Cross-Border Issues

Removal of children from Scotland to abroad is covered by the Hague Convention (see elsewhere on the FNF web pages and the Custody Minefield site). But this does not cover removal from Scotland to England, Wales or Northern Ireland or vice-versa. 

If your child is removed from Scotland then you may need to raise a court action. Under the Family Law Act 1986 s.41, if your child is removed from any part of the UK without consent then the child will be treated as continuing to be habitually resident in that part of the United Kingdom for the period of one year beginning with the date on which those circumstances arise. This means that if your child is removed from Scotland without your consent the Scottish courts keep jurisdiction for one year. The matter can be determined by Scots law. If your ex partner takes your child to Liverpool without your consent then the matter should not be dealt with in Liverpool under English law. Your ex partner may try to raise an action in the English court but they do not have jurisdiction. 

If you obtain orders such as for parental rights, residence or contact, you can register them in the other jurisdiction under Section 27 of the Family Law Act 1986. You need the permission of the court making the order, which is best obtained at the time the order is made, though a lot of judges do not seem to understand this and may be confused by your asking. In theory, this system allows the order to be enforced anywhere in the UK but of course enforcement is a notoriously difficult area in any of the UK jurisdictions.

Children removed to Scotland become subject to the Scottish courts and of course Scottish social work departments and everything else, and experience has shown that this can result in a “right back to square one” approach, with previous social work reports, etc, often not being accepted and having to be done again.

Last updated on June 28, 2012 by FNF Scotland