KT against PT [2015] ScotSC 57 (01 September 2015)

KT against PT [2015] ScotSC 57 (01 September 2015)

The court retained jurisdiction as the children were not habitually resident in Poland or Germany but only temporarily in Poland for holidays, and the removal was without the defender’s consent, thus unlawful under section 2(3) of the 1995 Act. The pursuer, having raised proceedings, submitted to the court’s jurisdiction, and the court was obliged to consider section 11 orders.

Citation
[2015] ScotSC 57
Parties
Pursuer: KT; Defender: PT
Jurisdiction
Scotland
Judgment Date
01 September 2015
Procedural Posture
Divorce and Child Welfare / Interlocutor Following Child Welfare Hearing
Outcome
Interlocutor issued ex proprio motu; court asserts jurisdiction and makes interim orders.
Legal Topics
Divorce, Child Residence, Child Contact, Jurisdiction, Child Abduction
Family Law Child Law Divorce Child Residence Child Contact Jurisdiction Child Abduction

Case Brief

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Parties

KT

Pursuer

PT

Defender

Procedural Posture

Divorce and Child Welfare / Interlocutor Following Child Welfare Hearing

Legal Issues

  1. 1 Whether the Scottish court has jurisdiction to make orders regarding the children under section 11 of the Children (Scotland) Act 1995
  2. 2 Whether the children are habitually resident within the court's jurisdiction
  3. 3 Whether the removal or retention of the children outside the UK was lawful

Ratio Decidendi

The court retained jurisdiction as the children were not habitually resident in Poland or Germany but only temporarily in Poland for holidays, and the removal was without the defender’s consent, thus unlawful under section 2(3) of the 1995 Act. The pursuer, having raised proceedings, submitted to the court’s jurisdiction, and the court was obliged to consider section 11 orders.

Court Disposition

Interlocutor issued ex proprio motu; court asserts jurisdiction and makes interim orders.

Orders

  • Pursuer ordained to return the children to the United Kingdom within 7 days.
  • Time for lodging defences prorogated by 14 days.