Inner House refuses appeal against sheriff’s refusal to state a case in ICSO challenge but notes legislative tension

About this case:

• Citation:
  [2026] CSIH 18
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Wise

Applicant AEV, the mother of child NE, had sought to pursue an appeal in terms of section 163(1)(v) of the Children’s Hearings (Scotland) Act 2011 arguing that she had been deprived of an effective remedy to challenge decisions made by the sheriff on an interim basis. The child’s father LE, a resident of the Netherlands, was not an active participant in the proceedings but had previously been involved in proceedings before the children’s hearing and in the sheriff court.

The application was heard by Lord Malcolm, Lady Wise, and Lord Clark. The applicant AEV appeared as a party litigant, while the respondent was represented by Middleton, advocate.

Problem with the system

NE was referred to the children’s hearing in Aberdeen following the separation of his parents. Between February and April 2025, two Interim Compulsory Supervision Orders were made requiring him to live at a place of safety away from either of his parents. These were extended on several occasions by the sheriffs at Aberdeen on applications made by the Principal Reporter. A full CSO was made in February 2026 following procedure including evidential hearings in the sheriff court, in which the grounds of referral were found to be established.

The applicants, particularly AEV, sought to appeal the various decisions taken to extend the ICSOs, with the sheriffs having taken the view that as they were of such short duration any appeal taken, even if lodged timeously, would be academic by the time they reached the court. The first applicant further challenged two interlocutors of August 2025 appointing a curator ad litem, however no focus was given to these challenges before the Inner House, and they were not addressed further.

AEV acknowledged that these applications were procedural in nature and could not address her substantive appeal, but submitted that as each ICSO was appealable, a fair hearing was required where that was sought. There was a problem with a system in which the ICSO would always expire before any appeal on the merits, and the court should recognise the human rights violations caused by the decisions.

Counsel for the authority reporter convened as respondent submitted that the application involved a wholesale attack on the ICSO scheme, concerns about the conduct of the social work department and a general challenge to the appropriateness of an ICSO on the facts. Applications of this sort could not be used to undertake a general review of the sheriff’s substantive decision, and none of the grounds properly fell within the scope of a section 163 appeal.

Tension with legislation

Delivering the opinion of the court, Lady Wise focused on the two applications made timeously, noting: “Both of the timeous applications made were considered by the same sheriff, who in our view erred in determining that each proposed appeal was academic. We have seen an informal note by the sheriff in relation to the second of those applications. It raises other potential reasons for refusing to state a case. Nonetheless on both occasions the sheriff’s primary reason for refusal was that by the date of any hearing the appeal would be academic. That is a material error of a kind that justifies the applicants’ decision to raise the matter with this court and resonates with her concerns about a lack of effective remedy.”

She added: “Faced with an application for a stated case, timeously lodged albeit unusually framed, the sheriff should have taken into account the unsatisfactory perpetuating cycle of the ICSO’s and the applicants’ lack of legal representation. Against that backdrop, consideration should have been given to whether this was a case where procedural and legal niceties ought to give way to the paramount consideration in all such cases of the welfare of the child. Such an approach may have avoided the applicants’ perception that successive ICSO’s were being ‘rubber stamped’ at the same time as decision makers appeared to thwart the statutory mechanism for their proposed appeals.”

Considering whether the appeals should proceed now, Lady Wise said: “With some hesitation, we consider that the best way forward in this case is to encourage the first applicant to continue to engage (as she has done more recently) in the proceedings now before the children’s hearing rather than to order the sheriff to state a case. That does not amount to a conclusion that the matter is now academic; on the contrary, the whole history of these proceedings can and should be before the children’s hearing when it next makes a decision about whether compulsory supervision measures for NE are necessary.”

She concluded: “By bringing this application, AEV has brought to our attention a tension between the legislation permitting the granting of ICSOs and the way in which applications to state a case have been dealt with to date. Sheriffs require to consider carefully all applications to make or extend ICSOs and to grant them only when satisfied that the test of necessity is met. Reasons for any such decision should be available to those who may seek to challenge it. Sheriffs should be slow to refuse to state a case for a proposed appeal. It is almost invariably for the appellate court to determine the issues of substance in any challenge to the lower court’s decision making, albeit within the confines of the nature of appeals under section 163 of the Act.”

The application was therefore refused on that basis.