C1Part I Child Custody
Chapter III Jurisdiction of Courts in Scotland
8 Jurisdiction in independent proceedings.
9 Habitual residence.
Subject to section 11 of this Act, an application for a F2Part I order otherwise than in matrimonial F35or 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.
10 Presence of child.
Subject to section 11 of this Act, an application for a F3Part I order otherwise than in matrimonial F36or 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.
11 Provisions supplementary to sections 9 and 10.
1
Subject to subsection (2) below, the jurisdiction of the court to entertain an application for a F4Part 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 F37or civil partnership proceedings are continuing in a court in any part of the United Kingdom in respect of the marriage F38or civil partnership of the parents of the child.
2
Subsection (1) above shall not apply in relation to an application for a F4Part I order if the court in which the matrimonial F39or civil partnership proceedings are continuing has made one of the following orders, that is to say—
a
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 F7Part 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.
12 Emergency jurisdiction.
Notwithstanding that any other court, whether within or outside Scotland, has jurisdiction to entertain an application for a F8Part 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.
13 Jurisdiction ancillary to matrimonial proceedings.
1
F412
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 F9Part 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 F42or proceedings for dissolution or nullity of civil partnership in respect of the marriage F43or 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 F9Part I order made F10in matrimonial F44or 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 F44or civil partnership proceedings in respect of the marriage F45or 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
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.
6
A court in Scotland which has jurisdiction in matrimonial F46or civil partnership proceedings to entertain an application for a F9Part 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 F9Part I order, or
b
the court considers that it would be more appropriate for F14Part 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.
14 Power of court to refuse application or sist proceedings.
1
A court in Scotland which has jurisdiction to entertain an application for a F15Part 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 F15Part 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; F31...
b
c
that it should exercise its powers under Article 15 of the Council Regulation (transfer to a court better placed to hear the case)F50, or
d
that it should exercise its powers under Article 8 of the Hague Convention (request to authority in another Contracting State to assume jurisdiction),
F483
The court may recall a sist granted in order for it to exercise its powers under Article 8 of the Hague Convention, and withdraw any request made by it to an authority in another Contracting State to assume jurisdiction, if—
a
the authority in the other Contracting State does not assume jurisdiction within the period for which the court granted the sist, or
b
the parties do not, within the period specified by the court, request the authority in the other Contracting State to assume jurisdiction.
15 Duration, variation and recall of orders.
1
Where, after the making by a court in Scotland of a F16Part I order (“the existing order”) with respect to a child,—
a
b
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 F16Part 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 F16Part I order made with respect to the same child as the original order was made.
4
16 Tutory and curatory.
1
Subject to subsections (2) and (3) below, an application made after the commencement of this Part for an order relating to the F21guardianshipof a F21child 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 F22judicial 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
Orders for delivery of child.
17
1
F23. . ., 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 F24Part 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 F24Part I order with respect to the child concerned.
F252
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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 F26, 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.
F274
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.
F3017A
The provisions of this Chapter are subject to Sections 2 and 3 of Chapter II of the Council Regulation F52and are subject to the Hague Convention .
18 Interpretation of Chapter III.
1
In this Chapter—
“child” means a person who has not attained the age of sixteen;
F47“civil partnership proceedings” means proceedings for dissolution or nullity of a civil partnership or for the separation of the partners in a civil partnership;
“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 F28Part I order or, in the case of an application mentioned in section 16(1) of this Act, an order relating to the F29guardianship of a child, has been granted in pursuance of the application or the court has refused to grant such an order.
Pt. I applied by S.I. 1991/1723, art. 3(2), Sch. 2 and art. 3(3), Sch. 3.