DM v EF [2025] CSOH 115: Forum Choice, Remits and Access to Justice in Scottish Family Actions

1. Introduction

In DM v EF [2025] CSOH 115, Lord Braid, sitting in the Outer House of the Court of Session, refused a defender’s motion to remit a child contact and interdict action to Glasgow Sheriff Court under section 93(4)–(5) of the Courts Reform (Scotland) Act 2014. Although the procedural outcome is narrow, the opinion is of wider importance:

It fills a recognised gap in authority on remits in family actions, an area where written guidance from the Court of Session has been sparse.
It confirms that the longstanding approach in McIntosh v British Railways Board (No 1) 1990 SC 338 applies with full force to family cases.
It clarifies how cost, access to justice (ECHR Article 6) and children’s rights (UNCRC) interact with the statutory test for remitting proceedings.
It rejects any de facto presumption that simple contact actions should be litigated in the sheriff court rather than the Court of Session.

The decision therefore offers structured guidance on when it will, and will not, be “appropriate” to remit a family case from the Court of Session to the sheriff court, and how much weight is to be accorded to a pursuer’s choice of forum in such actions.

2. Background to the Case

2.1 Parties and Procedural Setting

Pursuer (DM): Father of W, a two‑year‑old child; raised proceedings in the Court of Session.
Defender (EF): Mother of W; resisting the level/structure of contact sought and the pursuer’s factual narrative.

The action was initially raised in September 2025 as a straightforward contact action in respect of W. On 3 October 2025 the pursuer amended his summons to add a conclusion for interdict (injunction) preventing the defender from removing W outwith the jurisdiction of the court and outwith the United Kingdom. He averred a reasonable apprehension that the defender would remove W to Abu Dhabi. Interim interdict was granted at that stage.

The defender:

Accepted that contact “in principle” is in W’s best interests, but
Opposed the actual contact sought, alleging abusive behaviour by the pursuer and risk of abuse to W during contact.
Denied any intention to remove W from the UK without the pursuer’s consent.

On 18 November 2025, the Court of Session allowed a proof (evidential hearing) of parties’ averments. A case management hearing was fixed for 18 December 2025, at which proof dates were likely to be fixed.

2.2 The Defender’s Motion to Remit

The defender moved the court to remit the action to Glasgow Sheriff Court under section 93(4)–(5) of the 2014 Act. The core grounds advanced were:

The issues were not of particular complexity.
The parties had very different means; the pursuer was better able to fund litigation in the Court of Session.
The additional cost of litigating in the Court of Session was not justified by the nature of the case.
The action would proceed at least as expeditiously, if not more so, in Glasgow Sheriff Court (where a dedicated family court exists).

The pursuer opposed the remit, arguing:

His choice of forum should be respected.
There was a pressing need for swift resolution, which he said could be better achieved in the Court of Session with robust case management.
The presence of an interdict preventing removal from the UK, and the alleged international element (risk of removal to Abu Dhabi), justified retaining the case in the Court of Session.

Lord Braid refused the motion on 24 November 2025, and, at counsel’s request (given the scarcity of authority on family remits), issued a written opinion setting out his reasons.

3. Statutory Framework: Section 93 Courts Reform (Scotland) Act 2014

Remits from the Court of Session to the sheriff court in civil cases (including family actions) are governed by section 93(4)–(5) of the 2014 Act. In summary:

Section 93(4) applies where the sheriff also has competence and jurisdiction to deal with the proceedings – i.e. the sheriff court could itself entertain the action.
Section 93(5) provides that the Court of Session may, “at any stage”, remit the proceedings to an appropriate sheriff if the court “considers that the nature of the proceedings makes it appropriate to do so.”

The crucial statutory phrase is therefore “the nature of the proceedings”. The central question was: what does that mean in the context of a family contact/interdict action, and did it justify remitting DM’s case?

4. Summary of the Judgment

Lord Braid held that:

McIntosh v British Railways Board (No 1) remains the leading and binding authority on remits and fully governs the approach under section 93 in family as well as non‑family cases.
“The nature of the proceedings” refers to the facts and circumstances of the particular case, not to the category of case (e.g. “contact case” versus “divorce case”).
Mere simplicity of the action and the fact that litigation may be cheaper in the sheriff court do not by themselves justify a remit.
The pursuer’s choice of forum remains a factor of real weight; a litigant is not to be lightly denied the right to litigate in the Court of Session where it has concurrent jurisdiction.
While the court may have regard to ECHR Article 6 (access to justice) and, where relevant, the UNCRC (children’s rights), financial “funding issues” short of a practical inability to litigate do not trigger a remit.
Cases involving the welfare of a child, particularly where allegations of abuse are made and an interdict against removal from the jurisdiction is sought, cannot be characterised as “unimportant” or inappropriate for the Court of Session.
Both the Court of Session and Glasgow Sheriff Court have specialist family judiciary and similar procedures; there was no solid basis to conclude that the case would proceed more quickly in the sheriff court.
Granting the motion would in substance amount to holding that contact actions are not suitable for determination in the Court of Session, a policy shift which the authorities do not support and which is a matter for Parliament, not the courts.

On that basis, the court refused the motion to remit and found the expenses of the motion to be expenses in the cause.

5. Precedents Cited and Their Influence

5.1 McIntosh v British Railways Board (No 1) 1990 SC 338

In McIntosh, the Inner House interpreted the statutory predecessor of section 93. The key principles, reaffirmed in DM v EF, are:

“Nature of the action” relates to the particular facts and circumstances, not the broad type or label of proceedings. The court must examine the specific case, not whether such cases in general are commonly heard in the sheriff court.
The statutory objective is not to guarantee that every case that could competently be heard in the sheriff court is actually sent there, but to prevent cases whose nature makes them unsuitable for that court from being remitted.
A litigant’s right to choose the Court of Session, provided the case is above the sheriff court’s privative jurisdiction, is to be given significant weight. That right is not to be displaced lightly.

Lord Braid accepts these propositions as binding and applies them directly to family actions, expressly rejecting the notion that a different remit test should operate just because the case is “a family case.”

5.2 Gribb v Gribb 1993 SLT 178

Gribb was, before DM v EF, the only reported family action remitted from the Court of Session to the sheriff court. Lord Weir described the divorce action there as “perfectly straightforward” and considered that:

The simplicity of the action made it appropriate for the sheriff court; and
The defender’s pronounced financial difficulties in litigating in the Court of Session, as compared to the sheriff court, were a “powerful reason” to remit, outweighing the pursuer’s desire to avoid local publicity.

However, as Lord Braid notes:

The report is brief and does not show that McIntosh was cited.
To the extent that Gribb treats financial difficulty as the main reason to remit, it is an outlier.
It cannot be read as establishing a general principle that family cases (or simple family cases) should ordinarily be remitted.

In effect, DM v EF significantly limits Gribb’s weight as an authority and re‑anchors family remits firmly in the McIntosh line.

5.3 Drimsynie Estate Ltd v Ramsay 2006 SLT 528

In Drimsynie, Lord Brodie, following McIntosh, held that:

The expense of litigation is not, by itself, a sufficient reason to justify a remit.
The phrase “nature of the case” does not encompass the financial circumstances of the parties.

He did remit the case but on other grounds, including that it was essentially an action of removing, a type of action in practice commonly brought in the sheriff court. Importantly for DM v EF, Drimsynie confirms that:

Relative unimportance of a case may support a remit; and
Systemic or practical factors (like typical forum for a certain action) can be relevant, but must be grounded in the nature of the specific case, not a bare policy preference.

Lord Braid draws on Drimsynie to emphasise:

That cost, taken alone, is not enough; and
That cases concerning the welfare of a child, especially where abuse is alleged, cannot be characterised as “unimportant.”

5.4 Bell v Chief Constable, Strathclyde Police 2010 SLT 244

In Bell, Lord Malcolm refused a motion to remit and observed:

The First Division in McIntosh had “strongly endorsed” a litigant’s right to raise an action in the Court of Session so long as the potential award exceeded the sheriff court’s privative jurisdiction.
If that general approach were to be altered, this was a matter for Parliament, not judicial re‑engineering.
It is difficult to bring a party’s funding difficulties within the statutory phrase “the nature of the action.”

These points play a clear role in DM v EF, where Lord Braid:

Reiterates that forum choice remains a significant right.
Stresses that converting remits into a mechanism to push whole classes of cases (e.g. family contact cases) into the sheriff court would amount to a policy change only Parliament can make.
Expressly questions whether ordinary problems with paying for litigation can be regarded as part of the “nature” of the proceedings.

6. Legal Reasoning in DM v EF

6.1 The Central Test: “Nature of the Proceedings”

Lord Braid begins from the accepted starting point that McIntosh is binding: the court must focus on the particular case, not on the type of proceedings in a general abstract sense. This leads to several consequences:

It is not enough to say “contact cases are usually heard in the sheriff court”; the question is whether this particular contact and interdict case is inappropriate for the Court of Session.
The existence of a specialist family sheriff court in Glasgow is not decisive; both courts have specialist family judges and appropriate procedures.
Simplicity of factual issues does not automatically make a case suitable for remit; what matters is whether, looking at all its features, the case is unsuitable for the Court of Session.

On the facts, he holds that the case is perfectly suitable for determination in either court and there is nothing about its nature which makes it inappropriate for the Court of Session.

6.2 Importance and Gravity of the Case

Drawing on Drimsynie, Lord Braid recognises that the relative importance or unimportance of a case can be a factor in deciding whether to remit. However:

Actions involving a child’s welfare are inherently important, even where the primary issue is contact rather than residence.
The presence of allegations of abuse heightens that importance.
Where there is an interdict to prevent removal of a child from the jurisdiction of the court and from the UK, that remedy is “self‑evidently” of a kind appropriate to the Court of Session.

Thus, this is the very opposite of the kind of case that might be dismissed as trivial or routine. Importance therefore weighs against remit.

6.3 Forum Choice and the Pursuer’s Entitlement to Litigate in the Court of Session

Lord Braid restates in contemporary terms the principle from McIntosh and Bell:

“A party is not lightly to be denied the right to litigate in the Court of Session if they wish to litigate there.”

This is more than a formal nod; it affects how borderline factors (like modest cost differences or marginally quicker procedures) are weighed. Unless the “nature of the proceedings” positively favours the sheriff court, the pursuer’s election to raise in the Court of Session carries weight and will not be overridden merely because another reasonable forum is available.

6.4 Costs, Financial Circumstances and Access to Justice (ECHR Article 6)

The defender’s principal argument beyond simplicity was cost: that her more limited means made it difficult to litigate in the Court of Session, engaging Article 6 ECHR (right of access to a court). Lord Braid’s response has several layers:

Cost alone is not enough
Consistent with Drimsynie, the mere fact that litigation might cost more in the Court of Session does not, by itself, justify remitting. If it did, most actions competent in the sheriff court would be remitted, undermining Parliament’s policy of concurrent jurisdiction.
“Funding issues” vs practical inability
Lord Braid draws a crucial distinction between:
- Having “funding issues” or financial inconvenience; and
- Being so unable to pay that one would be effectively unable to participate in proceedings in the Court of Session.
Only the latter situation might give rise to an Article 6 problem justifying a remit.
Evidence of means and legal aid
Looking at the defender’s affidavit, the court concluded that:
- The defender did have financial pressures but also had significant assets (a non‑principal heritable property).
- She might qualify for legal aid in either jurisdiction; if she did not because of her property, that would not make the process unfair in Article 6 terms.
- Even in the sheriff court, litigation – particularly if counsel continued to be instructed – would not be “cheap”.
On that evidential basis, there was no Article 6 violation or risk sufficiently serious to influence the remit.

This is an important refinement: cost considerations may be relevant only at a high threshold, where they risk rendering the right of access to a court illusory.

6.5 Children’s Rights and UNCRC

The defender also sought to frame the financial and forum arguments in terms of the UN Convention on the Rights of the Child (UNCRC), arguing that:

Financial pressure on the defender could indirectly harm the child’s welfare.
UNCRC therefore should be taken into account in deciding whether to remit.

Lord Braid accepts in principle that:

UNCRC may be engaged where a choice of forum will likely have an adverse impact on the child.

However, on the facts:

He was not persuaded that UNCRC was truly engaged.
In any event, W’s best interests also include the case being concluded as soon as possible.
Because the Court of Session was already seised of the action, and the timing of a remitted case in the sheriff court was uncertain, a remit might actually be counter‑productive from the child’s perspective.

In short, UNCRC tips neither way here; if anything, the case for swift resolution supported retaining the case.

6.6 Speed and Case Management

Both parties argued about relative speed and efficiency in the two forums. Lord Braid approached this cautiously:

Emails from the Glasgow sheriff clerk suggesting earlier possible proof diets were noted but not treated as determinative.
Anecdotal accounts of delays in each system were expressly discounted.
He stressed that both forums have broadly similar procedures and specialist family judges with a statutory mandate to progress proofs expeditiously.
He found no reliable basis for saying the sheriff court would produce a quicker outcome, and highlighted the unknowns associated with how a remitted case would be prioritised.

Instead, he placed emphasis on the Court of Session’s ability, as the court already seized of the case, to manage it robustly:

He indicated he was not at that stage persuaded that a child welfare report was necessary, which might itself reduce delay.
He emphasised that “with robust case management, the costs should be capable of being kept within proportionate bounds.”

Thus, the court preferred a practical, case‑management‑based approach over speculative forum comparisons.

6.7 Avoiding a De Facto Policy Shift

Perhaps the most constitutionally‑oriented part of the reasoning is at the end:

Lord Braid recognises that if he granted the motion on the grounds advanced, it would be “tantamount to holding that actions for contact are not suitable for determination in the Court of Session but should be litigated in the sheriff court.”
He notes that the authorities make clear that this is not the law.
To effect such a change would be akin to redrawing jurisdictional boundaries – a function reserved to Parliament.

This underlines the broader point: section 93 is not a tool for the courts to retrospectively narrow the concurrent jurisdiction given by Parliament. Its function is more modest: to ensure that individual cases whose nature makes them unsuitable for the Court of Session can be sent to the sheriff court – not to recalibrate the system’s overall allocation of business.

7. Key Principles and Likely Impact

7.1 Key Principles from DM v EF

The following principles emerge clearly from the opinion:

McIntosh applies fully to family actions
The remit test for family cases is the same as for non‑family civil cases. There is no special, lower remit threshold merely because the case concerns family law.
“Nature of the proceedings” is case‑specific
The court must look at the specific facts, issues, relief sought and importance of this case; broad labels such as “contact action” do not determine suitability for remit.
Pursuer’s forum choice has real weight
A litigant who has legitimately chosen the Court of Session is not lightly to be deprived of that choice. Remit requires positive reasons grounded in the case’s nature.
Simplicity is not enough
Even if the legal and factual issues are relatively straightforward, that alone does not justify remitting a case that is otherwise suitable for the Court of Session.
Cost differentials rarely justify remit
General assertions that the Court of Session is more expensive than the sheriff court will not suffice. Only near‑absolute inability to litigate in the Court of Session, risking a denial of Article 6 rights, could be decisive.
Child welfare cases are inherently important
Where a case touches on a child’s welfare – particularly with allegations of abuse and international removal – it cannot be dismissed as minor; that militates against remit.
Human rights instruments may be relevant, but at a high threshold
ECHR Article 6 and UNCRC can influence remit decisions, but only where there is a concrete risk of:
- Effective denial of access to the court (Article 6); or
- A material adverse impact on the child’s rights through forum choice (UNCRC).
No presumption that contact actions belong in the sheriff court
There is no de facto rule that routine contact disputes should be remitted. Any such systemic reallocation would require legislative change.

7.2 Practical Impact on Future Family Litigation

In practical terms, DM v EF is likely to have several effects:

Restraint in granting remits in family cases
Parties seeking to remit family actions on ground of simplicity, availability of a local family sheriff court, or ordinary financial pressure are unlikely to succeed unless very specific and compelling circumstances are shown.
Greater predictability for pursuers
Pursuers who choose the Court of Session for family cases can have more confidence that they will not be forced into the sheriff court simply because the defender has lower means or because similar cases commonly proceed there.
Clearer test for funders and advisers
Solicitors and counsel advising clients on forum choice can now point to a structured test and to the high threshold for cost‑based remits, particularly in child‑related cases.
Reinforcement of robust case management in the Court of Session
Lord Braid’s emphasis on case management and proportionate costs may encourage more active judicial control over timetables in family cases, countering the perceived advantage of the sheriff court in speed.
Narrowing the practical reach of Gribb
Gribb v Gribb is effectively confined to its facts and is no longer a safe basis for arguing that financial disparity alone should lead to a remit in a family case.

8. Complex Concepts Simplified

8.1 “Remit”

A remit is a transfer of a case from the Court of Session to the sheriff court. Under section 93(5), the Court of Session can do this only if the sheriff court could have heard the case and if the nature of the case makes it appropriate to send it there.

8.2 Court of Session vs Sheriff Court

Court of Session: Scotland’s supreme civil court, based in Edinburgh. Often used for higher‑value, more complex or more significant cases, though it has concurrent jurisdiction in many areas (including certain family cases).
Sheriff Court: Local first‑instance courts throughout Scotland. They handle the bulk of day‑to‑day civil and criminal business. Some sheriff courts (such as Glasgow) have specialised “family” structures and sheriffs with particular expertise in family law.

8.3 Privative Jurisdiction

The “privative jurisdiction” of the sheriff court is the upper monetary limit below which civil cases must be raised in the sheriff court and cannot be raised in the Court of Session. Above that threshold, there is concurrent jurisdiction: the pursuer can choose either forum (subject to possible remit).

8.4 Proof and Case Management Hearing

Proof: The Scottish civil equivalent of a trial – a hearing where witnesses give oral evidence and documents are formally proved.
Case Management Hearing: A procedural hearing at which the court and parties plan the future conduct of the case – fixing proof dates, discussing expert evidence, reports, timetables, and any steps needed to narrow issues.

8.5 Interdict and Interim Interdict

Interdict: A court order similar to an injunction, preventing a person from doing something (here, removing the child from the court’s jurisdiction or from the UK).
Interim interdict: A temporary interdict granted at an early stage in the proceedings, pending a final decision after proof.

8.6 ECHR Article 6 and “Access to Justice”

Article 6 of the European Convention on Human Rights guarantees the right to a fair trial, which includes the right of access to a court. If costs are so high relative to a party’s means that they cannot realistically pursue or defend their case, this right can be breached. However, the threshold is high: mere inconvenience or difficulty is not enough.

8.7 UNCRC

The UN Convention on the Rights of the Child sets out rights of children, including that their best interests should be a primary consideration in decisions affecting them. In a remit context, it might be relevant if one forum significantly delayed or impaired the determination of the child’s welfare, or otherwise had a demonstrably negative impact on the child.

8.8 “Expenses in the Cause”

When the court orders that the expenses (costs) of a particular motion are “expenses in the cause”, it means those expenses follow the overall result of the case, rather than being finally determined at that stage.

9. Conclusion

DM v EF [2025] CSOH 115 is a focused but significant clarification of the law on remits in Scottish family proceedings. In response to the acknowledged dearth of authority, Lord Braid:

Reasserts the centrality of McIntosh to all remit applications, including family cases, and underscores the importance of a pursuer’s forum choice.
Confirms that “nature of the proceedings” demands a careful, case‑specific assessment, rather than reliance on broad assumptions about which court typically hears what type of case.
Sets a high threshold for cost‑based remits: only near‑total inability to litigate, engaging ECHR Article 6, is likely to count, and even then the answer will depend on the facts.
Recognises that UNCRC may be relevant to forum choice but finds that, on the facts, the child’s best interests in a speedy and efficient determination supported retaining the case in the Court of Session.
Rejects any informal policy of diverting routine contact cases out of the Court of Session absent legislative change.

In doing so, the judgment provides much‑needed guidance for practitioners and judges in family law, especially in cases where financial inequality or perceived local advantages of a family sheriff court are invoked to justify a remit. It narrows the scope of Gribb, aligns family remit practice with the mainstream civil authorities, and reinforces that the Court of Session remains an appropriate forum for serious disputes about children, even where the factual issues might appear straightforward.

The key takeaway is that remit is an exceptional, not routine, step in family cases. Unless the features of a particular case positively show that it is inappropriate for the Court of Session, pursuers who have validly chosen that forum can expect their choice to be respected.