KMI AGAINST SMO [2017] ScotSC 22 (13 April 2017)

KMI AGAINST SMO [2017] ScotSC 22 (13 April 2017)

At the time the court was seised, the child was habitually resident in Eire, not Scotland. The Scottish court therefore had no jurisdiction under Brussels II bis, and the Irish courts were the appropriate forum. There was no prorogation of jurisdiction by the parties, and it was not in the child's best interests to do so.

Citation
[2017] ScotSC 22
Parties
Pursuer: K M I; Defender: S M O
Jurisdiction
Scotland
Judgment Date
13 April 2017
Procedural Posture
Family Law Parental Responsibility / Jurisdictional Challenge at Child Welfare Hearing
Outcome
Action dismissed for want of jurisdiction; no expenses due to or by either party.
Legal Topics
Jurisdiction, Parental Responsibility, Habitual Residence, Brussels II Bis Regulation
Family Law Private International Law Jurisdiction Parental Responsibility Habitual Residence Brussels II Bis Regulation

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Parties

K M I

Pursuer

S M O

Defender

Procedural Posture

Family Law Parental Responsibility / Jurisdictional Challenge at Child Welfare Hearing

Legal Issues

  1. 1 Whether the Scottish court has jurisdiction over residence and contact orders for a child habitually resident in Eire under Council Regulation No.2201/2003 (Brussels II bis)
  2. 2 Whether jurisdiction was prorogated by the parties

Ratio Decidendi

At the time the court was seised, the child was habitually resident in Eire, not Scotland. The Scottish court therefore had no jurisdiction under Brussels II bis, and the Irish courts were the appropriate forum. There was no prorogation of jurisdiction by the parties, and it was not in the child's best interests to do so.

Court Disposition

Action dismissed for want of jurisdiction; no expenses due to or by either party.

Orders

  • Declaration under Article 17 of Council Regulation No.2201/2003 that the Scottish court has no jurisdiction.
  • Sheriff clerk to inform the Scottish central authority to communicate with the relevant Irish court.