The Scottish Government's EU and International Law Branch

The fuller version of the article in the EU Civil Justice Supplement published with the September 2010 Journal

18th October 2010 | Brian Peddie

With the ever-increasing mobility of people between countries, ensuring the effective enforcement of legal obligations across national boundaries is a significant, and growing, area of activity. The EU and International Law Branch is the section of the devolved administration in Scotland that deals with such matters.

The Branch is part of the Scottish Government’s Justice Directorate and is based in St Andrew’s House, Edinburgh. It:

deals with general human rights matters, i.e. those that do not relate to specific issues;
co-ordinates the Scottish Government’s interest in EU justice issues; and
provides advice and services in connection with co-operation between Scotland and other countries in the civil justice context, such as cross-border enforcement of legal obligations.

Central Authority

In relation to the last of these tasks, the Branch acts as the central body for Scotland under a number of EU legislative instruments and other international agreements. (Almost all of the latter emanate from the Hague Conference on Private International Law, which is the world organisation for cross-border co-operation in civil and commercial matters.) As such we are the main point of contact between Scotland and other countries, and with practitioners and courts in Scotland, on matters covered by those instruments and agreements.

Although these arrangements do not cover cases that are between Scotland and other UK jurisdictions, we do work closely with our counterparts in those jurisdictions on policy and practical issues of mutual interest, such as how to ensure effective implementation of new international obligations. We are also responsible for ensuring that domestic Scottish law and procedures, such as court rules, are kept up to date so that Scotland can meet its obligations under the relevant international instruments.

The subjects with which we deal under this heading are as follows:

Enforcement of family maintenance obligations

This is commonly referred to as “Reciprocal Enforcement of Maintenance Obligations” (REMO). It is the process by which maintenance orders made by Scottish courts can be registered and enforced by courts or other authorities in other countries against people resident there; or claims for recovery of maintenance by a Scottish resident against a person resident in another country can be established in that country. It covers payment of child maintenance under court orders and minutes of agreement; however, we do not deal with Child Support Agency assessments. We transmit final and provisional maintenance orders, minutes of agreement and applications and maintain regular contact with interested parties in Scotland and with foreign authorities.

If a Scottish court order is in place, then under various reciprocal arrangements this may be enforced abroad. In some cases minutes of agreement can similarly be enforced. The majority of these arrangements are incorporated into Scots law under the Maintenance Orders (Reciprocal Enforcement) Act 1972.

International child abduction

This refers to the enforcement of child custody and contact obligations, primarily through helping to secure the return of children who have been taken abroad by a parent in breach of such obligations. As the Central Authority for Scotland we serve as an information point for authorities in other states, solicitors and members of the public, providing advice and also updates on the status of cases to involved parties. The relevant instruments are Regulation (EC) 2201/2003 on Jurisdiction and enforcement of judgements in matrimonial matters and matters of parental responsibility (also known as “Brussels IIa”), and the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Protection of vulnerable adults

This is a relatively new function, since the relevant international instrument (the 2000 Hague Convention on the International Protection of Adults) is in force between only four countries, including Scotland. It relates to facilitating the taking and enforcement of measures to safeguard the personal welfare or protect the property of an adult with incapacity. We act as the Central Authority for Scotland under the Convention.

Recognition and enforcement of foreign judgments in other civil and commercial matters (EU only)

This relates to Regulation (EC) 44/2001 on Jurisdiction, recognition and enforcement of judgments in civil and commercial matters (also known as “Brussels I”), the purpose of which is that judgments given in an EU member state shall be recognised in the other member states without any special procedure being required. While the regulation does not include a Central Authority function, we can provide advice in relation to its operation and on related matters such as the European enforcement order and the European payment order.

Service of documents in civil proceedings

We deal with requests for service of documents abroad in respect of Scottish proceedings, and requests from foreign countries for service of documents in Scotland. We have been designated as the Central Authority for Scotland under the relevant instruments, namely Regulation (EC) 1393/2007 on service of judicial and extrajudicial documents in civil or commercial matters and the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

Taking of evidence in civil proceedings

This relates to the obtaining of evidence in one country for the purposes of legal proceedings being taken in another country. We are the Central Authority for Scotland under the relevant instruments, namely Regulation (EC) 1206/2001 on cooperation between courts in the taking of evidence in civil or commercial matters and the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.

The European Judicial Network

The Branch also provides the Scottish Contact Point for the European Judicial Network (EJN) in civil and commercial matters, which was established in December 2002 to facilitate cross-border co-operation in civil justice matters within the EU. The EJN includes all EU Member States except Denmark.

The main purposes of the EJN are:

to provide information to the public, practitioners, judges and others on the working of Community instruments on judicial cooperation in civil and commercial matters, including information about the relevant laws and legal practices of other member states;
to help judges and relevant national authorities to resolve difficulties that may arise in the interpretation or application of EU legislation; and
to provide a means of communication between judges in different member states.

The EJN is currently made up of the contact points and other relevant authorities in member states, along with designated “liaison magistrates”. However, under changes that will come into effect on 1 January 2011 it will be expanded so as to give legal professionals access to its activities through the national professional associations becoming members of the Network.

You can find more information about the Network on its website: http://ec.europa.eu/civiljustice/index_en.htm.