Children (Scotland) Bill: Sec 20 Enforcement Powers for Orders From Outwith Scotland

What do you do if you have an English, or Northern Irish, court order and your child ends up in Scotland?

Whilst many people know that there are three distinct legal systems in the UK, they are surprised to discover that court orders relating to children from one part of the UK are not automatically enforced by courts in the other parts.

The law now:

Let’s say you have an English court order regulating the care arrangements for a child as between their parents. If one of the parents, in defiance of that order, removes the child to Scotland, how do you enforce it so that the child is returned to England? Or if a parent moves a child to Scotland with the English court’s permission, but fails to allow the other parent contact that was also ordered, how is the contact ordered enforced?

There is a two-stage procedure contained in the Family Law Act 1986:

• You must apply to the Court of Session, which is Scotland’s senior civil court, to register the English order.
  
  
• Registration opens the door to enforcement: you raise a Petition in the Court of Session, and the court is then able to make (Scottish) orders to ensure compliance with the original English order, as if the original, English, order had been made by a Scottish court. For example, the Court of Session could grant authority to Messengers-At-Arms (although not directly equivalent, similar to the Tipstaff in England and Wales) to locate and deliver the child to the other parent.

The 1986 Act contains similar provisions so that Scottish orders may be recognised and enforced in England & Wales or Northern Ireland.

What is proposed:

As part of the Scottish Government’s commitment to improve family law in Scotland, it has reviewed these provisions and proposes that the enforcement stage of the process be possible in the Sheriff Courts as well as the Court of Session. These proposals are in sec 20 of the Children (Scotland) Bill currently making its way through the Scottish Parliament. The registration process would remain exclusive to the Court of Session to ensure that a central list of registered orders is maintained, but any order registered in the Court of Session could be enforced in one of the local Sheriff Courts, rather than in the Court of Session.

Some have argued against the change: the current system works well and with only 24 child orders being registered in the Court of Session in 2017 some question whether legislative reform would have been better focused elsewhere.

In many of these cases, it will not be attractive to make use of the Sheriff Court: if all that is being sought are further orders to enforce the return of a child to England & Wales, then an order from the Court of Session (which applies across Scotland) is preferable. Often there are issues with Sheriff court orders only applying within the Sheriffdom in which they were made. It is not unheard of for a particularly difficult parent to up sticks to a new Sheriffdom just before orders are enforced.

That said, the freedom to choose enforcement in the Sheriff Court might be attractive in some cases. Where what is sought is enforcement of an ongoing contact order, or an order relating to some other aspect of parental responsibilities and rights which might need ongoing case management by the court, a local Sheriff Court would likely be a more cost effective and efficient option, and there are more detailed case management rules, that are arguably better in the Sheriff Court and will be more functional in some cases. 

These rules apply to standard child arrangement orders, but there are some orders that don't sit readily into this structure, so don't assume that all orders from the courts in England and Wales and Northern Ireland will be capable of registration and then enforcement in this way.

There were no proposed amendments to this section at Stage 2 of the legislative process earlier this week, so you can work on the basis, I suspect, that this will become law in due course.