Geographical splits require more careful consideration
The differences between the Laws of England and Wales and Scots Law in the area of family life continue to give rise to possible complexities and legal difficulties.
As Caroline Gillespie, a partner in the law firm, BLM, and the recently appointed head of the firm’s Family Law team in Scotland notes, these issues can come into sharp focus when, for example, one parent relocates from one jurisdiction to the other.
Increasingly, court proceedings concerning children of a relationship involve a cross-border element. The complexities of deciding the correct legal approach in such cases recently prompted senior judges both north and south of the border to work together on a formal basis to discuss how the processes in both jurisdictions could be made smoother for all involved, with children’s welfare at the forefront of their minds. The result of these discussions, announced on 24 July this year, is a new judicial protocol in cases concerning children where the courts of both Scotland and England and Wales are involved.
Lord Carloway, Lord President and head of the Scottish judiciary, and Sir James Munby, President of the Family Division in England and Wales, put their names to the document, which is designed to facilitate the prompt exchange of key information about any existing proceedings, and the legal options available to the court in each jurisdiction.
The protocol, which took effect immediately, is intended to ensure that cases with a cross-border dimension are dealt with promptly and efficiently. It formalises arrangements which have been in place for some time between the senior family law judges in the Court of Session and the Royal Courts of Justice. Under the protocol, a judge dealing with a cross-border case will be able to make a request for information to the designated liaison judge in his or her own jurisdiction, who in turn can seek information from his or her opposite number. Judges should be able to establish what is happening in the alternative jurisdiction – for example whether proceedings have been raised, what orders have been granted, and
The protocol is intended to ensure that cases with a cross-border dimension are dealt with promptly
what remedies are available. The liaison judge is directed “to provide for relevant cases, clear lines of communication and the free flow of relevant information to facilitate effective case management of those cases”. Lord Carloway commented: “This is a valuable initiative which will help to ensure that cross-border cases involving children are dealt with effectively and without delay.”
Gillespie points out that BLM recently extended its family law offering to both jurisdictions with the arrival of Daniel Jones and his team in London, Manchester and Liverpool. “This means we are now able to offer advice to clients in both jurisdictions, with their differing procedures, as well as being able to collaborate, within the firm, on cross-border issues to help clients,” she comments.
Gillespie succeeds Siobhan Kelly as head of family law at the firm. Kelly becomes a consultant to the firm with effect from the end of September. She was responsible for establishing the firm’s family law practice some 22 years ago.
“Our team provide advice over all aspects of Family Law and are experienced in each of the alternative dispute resolution options as well as being seasoned litigators involved in cases in both the Court of Session and the Sheriff Courts throughout Scotland. We are dedicated and committed to guiding our clients with sensitivity and care to achieve the best outcome for their individual needs,” Gillespie says. She herself is trained in collaborative law and mediation, and is an accredited specialist in both Family Law and Child Law.
The extension of BLM’s offering in Family Law throughout the UK comes at a time when one of the most significant differences on divorce law north and south of the border has come into very sharp focus.
As mentioned on the previous page, in England and Wales, five years of separation are required before a divorce may be granted if one of the parties to the marriage does not consent to divorce, whereas in Scotland, the equivalent period is two years. The recent UK Supreme Court Judgment in the English case of Owens v Owens, is of considerable interest in these regards. Nrs Owens appealed to the Supreme Court.
Unanimously (5:0), though mostly with some reluctance, the Supreme Court dismissed Mrs Owens’ appeal. The majority of the Supreme Court Justices were clear in making the point that the court took no satisfaction when obliged to rule that a marriage which had broken down irretrievably must nevertheless continue in being. The judiciary, of course, can only apply the law.
The majority of the Supreme Court Justices have invited the Westminster Parliament to consider law reform for England & Wales since the present law south of the border has denied Mrs Owens a divorce. If Scots Law applied then Mrs Owens could have sought a divorce at any time after February 2017.
Another notable difference between the Scottish and English approaches to divorce is that, in England, divorce can sometimes be granted relatively quickly, with financial arrangements being regulated after the divorce.
In Scotland, a divorce can only be granted if financial provision has been regulated by agreement between the parties or by the court on divorce.
A final difference worth noting is that, in England, mediation became mandatory in April 2014 in all cases involving children and finances.
In Scotland, mediation is not mandatory, although it can be ordered by the court in a case which concerns a child or children at any stage where the court considers it appropriate.