FAMILY ACTION G O T v K J K [2014] ScotSC 81 (05 August 2014)

FAMILY ACTION G O T v K J K [2014] ScotSC 81 (05 August 2014)

The Scottish court retains jurisdiction to entertain the pursuer’s application for a residence order because the children were removed from Scotland without the pursuer’s agreement, and under section 41 of the Family Law Act 1986, they are deemed habitually resident in Scotland for one year from the date of removal. The application was made within that year.

Citation
[2014] ScotSC 81
Parties
Pursuer: G. O. T.; Defender: K. J. K.
Jurisdiction
Scotland
Judgment Date
05 August 2014
Procedural Posture
Family Action / Interlocutory Judgment on Jurisdiction
Outcome
Jurisdiction retained by Scottish court, subject to further submissions on section 41(3) of the Family Law Act 1986.
Legal Topics
Residence Orders, Habitual Residence, Child Removal, Jurisdictional Conflict, Parental Rights
Family Law Jurisdiction Residence Orders Habitual Residence Child Removal Jurisdictional Conflict Parental Rights

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Parties

G. O. T.

Pursuer

K. J. K.

Defender

Procedural Posture

Family Action / Interlocutory Judgment on Jurisdiction

Legal Issues

  1. 1 Whether the Scottish court has jurisdiction to entertain the pursuer’s application for a residence order in respect of the children under the Family Law Act 1986, given the children’s removal to England and Wales.
  2. 2 Whether section 41 of the Family Law Act 1986 applies, deeming the children habitually resident in Scotland for one year after removal without the pursuer’s agreement.

Ratio Decidendi

The Scottish court retains jurisdiction to entertain the pursuer’s application for a residence order because the children were removed from Scotland without the pursuer’s agreement, and under section 41 of the Family Law Act 1986, they are deemed habitually resident in Scotland for one year from the date of removal. The application was made within that year.

Court Disposition

Jurisdiction retained by Scottish court, subject to further submissions on section 41(3) of the Family Law Act 1986.

Orders

  • Court may entertain the pursuer’s application for a residence order in respect of the children by virtue of section 8 of the Family Law Act 1986, subject to section 41(3) not applying.
  • Continued consideration to a further hearing to determine whether section 41(3) applies.