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Book reviews

20 June 11

Reviews of Civil Jurisdiction (Maher & Rodger); Adoption (McNeill & Jack)

by Lord Brodie, Susan Oswald

Civil Jurisdiction in the Scottish Courts

Gerry Maher and Barry J Rodger

PUBLISHER: W GREEN

ISBN: 9780414013681

PRICE: £140 

The volumes published or republished as part of Greens Practice Library (GPL) aspire to a level of excellence which is below only that of the Scottish Universities Law Institute series. The guide provided by W Green for would-be authors tells them that a GPL text should aim to provide a comprehensive and authoritative account of the law for legal practitioners. While that is to set the mark high, there can be little doubt but that Civil Jurisdiction in the Scottish Courts, the most recent addition to the Library, meets and indeed exceeds the publisher’s demanding requirements.

The authors are well established legal scholars. Professor of Criminal Law at Edinburgh University since 2000, Gerry Maher was formerly Professor of Law at Strathclyde University, where he taught private international law among other topics. He has been a member of the Scottish Law Commission. Barry Rodger has a particular interest in the competition law of the EU and has published extensively in that field. He was appointed Professor at Strathclyde in 2001.

The authors’ statement in the preface, that there has been no comprehensive examination of the subject of civil jurisdiction in Scotland since the publication of Duncan and Dykes’ The Principles of Civil Jurisdiction as applied in the Law of Scotland in 1911, might seem initially surprising to members of a generation of practitioners who gratefully relied on the work of Sandy Anton and Paul Beaumont. However, Anton and Beaumont’s Civil Jurisdiction in Scotland (2nd ed, 1995) acknowledged that its scope is limited to the effect of the Civil Jurisdiction and Judgments Act 1982 and its associated Conventions (which deal with many but not all of the various aspects of civil jurisdiction), while jurisdiction is merely one topic among many in Anton’s Private International Law (2nd ed, 1990; a new edition will be published later this year). Moreover, there has been much relevant activity, diplomatic, legislative and judicial, both at the domestic and European levels in the last 15 years. As Lord Eassie emphasised when welcoming the work at its launch in December of last year, it fills what has been a major gap in legal publication in Scotland.

Maher and Rodger’s object is to provide an exposition of the rules by reference to which Scottish courts exercise jurisdiction over persons. The approach is to focus on the practical question faced by a litigator: “In this case can I bring proceedings in Scotland?” However, in an area of law where a proper understanding of the relevant concepts may very well require reference to the jurisprudence of the European Court of Justice, there is generous citation of European authorities, in addition to recent Scottish material which includes as yet unreported sheriff court judgments.

The work begins by identifying and explaining the basic concepts: “jurisdiction” in its different meanings, connecting factors, and general and special jurisdiction. It then identifies the principal sources of the jurisdictional rules which may be applicable: the Brussels I Regulation (no 44/2001/EC of 22 December 2000, superseding the Brussels Convention of 1968) in respect of civil and commercial matters; the Brussels II-bis Regulation (no 2201/2001/EC of 27 November 2003) in respect of matrimonial matters and children; the Insolvency Regulation (no 1346/2000/EC of 29 May 2000); the revised Lugano Convention; the rules for allocation of jurisdiction within the UK contained in sched 4 to the 1982 Act; and the Scottish rules in sched 8 to the 1982 Act. Principal, but not exclusive; certain proceedings are excluded from the scope of sched 8 by sched 9, and there remains a continuing role for s 6 of the Sheriff Courts (Scotland) Act 1907, for specialised statutory rules and for the common law.

With that by way of introduction, Maher and Rodger seek to explicate what they describe as a “disheartening complexity” in the law as it relates to the jurisdiction of the Scottish courts. They discuss the key concept of domicile and how it applies to natural and legal persons. They then address the grounds of special jurisdiction found in rule 2 of sched 8, which are additional to domicile in respect of particular proceedings. There are discussions of consumer contracts and contracts of employment, which get particular treatment in sched 8, and insurance contracts, which do not but which are specifically provided for in Brussels I and the Lugano Convention.

Reflecting its intention to provide a comprehensive coverage of the subject, later chapters of the book examine exclusive jurisdiction, provisional and protective measures, family proceedings and actions relating to status, insolvency and winding up, obligations, property, succession and trusts, diligence, miscellaneous actions, extending jurisdiction through prorogation and submission, and excluding jurisdiction. Appropriately for a work aimed at practitioners, it ends with a chapter on procedure and pleading. This serves as an effective conclusion, bringing the work back to its starting point and providing material for readers to put into practice what they have learned from what has gone before.

At a price of £140 this deceptively (but usefully) compact volume is not cheap, but it would be false economy for anyone with pretensions to a litigation practice not to have a copy readily to hand. 

Lord Brodie, Senator of the College of Justice

 


Adoption of Children in Scotland: 4th edition

Peter G B McNeill and Morag Jack

PUBLISHER: W GREEN

ISBN: 9780414016262

PRICE: £55

The fourth edition Adoption of Children in Scotland by Peter G B McNeill and Morag Jack provides a useful guide to adoption in Scotland following the changes arising as a result of the Adoption and Children (Scotland) Act 2007.

It is a valuable reference book for solicitors representing potential adoptive parents or parents facing actions seeking the adoption of, or permanence orders in relation to, their children.

The main changes that the legislation introduces are the replacement of freeing of a child for adoption by a permanence order, the removal of the disqualification of natural parents applying for contact after adoption, and an extension of the range of people who may apply to adopt a child. The new legislation allows joint adoption by unmarried couples, including same-sex couples, so that both of the couple become the child’s legal parents. The Act also allows one partner to adopt the other partner’s child so that both are then the child’s legal parents.

The book starts with a definition of adoption and explains the different kinds of orders that may arise in adoption procedure, including the new permanence orders, and details the various steps from petition procedure to the making of orders, appeals and expenses.

The chapter on permanence orders is particularly helpful. It sets out clearly the definition of permanence orders, including those granting authority to adopt. Permanence orders can only be sought by a local authority. Permanence orders have been created to provide a new legal framework for those children for whom there is a concern that their future care and welfare needs may not be safely or appropriately provided within their own families. The chapter also details the grounds for dispensing with the consent of the parent or grandparent and the particular conditions and considerations applying to the making of a permanence order.

With regards the welfare principle, there is a different consideration depending on whether a permanence order or an order for adoption is being sought. In considering whether to make a permanence order, the court must have regard to the need to safeguard and promote the welfare of the child throughout childhood as a paramount consideration. In an order seeking the adoption of a child however, the court must have regard to the need to safeguard and promote the welfare of the child throughout their life as a paramount consideration. Accordingly, where an application is made for a permanence order with a request for a provision granting authority to adopt, the court must have regard to the need to safeguard and promote the welfare of the child throughout their life.

The chapter on permanence orders also explains the interrelationship between the children’s hearing and the court, and the interrelation of permanence orders and supervision requirements.

The chapters on petitions and proposed petitions set out very concisely the new court procedure which the 2007 Act introduces. The entire Act is set out in the appendix.

This book is a valuable resource for practitioners as it sets out comprehensively the background to the new legislation as well as providing a practical guide to the new time limits and procedure. 

Susan Oswald, Sheehan Kelsey Oswald

 

Suggestions for future books

The Book Review Editor is David J Dickson. Books for review should be sent c/o The Law Society of Scotland, 26 Drumsheugh Gardens, Edinburgh EH3 7YR

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