“No Ejection Necessary” – The Court of Session Clarifies Local Authorities’ Immediate Duty to Accommodate Children under s 25(1)(c) of the Children (Scotland) Act 1995

1. Introduction

The Outer House of the Scottish Court of Session, in Petition of A for Judicial Review ([2025] CSOH 66), has delivered a landmark ruling on the circumstances triggering a local authority’s duty to provide accommodation for a child under section 25(1)(c) of the Children (Scotland) Act 1995 (“the 1995 Act”). The case arose after North Lanarkshire Council refused to accommodate a 15-year-old adopted child (“X”) despite repeated pleas from the adoptive mother (“the petitioner”) that she could no longer cope with his behaviour. The central questions were:

Must a child first be physically expelled or “abandoned” before the statutory duty in s 25(1)(c) is triggered?
Can the local authority postpone that duty until it has consulted the child and wider family members?
In judicial-review proceedings concerning a child, on what basis will the court award expenses (costs) against a local authority?

Lord Braid’s opinion, building on remarks by Lady Carmichael at an earlier procedural stage, offers an authoritative answer to each question, reshaping the practical landscape for Scottish children’s services.

2. Summary of the Judgment

Although the petition was ultimately dismissed for “want of insistence” because the child had been accommodated during the litigation, Lord Braid granted the petitioner’s motion for expenses. In doing so he held:

The statutory duty in s 25(1)(c) arises as soon as it “appears” to a reasonable local authority that the existing carer is prevented, for whatever reason, from providing suitable accommodation or care. A formal or literal ejection of the child is not required.
The obligation to ascertain the child’s views under s 25(5) (and Article 12 UNCRC) does not suspend or delay the primary duty to accommodate; views should be obtained “so far as practicable” and, where necessary, after emergency accommodation has been provided.
North Lanarkshire Council’s persistence in refusing accommodation – and its insistence that the child first be thrown out or expressly consulted – was “sufficiently unreasonable” to justify an award of expenses.

3. Analysis

3.1 Precedents and Authorities Cited

Wilkinson & Norrie, The Law Relating to Parent and Child in Scotland (3rd ed.) – cited for the proposition that an inability “to cope” with a child engages s 25(1)(c). The court endorsed this commentary.
R (G) v Southwark LBC [2009] 1 WLR 1299 – Baroness Hale’s statement that local authorities cannot decide to ignore statutory duties because the consequences are unattractive was quoted with approval.
Perth and Kinross Council [2018] CSOH 6; S (A Child) [2015] UKSC 20; T (Children) [2012] UKSC 36 – expenses cases explaining when a party’s conduct is “unreasonable” in child-related litigation.
UNCRC Article 12 and UNCRC (Incorporation) (Scotland) Act 2024 – relied on by the council; Lord Braid clarified their interaction with s 25.

3.2 Legal Reasoning

(a) Triggering the Duty under s 25(1)(c)

The phrase “for whatever reason” in s 25(1)(c) broadens the situations in which a carer is “prevented” from providing suitable care. Accepting Lady Carmichael’s earlier dicta, Lord Braid affirmed that:

“Prevention” includes psychological or practical inability to cope with severe behaviour. It is not confined to physical exclusion, imprisonment, illness or homelessness.
Requiring a parent to abandon or eject the child before the duty arises would render s 25(1)(b) (the separate “lost or abandoned” ground) redundant and would risk significant harm to already vulnerable children.

(b) Consultation with the Child

Section 25(5) imposes a conditional (“so far as practicable”) obligation to have regard to the child’s views before accommodation is provided. Lord Braid held that:

The duty to decide whether accommodation is required is separate from, and antecedent to, the duty to consult on where/how accommodation is provided.
Article 12 UNCRC does not override the immediate statutory duty; rather, it shapes how the duty is discharged in practice.
A local authority is not entitled to adopt a “consult first, act later” stance if that results in no action at all.

(c) Award of Expenses

Ordinarily, in children’s cases each party bears its own costs unless there has been unreasonable conduct, lest costs deter welfare-driven litigation. The present case, however, involved the authority’s failure to perform a welfare duty. Key findings:

The petitioner “achieved success” because the ultimate relief (accommodation and assessment) matched her aims.
The council’s misunderstanding of the law and refusal to reassess its position even after proceedings were served constituted unreasonable conduct.
A public-budget argument is not decisive; accountability sometimes “comes at a cost”.

3.3 Potential Impact

The ruling has immediate and wider implications:

Operational Guidance for Social Work Services. Authorities must react promptly to credible assertions that a carer cannot cope, without waiting for abandonment or protracted consultations. Internal training and protocols will need revision to prevent similar failures.
Strategic Litigation. Carers and children’s advocates now have a clear precedent for judicial review where councils delay or deny accommodation. The threshold for intervention is lower than some councils may have assumed.
UNCRC Integration. The judgment reconciles Article 12 participation rights with emergency-welfare duties, setting a practical template for other UNCRC-related dilemmas.
Costs Exposure. By awarding expenses, the Court signals that unreasonable statutory non-compliance is financially risky, encouraging early settlement and correct legal analysis.

4. Complex Concepts Simplified

Section 25 Duty vs. Power. Sub-section (1) imposes a mandatory duty (‘shall provide’) in prescribed circumstances; sub-section (2) confers a discretionary power (‘may provide’) based on welfare considerations.
Judicial Review. A court procedure that tests whether a public body acted lawfully and rationally when exercising—or failing to exercise—its powers.
Curator ad litem. A court-appointed representative who safeguards the interests and views of a child or incapacitated party during litigation.
Expenses (Costs). In Scotland, the unsuccessful or unreasonable party may be ordered to pay the other side’s legal costs; here, the local authority was found “liable in expenses”.
“Want of insistence.” A procedural disposal where a petitioner no longer insists on the substantive orders, often because the dispute has been resolved.

5. Conclusion

Petition of A crystallises a vital principle: local authorities cannot demand a symbolic act of abandonment, nor hide behind procedural consultations, before fulfilling their statutory duty to accommodate a child whose carer can no longer cope. The judgment harmonises domestic statute with UNCRC obligations, emphasises that a child’s safety is paramount, and warns public bodies that unreasonable resistance to clear legal duties will attract cost sanctions. As Scottish children’s services integrate the UNCRC and face rising pressures, Lord Braid’s decision stands as a decisive reminder that the law—and not administrative preference—sets the threshold for action.