NOTE (No 2) BY SHERIFF GEORGE JAMIESON IN THE FAMILY ACTION G O T v K J K [2014] ScotSC 82 (05 August 2014)

NOTE (No 2) BY SHERIFF GEORGE JAMIESON IN THE FAMILY ACTION G O T v K J K [2014] ScotSC 82 (05 August 2014)

The court found that the pursuer neither agreed nor acquiesced to the children’s removal to England within the relevant one-year period. The evidence showed only resignation and lack of power to prevent the removal, not positive agreement or acquiescence. Therefore, section 41(3) did not apply, and the children were to be treated as habitually resident in Scotland at the time of the application, conferring jurisdiction on the Scottish court.

Citation
[2014] ScotSC 82
Parties
Pursuer: G. O. T.; Defender: K. J. K.
Jurisdiction
Scotland
Judgment Date
05 August 2014
Procedural Posture
Family Action / Jurisdictional Determination on Application for Residence Order
Outcome
Jurisdiction confirmed; Scottish court may entertain the application for a residence order.
Legal Topics
Residence Order, Habitual Residence, Child Removal, Jurisdiction Under Family Law Act 1986
Family Law Jurisdiction Residence Order Habitual Residence Child Removal Jurisdiction Under Family Law Act 1986

Case Brief

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Parties

G. O. T.

Pursuer

K. J. K.

Defender

Procedural Posture

Family Action / Jurisdictional Determination on Application for Residence Order

Legal Issues

  1. 1 Whether the Scottish court retains jurisdiction to entertain the pursuer’s application for a residence order after the children were removed to England
  2. 2 Whether section 41(3) of the Family Law Act 1986 applies, i.e., whether the pursuer agreed or acquiesced to the children’s removal

Ratio Decidendi

The court found that the pursuer neither agreed nor acquiesced to the children’s removal to England within the relevant one-year period. The evidence showed only resignation and lack of power to prevent the removal, not positive agreement or acquiescence. Therefore, section 41(3) did not apply, and the children were to be treated as habitually resident in Scotland at the time of the application, conferring jurisdiction on the Scottish court.

Court Disposition

Jurisdiction confirmed; Scottish court may entertain the application for a residence order.

Orders

  • The court has jurisdiction to entertain the pursuer’s application for a residence order in respect of the children.