“Reasonableness” as the Shield: When Local Authorities Escape Liability for Expenses in Child-Protection Interdicts

1. Introduction

Case: "A" Council for Interdict ([2025] CSOH 78), Opinion of Lord Braid, Outer House, Court of Session, 14 August 2025.

The petition was brought by a Scottish local authority (“A” Council) seeking protective orders to prevent the respondents from taking their infant daughter (“XY”) to Malaysia where, it feared, she might be subjected to Female Genital Mutilation (FGM). During the procedure the authority obtained interim interdict but later accepted undertakings from the parents and ultimately abandoned substantive orders. The sole live issue became expenses; the respondents demanded costs (on an onerous agent-client basis) asserting the authority had acted unreasonably, while the authority argued it had responsibly discharged its child-protection duty.

The decision lays down a refined test for when Scottish courts will (or will not) saddle a public authority with expenses after child-protection litigation has failed. Lord Braid refused any award, holding that although the authority’s persistence was “terrier-like,” it remained within the range of reasonable conduct. The judgment sharpens the boundaries of the “reasonableness” shield first recognised in earlier English and Scottish authorities.

2. Summary of the Judgment

Lord Braid:

Refused the petition (because the protective orders were no longer sought).
Made no award of expenses: each party bears its own costs.
Held that the local authority’s actions—though ultimately unnecessary—were not unreasonable or reprehensible so as to displace the general practice that expenses are not awarded against an authority acting in a child’s interests.
Observed that the authority’s reliance on risk-factors (FGM prevalence, mother’s own FGM, imminent travel) and on existing government guidance rendered its stance legitimate.
Emphasised that disagreement with a Children’s Hearing decision did not automatically render subsequent court action unreasonable.

3. Analysis

3.1 Precedents Cited and Their Influence

In Re T (Children) (Care Proceedings: Costs) [2012] 1 WLR 2281 (UK): Baroness Hale articulated the principle that, in child cases, costs are rarely awarded because all parties (parents and authorities) act out of concern for the child. Lord Braid adopted this as the “starting point.”
In Re S (A Child) [2015] UKSC 20: further embedded the “no-order” approach unless conduct is reprehensible or unreasonable. The judgment quotes paras 21–24 & 29 for the justification.
Perth & Kinross Council, Petitioners 2018 SLT 275: a Scottish application of the same principle; local authority lost permanence orders yet no expenses were awarded.
A v North Lanarkshire Council [2025] CSOH 66 (also Lord Braid): contrasts the current case; there, the authority’s failure to comply with a statutory duty was judged unreasonable, and expenses were awarded. This illustrates the threshold.
McKie v Scottish Ministers 2006 SC 528 (Lord Hodge): compendious statement on scales of expenses—party-party vs agent-client—used to decide that, even had expenses been awarded, the higher (agent-client) scale would not automatically follow.

3.2 Legal Reasoning of the Court

The court’s reasoning proceeds in three stages:

Identify the Default Rule – begin with the orthodox position from In Re T/Re S: expenses normally follow success except in child-protection cases involving public authorities, where no order is made unless conduct is reprehensible or unreasonable.
Assess Conduct Against the “Reasonableness” Standard
- Initial Concerns: prevalence of FGM in Malaysia (up to 93%), mother’s prior FGM, imminent travel—legitimate risk factors recognised in government guidance.
- Procedural History: although the authority lost two Child Protection Order (CPO) skirmishes and pursued an interdict, each legal route relied on different statutory tests. Persistence ≠ unreasonableness.
- Children’s Hearing Deference: Lord Braid was uneasy about “forum shopping,” yet noted the Children’s Hearing divided view and the alternative that interdict might have been the first remedy anyway.
- Lack of Expert Evidence: absence of an FGM expert at the petition stage did not cross the line because the known risk factors sufficed for a prima facie case; Lady Carmichael’s earlier grant of interim interdict corroborated that the apprehension was plausible.
- Undertakings: accepting undertakings late did not prove bad faith; an undertaking recorded in court carries contempt sanctions, whereas a voluntary promise outside litigation does not.
Apply the Rule – the authority’s conduct lay “within the band of reasonable courses of action.” Therefore, the default no-costs rule remained intact.

3.3 Potential Impact of the Judgment

This Opinion, though fact-specific, establishes persuasive guidance in Scottish practice:

Reaffirms the “reasonableness shield” – Public bodies acting under child-protection statutes retain protection from adverse costs unless behaviour is clearly outside reasonable bounds.
Clarifies Interaction with Children’s Hearings – While courts should respect Hearing decisions, a local authority can still litigate in the Court of Session if the statutory tests diverge (CPO vs interdict) and risk remains.
Practical Lessons for Local Authorities
- Must document reliance on recognised risk factors and guidance to demonstrate reasonableness.
- Should seek expert input early, but failure to obtain it immediately will not, by itself, trigger expenses if the underlying risk is substantial.
Influence on FGM-related Petitions – Sets out an analytical template combining prima facie risk, severity of harm, and the balance of convenience. Future parents’ undertakings may need to be formalised in court to satisfy authorities.
Agent-Client Scale Threshold – Lord Braid hints that even where expenses are awarded, stepping up to agent-client level requires “heinous” conduct, a word that raises the bar above mere unreasonableness.

4. Complex Concepts Simplified

Interdict: Scottish equivalent of an injunction—an order prohibiting a person from doing something (here, removing a child from Scotland).
Child Protection Order (CPO): Emergency measure under the Children (Scotland) Act 1995 allowing a sheriff to remove or restrict a child where immediate risk exists.
Female Genital Mutilation (FGM): Procedures involving partial or total removal of female genitalia for non-medical reasons. Type IV includes pricking, piercing or cauterising and can be harder to detect.
Party-Party vs Agent-Client Expenses:
- Party-Party: Ordinary recoverable costs, roughly 60–70 % of a client’s outlay.
- Agent-Client: Penalty scale—virtually full indemnity—awarded for seriously unreasonable conduct.
Additional Charge (Act of Sederunt 2019): A percentage uplift (usually 10–15 %) to reflect complexity, importance or novelty.

5. Conclusion

"A" Council for Interdict fortifies the jurisprudence that local authorities will not be punished in expenses merely because protective litigation proves unfounded or is ultimately abandoned. For an adverse costs order, the authority’s behaviour must stray beyond earnest—if dogged—child-protection efforts into the territory of unreasonableness or reprehensibility. Lord Braid provides a careful roadmap: assess objective risk factors, respect (yet need not be bound by) Children’s Hearing determinations, and remember that interdict and CPOs have different legal frameworks. The case thus becomes a cornerstone for future disputes where parents seek costs following precautionary but unsuccessful state interventions, particularly in the emergent context of FGM-related travel concerns.