Procedural status: First instance, preliminary issue of jurisdiction. Later history checked 3 August 2026; no later decision found.
The court held that section 41 of the Family Law Act 1986 does not have extra-territorial effect beyond the United Kingdom and certain dependent territories, with the result that jurisdiction under section 9 could not be established.
Background
Section 9 of the Family Law Act 1986 provides that, subject to section 11, an application for a Part I order otherwise than in matrimonial or civil partnership proceedings may be entertained by the Court of Session if, on the date of the application, the child concerned is habitually resident in Scotland.
Section 41 provides that where a child under 16 who is habitually resident in a part of the United Kingdom becomes habitually resident outside that part in consequence of being removed or retained without the required consent, the child is treated as continuing to be habitually resident in that part of the United Kingdom for one year beginning with the date those circumstances arose.
The question was whether section 41 operates where the child has become habitually resident in a country outside the United Kingdom.
What the court decided
Lord Braid held at first instance that, even in a non-Hague context, section 41 of the 1986 Act does not have extra-territorial effect beyond the United Kingdom and the specified dependent territories, adopting the construction found in Re S after considering the statutory context and the equivocal academic commentary. He noted that while none of the academic commentaries wholeheartedly endorsed the construction given to section 41 in Re S, and Dicey, Morris and Collins in particular sat on the fence, equally none suggested that construction was wrong or that section 41 should have extra-territorial effect.
Since the pursuer accepted that section 9 could not otherwise be satisfied, jurisdiction could not be established on that basis.
Why this decision matters
Where a child has been removed from Scotland to a country outside the United Kingdom, section 41 will not preserve Scottish habitual residence for the purposes of founding jurisdiction under section 9. Practitioners cannot rely on the one-year deeming provision to hold jurisdiction in a non-United Kingdom removal.
In a non-Hague case in particular, that leaves the question of jurisdiction to be established on some other basis, and the point should be addressed at the outset rather than assumed.
This is an Outer House decision on a point with limited prior Scottish authority. It is important Scottish authority unless and until the matter is considered by the Inner House, but it should not be described as a final appellate resolution.
Legal review: Brian Rooney, Managing Partner and Law Society of Scotland Accredited Specialist in Family Law.