A quick guide to children law in England & Wales and Scotland — Part 3 — moving children across the border

Since the Supreme Court decision of Villiers, considerable attention has been given to the differing legal jurisdictions in England and Wales, and in Scotland.

Different laws and processes apply in each jurisdiction, and below we highlight some of the main issues that arise if there is a dispute about which of the two jurisdictions should deal with a case.

It follows on from our earlier articles focussing on children disputes, the first on parental responsibility, and more recently on options and court processes 

We have previously highlighted some of the main differences in divorce/dissolution law: 

1. Civil partnership dissolution
2. Financial settlements arising on divorce
3. Cohabitation

Moving children across the border

Agreement

If one parent wishes to relocate with their child from England & Wales to Scotland or vice versa, there is no legal issue if the parents agree.

Where the parties have not agreed, and a child is removed, then in both England & Wales, and Scotland, the courts can intervene. Urgent action may be required and expert advice taken at an early stage.

Child abduction

It is not a criminal offence to remove a child to Scotland from England & Wales (or vice versa), contrary to the position if a child was to be removed to an alternative country outside the UK, when it is an offence.

There is however an old common-law crime in Scotland of Plagium, which is to steal a child below the age of puberty, but it is rarely used.

However, a parent may face criticism for unilaterally moving a child from one jurisdiction to the other, which may adversely affect their case. As such, always take legal advice before making a decision/taking action.

Habitual residence

If a child is removed from one jurisdiction, which court (or courts) has authority to deal with the case will turn on where the child has ‘habitual residence’. This can be a complex issue of fact and law, and again, expert legal advice should be taken.

What happens if a child is removed from England & Wales to Scotland?

The Family Law Act 1986 regulates matters if a child is removed to Scotland.

An application should be made to the High Court under its inherent jurisdiction in order to ask for an order that the child should be returned to England & Wales.

Emergency orders can be made, including orders for disclosure of the child’s whereabouts and for the recovery of the child.

If an order is granted by the court, it can be registered in Scotland and enforcement proceedings to return the child can take place in Scotland.

Once the child has returned to England & Wales, the court there will determine issues relating to the child’s long-term welfare, and whether to permit a move to Scotland if this is still being pursued.

What happens if a child is removed from Scotland to England & Wales?

Again, the Family Law Act 1986 applies to govern jurisdiction based on the child’s habitual residence.

The various orders mentioned above can be sought.

How is the dispute resolved?

In both jurisdictions, the court will, in the first instance, consider whether it has appropriate jurisdiction to entertain the action, based on the habitual residence of the child.

If that is in dispute, it may in certain cases make interim protective orders where the child may still be at risk.

If jurisdiction is established, the court will consider matters in the same way it would any children case, considering the child’s welfare as paramount and considering what is in their best interests.

What happens if there are cross applications?

If there are cross applications, applications may be made to stay or sist (halt) the proceedings in one jurisdiction, to allow the other action to proceed based on their claim for jurisdiction.

Summary

Careful advice should be considered in respect of the respective jurisdictions of each country where an application might be made, and a strategy agreed with legal input before steps are taken.

Good advice and strategy will also provide considerable protection and prevent one parent from acting on their own to the detriment of the other parent and the child.