Introduction

The case of LO and EO v. Anne Marie McGinley brought before the Scottish Court of Session on November 22, 2022, addresses critical issues surrounding jurisdiction in cross-border children's proceedings. The appellants, a married couple with dual Italian and Nigerian citizenships, contested decisions made by children's hearings in Scotland concerning the welfare of their two youngest children, NO and EO. The core issues revolved around whether the Scottish children's hearing had the jurisdiction to make compulsory supervision orders and whether an Article 15 request under Council Regulation 2201/2003 (Brussels II bis) should have been made to transfer jurisdiction to an Italian court.

Summary of the Judgment

The Scottish Court of Session upheld the decisions of the Sheriff and the children's hearing, reaffirming that the Scottish authorities had proper jurisdiction over the case. The appellants challenged the jurisdiction based on their temporary residency status in Scotland and the persistent ties with Italy. Additionally, they argued that an Article 15 request to transfer the case to Italy was warranted. The court dismissed these arguments, concluding that the children's habitual residence was in Scotland at the time the proceedings were initiated and that transferring the case to Italy would not serve the best interests of the children.

Analysis

Precedents Cited

The judgment extensively references several key cases that have shaped the legal landscape regarding jurisdiction in children's hearings:

• C v Miller (2003 SLT 1379): This case established that procedural irregularities must have a material effect on the outcome for an appeal to be successful.
• Locality Reporter Manager v AM (2018 Fam LR 14): Demonstrated that not recording decisions does not necessarily invalidate the proceedings if no prejudice occurs.
• CF v MF (2017 SLT 945): Emphasized that sheriffs should not reassess the merits of jurisdictional decisions unless a fundamental error exists.
• X & Y v Principal Reporter (2022) CSOH 32: Reinforced the principle that jurisdictional decisions are to be respected unless clear evidence mandates change.
• Principal Reporter v LZ (2017 SLT 961): Highlighted the applicability of Brussels II bis to children's hearings, even post-Brexit, under certain conditions.

Legal Reasoning

The court's legal reasoning was grounded in the interpretation and application of the Children's Hearing (Scotland) Act 2011 and Council Regulation (EC) No 2201/2003 (Brussels II bis). The primary considerations included:

• Habitual Residence: The court affirmed that the family had established habitual residence in Scotland through stable accommodation, enrollment in schools, and integration into the local community.
• Article 15 Applicability: The criteria under Article 15 require that another Member State is better placed to handle the case and that such a transfer is in the best interests of the child. The court found that these conditions were not met, particularly noting the Italian court's refusal to assume jurisdiction.
• Precedent Adherence: The judgment adhered to established precedents that restrict the reassessment of jurisdictional decisions unless significant legal errors are evident.
• Procedural Irregularities: While acknowledging the lack of a written decision, the court determined that this did not materially affect the proceedings' fairness or outcome.

Impact

This judgment has several implications for future cases:

• Reaffirmation of Jurisdictional Authority: It underscores the authority of Scottish children's hearings in determining jurisdiction based on habitual residence.
• Clarification of Article 15 Use: The decision provides clarity on the stringent criteria required for invoking Article 15, limiting its application to scenarios where another Member State is unequivocally better placed to act.
• Procedural Compliance: It emphasizes that minor procedural oversights, such as the absence of a written decision, do not necessarily render proceedings unjust if fairness is maintained.
• Cross-Border Cooperation: The case highlights the complexities of cross-border child welfare cases, especially in a post-Brexit context, reinforcing the need for robust legal frameworks.

Complex Concepts Simplified

To enhance understanding of the judgment, several complex legal concepts are elucidated below:

• Brussels II bis (Council Regulation 2201/2003): A European Union regulation governing jurisdiction and the enforcement of judgments in matrimonial matters and matters of parental responsibility.
• Article 15: An exception within Brussels II bis allowing the transfer of jurisdiction to another Member State if it is in the best interests of the child and the other state is better placed to handle the case.
• Habitual Residence: A legal concept determining where a person has been living with a degree of permanence and stability, crucial for establishing jurisdiction in family law cases.
• Compulsory Supervision Order: A legal order that places a child under the supervision of a local authority to protect their welfare.
• Appeal by Stated Case: A type of appeal where the appellant provides a concise statement of the case without introducing new evidence.

Conclusion

The judgment in LO and EO v. Scottish Children's Reporter Administration serves as a pivotal reference in delineating the boundaries of jurisdiction in cross-border children's cases. By affirming the established habitual residence of the children in Scotland and rejecting the appellants' Article 15 request, the court has reinforced the procedural and substantive criteria necessary for jurisdictional assertions under both the Children's Hearing (Scotland) Act 2011 and Brussels II bis. This decision not only upholds the protective measures deemed necessary for the children's welfare but also provides clear guidance for similar future cases, ensuring that jurisdictional determinations are respected and that the best interests of the child remain paramount in legal proceedings.