Material Change and Forum Competence in Article 15 Jurisdiction Transfers

Introduction

This commentary reviews the decision of the Scottish Court of Session in Brechin v LO & EO ([2025] CSIH 15), concerning an appeal by stated case under section 163 of the Children’s Hearings (Scotland) Act 2011. The appellant, Gordon Brechin, Locality Area Manager for the Scottish Children’s Reporter Administration, asked a sheriff to request the Italian courts to assume jurisdiction over a child (NO) under Article 15 of Council Regulation (EC) No 2201/2003 (Brussels IIa). The respondents, LO and EO, originally had their four children removed from their care in Scotland on child-protection grounds. The principal issues were (a) whether a sheriff on appeal may itself make an Article 15 transfer request, (b) whether it was appropriate to do so in the circumstances of this long-running cross-border child-welfare case, and (c) what procedural path should be followed.

Summary of the Judgment

The Court of Session allowed the appeal. It held that:

A sheriff hearing an appeal under section 156 has jurisdiction to consider an Article 15 application if that issue is raised by a party, but normally should remit the matter back to the children's hearing under section 156(3)(a).
Neither the sheriff nor a children's hearing should revisit the question of an Article 15 transfer ex proprio motu unless there has been a material change of circumstances since the issue was last decided.
The sheriff in the present case mischaracterised the hearing history, failed to obtain necessary information about NO’s best interests, and thus misdirected himself by making a transfer request on the papers before him.
The proper course is to recall the sheriff’s interlocutor and direct that no further order be made; ongoing appeals to the sheriff and further children's-hearing decisions are to be allowed to run their course.

Analysis

Precedents Cited

LO & EO v McGinley [2022] CSIH 50, 2023 SC 39 – Confirmed Scotland’s jurisdiction and procedural requirements for Article 15 requests after earlier refusals by a children's hearing and sheriff.
CF v MF [2017] CSIH 44, 2017 SLT 945 – Clarified the narrow scope of appeal under section 156 and the limits on a sheriff’s powers when deciding if a hearing’s decision is “justified.”
Application in respect of A & B 2014 Fam LR 137 – Addressed a sheriff’s power to direct a new children’s hearing where grounds of referral are in question.
Nottingham City Council v LM & Ors [2014] EWCA Civ 152 (Re D) – Set out the three-fold test under Article 15 (particular connection, better-placed court, best interests).
Child and Family Agency v D (R Intervening) (Case C-422/15)[2017] Fam 248 – Expounded principles governing “better placed” and “best interests” under Article 15.
In the matter of N (Children) [2016] UKSC 15, [2017] AC 167 – Reinforced that repeated Article 15 applications require material change and emphasized summary nature of transfer proceedings.
Principal Reporter v LZ [2017] CSIH 51, 2017 SLT 961 – Confirmed Brussels IIa applies to children's-hearing proceedings commenced before 1 January 2021.

Legal Reasoning

The Court’s reasoning proceeds from the statutory framework:

Under Children’s Hearings (Scotland) Act 2011 sections 154–156, a sheriff on appeal must decide whether the hearing’s decision is “justified” and, if not, may remit to a hearing or vary orders.
Article 15 of Brussels IIa allows, in substance, a court with jurisdiction to request transfer to a more appropriate forum in the child’s best interests. Such applications may be made “at any stage,” but material change is required for repeated requests.
The children’s hearing remains the primary fact-finding and welfare forum. A sheriff confronted with an Article 15 application should normally use section 156(3)(a) to remand to the hearing, enabling comprehensive investigation (safeguarder reports, interviews, translators, etc.).
In this case, the sheriff misinterpreted the hearing history (no repeated “failures to consider” Article 15), declined to remit, and sought to decide on inadequate documentary material. He thus exceeded the narrow appellate remit and reached a decision no reasonable sheriff could have made.

Impact

This judgment crystallizes the proper procedure for cross-border transfer requests in Scottish child-protection proceedings:

It reaffirms that children’s hearings are the appropriate first forum to assess Article 15 applications, with sheriffs acting in an appellate, supervisory role.
It imposes a high threshold (material change of circumstances) before repeated transfer requests may be entertained, preventing resource-draining repetition.
It clarifies that appellate courts should not themselves conduct fresh fact-finding on best interests without remitting to the primary forum or invoking formal powers under section 155.
It underscores the necessity of accurate, comprehensive case summaries when making transfer requests to foreign courts, to uphold mutual trust among EU member states.
Future cross-border cases will rely on the three-fold Article 15 test (particular connection; better-placed court; best interests) and on the procedural safeguards highlighted in this decision.

Complex Concepts Simplified

Children’s Hearing: A specialist forum in Scotland that decides if a child requires compulsory supervision for their welfare or protection.
Compulsory Supervision Order: An order placing a child under the ongoing oversight of a local authority, specifying residence, contact and other measures.
Appeal by Stated Case (Section 163): A process by which a sheriff can refer questions of law or procedural irregularity to the Court of Session for decision.
Article 15, Brussels IIa: An EU regulation mechanism allowing transfer of jurisdiction to another Member State’s court if the child has a particular connection, the other court is better placed, and it is in the child’s best interests.
Material Change of Circumstances: A significant development since a previous decision (e.g., change in residence, new evidence, foreign court’s stance) that justifies reconsidering a transfer request.
Section 156(3)(a) Power: Allows a sheriff to direct the Principal Reporter to convene a fresh children's hearing for any lawful purpose, including considering a transfer application.
Curator ad Litem: A court-appointed adviser who represents the child’s interests independently in complex proceedings.

Conclusion

The decision in Brechin v LO & EO establishes clear procedural guardrails for Article 15 transfer applications in Scottish children’s-hearing appeals. It confirms that:

Children’s hearings retain primacy in welfare fact-finding and initial transfer decisions;
Sheriffs exercise a limited appellate role and should normally remit transfer issues back to hearings;
Revisiting jurisdiction transfer requires a material change of circumstances;
Requests to foreign courts must present fair, accurate and complete factual summaries.

By enforcing these principles, the Court of Session promotes efficient use of resources, protects the child’s best interests, and sustains mutual trust in cross-border family justice.