Across the border: interaction between family courts in England and Scotland

Scotland, gay marriage

The United Kingdom – what does it really mean? From a family law perspective it is quite an odd concept that we are bound together in a unified country and yet England and Wales, Scotland and Northern and Southern Ireland all have their own legal systems and a lawyer who practices in England and Wales cannot automatically practice in Scotland.

The interaction between each country has recently been a topic in the news following the Brexit decision with Scotland arguing that since they voted overwhelming to remain in the EU, it is not constitutionally right that they should effectively be forced to leave the EU. Whilst it is anticipated that this debate will long continue as the triggering of Article 50 draws nearer, it is quite rare for the interaction between the English family court and the Scottish family court (known as the Court of Session) to be considered.…that is until now. Indeed the Right Honorable Sir James Munby, President of the Family Division, noted that as this situation was not something he had come across before, it was important that he give Judgment and that Judgment be transcribed and available for review.

The matter of Re X (A Child) came before the Royal Courts of Justice in London in early January 2017. The application was brought by a father in respect of his 11 year old son. The family was living in Scotland. At some point towards the end of 2016 the mother removed the child from Scotland to England. The Father issued an application in Scotland and obtained an Order which:

  1. Prohibited the mother from removing the child from the United Kingdom;
  2. Ordered the mother to surrender the child’s passport(s) to the Messenger-at-Arms (a Scottish court official; and
  3. Prohibited the mother or anyone else from applying for replacement passport(s).

The mother had, however, put herself outside of the reach of the Messenger-at-Arms and therefore the child’s passport(s) had not been obtained. The father therefore understanding that the child had been removed to London, issued an application before the Family Court sitting at the Royal Courts of Justice and that made the following orders :

  1. A location order and passport order: the Tipstaff, our equivalent of the Messenger-At-Arms, was directed to locate the child and remove both the mother and the child’s passports – a step beyond the Scottish court’s order which had only directed that the child’s passport be obtained;
  2. Disclosure from the school it was believed that the child was attending – although it was noted that this Order may not be necessary if the Tipstaff were able to locate the child as per the order above.

It was made expressly clear by The Rt. Hon Sir James Munby that by making this order the Court was in no way cutting across the one which had been made in Scotland. Instead the English order was made to enable the Scottish one to be implemented given that matters were now outside of the Scottish Court’s jurisdiction.

It was further ordered that once the passports had been obtained, consideration should then be given to whether the Tipstaff and the Family Court of England and Wales or the Messenger-At-Arms and Court of Session in Scotland would hold the passports.

Whilst this Judgment is limited to the interaction between the two jurisdictions and not what occurred after this, it does shed some light on how situations like this are dealt with by the English Court. It is clear to see from the Judgment that the English Court wished to respect and uphold the decision of the Scottish Court and that could provide a useful precedent if anyone else were to find themselves in this unfortunate position.

The decision also shed some further guidance on ‘without notice’ hearings (i.e. those held without the respondent receiving advance notice). Most applications are heard ‘on notice’: one party issues an application and this is then ‘served’ on the other party. However, in some situations it is appropriate for a hearing to take place without the other party being present and for an order to be made in their absence. In this case it had been appropriate that the mother not be given notice as, if she had been given notice of the hearing the Court believed that there was a risk she may have re-abducted the child and taken him somewhere else in the United Kingdom or even outside it. The suitability or otherwise of such without notice hearings is always considered however, so that orders are not made unfairly in a party’s absence when they have not had the opportunity to put their position before the Court.

Child abduction by a parent is more common than people may think. If you feel that there is a risk that your child may be removed from their home country, it is important to try to take preventative action rather than later be forced to take reactive action after the event. For any advice about child abduction or relocation, please contact me on 0161 926 1410.

Photo by igor Griffiths via Flickr under a Creative Commons licence.

Katie Dillon

Katie is a solicitor at Stowe Family Law's Hale office.

She advises on all aspects of family law including divorce and financial settlements, cohabitation and has particular experience in cases involving children.

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