Petition of A for Judicial Review (Court of Session)

Factual and Procedural Background

The Petitioner, who adopted a child referred to as X (aged 15) and his sibling in 2014, sought judicial review against the Respondent, a local authority, for failing to provide accommodation to X under its statutory duty pursuant to section 25 of the Children (Scotland) Act 1995. From around 2020, X's behaviour deteriorated significantly, resulting in the Petitioner being unable to care for him by 2021 due to safety concerns. Despite repeated requests from the Petitioner’s solicitors starting in March 2024 and reaffirmed in January and April 2025, the Respondent did not provide accommodation or formally acknowledge its duty under section 25(1)(c), asserting that the duty was not engaged until X was physically removed from the home and that the child's views needed to be obtained first.

Following the Petitioner's application for judicial review lodged in April 2025, the Respondent undertook to assess X's needs and provide accommodation under section 25(2) by 29 April 2025. The case subsequently proceeded on the Petitioner’s motion to dismiss the petition for want of insistence and for an award of expenses against the Respondent for unreasonable conduct. The court considered the legal questions regarding the engagement of the section 25(1)(c) duty and the extent of the duty to obtain the child's views before accommodation was provided.

Legal Issues Presented

1. Whether the Respondent's duty under section 25(1)(c) of the Children (Scotland) Act 1995 is engaged when the person caring for a child states they are unable to continue providing suitable accommodation or care, without the child being physically removed from the home.
2. The extent to which the child's views must be sought and considered before a local authority is obliged to provide accommodation under section 25.
3. Whether the Respondent acted unreasonably in failing to comply with its statutory duty and thus whether an award of expenses against the Respondent is justified.

Arguments of the Parties

Petitioner's Arguments

• The Respondent failed to discharge its duty under section 25 before the petition was served despite clear communications from the Petitioner’s solicitors.
• The Respondent’s assertion that the duty only arises after physical removal of the child was legally incorrect and unreasonable.
• The duty to consider the child's views is qualified by the words "so far as practicable" and does not delay the obligation to provide accommodation.
• The Respondent’s social workers bypassed the Petitioner’s legal representatives, attempting to assess the Petitioner’s position independently, which was improper.
• The Respondent’s stance was inconsistent with established legal principles, including the authority of R(G) v Southwark LBC.

Respondent's Arguments

• The Respondent did not act unreasonably and maintained that the Petitioner’s position fluctuated, thus it was not satisfied she was unable to care for X.
• The duty under section 25(1)(c) was only engaged once the Petitioner physically removed X from the home.
• The Respondent was correct to delay accommodation until X’s views were sought, which could not be done without the Petitioner’s permission or informing X of the situation.
• The accommodation was ultimately provided under section 25(2), not section 25(1)(c), so the Petitioner did not achieve success on the precise legal basis she sought.
• The Petitioner’s failure to inform X about the petition contributed to the delay and necessity of the proceedings.
• Accordingly, no expenses should be awarded to either party.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the legal question of whether the duty under section 25(1)(c) was engaged absent physical removal of the child. It agreed with the interpretation in Wilkinson and Norrie that the phrase "for whatever reason" broadens the duty to include situations where the carer is unable to cope, including due to the child's behaviour, without requiring abandonment or physical ejection. The court found the Respondent’s factual assertion of fluctuating care capacity unsubstantiated and noted the Respondent’s failure to clarify this with the Petitioner prior to litigation.

Regarding the duty to consider the child’s views under section 25(5), the court held that this duty is qualified by "so far as practicable" and does not delay or suspend the Respondent’s obligation to provide accommodation. The Respondent erred in asserting it could not act before obtaining the child’s views and Petitioner’s consent to inform the child. The court acknowledged the sensitivity of the situation but emphasized that inaction was not justified.

On reasonableness, the court acknowledged that expenses awards are discretionary and generally cautious in child welfare cases. However, it found the Respondent’s persistent refusal to acknowledge its statutory duty and failure to act before the petition was served to be sufficiently unreasonable to justify an expenses award. The Respondent’s reliance on social workers’ views overruling clear statutory obligations was inappropriate.

Holding and Implications

The court granted the Petitioner’s motion, dismissed the petition as effectively withdrawn, and found the Respondent liable to pay the Petitioner’s expenses.

The direct effect is that the Respondent must meet the costs incurred by the Petitioner in pursuing the judicial review due to its unreasonable conduct. No new legal precedent was established; rather, the decision reaffirmed established principles regarding the scope of local authority duties under the Children (Scotland) Act 1995 and the careful approach to expenses in child welfare litigation.