Eviction from Unauthorised Traveller Encampments: UNCRC 2024 Compatibility and Article 8 Proportionality Do Not Require “Culturally Appropriate” Alternative Accommodation Before Decree

1. Introduction

The Scottish Ministers, as landowners, petitioned the Court of Session for an order under section 46 of the Court of Session Act 1988 to remove unauthorised occupiers from a 3.831ha site at Waterfront Avenue, Granton, Edinburgh, and for interdict preventing re-entry. The respondent, an Irish Traveller, lived on the site with the respondent’s partner and 11 children in caravans. A separate part of the site was occupied by a fluctuating group of itinerant workers.

Planning permission had been granted for “The Art Works”, a major national cultural infrastructure project for the storage, conservation and public/community access to national collections, with a hard “start on site” deadline (before 8 November 2026) to avoid lapsing permission. Adjacent, a Lar Housing Trust development for affordable housing was said to depend on commencement of The Art Works project for viability.

The respondent opposed eviction primarily on human rights and children’s rights grounds: (i) eviction without culturally appropriate alternative accommodation would be a disproportionate interference with rights under Articles 8 and 14 ECHR; and (ii) decree would be incompatible with the children’s UNCRC rights as incorporated domestically by the United Nations Convention on the Rights of the Child (Incorporation)(Scotland) Act 2024.

A curator ad litem was appointed to ascertain (so far as practicable) the children’s views. The court also had reports from an independent social worker and a forensic psychologist addressing the impact of eviction.

2. Summary of the judgment

Lady Tait granted the petition: an order under section 46 ordaining “persons unknown” residing in caravans/vehicles on the marked areas to remove themselves and their property “with immediate effect”, with warrant for enforcement; and interdict preventing entry onto the land.

In substance, the court held:

• Article 8 ECHR: the interference with the family’s private and family life was proportionate given the urgency and importance of the public projects, site safety and community concerns, and the continuing statutory role of the City of Edinburgh Council (CEC) to provide homelessness support and facilitate access to education/health services.
• Article 14 ECHR: discrimination was not made out on the evidence.
• UNCRC/2024 Act: having considered children’s views and best interests, eviction was not incompatible with UNCRC requirements (including Articles 3, 12, 16 and 27) in the circumstances.
• PSED: the Scottish Ministers had not failed in their Equality Act 2010 section 149 duty; the EQIA (and CRWIA) demonstrated due regard.

3. Analysis

3.1 The legal frame: section 46, interdict, and human rights scrutiny

Section 46 of the Court of Session Act 1988 allows the court, in interdict proceedings, to grant “specific relief” by ordaining steps necessary to reinstate a petitioner in possessory right. In practical terms, it gives the Court of Session a mechanism akin to an eviction/removal remedy where occupation is unlawful.

The critical legal move in this case is the court’s insistence that even where domestic property law clearly favours the proprietor, eviction by a public authority must still survive proportionality review under Article 8 ECHR, and (post-2024) must also be assessed for compatibility with UNCRC requirements where section 6 applies.

3.2 Precedents cited and how they shaped the outcome

(A) Article 8 eviction proportionality: from “possession as of right” to fact-sensitive balancing

• Manchester City Council v Pinnock (Nos. 1 and 2) [2011] 2 AC 104
  The petitioners relied on Pinnock for the core formula: eviction must be a proportionate means of achieving a legitimate aim. The Supreme Court’s emphasis that “unencumbered property rights” carry “real weight” (para 54) is echoed in the court’s approach: the Scottish Ministers’ ownership interest was a substantial factor, strengthened by additional aims (safety and nationally significant redevelopment).
• Hounslow LBC v Powell [2011] 2 A.C. 186
  Although discussed more in the respondent’s submissions, Powell underscores that proportionality is usually straightforward where a public landlord is entitled to possession, but remains open to exceptional circumstances. Lady Tait did not accept that the lack of a culturally appropriate pitch made refusal/delay the appropriate “exceptional” response, given the time-critical planning and funding consequences and ongoing CEC duties.
• Bank Mellat v H M Treasury (No. 2) [2014] 1 AC 700
  The four-stage proportionality test provided the court’s organising structure. Lady Tait accepted legitimacy and rational connection; she focused on (3) whether less intrusive measures were available without unacceptable compromise, and (4) overall fair balance. Her conclusion is decisive: neither delay to locate a site nor continued occupation during works were “less intrusive measures” that would avoid unacceptable compromise, given the planning deadline, enabling works, and site safety.
• Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2026] AC 607
  Cited for proportionality principles at a high level. Its significance here is confirmatory: proportionality analysis is structured and evidence-led, not a free-standing merits review.

(B) Traveller/encampment jurisprudence: “home”, vulnerability, and alternative accommodation

• Chapman v United Kingdom (2001) 33 EHRR 18
  This was pivotal. The respondent invoked Chapman for the recognition that measures affecting stationing caravans can engage private/family life and cultural identity. The petitioners (and the court) relied on Chapman’s limit: Article 8 does not oblige states to provide an adequate number of suitable sites (paras 96 and 98). Lady Tait’s proportionality conclusion is consistent with that limit; the absence of an available pitch was treated as serious but not determinative.
• Winterstein v France (27013/07)
  The respondent relied on Winterstein’s guidance that lack of alternative accommodation makes interference more serious and that special consideration is due to Roma/Travellers. Lady Tait acknowledged the enhanced seriousness but distinguished the practical question at stage (3) of Bank Mellat: given the development deadline and safety issues, the court did not accept that delay pending identification of a culturally appropriate pitch was feasible without unacceptable compromise.
• Faulkner and McDonagh v Ireland (30416/18) and Simonova v Bulgaria (30782/16) (2024) 78 EHRR 5
  These were used by the respondent to support a broad “home” concept even for unlawful occupation. Lady Tait accepted Article 8 private/family life engagement in any event; the case turned less on “home” classification and more on proportionality in light of public interests and the framework of homelessness duties.
• Hirtu v France (24720/13)
  Reinforced that even if the encampment is not a “home”, eviction can still engage family life. The court’s approach is aligned: Article 8 engagement was not contested; proportionality was the battleground.
• Medway Council v Heron and Ors, Claim no. K01ME613
  The respondent relied on Medway as an example where eviction was disproportionate because the authority failed to consider less intrusive measures (including use of non-operational land). Lady Tait treated Medway as fact-specific and distinguishable: the Scottish Ministers did not hold surplus land to offer, and the development was already advanced and time-critical; moreover, accommodation functions lay with CEC rather than the petitioners.

(C) Homelessness “suitability” and Traveller aversion to bricks-and-mortar accommodation

• Codona v Mid-Bedfordshire District Council (2005) HLR 1 (CA) and Sheridan v Basildon Borough Council (2012) HLR 39 (CA)
  These cases were deployed to frame what can be required of a local authority when Travellers have a genuine aversion to conventional housing, and what can be done where no pitch exists. The petitioners used them to argue that if no site is available, conventional accommodation may be offered; Article 8 does not guarantee a specific site. The judgment’s reasoning implicitly leans on this: it recognises the family’s aversion but treats it as a factor within proportionality, not a veto on eviction.
• Glasgow City Council v X 2025 SLT 525 and Y v Glasgow City Council 2026 SLT 49 (IH)
  Cited on homelessness suitability and review mechanisms under the Housing (Scotland) Act 1987. Their significance in this case is “systemic”: Lady Tait treats the local authority homelessness framework (offers, suitability, review, and potential judicial review) as an important mitigation for the family’s post-eviction position, supporting the conclusion that eviction remains proportionate.
• The Queen on the application of McDonagh v Newport City Council [2019] EWHC 3886 (Admin)
  Used to support the proposition that a caravan-dwelling household with no lawful place to station is “homeless” within the relevant statutory definition. Lady Tait later notes the family is “presently homeless” and uses that to contextualise the impact of eviction: it does not newly create homelessness, although it does disrupt the place where support networks have formed.

(D) UNCRC/2024 Act and children’s rights: emerging domestic case-law

• Lord Advocate's References 2025 SLT 101 and Glasgow City Council v Stringfellow and others [2026] CSOH 19
  These were invoked (particularly by the SHRC) on how to determine whether a public authority is acting “in connection with a relevant function” under section 6 of the 2024 Act, endorsing a purposive approach. Lady Tait proceeds on acceptance that section 6 applies here, then resolves the case on compatibility, best interests, and proportionality.
• City of Edinburgh Council v SP 2026 UT 34
  Important for Article 16 UNCRC (privacy/family/home) being assessed similarly to Article 8 ECHR, including application of the Bank Mellat proportionality framework. Lady Tait adopts that approach: once the eviction is authorised by a court process and justified proportionately, it is not “arbitrary or unlawful” under Article 16.
• X, Principal Reporter [2026] CSOH 15
  Cited in SHRC submissions to illustrate the procedural limb of Article 3 best interests (via Committee General Comment 14) and the need for reasoned decisions demonstrating that best interests were assessed and weighed. In the present case, the court undertook a detailed, reasoned balancing exercise and obtained children’s views via curator and expert reports.

(E) Equality duty and process discipline

• Hotak v Southwark LBC [2016] AC 811 and Baker v Secretary of State for Communities and Local Government [2009] PTSR 809
  These anchor the “due regard” standard: it is a duty of conscientious consideration, not of outcome. Lady Tait applies this orthodoxy and accepts that the EQIA/CRWIA and countervailing considerations demonstrate compliance.
• Bromley London Borough Council v Persons Unknown [2020] PTSR 1043 (CA)
  Used to support that an EQIA is not legally mandatory but can evidence proportional and equality-conscious decision-making. That logic underpins the court’s rejection of the PSED challenge.
• Aldwyck Housing Group Ltd v Forward [2020] 1 WLR 584 (CA)
  Raised (by petitioners) by analogy to say that even if there were a procedural breach (there, PSED), it does not automatically require refusal of possession. Lady Tait uses similar reasoning when addressing (and effectively discounting) the respondent’s complaint that children’s views were obtained “too late”.

3.3 Legal reasoning: why decree was granted despite the lack of a culturally appropriate pitch

(A) The “less intrusive measure” argument failed on urgency and feasibility

The court accepted that eviction would seriously affect the family: disruption of newly established education/health links, loss of local friendships, and psychological harms (including evidence of suicidal risk). Nonetheless, the court treated the alternatives as legally and practically insufficient:

• Delay to find a site risked planning permission lapsing, jeopardised funding, increased costs materially, and delayed both The Art Works and adjacent affordable housing.
• Allowing the family to remain during works was rejected due to access requirements, health-and-safety concerns during major construction/enabling works, and the insecure/safe management difficulties of a live encampment on a construction site.

In Bank Mellat terms, the court found no “less intrusive measure” that would avoid “unacceptably compromising” the legitimate aims.

(B) Public interest aims were treated as exceptionally weighty

The judgment identifies a cluster of reinforcing objectives beyond bare property vindication:

• national cultural heritage storage and access;
• local regeneration benefits and community facilities;
• time-critical planning and funding conditions;
• public safety and environmental concerns (fires, unsafe utility interference, waste burning/fly-tipping);
• knock-on consequences for adjacent affordable housing delivery.

This “stacking” of legitimate aims is central to the proportionality conclusion: even serious interference with family life can be justified where the countervailing public interest is concrete, evidenced, and time-sensitive.

(C) The homelessness and children’s-services framework mattered as a mitigator

Lady Tait’s reasoning places considerable weight on the existence of an ongoing statutory framework (primarily on CEC) for homelessness assistance, school placements and (where eligible) transport, and access to healthcare. This did not eliminate the harm of eviction, but it was part of the “fair balance”:

• CEC had been engaging since 2024 through specialist officers and would continue to do so;
• CEC’s Chief Executive expressed ongoing commitment to intensify dialogue to find temporary or longer-term solutions;
• the family could challenge homelessness decisions via review and judicial review routes.

The judgment thereby treats post-eviction statutory duties as an important structural safeguard, even where the family’s culturally preferred option (an authorised Traveller pitch) was not currently available.

(D) Article 14 (discrimination) was rejected for evidential insufficiency

The respondent’s argument was framed as “unequal effect”: others might be rehoused in ways not affecting cultural identity, whereas the Traveller family would face culturally inappropriate options. The court held there was no evidential foundation about comparator occupiers and their outcomes, beyond some having contacted homelessness services. Without evidence, the discrimination case could not be made out.

(E) UNCRC rights: children were heard, best interests assessed, but did not determine the outcome

The court’s UNCRC analysis is notable for its practical handling of Articles 12 and 3:

• Article 12: children’s views were before the court through three channels—curator ad litem, social work report, psychologist report. Their opposition to eviction and desire to remain together as Travellers was treated as genuine and weighty.
• Article 3: the court accepted the strength of the children’s views but identified a tension: they wanted to stay, yet the site’s lack of sanitation and security was inimical to welfare. The court concluded remaining was not in best interests; and even taking best interests as a primary consideration, wider community interests outweighed.

On Article 27, the court acknowledged the SHRC’s references to Committee materials emphasising “adequate alternatives”, but declined to transform that into a pre-condition of eviction here—citing (i) the statutory allocation of accommodation duties to the local authority, and (ii) the disproportionality of postponement given the planning and funding consequences.

3.4 Impact: what this decision is likely to change

• UNCRC 2024 Act in civil property enforcement: the judgment demonstrates that UNCRC arguments will be treated as live and structured issues in eviction/removal proceedings involving children, with courts expecting evidence of children’s views and welfare impacts. Appointment of a curator ad litem is shown as an available, case-shaping tool.
• No automatic “alternative pitch first” rule: while acknowledging vulnerability and cultural identity, the court did not accept that the absence of a culturally appropriate pitch compels refusal or postponement of removal from public land where strong public interests and safety issues are established.
• Greater premium on evidence and timetables: the planning-lapse date, funding conditions, and quantified cost escalation were treated as decisive proportionality facts. Future petitioners will likely present similarly granular programme-and-funding evidence; respondents will likely need equally concrete alternatives and feasibility evidence to succeed at Bank Mellat stages (3) and (4).
• Article 14 (unequal effect) requires comparators and proof: mere assertion that others will fare better is insufficient; evidence about how other occupiers will be treated and why any differential impact is attributable to the petitioner (rather than systemic shortages) will be critical.
• EQIA/CRWIA as litigation hygiene: although not always mandatory, the presence of an EQIA/CRWIA record helped defeat the PSED challenge and supported the court’s confidence that children’s interests were considered.

4. Complex concepts simplified

4.1 What is a section 46 order (Court of Session Act 1988)?

Section 46 allows the Court of Session, in interdict proceedings, to order “specific relief” to restore a petitioner’s possessory right—effectively a court-ordered removal/clearing of unlawful occupiers and their property where interdict could have prevented the act complained of.

4.2 What is “interdict” and “void and redd”?

Interdict is a court order prohibiting conduct (here, entering or re-entering the land). “Void and redd” is Scots conveyancing language meaning to leave the property empty and cleared, restoring possession to the owner.

4.3 Article 8 proportionality in eviction: the Bank Mellat framework

Courts commonly ask four questions:

1. Is the objective important enough to justify limiting the right?
2. Is eviction rationally connected to that objective?
3. Is there a less intrusive way to achieve it?
4. Overall, is the harm to rights disproportionate to the public benefit?

This case turned on (3) and (4): the judge held there was no workable less intrusive option (like delay or partial occupation), and that the public interest benefits outweighed the serious private harms.

4.4 How the UNCRC 2024 Act changes the litigation landscape

Section 6 makes it unlawful for a public authority to act incompatibly with UNCRC requirements when acting “in connection with a relevant function”. Section 7 allows parties to rely on UNCRC requirements in proceedings. In practice, this invites courts to:

• identify which UNCRC rights are engaged (e.g., being heard, best interests);
• ensure children’s views are obtained where practicable;
• reason explicitly about best interests and balancing.

Here, the court did all three, but still granted eviction.

4.5 PSED (Equality Act 2010, section 149): “due regard” is a process duty

The public sector equality duty is not a guarantee of an equality-favouring outcome. It requires conscientious, rigorous consideration of equality impacts alongside countervailing objectives. An EQIA is not always required, but it can evidence compliance.

5. Conclusion

[2026] CSOH 82 is a significant Scottish decision at the intersection of property enforcement, Traveller rights, Article 8 proportionality, and the post-incorporation UNCRC landscape. Lady Tait accepted that eviction would cause serious and foreseeable harm to a large family who had established meaningful local links, and she treated children’s views and best interests as central to the analysis. Nevertheless, she held that the unsafe, unsanitary, and insecure nature of the encampment, combined with urgent and weighty public interests tied to time-critical planning and funding for major regeneration, meant there was no less intrusive alternative to eviction and that the fair balance favoured decree.

The judgment’s practical message is clear: UNCRC rights and Traveller cultural identity can significantly intensify the scrutiny applied to eviction decisions, but they do not create an automatic requirement that culturally appropriate alternative accommodation be available before the court will restore possession of public land—particularly where strong, evidenced public interests and statutory homelessness safeguards are in play.