Lecture notes for the International Private Law module linked to E B Crawford and J M Carruthers, International Private Law in Scotland book. Author achieved a first-class grade for the module.
Topic 8: Jurisdiction, Choice of Law and Recognition of Parental Responsibility and International
Child Abduction
Focus of this Lecture
▪ Focus: Parental Responsibility
▪ Recognition and Enforcement of Judgments
▪ Legitimation (brief, for information only)
▪ Adoption (brief, for information only)
▪ Focus: International Child Abduction
Recognition and Enforcement of Judgments/ Decisions in Parental Responsibility
▪ First, ascertain where the judgment was obtained:
▪ Judgments from other UK courts: Family Law Act ss. 25,27
▪ Judgments from other countries: Family Law Act 1986 s.26
▪ Remember EC 2201/2003 Brussels II Regulation does not apply post Brexit.
Recognition and Enforcement of Judgment on Parental Responsibility within the UK
▪ FLA 1986 s.25(1): automatic recognition, general rule
▪ Woodcock v Woodcock (1990)
▪ Re C (A Minor) (Custody: Jurisdiction) , Northern Ireland Family Court, referred to in Anton at
17.53
▪ S.27 Registration
▪ S.29 Enforcement – subject to the registration of.. must follow section 27.. issued the
judgement in the first place and that is your enforcement power… not doing it blindly.. welfare
does come into it. The enforcing court can give interim decisions where it sees fit…
Judgments on Parental Responsibility from other countries
▪ Common law rule amended by FLA 1986, s.26
▪ Substituted domicile as connecting factor
▪ See Anton 17.51 footnote
▪ These rules link to the section on custody which we will consider later.
, Legitimacy and Legitimation: For Information
▪ Law Reform (Parent and Child) Act 1986 removed primary legal consequences of legitimacy
▪ Jurisdiction: Family Law (Scotland) Act 2006 jurisdiction for actions for declaratory of
legitimacy, etc no longer competent s.21(2)
▪ Note Law Reform (Parent and Child) Act 1986 s.7(5); legitimacy as an incidental question
▪ Choice of Law: Family Law (Scotland) Act 2006 s.21 no person whose status governed by Scots
law is deemed illegitimate. S.21 abolished status of illegitimacy.
▪ Status of persons governed by foreign law, s.41- effect of parents’ marriage in determining a
person’s status depends on the law of that person’s domicile at the time the question arises.
Adoption of Children: For Information
▪ Context: trend towards increased inter-country adoptions (see Anton 17.126, on Westlaw)
See also Hague Conference data for 2005-2009 for UK at:
▪ https://assets.hcch.net/upload/wop/adop2010pd05_uk.pdf available at
https://www.hcch.net/en/instruments/conventions/publications1/?dtid=32&cid=69
▪ What IPL issues arise vis-à-vis cross-border adoption?:
▪ Whether adoption recognised as a legal concept
▪ Conditions to be met
▪ Procedures and safeguards to be applied (protect against coercion and trafficking)
▪ Jurisdiction
▪ Traditional approach: domicile of adopter determined jurisdiction but disregarded
child’s personal law
▪ Adoption and Children (Scotland) Act 2007 – jurisdiction lies with the ‘appropriate
court’
▪ Child in Scotland – either Court of Session or Sheriff Court of Sheriffdom of child.
▪ Child not in Scotland – Court of Session.
▪ Orders determined by ss.28-34
Adoption Orders under the Hague 1993 Convention: For Information
For …
Concerns of malpractice – Scottish Ministers can designate state as a restricted country, effect of
suspending inter-country adoptions between state and Scotland.
Effective and appropriate means of providing care
Provides finance for state or origin
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