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RESOLVING THE PROBLEMS OF JURISDICTION IN FAMILY LAW BRUSSELS II AND POINTS WEST Janys M. Scott, ... - page 10 / 12

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respect of persons or assets. These measures cease to apply once the court with general jurisdiction has taken the measures it considers appropriate.

The court does however have the power to transfer cases, or parts of cases, relating to parental responsibility to courts of another member state with which the child has a particular connection, if the other court would be better placed to hear the case, or that part of the case (article 15). The original court may either sist the case and invite parties to apply elsewhere, or may make a direct request to a court of another member state to assume jurisdiction. This can happen on the motion of one of the parties, or ex proprio motu, or on application from a court in another member state with which the child has a particular connection. Before the transfer can be made at the instigation of a court, at least one of the parties must accept the transfer. The original court must set a time limit for the other court to take over the case, which failing the original court should continue to exercise jurisdiction. There is a new Chapter 88 in the Court of Session rules which governs transfers under article 15.

Domestic legislation takes effect subject to Brussels II bis, and has been amended by statutory instrument to confirm that this is the case (SSI 2005/42). The Children (Scotland) Act contains a new section 14(5) and section 86A. This confirms that jurisdiction in applications relating to the administration of children’s property and parental responsibilities and rights (sections 9, 11 and 14) must conform to Brussels II bis. The Regulation also governs applications for a parental responsibilities order under section 86 (ie. it supersedes to some extent the decision of the Court in Glasgow City Council v M 2001 SLT 396). While there is no express mention of Brussels II bis in relation to the children’s hearing, the jurisdiction of the hearing is affected in cases where a child may be placed in a foster home or institutional care.

There should generally be no particular problem about satisfying the rules of jurisdiction in Brussels II bis and the domestic rules. The provisions for ancillary orders in divorce, found in section 10 of the Domicile and Matrimonial Proceedings Act 1973 are expressly subject to Brussels II bis, as are the rules of jurisdiction in the Family Law Act 1986. Part I of the 1986 Act applies to freestanding proceedings with respect to residence, custody, care or control of a child, contact, access, education or upbringing, subject to certain exceptions (section 1). For the most part

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