Children (Scotland) Act 1995

12 Restrictions on decrees for divorce, separation or annulment affecting children. S

(1) In any action for

[F1 (a)] divorce, judicial separation or declarator of nullity of marriage,[F2 or

(b) dissolution or declarator of nullity of a civil partnership or separation of civil partners,]

the court shall, where this section applies, consider (in the light of such information as is before the court as to the arrangements which have been, or are proposed to be, made for the upbringing of each child by virtue of which it applies) whether to exercise with respect to him the powers conferred by section 11 [F3 of this Act or section 62 of the Children's Hearings (Scotland) Act 2011] .

(2) Where, in any case to which this section applies, the court is of the opinion that—

(a) the circumstances of the case require, or are likely to require, it to exercise any power under section 11 [F4 of this Act or section 62 of the Children's Hearings (Scotland) Act 2011] with respect to the child concerned;

(b) it is not in a position to exercise that power without giving further consideration to the case; and

(c) there are exceptional circumstances which make it desirable in the interests of that child that it should not grant decree in the action until it is in a position to exercise such a power,

it shall postpone its decision on the granting of decree in the action until it is in such a position.

(3) This section applies where a child of the family has not reached the age of sixteen years at the date when the question first arises as to whether the court should give such consideration as is mentioned in subsection (1) above.

(4) In this section “child of the family”, in relation to

[F5 (a)] the parties to a marriage, means—

[F6 (i)] a child of both of them; or

[F7 (ii)] any other child, not being a child who is placed with them as foster parents by a local authority or voluntary organisation, who has been treated by both of them as a child of their family[F8 ; or

(b) the partners in a civil partnership, means a child

[F9 (i)] who has been treated by both partners as a child of the family which their partnership constitutes [F10 ; or

(ii) whose parents are the partners (being parents by virtue of sections 33 and 42 of the Human Fertilisation and Embryology Act 2008).]]

Textual Amendments

F1 Words in s. 12(1) renumbered as s. 12(1)(a) (5.12.2005) by virtue of Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 60(2); S.S.I. 2005/604, art. 2(c)

F2 S. 12(1)(b) and preceding word inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(2), 263, Sch. 28 para. 60(2); S.S.I. 2005/604, art. 2(c)

F3 Words in s. 12(1) substituted (24.6.2013) by Children’s Hearings (Scotland) Act 2011 (asp 1), s. 206(2), sch. 5 para. 2(2)(a) (with s. 186); S.S.I. 2013/195, arts. 2, 3

F4 Words in s. 12(2)(a) substituted (24.6.2013) by Children’s Hearings (Scotland) Act 2011 (asp 1), s. 206(2), sch. 5 para. 2(2)(b) (with s. 186); S.S.I. 2013/195, arts. 2, 3

F5 Words in s. 12(4) renumbered as s. 12(4)(a) (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 45(1), 46(2), Sch. 2 para. 8(a); S.S.I. 2006/212, art. 2 (subject to arts. 3-13)

F6 S. 12(4)(a) renumbered as s. 12(4)(a)(i) (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 45(1), 46(2), Sch. 2 para. 8(a); S.S.I. 2006/212, art. 2 (subject to arts. 3-13)

F7 S. 12(4)(b) renumbered as s. 12(4)(b)(ii) (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 45(1), 46(2), Sch. 2 para. 8(a); S.S.I. 2006/212, art. 2 (subject to arts. 3-13)

F8 S. 12(4)(b) and preceding word added (4.5.2006) by Family Law (Scotland) Act 2006 (asp 2), ss. 45(1), 46(2), Sch. 2 para. 8(b); S.S.I. 2006/212, art. 2 (subject to arts. 3-13)

F9 Words in s. 12(4)(b) renumbered as s. 12(4)(b)(i) (6.4.2009 for certain purposes, otherwise 1.9.2009) by virtue of Human Fertilisation and Embryology Act 2008 (c. 22), ss. 56, 68, Sch. 6 para. 53(a); S.I. 2009/479, art. 6(1)(e)(2) (as amended by S.I. 2009/2232, art. 3)

F10 S. 12(4)(b)(ii) and preceding word inserted (6.4.2009 for certain purposes, otherwise 1.9.2009) by Human Fertilisation and Embryology Act 2008 (c. 22), ss. 56, 68, Sch. 6 para. 53(b); S.I. 2009/479, art. 6(1)(e)(2) (as amended by S.I. 2009/2232, art. 3)