Appeal by Gordon Brechin Locality Area Manager for SCRA against LO & EO (Court of Session)

Factual and Procedural Background

This appeal arises from a stated case under section 163 of the Children's Hearings (Scotland) Act 2011, concerning decisions made in relation to compulsory supervision orders for children under the care of respondents who had relocated from Italy to Scotland following an earthquake in 2016. Allegations of physical and emotional abuse by the respondents towards their children led to removal of the children from their care and subsequent compulsory supervision orders. The children’s hearing and sheriff courts in Scotland have made various decisions regarding the care and supervision of these children, including challenges to jurisdiction and requests for transfer of jurisdiction to Italian courts under Article 15 of Council Regulation (EC) No 2201/2003 ("Brussels IIa"). The respondents have appealed decisions refusing transfer of jurisdiction and continuing supervision orders. The sheriff made a decision on 1 November 2023 to continue a compulsory supervision order and to request the Italian courts to assume jurisdiction. This interlocutor was suspended pending appeal to the Court of Session. Subsequent children's hearings have continued the supervision order, and the Italian Juvenile Court purported to accept jurisdiction following the sheriff’s request, a decision which the children's hearing refused to recognize. The respondents have appealed these refusals, with the sheriff awaiting the outcome of the present appeal.

Legal Issues Presented

1. Whether the sheriff erred in refusing the reporter's motion to direct the reporter to convene a children's hearing to reconsider the renewal of the compulsory supervision order in respect of the child.
2. Whether the sheriff erred in concluding it was competent to entertain an invitation by the parents to issue a request for the Italian courts to assume jurisdiction in terms of the 'transfer' mechanism in Article 15 of the Council Regulation (and, alternatively, Article 8 of the 1996 Hague Convention).
3. Whether the sheriff erred in concluding that it was appropriate to issue such a request for the Italian courts to assume jurisdiction under Article 15 (and, alternatively, Article 8 of the 1996 Hague Convention).

Arguments of the Parties

Appellant's Arguments

• The sheriff lacked jurisdiction to make an Article 15 request because his appellate jurisdiction under section 156 of the 2011 Act is limited to deciding if the children's hearing decision was justified and does not extend to making new orders or reconsidering issues not before the hearing.
• The sheriff should have directed the Principal Reporter to convene a children's hearing to consider the Article 15 request rather than deciding the matter himself.
• There was no material change of circumstances justifying the Article 15 request; the sheriff’s reasoning was flawed, lacking necessary information about the Italian court system, social work procedures, and the child’s views.
• The sheriff conflated jurisdictional transfer with physical transfer of the child and made assumptions unsupported by evidence.
• The purported acceptance by the Italian Juvenile Court was invalid as it was based on an improper request.
• The Court of Session itself should not make an Article 15 request as it lacks primary jurisdiction and sufficient information to do so.

Curator ad litem's Arguments

• The curator adopted the appellant’s submissions.
• The child was settled and happy in Scotland, with good relationships and appropriate communication supports.
• Professionals involved expressed concerns about the possible negative impact of transfer to Italy on the child’s progress and wellbeing.
• The sheriff failed to obtain or consider the child’s views on the proposed transfer, despite the child's ability to communicate his wishes.

Respondents' Arguments

• The appeal should be refused and the Article 15 request allowed to enable transfer of jurisdiction without further delay.
• The sheriff had competence and wide powers under section 154 to make the Article 15 request.
• The children's hearing was aware of the respondents’ wish for transfer and had a duty to consider it, even if not explicitly raised at the hearing.
• Legal issues were novel and more appropriate for sheriff consideration; the sheriff avoided delay by deciding the matter himself.
• Transfer of jurisdiction is justified if the requested court can provide genuine added value and the transfer is in the child’s best interests, including facilitating family contact and safeguarding cultural and linguistic heritage.
• The sheriff’s decision was compliant with relevant child rights under the UN Convention on the Rights of the Child.
• There had been a material change of circumstances, including the Italian court’s acceptance of jurisdiction, justifying the sheriff’s decision.
• The Court of Session should itself make an Article 15 request if the sheriff’s was disallowed.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analysed the scope of the sheriff’s jurisdiction on appeal under section 156 of the Children’s Hearings (Scotland) Act 2011, emphasizing that the sheriff’s role is to determine whether the children’s hearing decision was justified and not to reconsider issues not before the hearing or to make new orders such as an Article 15 request. The court acknowledged that while the respondents were entitled to raise the Article 15 transfer issue before the sheriff, it would rarely be appropriate for a sheriff to grant such a request without first referring the matter back to the children’s hearing, which is the primary forum for welfare decisions and better placed to gather necessary evidence and consider the child’s views.

The court rejected the sheriff’s reasons for deciding the Article 15 request himself, finding that children’s hearings are capable of dealing with complex legal issues and arranging interpreters as needed. The court also found that the sheriff misunderstood the prior children’s hearings’ engagement with Article 15 and that the procedural failure was limited to the provision of written reasons rather than a failure to consider the issue.

The court noted the absence of material change in circumstances since the previous decisions and the insufficiency of information before the sheriff to conclude that the Italian courts were better placed or that transfer was in the child’s best interests. The sheriff’s assumption that transfer would result in the child’s physical return to Italy was deemed an error, as was the failure to obtain or consider the child’s views and other relevant evidence.

The court held that repeated Article 15 requests without material change are to be discouraged and that the children’s hearing should not be required to consider such requests ex proprio motu unless new circumstances arise. The court also stressed the importance of providing accurate and fair information when making Article 15 requests to requested authorities.

Finally, the court declined to exercise its own jurisdiction to make an Article 15 request, noting the lack of full information and the procedural role of the Court of Session on appeal.

Holding and Implications

The court ALLOWED THE APPEAL and recalled parts 1, 2, 3(i), and 3(ii) of the sheriff’s interlocutor dated 1 November 2023. The court directed that the case be remitted to the sheriff with instructions to make no further order at this stage, given subsequent children’s hearings and ongoing appeals concerning the Article 15 issue.

The direct effect of this decision is to prevent the sheriff from unilaterally making an Article 15 request for transfer of jurisdiction without first referring the matter to the children’s hearing, thereby reinforcing the primary role of children’s hearings in welfare matters and the limited appellate scope of sheriffs under section 156. The decision discourages repeated and premature transfer requests absent material change, promotes procedural fairness, and emphasizes the need for comprehensive evidence and consideration of the child’s views before transfer of jurisdiction is contemplated. No new precedent was established beyond clarifying the proper exercise of appellate jurisdiction and procedural approach to Article 15 requests.