application for registration of a maintenance decision is to be decided by the sheriff clerk (regulation 4(4)) but a right of appeal lies to the sheriff (regulation 4(5)) with a further right of appeal to the Inner House of the Court of Session on a point of law only (regulation 4(6)). A maintenance decision registered in Scotland is to be enforceable as if it was made by the registering court (regulation 4(7)).
Regulations 5 to 7 make provision for interest, currency of payments and admissibility.
Regulation 8 makes equivalent provision to regulation 4 for the recognition and enforcement in Scotland of maintenance arrangements (which is defined in Article 3 of the Convention).
Regulation 9 and the Schedule make consequential amendments to the Debtors (Scotland) Act 1987, the Debt Arrangement and Attachment (Scotland) Act 2002 and the Bankruptcy and Diligence etc. (Scotland) Act 2007 so that maintenance decisions and arrangements within the scope of the Convention can be enforced in the same manner as decisions of a registering court in Scotland. Amendments are also made which make it clear that court settlements and authentic instruments within the scope of Council Regulation (EC) No 4/2009 can be enforced in the same way. An amendment is also made to the Civil Legal Aid (Scotland) Regulations 2002 so as to provide for the availability of legal aid for applications to the Scottish Ministers under Chapter III of the Convention.
No Business and Regulatory Impact Assessment has been prepared in respect of these Regulations.