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RESOLVING THE PROBLEMS OF JURISDICTION IN FAMILY LAW BRUSSELS II AND POINTS WEST Janys M. Scott, ... - page 11 / 12

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the rules in the 1986 Act are consistent with Brussels II bis. There is emergency jurisdiction to make immediate orders for the protection of the child (section 12). The primary ground of jurisdiction in section 9 is based on habitual residence of the child. If the child is not habitually resident in the United Kingdom, then the court may exercise jurisdiction if the child is present in Scotland (section 10).

Jurisdiction in the sheriff court is further confined. The sheriff has emergency jurisdiction when a child is present in the sheriffdom (section 12(a)). There is general jurisdiction in the sheriff court if the child is habitually resident in the sheriffdom (section 9(b)). If the sheriff is exercising jurisdiction under section 10 based on the presence of the child in Scotland, then either the pursuer or the defender must be habitually resident in the sheriffdom (section 10(b)).

There are potential problems in cases where there have been divorce proceedings in another part of the United Kingdom. Neither the Court of Session, nor the sheriff court, can exercise jurisdiction under the 1986 Act in freestanding proceedings, if there are matrimonial proceedings “continuing” in another court in the United Kingdom (section 11). Divorce proceedings in England, Wales and Northern Ireland continue until a child attains 18, and in Scotland until the child attains 16 (section 42(2) and (3)). This could give rise to a problem. If a child’s parents divorce in England, and the child then becomes habitually resident in Scotland, article 8 of Brussels II bis, read with article 66 means that Scotland has principal jurisdiction. There is no continuing article 12(1) jurisdiction in England after divorce has been pronounced and any judgment given in respect of the child. An English court could not exercise jurisdiction unless there is prorogation under article 12(3). The sheriff is limited by the extra conditions of jurisdiction in the 1986 Act. Section 11 prevents a court exercising jurisdiction under the 1986 Act. The case may have to be raised in the Court of Session, relying directly on the provisions of Brussels II bis.

Brussels II bis does not apply to decisions about competing proceedings within the United Kingdom, and between a court in the United Kingdom and a non-EU state. Decisions in such cases are based on the 1986 Act. A Scottish court may decline jurisdiction in matrimonial proceedings, under section 13(6) if another court in Scotland or the United Kingdom is prevented from exercising jurisdiction by the

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