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

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existence of the proceedings. The court may sist proceedings in Scotland under section 14(2) if there are proceedings elsewhere in Scotland or another part of the United Kingdom or the world, or there are likely to be proceedings elsewhere. The test for sist is based on the principle of forum conveniens (see B v B 1998 SLT 1245). The welfare of the children is an important factor, but not the paramount consideration. The court will consider habitual residence of the children at the time of the application, the location of witnesses, issues of cost and expeditiousness and thoroughness of the proceedings, together with any other matters depending on the circumstances of the case.

Isabella is the child of Juan and Katriona. She lived with her parents in Spain and has dual Spanish and British nationality. When her parents separated, the Spanish courts decided that she should live with Katriona, and stay with Juan every other weekend. Juan agreed that Katriona could take Isabella home to live in Scotland. There was no modification of his contact rights before they left. Which courts have jurisdiction to determine matters of residence and contact:

  • 1.

    One week after Isabella leaves Spain?

  • 2.

    Four months after Isabella and Katriona arrive in Scotland?

What difference would it make if Katriona brought Isabella to Scotland without securing Juan’s consent or the leave of the Spanish court?

This paper was originally delivered on 26 October 2005 at a Conference organised by CLT Scotland, and is reproduced with their kind permission.

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