Family law cases often involve children whose lives cross borders. Section 14 of the Children (Scotland) Act 1995 sets out the rules about which court has jurisdiction and which country’s law applies in certain child-related matters.
Which Court Can Hear the Case?
- Court of Session: Scotland’s highest civil court has jurisdiction if the child is habitually resident in Scotland or if the child’s property is located in Scotland.
- Sheriff Court: The local sheriff court has jurisdiction if the child is habitually resident in that sheriffdom or if the property is located there.
In practical terms, most family cases involving children are heard in the sheriff court local to the child, unless there are complex issues better suited to the Court of Session.
Which Law Applies?
Section 14 also deals with which legal system governs the issue before the court. The rules depend on the type of question being asked:
- Parental Rights and Responsibilities / Guardianship
- These are generally determined by the law of the country where the child is habitually resident at the time the question arises.
- For example, if a child is habitually resident in Scotland, Scottish law will apply to questions about parental rights and responsibilities.
- Immediate Protection of a Child
- Where urgent protection is needed (e.g. safeguarding a child from harm), the law of the country where the child is physically located at the time applies. This ensures that courts can act quickly to protect a child without jurisdictional delays.
- Appointment of Guardians
- Whether a guardian has been validly appointed depends on the law of the country where the child was habitually resident at the time of appointment (in the case of a will, at the date of death of the testator).
The Welfare Principle Still Applies
Section 14 makes clear that even where foreign law applies to a case, nothing can displace the fundamental requirement in Section 11(7) of the 1995 Act: the child’s welfare is the paramount consideration. The court must also, where practicable, consider the views of the child.
This means that while jurisdiction and choice of law rules decide which legal system is used, the guiding principle in Scotland remains the welfare of the child above all else.
Why Section 14 Matters
- Families today are increasingly mobile. Disputes can involve one parent living abroad or children with connections to more than one country.
- Section 14 provides clarity on when Scottish courts can act, and whether Scottish law or the law of another country should decide.
- It balances the need for consistency (habitual residence as the anchor point) with flexibility in emergencies (using the law of the child’s location to provide immediate protection).
Key Takeaway
Section 14 ensures that when cases involve children across borders, the rules on jurisdiction and law are clear. Scottish courts can intervene when a child is habitually resident here or has property in Scotland, and the child’s welfare remains the overriding priority regardless of which legal system applies.
How XK Solicitors Can Help
At XK Solicitors Aberdeen, we regularly act in cases where:
- One parent is abroad and the child is in Scotland.
- There are disputes about relocation or international residence.
If your case involves cross-border family issues, we can advise you on jurisdiction, applicable law, and the steps needed to protect your child’s best interests.
Ready to discuss your case?
Email: info@xksolicitors.co.uk
Our articles are not legal advice. We accept no responsibility for use of this information.