Abstract
Domicile of Children: the New Law in Scotland
Highlights
By introducing a test of closest connection for the domicile of children the 2006 Act implements a recommendation made by the Law Commission for England and Wales and the Scottish Law Commission in their joint report on domicile of 1987,12 reaffirmed by the Scottish Law Commission in its report on Family Law of 1992.13 The 1987 report rejected the idea of replacing domicile as the determinant for status with either habitual residence or nationality
Adopting a recommendation by the Law Commissions,[25] the Bill as introduced into the Scottish Parliament provided that where a child has a home with one parent only and the parents are not domiciled in the same country, it is presumed that the child is most closely connected with the country in which the parent with whom the child has a home is domiciled.[29]
While it is clear that the common law rules on the derivative domicile of children are completely replaced with the new test of closest connection, it is less certain whether and how the Act affects the common law rules on the domicile of origin and the abandonment of a domicile of choice
Summary
By introducing a test of closest connection for the domicile of children the 2006 Act implements a recommendation made by the Law Commission for England and Wales and the Scottish Law Commission in their joint report on domicile of 1987,12 reaffirmed by the Scottish Law Commission in its report on Family Law of 1992.13 The 1987 report rejected the idea of replacing domicile as the determinant for status with either habitual residence or nationality. Adopting a recommendation by the Law Commissions,[25] the Bill as introduced into the Scottish Parliament provided that where a child has a home with one parent only and the parents are not domiciled in the same country, it is presumed that the child is most closely connected with the country in which the parent with whom the child has a home is domiciled.[29] As already mentioned, this presumption was dropped for the sake of simplifying the application of what is section 22; and it seens preferable to determine the country of closest connection without the constraints of a presumption which is unnecessary in some cases and inappropriate in others. The idea of making any presumptions for the domicile of orphans or children not living with their parents was already rejected in the consultation document leading to the 1987 report ' and was not even found worthy of discussion in the report itself
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