- Bookmark
- Share
- CaseIQ
"A" Council for Interdict (Court of Session)
Factual and Procedural Background
In January 2025, the petitioner, a local authority anonymised as "A" Council, presented a petition seeking protective orders concerning the child of the respondents, a daughter born in December 2024 ("XY"). The petitioner initially sought interdicts preventing XY from being removed from Scotland and the surrender of her passport, based on a reasonable apprehension that XY was imminently to be taken to Malaysia for the purpose of Female Genital Mutilation (FGM). The petition followed the recall of a child protection order (CPO) previously granted and then rescinded by a children's hearing, as well as an unsuccessful attempt to obtain a second CPO.
The case was heard before Lady Carmichael, who appointed a curator ad litem for XY. After a hearing in late January 2025, interim interdict was granted preventing the respondents from taking XY to Malaysia. The respondents denied any intention to subject XY to FGM, asserting the trip was for a family holiday and religious celebration. Offers were made by the respondents to have XY medically examined before and after travel. The petitioner expressed concerns about the detectability of certain types of FGM through medical examination.
Shortly before the scheduled proof hearing in February 2025, the interim interdict was recalled following undertakings by the respondents that XY would not be subjected to FGM and would be medically examined upon return. The trip to Malaysia took place, and the medical examination confirmed no FGM had occurred.
The respondents now seek refusal of the petition, which is unopposed, and an award of expenses against the petitioner on an agent-client basis, alleging unreasonable conduct in bringing the proceedings. The petitioner opposes the award of expenses but concedes that if awarded, an additional charge under certain heads of the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019 would be appropriate.
Legal Issues Presented
- Whether the petitioner acted unreasonably in bringing the petition and thus should be found liable in expenses.
- The appropriate scale and basis for any award of expenses, including whether agent-client expenses and additional charges under the Act of Sederunt should apply.
Arguments of the Parties
Respondents' Arguments
- The petitioner engaged in forum shopping by presenting the petition only after the recall of a child protection order and an unsuccessful attempt to obtain a second one.
- The petition was unnecessary because the respondents had offered undertakings not to subject XY to FGM before and during the interim hearing.
- The petitioner misled the court by claiming that type IV FGM might not be detectable on medical examination without supporting evidence, and expert advice was sought belatedly.
- The petitioner acted unreasonably by delaying expert assessment and proceeding despite weak evidence, warranting an award of expenses on an agent-client basis.
- An additional charge should be awarded under heads (a), (b), (c), (d), and (e) of the 2019 Act of Sederunt due to the complexity, novelty, and importance of the proceedings.
Petitioner's Arguments
- The petitioner acted responsibly and in good faith, seeking expert evidence where possible despite the scarcity of experts in the field.
- The risk assessment was based on known risk factors and Scottish Government guidance, and the proceedings were unprecedented and novel in Scotland.
- The undertakings given in court carried enforceable consequences, unlike voluntary offers, justifying the petition.
- The petitioner should not be penalised twice; if found unreasonable, party-party expenses would suffice rather than agent-client expenses.
- Only certain heads of the Act of Sederunt (complexity and importance) justify additional charges, and the other heads are not engaged.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| In Re T (Children) (Care Proceedings: Costs) [2012] 1 WLR 2281 | General practice that expenses are not awarded against local authorities in children cases unless conduct is reprehensible or unreasonable. | Supported the court's approach to expenses in children cases involving local authorities. |
| In Re S (A Child) (Access to Justice Foundation intervening) [2015] UKSC 20 | Reinforced the principle that local authorities are usually not liable for expenses unless acting unreasonably; explained motivations of parties in children cases. | Guided the court in assessing the petitioner's conduct and expenses liability. |
| Perth & Kinross Council, Petitioners 2018 SLT 275 | Confirmed the approach to expenses in Scottish children cases, declining expenses against local authorities despite unsuccessful petitions. | Referenced as Scottish authority following the English Supreme Court's approach. |
| A v North Lanarkshire Council [2025] CSOH 66 | Local authority found to have acted unreasonably in failing statutory duty; expenses awarded against it. | Distinguished from the present case where petitioner was not found unreasonable. |
| McKie v Scottish Ministers 2006 SC 528 | Expenses awarded on party-party scale unless conduct is unreasonable or incompetent causing unnecessary expense, justifying agent-client expenses. | Used to summarise principles for scale of expenses and reasonableness. |
Court's Reasoning and Analysis
The court acknowledged the respondents' sense of grievance due to delays, aborted travel plans, and incurred costs, but distinguished these losses from the legal expense issue. The court emphasized that an award of expenses should not be based solely on the disruption caused by interim interdict or the timing of the petition.
The court found that the petitioner's social workers were initially justified in their concerns given the known risk factors: the prevalence of FGM in Malaysia, the first respondent's history of FGM, and the imminent trip. These concerns were formed in good faith and in line with government guidance.
While the petitioner pursued multiple legal remedies after the recall of the first child protection order and an unsuccessful second application, the court noted that children's hearings, not social workers, make decisions in children's best interests, and such decisions should generally be respected. However, the court accepted that seeking an interim interdict was within the reasonable range of options available to the petitioner, given the different legal tests for child protection orders and interdicts, and the severity and irreversibility of FGM harm.
The absence of expert reports at the outset did not render the petition unreasonable, as the risk factors were known and the expert report obtained later supported a medium-high risk assessment. The issue of detectability of FGM was a protective factor but did not guarantee safety.
The court rejected the argument that the petitioner acted unreasonably in refusing to accept undertakings earlier, noting that formal undertakings recorded in court carry enforceable consequences, unlike voluntary agreements, justifying the petition's presentation.
In conclusion, the petitioner acted reasonably in pursuing the petition in discharge of its statutory duty to protect XY's welfare. The court thus found no basis to hold the petitioner liable for expenses.
Holding and Implications
The court refused the petition and declined to award expenses to or against any party.
The direct effect is that the petitioner bears its own expenses, and the respondents receive no costs award. The decision does not establish new precedent but reaffirms established principles regarding expenses in children cases involving local authorities, particularly emphasizing the reasonableness standard before awarding expenses against a public authority acting in child protection.
Alert