MD v ALD Or B Or B, Re Application For An Order Under The Child Abduction & Custody Act 1985 [1999] ScotCS 64 (3 March 1999)

MD v ALD Or B Or B, Re Application For An Order Under The Child Abduction & Custody Act 1985 [1999] ScotCS 64 (3 March 1999)

Although the Hague Convention does not create a substantive right to judicial enforcement of access orders in the requested state, Rule of Court 70.5(2) provides a competent procedure for applications for access by holders of foreign access orders who have sought administrative assistance under Article 21. The petition is therefore competent and not irrelevant, even if the access sought differs from the foreign order, as long as it is based on the existence of the foreign order and seeks to facilitate access in the new jurisdiction.

Citation
[1999] ScotCS 64
Parties
Petitioner: M. D.; Respondent: A. L. D. or B. or B.
Jurisdiction
Scotland
Judgment Date
03 March 1999
Procedural Posture
Petition for Order Under Child Abduction and Custody Act 1985 / First Hearing on Competency and Relevancy
Outcome
petition not dismissed; case put out By Order for further procedure
Legal Topics
Hague Convention on the Civil Aspects of International Child Abduction, Rights of Access, Jurisdiction, Procedure Under Scottish Rules of Court, Recognition of Foreign Access Orders
Family Law International Child Abduction Hague Convention on the Civil Aspects of International Child Abduction Rights of Access Jurisdiction Procedure Under Scottish Rules of Court Recognition of Foreign Access Orders

Case Brief

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Parties

M. D.

Petitioner

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

Respondent

Procedural Posture

Petition for Order Under Child Abduction and Custody Act 1985 / First Hearing on Competency and Relevancy

Legal Issues

  1. 1 Whether a petition for access to children can be made 'under the Hague Convention' in Scotland
  2. 2 Whether Rule of Court 70.5(2) provides a competent procedure for such applications
  3. 3 Whether the petition is incompetent or irrelevant because the access sought differs from the foreign order

Ratio Decidendi

Although the Hague Convention does not create a substantive right to judicial enforcement of access orders in the requested state, Rule of Court 70.5(2) provides a competent procedure for applications for access by holders of foreign access orders who have sought administrative assistance under Article 21. The petition is therefore competent and not irrelevant, even if the access sought differs from the foreign order, as long as it is based on the existence of the foreign order and seeks to facilitate access in the new jurisdiction.

Court Disposition

petition not dismissed; case put out By Order for further procedure

Orders

  • Case put out By Order to allow parties to address future procedure in light of the court's views on preliminary points