Family Law Act 1986

Chapter III S Jurisdiction of Courts in Scotland

8 Jurisdiction in independent proceedings. S

A court in Scotland may entertain an application for a [F1 Part I order] otherwise than in matrimonial proceedings only if it has jurisdiction under section 9, 10, 12 or 15(2) of this Act.

Textual Amendments

F1 Words in s. 8 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)

9 Habitual residence. S

Subject to section 11 of this Act, an application for a [F2 Part I order] otherwise than in matrimonial 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

F2 Words in S. 9 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)

10 Presence of child. S

Subject to section 11 of this Act, an application for a [F3 Part I order] otherwise than in matrimonial 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

F3 Words in s. 10 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)

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 [F4 Part 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 proceedings are continuing in a court in any part of the United Kingdom in respect of the marriage of the parents of the child.

(2) Subsection (1) above shall not apply in relation to an application for a [F4 Part I order] if the court in which the matrimonial proceedings are continuing has made one of the following orders, that is to say—

(a) an order under section [F5 2A(4)], 13(6) or [F6 19A(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 [F7 Part 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

F4 Words in s. 11(1)(2) 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)

F5 Figure in s. 11(2)(a) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 68(a) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F6 Words in s. 11(2)(a) substituted (4.11.1996) by S.I. 1995/756, art. 12(5)(d); S.R. 1996/297, art.3

F7 Words in s. 11(2)(b) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(b) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

12 Emergency jurisdiction. S

Notwithstanding that any other court, whether within or outside Scotland, has jurisdiction to entertain an application for a [F8 Part 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

F8 Words in s. 12 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)

13 Jurisdiction ancillary to matrimonial proceedings. S

(1) The jurisdiction of a court in Scotland to entertain an application for a [F9 Part I order] in matrimonial proceedings shall be modified by the following provisions of this section.

(2) A court in Scotland shall not have jurisdiction, after the dismissal of matrimonial proceedings or after decree of absolvitor is granted therein, to entertain an application for a [F9 Part I order][F10 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 [F9 Part 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 in respect of the marriage 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 [F9 Part I order] made [F11 in matrimonial proceedings where the court has refused to grant the principal remedy sought in the proceedings] if, on the date of the application, matrimonial proceedings in respect of the marriage 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 [F12 2A(4)] or [F13 19A(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 [F14 Part 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 proceedings to entertain an application for a [F9 Part 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 [F9 Part 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 [F9 Part I order] or an order varying a [F9 Part I order]; and

(b) the court considers that it would be more appropriate for [F15 Part 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

F9 Words 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)

F10 Words in s. 13(2) substituted (1.11.1996) by 1995 c. 36, s. 105(4), Sch. 4 para. 41(3)(a); S.I. 1996/2203, art. 3(3), Sch.

F11 Words 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.

F12 Figure in s. 13(5)(a) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 68(b) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F13 Words 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

F14 Words in s. 13(5)(b) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(b) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

F15 Words in s. 13(6)(b) substituted (14.10.1991) by Children Act 1989 (c. 41, SIF 20), s. 108, Sch. 13 para. 62(2)(c) (with Sch. 14 para. 1(1)); S.I. 1991/828, art. 3(2)

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 [F16 Part 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 [F16 Part 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; F17 ...

(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, [F18 or

(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 [F19 or (as the case may be) exercise its powers under Article 15 of the Council Regulation].

Textual Amendments

F16 Words in s. 14(1)(2) 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)

F17 Word in s. 14(2) repealed (1.3.2005) by The European Communities (Matrimonial and Parental Responsibility Jurisdiction and Judgments) (Scotland) Regulations 2005 (S.S.I. 2005/42), regs. 1(1), 4(2)(a) (with reg. 7)

F18 S. 14(2)(c) and word inserted (1.3.2005) by The European Communities (Matrimonial and Parental Responsibility Jurisdiction and Judgments) (Scotland) Regulations 2005 (S.S.I. 2005/42), regs. 1(1), 4(2)(b) (with reg. 7)

F19 Words in s. 14(2) added (1.3.2005) by The European Communities (Matrimonial and Parental Responsibility Jurisdiction and Judgments) (Scotland) Regulations 2005 (S.S.I. 2005/42), regs. 1(1), 4(2)(c) (with reg. 7)

15 Duration, variation and recall of orders. S

(1) Where, after the making by a court in Scotland of a [F20 Part I order] (“the existing order”) with respect to a child,—

(a) a [F20 Part I order], or an order varying a [F20 Part I order], competently made by another court in any part of the United Kingdom with respect to that child; or

(b) an order [F21 relating 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 [F22 or 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 [F20 Part 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 [F20 Part I order] made with respect to the same child as the original order was made.

(4) [F23 Where, 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 F24 . . . providing for the supervision of that child by a local authority, that order shall cease to have effect.

Textual Amendments

F20 Words 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)

F21 Words 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.

F22 Words in s. 15(1)(b) inserted (1.3.2001) by S.S.I. 2001/36, reg. 4(2)

F23 Words 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.

F24 Words 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 [F25 guardianship]of a [F25 child] 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 [F26 judicial 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 [F25 guardianship] of a [F25 child], what constitutes an application for the purposes of this Chapter.

Textual Amendments

F25 Words in s. 16(1)(4) substituted (25. 9. 1991) by Age of Legal Capacity (Scotland) Act 1991 (c. 50, SIF 49:8), ss.10(1), 11(2), Sch. 1 para. 45.

F26 Words in s. 16(2) substituted (25. 9. 1991) by Age of Legal Capacity (Scotland) Act 1991 (c. 50, SIF 49:8), ss. 10(1), 11(2), Sch. 1 para. 45.

17 Orders for delivery of child. S

(1) F27 . . ., 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 [F28 Part 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 [F28 Part I order] with respect to the child concerned.

F29 (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 [F30 , 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.

[F31 (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

F27 Words 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.

F28 Words in s. 17 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)

F29 S. 17(2) repealed (S.)(1.11.1996) by 1995 c. 36, s. 105(5), Sch. 5; S.I. 1996/2203, art. 3(3), Sch.

F30 Words 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.

F31 S. 17(4) added (1.11.1996) by 1995 c. 36, s. 105(1)(4), Sch. 4 para. 41(5)(b); S.I. 1996/2203, art. 3(3), Sch.

[F32 17A. The provisions of this Chapter are subject to Sections 2 and 3 of Chapter II of the Council Regulation.]

Textual Amendments

F32 S. 17A added (S.) (1.3.2005) by The European Communities (Matrimonial and Parental Responsibility Jurisdiction and Judgments) (Scotland) Regulations 2005 (S.S.I. 2005/42), regs. 1(1), 4(3) (with reg. 7)

18 Interpretation of Chapter III. S

(1) In this Chapter—

• “child” means a person who has not attained the age of sixteen;

• “matrimonial proceedings” means proceedings for divorce, nullity of marriage or judicial separation.

(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 [F33 Part I order] or, in the case of an application mentioned in section 16(1) of this Act, an order relating to the [F34 guardianship of a child], has been granted in pursuance of the application or the court has refused to grant such an order.

Textual Amendments

F33 Words in s. 18 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)

F34 Words in s. 18(2) substituted (25.9.1991) by Age of Legal Capacity (Scotland) Act 1991 (c. 50, SIF 49:8), ss. 10(1), 11(2), Sch. 1 para. 46.