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Part IU.K. Child Custody

Modifications etc. (not altering text)

C1Pt. I applied by S.I. 1991/1723, art. 3(2), Sch. 2 and art. 3(3), Sch. 3.

Chapter IIIS Jurisdiction of Courts in Scotland

8 Jurisdiction in independent proceedings.S

A court in Scotland may entertain an application for a [F1Part I order] otherwise than in matrimonial [F2or civil partnership] proceedings only if it has jurisdiction under section 9, 10, 12 or 15(2) of this Act.

Textual Amendments

9 Habitual residence.S

Subject to section 11 of this Act, an application for a [F3Part I order] otherwise than in matrimonial [F4or civil partnership] proceedings may be entertained by—

(a)the Court of Session if, on the date of the application, the child concerned is habitually resident in Scotland;

(b)the sheriff if, on the date of the application, the child concerned is habitually resident in the sheriffdom.

Textual Amendments

10 Presence of child.S

Subject to section 11 of this Act, an application for a [F5Part I order] otherwise than in matrimonial [F6or civil partnership] proceedings may be entertained by—

(a)the Court of Session if, on the date of the application, the child concerned—

(i)is present in Scotland; and

(ii)is not habitually resident in any part of the United Kingdom;

(b)the sheriff if, on the date of the application,—

(i)the child is present in Scotland;

(ii)the child is not habitually resident in any part of the United Kingdom; and

(iii)either the pursuer or the defender in the application is habitually resident in the sheriffdom.

Textual Amendments

11 Provisions supplementary to sections 9 and 10.S

(1)Subject to subsection (2) below, the jurisdiction of the court to entertain an application for a [F7Part I order] with respect to a child by virtue of section 9, 10 or 15(2) of this Act is excluded if, on the date of the application, matrimonial [F8or civil partnership] proceedings are continuing in a court in any part of the United Kingdom in respect of the marriage [F9or civil partnership] of the parents of the child.

(2)Subsection (1) above shall not apply in relation to an application for a [F7Part I order] if the court in which the matrimonial [F10or civil partnership] proceedings are continuing has made one of the following orders, that is to say—

(a)an order under section [F112A(4)], 13(6) or [F1219A(4)] of this Act (not being an order made by virtue of section 13(6)(a)(ii)); or

(b)an order under section 5(2), 14(2) or 22(2) of this Act which is recorded as made for the purpose of enabling [F13Part I proceedings with respect to] the child concerned to be taken in Scotland or, as the case may be, in another court in Scotland,

and that order is in force.

Textual Amendments

F12Words in s. 11(2)(a) substituted (4.11.1996) by S.I. 1995/756, art. 12(5)(d); S.R. 1996/297, art.3

12 Emergency jurisdiction.S

Notwithstanding that any other court, whether within or outside Scotland, has jurisdiction to entertain an application for a [F14Part I order], the Court of Session or the sheriff shall have jurisdiction to entertain such an application if—

(a)the child concerned is present in Scotland or, as the case may be, in the sheriffdom on the date of the application; and

(b)the Court of Session or sheriff considers that, for the protection of the child, it is necessary to make such an order immediately.

Textual Amendments

13 Jurisdiction ancillary to matrimonial proceedings.S

(1)The jurisdiction of a court in Scotland to entertain an application for a [F15Part I order] in matrimonial [F16or civil partnership] proceedings shall be modified by the following provisions of this section.

[F17(2)A court in Scotland shall not have jurisdiction–

(a)after the dismissal of matrimonial proceedings or after decree of absolvitor is granted therein; or

(b)after the dismissal of civil partnership proceedings,

to entertain an application for a Part 1 order in those proceedings unless the application therefor was made on or before such dismissal or the granting of the decree of absolvitor.]

(3)Where, after a decree of separation has been granted, an application is made in the separation process for a [F15Part I order], a court in Scotland shall not have jurisdiction to entertain that application if, on the date of the application, proceedings for divorce or nullity of marriage [F18or proceedings for dissolution or nullity of civil partnership] in respect of the marriage [F19or civil partnership] concerned are continuing in another court in the United Kingdom.

(4)A court in Scotland shall not have jurisdiction to entertain an application for the variation of a [F15Part I order] made [F20in matrimonial [F21or civil partnership] proceedings where the court has refused to grant the principal remedy sought in the proceedings] if, on the date of the application, matrimonial [F21or civil partnership] proceedings in respect of the marriage [F22or civil partnership] concerned are continuing in another court in the United Kingdom.

(5)Subsections (3) and (4) above shall not apply if the court in which the other proceedings there referred to are continuing has made—

(a)an order under section [F232A(4)] or [F2419A(4)] of this Act or under subsection (6) below (not being an order made by virtue of paragraph (a)(ii) of that subsection), or

(b)an order under section 5(2), 14(2) or 22(2) of this Act which is recorded as made for the purpose of enabling [F25Part I proceedings with respect to] the child concerned to be taken in Scotland or, as the case may be, in another court in Scotland,

and that order is in force.

(6)A court in Scotland which has jurisdiction in matrimonial [F26or civil partnership] proceedings to entertain an application for a [F15Part I order] with respect to a child may make an order declining such jurisdiction if—

(a)it appears to the court with respect to that child that—

(i)but for section 11(1) of this Act, another court in Scotland would have jurisdiction to entertain an application for a [F15Part I order], or

(ii)but for section 3(2), 6(3), 20(2) or 23(3) of this Act, a court in another part of the United Kingdom would have jurisdiction to make a [F15Part I order] or an order varying a [F15Part I order]; and

(b)the court considers that it would be more appropriate for [F27Part I matters relating to] that child to be determined in that other court or part.

(7)The court may recall an order made under subsection (6) above.

Textual Amendments

F15Words in s. 13(1)-(4)(6)(a)(i)(ii) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(a) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F20Words in s. 13(4) substituted (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 41(3)(b); S.I. 1996/2203, art. 3(3), Sch.

F24Words in s. 13(5)(a) substituted (4.11.1996) by S.I. 1995/756, arts. 1(2), 12(5); S.R. 1996/297, art. 3

14 Power of court to refuse application or sist proceedings.S

(1)A court in Scotland which has jurisdiction to entertain an application for a [F28Part I order] may refuse the application in any case where the matter in question has already been determined in other proceedings.

(2)Where, at any stage of the proceedings on an application made to a court in Scotland for a [F28Part I order], it appears to the court—

(a)that proceedings with respect to the matters to which the application relates are continuing outside Scotland or in another court in Scotland; F29...

(b)that it would be more appropriate for those matters to be determined in proceedings outside Scotland or in another court in Scotland and that such proceedings are likely to be taken there, [F30or

(c)that it should exercise its powers under Article 15 of the Council Regulation (transfer to a court better placed to hear the case),]

the court may sist the proceedings on that application [F31or (as the case may be) exercise its powers under Article 15 of the Council Regulation].

Textual Amendments

15 Duration, variation and recall of orders.S

(1)Where, after the making by a court in Scotland of a [F32Part I order] (“the existing order”) with respect to a child,—

(a)a [F32Part I order], or an order varying a [F32Part I order], competently made by another court in any part of the United Kingdom with respect to that child; or

(b)an order [F33relating to the parental responsibilities or parental rights in relation to] that child which is made outside the United Kingdom and recognised in Scotland by virtue of section 26 of this Act [F34or by virtue of the Council Regulation],

comes into force, the existing order shall cease to have effect so far as it makes provision for any matter for which the same or different provision is made by the order of the other court in the United Kingdom or, as the case may be, the order so recognised.

(2)Subject to sections 11(1) and 13(3) and (4) of this Act, a court in Scotland which has made a [F32Part I order] (“the original order”) may, notwithstanding that it would no longer have jurisdiction to make the original order, make an order varying or recalling the original order; but if the original order has by virtue of subsection (1) above ceased to have effect so far as it makes provision for any matter, the court shall not have power to vary that order under this subsection so as to make provision for that matter.

(3)In subsection (2) above, an order varying an original order means any [F32Part I order] made with respect to the same child as the original order was made.

(4)[F35Where, by virtue of subsection (1) above, a child is to live with a different person], then, if there is in force an order made by a court in Scotland F36. . . providing for the supervision of that child by a local authority, that order shall cease to have effect.

Textual Amendments

F32Words in s. 15(1)(a)(2)(3) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(a)(with Sch. 14 para. 1(1); S.I. 1991/828, art. 3(2)

F33Words in s. 15(1)(b) substituted (1.11.1996) by 1995 c. 36, s. 105(1)(4), Sch. 4 para. 41(4)(a); S.I. 1996/2203, art. 3(3), Sch.

F34Words in s. 15(1)(b) inserted (1.3.2001) by S.S.I. 2001/36, reg. 4(2)

F35Words in s. 15(4) substituted (1.11.1996) by 1995 c. 36, s. 105(1)(4), Sch. 4 para. 41(4)(b); S.I. 1996/2203, art. 3(3), Sch.

F36Words in s. 15(4) repealed (S.) (1.11.1996) by 1995 c. 36, s. 105(1)(5), Sch. 5; S.I. 1996/2203, art. 3(3), Sch.

16 Tutory and curatory.S

(1)Subject to subsections (2) and (3) below, an application made after the commencement of this Part for an order relating to the [F37guardianship]of a [F37child] may be entertained by—

(a)the Court of Session if, on the date of the application, the pupil or minor is habitually resident in Scotland,

(b)the sheriff if, on the date of the application, the pupil or minor is habitually resident in the sheriffdom.

(2)Subsection (1) above shall not apply to an application for the appointment or removal of a [F38judicial factor] or of a curator bonis or any application made by such factor or curator.

(3)Subsection (1) above is without prejudice to any other ground of jurisdiction on which the Court of Session or the sheriff may entertain an application mentioned therein.

(4)Provision may be made by act of sederunt prescribing, in relation to orders relating to the [F37guardianship] of a [F37child], what constitutes an application for the purposes of this Chapter.

Textual Amendments

17 Orders for delivery of child.S

(1)F39. . ., an application by one parent of a child for an order for the delivery of the child from the other parent, where the order is not sought to implement a [F40Part I order], may be entertained by the Court of Session or a sheriff if, but only if, the Court of Session or, as the case may be, the sheriff would have jurisdiction under this Chapter to make a [F40Part I order] with respect to the child concerned.

F41(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Subsection (1) above shall apply to an application by one party to a marriage for an order for the delivery of the child concerned from the other party where the child [F42, although not a child of both parties to the marriage, is a child of the family of those parties] as it applies to an application by one parent of a child for an order for the delivery of the child from the other parent.

[F43(4)In subsection (3) above, “child of the family” means any child who has been treated by both parties as a child of their family, except a child who has been placed with those parties as foster parents by a local authority or a voluntary organisation.]

Textual Amendments

F39Words in s. 17(1) repealed (S.)(1.11.1996) by 1995 c. 36, s. 105(1)(5), Sch. 5; S.I. 1996/2203, art. 3(3), Sch.

F41S. 17(2) repealed (S.)(1.11.1996) by 1995 c. 36, s. 105(5), Sch. 5; S.I. 1996/2203, art. 3(3), Sch.

F42Words in s. 17(3) substituted (1.11.1996) by 1995 c. 36, s. 105(1)(4), Sch. 4, para. 41(5)(a); S.I. 1996/2203, art. 3(3), Sch.

[F4417A.The provisions of this Chapter are subject to Sections 2 and 3 of Chapter II of the Council Regulation.]

Textual Amendments

18 Interpretation of Chapter III.S

(1)In this Chapter—

(2)In this Chapter, “the date of the application” means, where two or more applications are pending, the date of the first of those applications; and, for the purposes of this subsection, an application is pending until a [F46Part I order] or, in the case of an application mentioned in section 16(1) of this Act, an order relating to the [F47guardianship of a child], has been granted in pursuance of the application or the court has refused to grant such an order.

Textual Amendments