What happens if a parent has brought a child to live in Scotland in breach of an English court order? Or if a parent in Scotland is not adhering to contact arrangements ordered by a Northern Irish court?
It can be a common misconception that if you have a court order in respect of care arrangements for a child from a court in England, Wales or Northern Ireland then it automatically is enforceable within Scotland. Given, however, the distinctive Scottish legal system, this is not in fact the case.
How to register a part 1 order in Scotland
If you have an order in respect of a child in a private law case from another UK jurisdiction (known as "a part 1 order") then for a Scottish court to enforce the order it must be first be registered in the Court of Session (Scotland's highest civil court). This is an administrative process, in terms of s27 of the Family Law Act 1986. It involves advising the court as to the child's whereabouts, the payment of a small fee and lodging a certified copy of the part 1 order and a copy of the application which it stems from. The order is then recorded in a Court of Session register. These cases are often time sensitive and this is a simple and quick process, provided all the paperwork is available.
How to enforce a part 1 order in Scotland
To enforce the order a Petition must be lodged in the Court of Session narrating the circumstances and seeking orders in Scotland to enforce the terms of the order from elsewhere in the UK. Interim orders can be sought before service, such as to interdict a parent from making any onward move, or to seize passports if there is a flight risk. The Petition and order of the court is then served on the parent in Scotland, often with an extremely restricted timescale for lodging written Answers to the Petition. An appearance is required at a First Hearing. The court may determine the issues arising either at the First Hearing, or, if appropriate at a further hearing to allow further time for preparation and argument. The exact timetable is case specific. However, the Court of Session is likely to deal with such cases expeditiously and, in the case of the removal of a child to Scotland in breach of an English court order, to seek to speedily return the child to England, as their place of habitual residence, applying some similar considerations to international child abduction cases.
Similar provisions exist to allow the recognition and enforcement of Scottish orders in England & Wales or Northern Ireland.
Changes in the future
The Children (Scotland) Act 2020 extends jurisdiction in respect of enforcement of part 1 orders to the local Sheriff Courts around Scotland. This part of the Act is not yet in force. In the future, orders will continue to be registered in the Court of Session, for the purpose of ensuring a central register, but an action for enforcement will be able to be raised in a local Sheriff Court, subject to jurisdictional requirements.
As solicitors recognised for our cross-border family law practice, please do get in touch if you, or your clients, need assistance in registering orders from family courts elsewhere in the UK.
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