Inner House rules sheriff should not have requested transfer of jurisdiction over child supervision case

About this case:

• Citation:
  [2025] CSIH 15
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Doherty

Gordon Brechin, the locality area manager for the Scottish Children’s Reporter Administration, challenged the decision in favour of parents LO and EO, arguing that it was not open to the sheriff to make the transfer request. A curator ad litem was appointed to ensure that the child NO’s interests were appropriately considered.

The appeal was heard in the Inner House of the Court of Session by Lord Malcolm, Lord Doherty, and Lady Wise. Brabender KC appeared for the appellant, Scott KC for the second respondent, and Donachie, advocate, for the curator ad litem. The first respondent appeared as a party litigant.

No reasonable sheriff

In November 2016 the respondents came to live in Scotland after their home in Italy was damaged by an earthquake. Their four children, including NO, came to live with them, with the eldest children P and MO being removed from boarding school in Nigeria to do so. After MO disclosed to teachers and social workers that he had been physically and emotionally abused by the respondents for several years, all four children were removed from the respondents’ care in February 2017.

In 2018, a sheriff found that the respondents had assaulted and abused P and MO in both Italy and Scotland. MO, NO, and EO were made subject to compulsory supervision orders. NO was thereafter placed in a care unit in Glasgow with other young people. The respondents returned to Italy in February 2020 after their home was rebuilt and attempted, without success, to transfer proceedings relating to the children to the Juvenile Court of Ancona under Article 15 of Council Regulation (EC) 2201/2003.

On 7 September 2023, NO’s compulsory supervision order was continued by the children’s hearing. The respondents appealed to the sheriff, who allowed their appeal on the basis that he was in a better position than the children’s hearing to decide whether proceedings should be transferred, and that transfer was in NO’s best interests. He went on to make a request to the Juvenile Court of the Marche to accept the case, a request that was subsequently accepted. The appellant promptly appealed the sheriff’s decision.

For the appellant it was submitted that the sheriff’s decision to make an Article 15 request was one which no sheriff acting reasonably could have made. The material before the sheriff was inadequate to enable him to conclude that the Italian courts were better placed to hear the case, or that the transfer was in the best interests of NO. He made no attempt to ascertain NO’s views on transfer and failed to consider relevant factors including his treatment and the fact that his brothers continued to live in the UK.

The curator ad litem’s submissions mirrored those of the appellant and added that the professionals involved in NO’s care expressed concern about a move setting back his progress. For the respondents it was submitted that the sheriff was under a proactive duty to consider Article 15, and it was competent for him to make the request.

Rarely appropriate

Lord Doherty, delivering the opinion of the court, began by noting: “We reject the proposition that a children’s hearing ought, ex proprio motu, to consider at every hearing whether to make an Article 15 request. That would be very wasteful of valuable and limited resources. Repeated Article 15 applications based on the same facts are to be deprecated. Repeated applications will usually fail unless there has been a change of circumstances.”

He continued: “The application having been made to the sheriff, in our view he had jurisdiction to consider it, and, if appropriate, to grant it. It was competent for him to do both of those things. However, for reasons which we shall come to, it will rarely be appropriate for a sheriff to grant such an application, and the sheriff ought not to have granted it here.”

Explaining why the sheriff had erred, Lord Doherty said: “With all due respect to the learned sheriff, the children’s hearing’s jurisdiction is not limited to questions of law and fact which are well-worn or straightforward. Children’s hearings often have to deal with difficult legal and factual issues. They do so with the benefit of submissions from the parties and, where necessary, guidance from the National Convener of Children’s Hearings.”

He added: “The sheriff had no information about NO’s views on the proposed transfer. Even if it was likely that NO’s comprehension of the relevant issues might be limited, a view which considered matters from his perspective (rather than from the perspective of the respondents) could be obtained in a number of ways. Had the sheriff directed that the matter be determined by the children’s hearing, it is likely that enquiries would have been carried out and that all relevant information would have been provided to the hearing.”

Lord Doherty concluded: “Even if the children’s hearing had not subsequently considered the Article 15 issue, we would not have thought it right for this court to step in and displace the forum with primary jurisdiction, for much the same reasons as made it inappropriate for the sheriff to follow that path. The fact that since the sheriff’s decision, on 28 October 2024, the children’s hearing has ruled on the Article 15 question makes it even more inappropriate that this court should proceed in the way which the respondents suggest.”

The appeal was therefore allowed, with the case remitted to the sheriff with a direction that he make no further order.