MS v MM [2025] CSOH 113: Section 41 Family Law Act 1986 Has No Extra‑Territorial Effect

MS v MM [2025] CSOH 113: Section 41 Family Law Act 1986 Has No Extra‑Territorial Effect

1. Introduction

This decision of the Outer House of the Court of Session, MS v MM and another ([2025] CSOH 113, Lord Braid), establishes an important Scottish precedent on the scope of section 41 of the Family Law Act 1986 (“the 1986 Act”). The court holds that section 41 – the “deemed habitual residence” provision in cases of removal or retention without consent – operates only within the United Kingdom (and specified dependent territories). It does not confer jurisdiction on Scottish courts where a child has become habitually resident in a foreign state such as Libya, even where that state is not party to the 1996 Hague Convention.

The judgment resolves a previously undecided point in Scots law and aligns Scottish authority with the earlier English Court of Appeal decision in Re S (A Child: Abduction) [2002] EWCA Civ 1941. It has significant implications for cross‑border child residence and custody disputes, especially where children are wrongfully retained in non‑Convention states.

Parties and Procedural Context

  • Pursuer (father): MS, Libyan national, resident in Scotland.
  • Defender (mother): MM, Libyan national, now in Libya with the children.
  • Minuter / Curator ad litem: Isabella Ennis KC, appointed to protect the children’s interests and ascertain their views; later formally entered the process as minuter.

The pursuer sought “Part I orders” under the 1986 Act, including:

  • Orders regulating the children’s residence (in effect, that they reside with him); and
  • An order requiring the defender to return the children to him in Scotland.

The central preliminary issue was whether the Court of Session had jurisdiction at all, in circumstances where the children had become habitually resident in Libya. The answer turned on whether section 41 of the 1986 Act could apply to extra‑UK removals and so “deem” the children to remain habitually resident in Scotland for jurisdictional purposes under section 9.

2. Factual Background

2.1 The Family and the Move to Libya

The parties, both Libyan nationals, are married and have three children:

  • LS – 13 years old;
  • AS – 9 years old; and
  • IS – 7 years old.

Until around August 2024, the family’s life was in Scotland. The children had lived there throughout their lives and were accepted to have been habitually resident in Scotland up to that point.

On 26 June 2024 the family travelled from Scotland to Tripoli, Libya, for what the pursuer understood to be a holiday, with return flights booked for 15 August 2024. Shortly after arrival in Tripoli, the defender informed the pursuer that:

  • She wished to end the marriage;
  • She intended to remain in Libya with the children; and
  • She did not intend to return to Scotland.

The degree to which the pursuer did or did not consent to this permanent relocation is disputed, but in any event:

  • The pursuer ultimately returned alone to Scotland;
  • The defender and children remained in Libya.

Libya is not a contracting state to the 1996 Hague Convention on parental responsibility and measures for the protection of children, so that Convention could not regulate jurisdiction in this case.

2.2 The Scottish Proceedings

The pursuer raised this action in May 2025 in the Court of Session, seeking:

  • Orders regarding the children’s residence (a Part I order under the 1986 Act); and
  • An order for the defender to return the children to him.

His initial jurisdictional case was two‑fold:

  1. Actual habitual residence: That the children remained habitually resident in Scotland at the date of commencement of the action (section 9); or
  2. Deemed habitual residence: If they had changed habitual residence, they should nonetheless be treated, under section 41, as habitually resident in Scotland for one year after their removal or retention, thereby founding jurisdiction under section 9.

Subsequently, after investigative work by the curator ad litem and her reports, the pursuer accepted that:

  • By the time of the hearing, the children were in fact habitually resident in Libya; and
  • Jurisdiction could now only be justified by invoking section 41 in conjunction with section 9 (i.e. by deemed, not actual, habitual residence).

2.3 The Curator’s Findings

The curator ad litem reported on the children’s circumstances and views:

  • LS (13) expressed that she was happy in Libya and had been unhappy in Scotland.
  • The two younger children did not have a “clear or informed view”.
  • The children were living in suitable accommodation and attending school in Libya, where they were doing reasonably well.
  • Subject to the defender continuing to provide a safe environment, the curator’s view was that it was in the children’s interests to be in the defender’s care.

On jurisdiction, the curator averred that section 41 did not prima facie apply to children habitually resident in Libya. In submissions, senior counsel for the curator maintained a formally neutral stance but expressed reservations about the pursuer’s broad reading of section 41 and indicated no disagreement with the defender’s more restrictive interpretation.

3. The Statutory Framework

3.1 Part I of the Family Law Act 1986

Part I of the 1986 Act deals with child custody (now usually framed as residence and contact) across the UK. It:

  • Implements the recommendations of the Law Commission and Scottish Law Commission in Custody of Children – Jurisdiction and Enforcement within the United Kingdom (1984, Law Com No 138; Scot Law Com No 91);
  • Provides, in place of differing rules in each UK jurisdiction, a uniform scheme for:
    • Jurisdiction to make “Part I orders”; and
    • Recognition and enforcement of such orders between the parts of the UK.

The internal structure of Part I is crucial to Lord Braid’s reasoning:

  • Chapter I: Defines “Part I orders” (including residence orders).
  • Chapters II–IV: Set out domestic jurisdiction rules for:
    • England and Wales;
    • Scotland (section 9);
    • Northern Ireland.
  • Chapter V: Provides for recognition and enforcement of Part I orders between the parts of the United Kingdom.
  • Chapter VI: Miscellaneous and supplemental provisions applying throughout the UK, including section 41.

3.2 Section 9 – Habitual Residence as Jurisdictional Gateway

Section 9 (summarised) provides that, subject to section 11, the Court of Session may entertain an application for a Part I order if, on the date of the application, the child is habitually resident in Scotland.

Other jurisdictional gateways (sections 10, 12, 15(2)) were not applicable on the facts, and this was common ground.

3.3 Section 41 – Deemed Habitual Residence After Wrongful Removal or Retention

Section 41 addresses the effect of wrongful removal or retention of a child within the UK context. In essence it provides:

  • Where a child under 16 who is habitually resident in part of the UK becomes habitually resident outside that part in circumstances where:
    • He or she is removed or retained without the agreement of all persons who have the legal right to determine residence; or
    • The removal or retention is in contravention of a UK court order,
    the child is to be treated as continuing to be habitually resident in that original part of the UK for one year from the date of those circumstances.
  • The deemed habitual residence can end earlier if:
    • The child turns 16; or
    • The child becomes habitually resident elsewhere with the required agreement and not in contravention of a court order.

As a result, even when a child’s factual habitual residence has changed, section 41 can deem the child to remain habitually resident in the original UK jurisdiction for one year after a wrongful removal or retention, for the purposes of Part I of the Act.

3.4 Other Relevant Provisions

  • Section 8: Limits when a Scottish court can entertain applications for Part I orders; section 9 is the gateway relied upon here.
  • Section 17A: Provides that Chapter III (including section 9) is subject to the 1996 Hague Convention, where applicable. In Hague cases, jurisdiction is determined by the Convention, not by section 9 combined with section 41.
  • Section 26: “Recognition: Special Scottish rule” – states that an order relating to parental responsibilities or rights made outside the UK shall be recognised in Scotland if it was made in the country of the child’s habitual residence. This underpins the importance of actual, not deemed, habitual residence in the international context.
  • Sections 35–37: Concern, respectively, orders restricting a child’s removal from the UK or a part of it, and the surrender of passports. Section 36 gives such orders effect across the UK, highlighting the internal nature of the scheme.
  • Section 39: Requires parties to furnish details of other proceedings relating to the child, including proceedings instituted abroad. This acknowledges foreign proceedings but does not create international jurisdiction or enforcement rules.

4. Central Legal Issue

The question to be determined was whether section 41 can apply where the child has become habitually resident in a country outside the UK and its specified dependent territories. Expressed more precisely:

Does section 41 of the Family Law Act 1986 operate only as an intra‑United Kingdom deeming provision (as between the UK’s constituent jurisdictions and certain dependent territories), or can it also be invoked to deem a child to remain habitually resident in Scotland for the purpose of section 9 where the child has in fact become habitually resident in a foreign state (here, Libya)?

If section 41 had the wider, extra‑territorial effect argued for by the pursuer, the Court of Session could have jurisdiction under section 9 despite the children’s actual habitual residence in Libya. If it did not, the Scottish court would lack jurisdiction, and the action would have to be dismissed.

5. Summary of the Judgment

5.1 The Court’s Decision

Lord Braid held that:

  • Section 41 of the 1986 Act does not have extra‑territorial effect beyond the UK and certain dependent territories.
  • It is a mechanism for resolving intra‑UK jurisdictional issues and for preserving jurisdiction between UK jurisdictions following wrongful removal or retention, but it has no application where a child has become habitually resident in a foreign state.
  • Accordingly, section 41 cannot be used to deem the children habitually resident in Scotland for the purposes of section 9 when, as accepted, they are now habitually resident in Libya.
  • Since no other jurisdictional gateway under the 1986 Act applied, the Court of Session lacked jurisdiction to hear the case.

On that basis, Lord Braid:

  • Sustained the defender’s first plea‑in‑law and the minuter’s first plea‑in‑law; and
  • Dismissed the action, reserving all questions of expenses.

5.2 Key Legal Holding / New Precedent

The key principle established for Scots law is:

Section 41 of the Family Law Act 1986 is confined to intra‑United Kingdom (and certain dependent territory) situations and cannot be relied upon to found jurisdiction under section 9 where a child has become habitually resident in a foreign state, even in a non‑Hague context.

This is the first explicit Scottish authority on this point and places Scots law in line with the English Court of Appeal’s approach in Re S (A Child: Abduction).

6. Detailed Analysis of the Legal Reasoning

6.1 Approach to Statutory Interpretation

All parties accepted that the question was one of statutory interpretation. Lord Braid relied on the approach recently reaffirmed by the UK Supreme Court in:

  • For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16; and
  • Lord Advocate’s References 2025 SLT 101.

The principles drawn from these authorities and applied by Lord Braid are:

  • The court must determine the meaning of the words used in the provision in the light of their immediate and wider statutory context and the purpose of the provision.
  • If, viewed in that context, the language is clear and unambiguous, its meaning cannot be displaced by external aids.
  • External aids (such as Law Commission reports or academic commentary) may nonetheless legitimately be used to:
    • Identify the background; and
    • Understand the mischief that the statute was intended to address.

The pursuer had emphasised the plain wording of section 41; the defender and curator emphasised the context and scheme of Part I. Lord Braid’s reasoning proceeds by:

  1. Identifying the context and purpose of Part I of the 1986 Act;
  2. Considering how section 41 operates within that scheme; and
  3. Assessing whether, in that context, section 41 can sensibly be given an extra‑territorial effect.

6.2 Context and Purpose: Intra‑UK Uniformity, Not International Regulation

Drawing heavily on the 1984 Law Commission / Scottish Law Commission report Custody of Children – Jurisdiction and Enforcement within the United Kingdom, Lord Braid notes:

  • The mischief addressed by Part I was the complexity and inconsistency of different rules of jurisdiction and enforcement in relation to child custody within the UK.
  • The commissions proposed a uniform UK‑wide system of jurisdictional rules based on habitual residence, and machinery by which jurisdiction could be passed from the courts of one UK country to another.
  • The preamble to the 1986 Act itself stresses:
    • Regulation of UK courts’ jurisdiction to make orders about child custody; and
    • Recognition and enforcement of such orders throughout the United Kingdom.

On a structural reading of Part I (see para [7] of the judgment), Lord Braid concludes:

“Part I of the Act… is devoted to regulation of intra‑United Kingdom jurisdiction, recognition and enforcement. There is no suggestion in the Law Commission/Scottish Law Commission Report or the Act itself that it was intended to have extra‑territorial effect.”

This context, he reasons, provides a strong indication that section 41 – a provision embedded in that scheme – is intended to regulate intra‑UK jurisdictional relationships only.

6.3 The Functioning of Section 41 as a Reciprocal Intra‑UK Deeming Provision

Lord Braid gives a practical account of how section 41 works internally within the UK:

  • If a child habitually resident in Scotland is wrongfully removed to, for example, Wales, section 41 deems the child to continue to be habitually resident in Scotland for one year; and
  • The necessary corollary is that the child is deemed not to be habitually resident in Wales during that one‑year period.

The effect is that:

  • The Scottish courts retain jurisdiction for one year; and
  • The Welsh courts do not acquire jurisdiction on the basis of habitual residence during that period.

He cites Morris v Morris 1993 SCLR 144 as an illustration of the intra‑UK operation of section 41.

This is, in his words, “a deeming provision which applies throughout the United Kingdom” and is both “sensible and workable” in that context.

6.4 Why Section 41 Cannot Sensibly Operate Internationally

Lord Braid then explains why transposing this deeming mechanism into the international sphere is problematic:

  1. Non‑reciprocity and concurrency of jurisdiction.
    • Within the UK, the deeming rule operates reciprocally: if Scotland retains jurisdiction by deeming, another UK jurisdiction does not acquire it.
    • Internationally, there is no equivalent ability for a UK statute to deprive a foreign state’s courts of jurisdiction.
    • Thus, applying section 41 extra‑territorially would:
      • Allow the Scottish court to claim jurisdiction based on deemed habitual residence; but
      • Could not prevent, for example, a Libyan court from exercising jurisdiction based on the child’s actual habitual residence there.
    • This raises the risk of conflicting decisions about where the child should live – “the most unsatisfactory possibility that different decisions would be reached”.
  2. The role of section 26 (recognising foreign orders based on actual habitual residence).
    • Section 26 provides that an order relating to parental responsibilities/rights made outside the UK shall be recognised in Scotland if it was made in the country where the child was habitually resident.
    • This embodies a basic principle of private international law: jurisdiction lies, in general, with the courts of the child’s actual habitual residence.
    • Lord Braid stresses that it is “unlikely” Parliament intended Scottish courts to exercise jurisdiction concurrently with a foreign court merely on the basis of deemed habitual residence, while also accepting and recognising foreign orders based on actual habitual residence.
  3. Interaction with Hague Convention cases and section 17A.
    • Re S (A Child: Abduction) had already determined that section 41 cannot confer jurisdiction where the child is in a Hague Convention state; jurisdiction there is governed by the Convention, not by domestic deeming provisions.
    • Section 17A now expressly makes Chapter III of the 1986 Act subject to the 1996 Hague Convention.
    • Lord Braid finds it “unlikely” that Parliament intended:
      • Section 41 to have no extra‑territorial effect in Hague cases; yet
      • To allow section 41 to have extra‑territorial effect only in non‑Hague cases.
  4. Enforcement difficulties (supporting, not determining, the construction).
    • Senior counsel for the curator highlighted that orders under Part I have clear intra‑UK enforcement mechanisms (Chapter V), but there is no corresponding machinery for recognition or enforcement in non‑Convention states such as Libya.
    • While enforcement and jurisdiction are conceptually distinct, the absence of any enforcement framework in non‑Hague, non‑UK states is consistent with the idea that Part I was not intended to extend to such cases.

6.5 Responding to the Pursuer’s “Plain Wording” Argument

The pursuer argued that section 41 is, on its face, general – it speaks of a child becoming habitually resident “outside that part of the United Kingdom”, without expressly confining itself to movements between UK jurisdictions. He maintained that:

  • There is “nothing within it” to suggest that it applies only in intra‑UK cases; and
  • External aids and commentary cannot overcome the plain language.

Lord Braid does not treat the wording as ambiguous in itself; rather, he treats it as ambiguous in context. His reasoning is:

  • The phrase “outside that part of the United Kingdom” must be read within a scheme which is entirely intra‑UK in focus as regards jurisdiction and enforcement.
  • When situated in that context – and in light of the legislative background and structure – the more natural construction is that section 41 is about movements between UK jurisdictions and (via subsequent Orders) certain dependent territories, rather than about conferring jurisdiction in respect of moves to any and all foreign states.
  • Sections 35, 36, 37 and 39, relied upon by the pursuer to show wider scope, in fact reinforce the intra‑UK character of the scheme:
    • Section 35(3) (non‑removal orders) is explicitly tied to intra‑UK enforcement under section 36.
    • Section 37 (surrender of passports) is supportive of those non‑removal orders.
    • Section 39’s reference to foreign proceedings merely “acknowledges the reality” of parallel foreign processes; it does not turn the scheme into an international one.

Thus, even if section 41 does not explicitly limit itself to intra‑UK situations, its interpretation is constrained by:

  • The overall design and purposes of Part I; and
  • The practical impossibility of its reciprocal deeming mechanism operating internationally.

6.6 Support from Case Law and Academic Commentary

Lord Braid acknowledges that Scottish courts had not previously addressed this precise point, but he derives support from:

6.6.1 Re S (A Child: Abduction) [2002] EWCA Civ 1941

In Re S, the English Court of Appeal considered section 41 in the context of the 1980 Hague Convention (child abduction). Thorpe LJ held that section 41:

  • “Regulated any jurisdictional or enforcement conflicts between the constituent jurisdictions of the United Kingdom”; and
  • Had “no application to conflicts between jurisdiction in England and any jurisdiction that was not a constituent jurisdiction of the United Kingdom.”

Lord Braid notes that:

  • The submissions of Mr M Everall QC in Re S were expressly to the effect that:
    • Section 41(1) “did not apply to removals from the United Kingdom”;
    • Section 41(1) was a deeming provision limited to Part I, which regulates jurisdiction and recognition within the UK;
    • The purpose of section 41 was to avoid internal jurisdictional conflict, and external conflicts can only properly be managed by treaties.
  • Thorpe LJ effectively endorsed that analysis in his judgment.

Although Re S was decided in a Hague context, Lord Braid considers its reasoning of wider application and sees no basis for restricting it only to Hague cases.

6.6.2 In the matter of A (Children) [2013] UKSC 60

In A (Children), Lady Hale in the Supreme Court referred to Re S and noted, without adverse comment, its conclusion that section 41 is concerned only with intra‑UK matters. While she did not expressly approve or disapprove it, Lord Braid treats the absence of criticism from the Supreme Court as indirectly supportive of the Re S reading of section 41.

6.6.3 Academic Commentary

Lord Braid also surveys the leading academic sources:

  • Anton, Private International Law (3rd edn, 2011) para 17.107 & 17.38:
    • States that section 41 has effect only between territorial units of the UK or certain dependent territories.
    • Supports the view that in cases of wrongful removal/retention “as between the territorial units of the United Kingdom, or certain dependent territories, it is the fixed preservation of jurisdiction rule in s 41… which must apply.”
  • Dicey, Morris & Collins, The Conflict of Laws (16th edn, 2022) para 20.016:
    • Notes that “although the drafting does not make this clear, s41 may only apply in intra‑UK contexts” and acknowledges that the section has rarely been considered by the courts.
    • While somewhat cautious, it does not endorse an extra‑territorial reading.
  • Norrie, The Law Relating to Parent and Child in Scotland (3rd edn, 2013) para 10.28:
    • Describes the purpose of section 41 as preventing the evasion of jurisdiction by removing the child to “another jurisdiction”.
    • However, he then explains that if that situation persists for more than one year, it could found jurisdiction “in the new part of the United Kingdom”, suggesting an intra‑UK focus.
    • Thus, Norrie’s commentary is not clearly supportive of extra‑territorial effect.
  • Lowe, Nicholls & Everall, International Movement of Children (2nd edn, 2016) para 6.31:
    • Explicitly asserts that section 41 has no extra‑territorial effect and does not apply to children wrongfully removed to or retained in a state outside the UK, the Isle of Man or Jersey.

Lord Braid concludes that, while the commentary is not entirely uniform in its phrasing, none of the leading texts squarely supports the pursuer’s broader construction, and several explicitly favour the intra‑UK reading adopted in Re S. He is therefore “fortified” in his conclusion that section 41 does not extend beyond the UK and specified dependent territories.

6.7 Conclusion of the Reasoning

Bringing these strands together, Lord Braid holds (para [16]):

“Even in a non‑Hague context, section 41 of the Family Law Act 1986 does not have extra‑territorial effect beyond the United Kingdom and certain dependent territories. Since it is accepted by the pursuer that section 9 cannot, in that circumstance, confer jurisdiction in this case, the action falls to be dismissed.”

7. Impact and Significance

7.1 Clarification of Scots Private International Family Law

This judgment definitively settles, for Scotland, that:

  • Section 41 is not a mechanism by which Scottish courts can retain or assert jurisdiction over children who have become habitually resident in foreign states, even if they were wrongfully removed or retained there.
  • Its function is to stabilise jurisdictional rules within the UK and within the extended family of certain dependent territories – essentially providing an internal “cooling‑off” period following wrongful removal or retention between UK jurisdictions.

This removes any lingering doubt created by the relative scarcity of case law on section 41 and places Scots law squarely in line with English authority and leading academic analysis.

7.2 Consequences for Cross‑Border Child Disputes Involving Non‑Convention States

Where a child is removed from Scotland to a non‑Hague, non‑Convention state (such as Libya), the key practical consequences are:

  • No jurisdiction under section 9 via section 41.
    • If the child becomes habitually resident abroad, section 9 cannot be invoked via the deeming mechanism of section 41.
    • The Scottish court’s jurisdiction turns on whether the child is in fact habitually resident in Scotland on the date of the application or whether some other jurisdictional basis under the 1986 Act applies (which was not the case here).
  • Greater significance of factual timing.
    • Parents considering proceedings in Scotland after a removal to a foreign state will need to act swiftly, before the children acquire a new habitual residence abroad.
    • Once a new habitual residence is acquired, and if no Hague Convention is available, the Scottish courts’ ability to intervene is severely constrained.
  • Reliance on foreign courts and diplomatic channels.
    • In the absence of Hague mechanisms or section 41 jurisdiction, recourse may need to be to the courts of the foreign state and to any applicable bilateral agreements or informal cooperation.
    • Section 26’s recognition rule underscores that Scottish courts will, in principle, recognise foreign orders made in the child’s state of habitual residence.

7.3 Relationship with the Best Interests of the Child

Although the curator’s reports suggested that the children were doing well in Libya and that it was in their interests to remain with the defender (subject to safety), the judgment does not turn on welfare considerations. The decision is a jurisdictional threshold ruling: if the Court of Session has no jurisdiction, it cannot even reach the stage of determining what orders would be in the children’s best interests.

The case therefore underscores a familiar but important point:

  • Jurisdiction is a gateway issue. Questions about the child’s welfare, residence, and best interests can only be addressed if the court has jurisdiction under the applicable legal framework.

7.4 Strategic Lessons for Litigants and Practitioners

From a practical standpoint, the judgment highlights:

  • Speed is critical.
    • If a child has been removed to a foreign state, a parent who wishes to litigate in Scotland should seek legal advice and, if appropriate, raise proceedings before the child acquires habitual residence in the foreign state.
  • Section 41 is not a universal safety net.
    • It offers no solution once a new habitual residence is established outside the UK and its dependent territories.
    • Its protective effect is limited to intra‑UK removals/retentions.
  • Forum reality.
    • In many international cases, especially involving non‑Convention countries, the effective forum for determining the child’s future will be the foreign court in the place where the child is actually living and integrated.

8. Complex Legal Concepts Explained

8.1 Habitual Residence

“Habitual residence” is not defined in the 1986 Act; it is a factual concept developed by case law in both domestic and international contexts. In simplified terms:

  • It refers to the place where the child is settled on a stable basis, with a degree of integration in a social and family environment.
  • It is not the same as nationality or domicile.
  • Key factors include:
    • Where the child lives day‑to‑day;
    • Schooling;
    • Family and social ties;
    • Length and stability of the stay; and
    • The intentions of the parents, especially for younger children.

The 1986 Act uses habitual residence as the primary basis for jurisdiction: the court of the child’s habitual residence is usually best placed to make decisions about custody and residence.

8.2 “Part I Orders”

“Part I orders” are defined in section 1 of the 1986 Act and include:

  • Orders about where a child is to live (residence orders);
  • Orders about contact with a child (formerly access); and
  • Other custody‑related orders (now normally reframed in terms of parental responsibilities and rights in Scots law).

The whole scheme of Part I centres on when and how UK courts can make these orders, and how such orders are recognised and enforced across the UK.

8.3 Deeming Provisions and Extra‑Territorial Effect

Section 41 is a deeming provision: it instructs courts to treat a child as remaining habitually resident in a certain place (for the purposes of Part I) even though, in fact, they may have become habitually resident elsewhere.

“Extra‑territorial effect” refers to a statute’s ability to operate in relation to persons or events outside the state’s territory. Courts are generally cautious about construing domestic statutes as having extra‑territorial effect unless Parliament has clearly expressed that intention, especially where such interpretation would:

  • Interfere with the jurisdiction of foreign courts; or
  • Create practical or diplomatic conflicts.

Lord Braid’s decision reflects that caution:

  • Within the UK, section 41’s deeming rule is workable, reciprocal, and fits the statutory scheme.
  • Applied to foreign states, it would purport to affect the distribution of jurisdiction in ways that Parliament has not clearly authorised and that could produce significant conflicts.

8.4 Curator ad litem, Minuter, and Pleas‑in‑Law

  • Curator ad litem: An independent lawyer appointed by the court to represent the interests of the children, ascertain their views, and report on their welfare and circumstances.
  • Minuter: A person or entity who, though not originally a party to the action, is allowed to enter the process because their interests are affected (here, the curator entering formally to participate on jurisdictional issues).
  • Plea‑in‑law: The formal, concise statement at the end of written pleadings setting out the legal propositions on which a party seeks decree. Sustaining the defender’s and minuter’s “first pleas‑in‑law” means the court accepted their primary legal contention – here, that the court lacked jurisdiction.

9. Conclusion

MS v MM is a significant decision for Scottish private international family law. It firmly establishes that:

  • Section 41 of the Family Law Act 1986 is an intra‑UK mechanism designed to preserve jurisdiction internally following wrongful removal or retention between UK jurisdictions and certain dependent territories.
  • It does not apply to confer or preserve jurisdiction where a child has become habitually resident in a foreign state, even where that state is not party to the relevant Hague Conventions.
  • In such international scenarios, jurisdiction turns on the child’s actual habitual residence and any applicable international instruments, not on domestic deeming rules.

By dismissing the pursuer’s action for lack of jurisdiction, Lord Braid underscores that the Court of Session cannot, through section 41, extend its reach into disputes centred in non‑Convention states where children have settled and acquired habitual residence. The case offers both doctrinal clarity and a practical warning: parents must act swiftly and realistically in cross‑border child disputes, recognising that once a foreign habitual residence is established, the Scottish courts’ hands may be jurisdictionally tied.

Case Details

Year: 2025
Court: Scottish Court of Session

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