With Scots increasingly holidaying abroad we discuss a few example scenarios illustrating how international family law is a rapidly growing area of practice.
We are now in the thick of the holiday season. Many Scots will be heading for the sunshine in search of fun and relaxation. While enjoying the weather, the glorious scenery, the wonderful art and architecture we will have to look out for sunburn, dodgy food hygiene and pickpockets. Aside from that, what are the family law implications?
International family law is a rapidly growing area of practice, largely because of rapidly increasing foreign travel. In the scope of a blog I cannot hope to give a comprehensive outline of the byzantine complexity of the issues that arise, but here are some examples.
- Morag from Inverness sets off for two weeks in Marbella. She meets the handsome Claudio in a tapas bar. The attraction is entirely mutual and she decides to tear up her return ticket and move in with her new friend in his apartment on the Calle de Santos. Morag has always made it plain that she wanted to return to Inverness at some stage – her house in Culloden Street is rented out – but time passes and she is still in Marbella 15 months later. Eventually the Iberian magic begins to lose its power and Morag decides to return home. Once she has been back in Scotland for 6 months either one of the couple may attempt to apply to Inverness Sheriff Court in order to redress the economic imbalance of the relationship. This is because one of the parties – Morag – remains a domiciled Scot even though Claudio has never set foot in Scotland, and has never wished to and the co-habitation has all been in Spain. The appropriate Court for raising actions arising out of co-habitations (according to our Scottish Law) is the Court which would have jurisdiction to hear an action of Divorce had the parties been married. Jurisdiction could be based on Morag’s domicile in Scotland and her residence here for a 6 month period before proceedings are raised.
- And then what about Alistair from Dunfermline who, full of optimism, sets out for a fortnight in St Jean de Luz in the far South West of France? The effects of the sun, the cidre and the charms of Fabienne prove too much for Alistair on his last night there and as a result the pale-skinned, ginger-haired Jean-Marc is born some months later. The Child Maintenance Service (successors of the CSA) has no jurisdiction in the case at all because Fabienne and her son remain in France. If the mother, or the father or the child is habitually resident outside the UK then the CMS cannot be involved in the case. Alistair thinks therefore that he is safe from enforcement until he receives intimation from Dunfermline Sheriff Court that the French equivalent of the CMS has registered its order in Scotland for enforcement. The European Maintenance Regulation means that it is very difficult for Alistair to avoid his responsibilities, and quite right too.
The family lawyer ought, therefore to advise young Scots on holiday to confine themselves to the sober perusal of a good book for the whole fortnight, having nothing to do with the attractive locals. Young Scots will, of course, completely ignore that advice.
- But what if Francoise from Paris comes to work for the summer as a hotel receptionist in North Berwick? Her continental big city ways are altogether too much for poor Assistant Gardener Donald and when the summer is over he happily allows her to stay on in his little cottage in Yellowcraigs. The relationship works well at first and this New Alliance produces a Franco-Scottish daughter, Annique. The couple look after the child jointly and each one of them is devoted to her. By the time Annique is 2, however, the couple are no longer devoted to each other and Francoise wants to move home to Paris, taking the bilingual Annique with her.That’s when the court gets involved.
There has been an increasing number of these relocation cases in recent years and there is no assumption that either parent will be able to dictate in which country the child will live. Certainly, each parent would have to have the consent of the other before removing the child from the UK but, without that consent, the court will have to judge the issue on the criterion of the best interests of the child. This is more complex than an ordinary residence dispute because the practicalities of contact or any kind of shared care become very problematic when the couple are many hundreds of miles apart geographically, as well as linguistically.There is no automatic rule that the mother will be preferred to the father in a case of dispute. The Court can’t stop Francoise from returning to France, but it can certainly refuse her permission to take Annique with her. In that dispute the Court will apply several criteria but the paramount one is always the child’s welfare. If she tries to snatch the child to France, the French Courts should have no hesitation in sending her back to Scotland, because that’s where the child has her habitual residence. That doesn’t mean that Annique will always stay with Donald, but it does mean that the big decision about which parent the child should live with will be taken in the Scottish Court.
If that is a difficult judgement to make then it can be even more difficult to predict and it is an area in which highly specialist family law advice is entirely essential at an early stage. We have a considerable amount of experience with these difficult cases and if you think we can help you, don’t hesitate to get in touch.