MD v ALD or B or B [1999] ScotCS 165 (6 July 1999)

MD v ALD or B or B [1999] ScotCS 165 (6 July 1999)

The court held that, although Rule 70.5(2) may be ill-advised and the procedural provisions merit reconsideration, it does create an exception allowing applications for access under the Hague Convention to proceed by petition. In the circumstances of this case, where the petition had proceeded thus far and the criteria for decision would be the same under either procedure, the reclaiming motion should be refused and the petition allowed to proceed.

Citation
[1999] ScotCS 165
Parties
Petitioner and Respondent: M. D.; Respondent and Reclaimer: A. L. D. or B. or B.
Jurisdiction
Scotland
Judgment Date
06 July 1999
Procedural Posture
Reclaiming Motion in Petition and Answers / Appeal (inner House, Court of Session)
Outcome
Reclaiming motion refused; petition allowed to proceed.
Legal Topics
Child Abduction, Child Access/contact, Hague Convention, Jurisdiction, Procedural Competency
Family Law International Law Civil Procedure Child Abduction Child Access/contact Hague Convention Jurisdiction Procedural Competency

Case Brief

Summary, issues, holding and outcome

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Parties

M. D.

Petitioner and Respondent

A. L. D. or B. or B.

Respondent and Reclaimer

Procedural Posture

Reclaiming Motion in Petition and Answers / Appeal (inner House, Court of Session)

Legal Issues

  1. 1 Whether an application for access to a child under the Hague Convention may competently be brought by petition under Rule of Court 70.5(2) or must be brought as a family action under ordinary rules.
  2. 2 Whether Article 21 of the Hague Convention creates a private right enforceable in Scottish courts or merely obligations for Central Authorities.

Ratio Decidendi

The court held that, although Rule 70.5(2) may be ill-advised and the procedural provisions merit reconsideration, it does create an exception allowing applications for access under the Hague Convention to proceed by petition. In the circumstances of this case, where the petition had proceeded thus far and the criteria for decision would be the same under either procedure, the reclaiming motion should be refused and the petition allowed to proceed.

Court Disposition

Reclaiming motion refused; petition allowed to proceed.

Orders

  • Case remitted to the Lord Ordinary's By Order roll for further procedure.