Summary of Opinion — Judge Braid (Outer House, Court of Session)
Factual and Procedural Background
The action was raised in September 2025 by the Pursuer seeking regular residential and non-residential contact with the parties' two‑year‑old Child. On 3 October 2025 the Pursuer amended the summons to add a conclusion for interim interdict prohibiting the Defender from removing the Child outside The Jurisdiction and to a Foreign State. The Pursuer averred circumstances giving rise to a reasonable apprehension that the Defender might remove the Child to a Foreign State; interim interdict was granted on 3 October 2025.
In her defences the Defender accepted that contact in principle was in the Child's best interests but opposed the extent of contact sought, made detailed averments alleging abusive behaviour by the Pursuer and said there was a risk to the Child in contact. The Defender denied any intention to remove the Child from The Jurisdiction without the Pursuer's consent.
The court allowed parties a proof of their respective averments on 18 November 2025 and fixed a case management hearing for 18 December 2025 at which proof dates were likely to be fixed.
Legal Issues Presented
- Whether, under section 93(4) and (5) of the Courts Reform (Scotland) Act 2014, the Court should remit this family action to an appropriate sheriff court.
- Whether the Defender's asserted financial difficulties (and any resulting access-to-justice concerns under Article 6 ECHR) or the Child's interests under the UN Convention on the Rights of the Child (UNCRC) required or favoured a remit.
- What weight should be given to the Pursuer's choice of forum when deciding a motion to remit under section 93(4) and (5).
Arguments of the Parties
Defender's Arguments (as advanced in the motion)
- The issues in the action were not of particular complexity and were of a type commonly dealt with in the sheriff court.
- The Pursuer had materially greater means than the Defender to litigate in the Court of Session, and the cost of proceedings in the Court of Session was not justified by the nature of the case.
- The case would proceed at least as expeditiously, and possibly more so, in the Sheriff Court in The City (including potential earlier proof dates and the availability of a dedicated family court).
- Affidavit evidence from the Defender described financial constraints; those constraints raised an Article 6 ECHR access-to-justice concern if they prevented effective participation in Court of Session proceedings. The Defender also relied on the prevalence of such cases in the sheriff court and the absence of any significant international element to justify retention here.
Pursuer's Arguments
- The Pursuer's choice of forum (Court of Session) should carry weight and be given deference.
- The case required a swift resolution and there was no solid basis for supposing the sheriff court would be quicker or would prioritise the case.
- The international element (interdict to prevent removal abroad) made it appropriate to retain the case in the Court of Session.
- Financial difficulties described by the Defender amounted to "funding issues" rather than an inability to litigate in the Court of Session; this was insufficient to justify a remit.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| McIntosh v British Railways Board (No. 1) [1990] SC 338 |
The phrase "the nature of the action" refers to the particular facts and circumstances of the case rather than merely the type of proceedings; a pursuer's choice of forum carries weight; remit provision is not intended to send all potentially suitable sheriff court actions there but to avoid sending actions inappropriate for the sheriff court. |
The court treated McIntosh as the leading and binding authority; it required focus on the particular facts and held that the Pursuer's choice of forum remained a factor of weight in the remit decision. |
| Gribb v Gribb 1993 SLT 178 |
Remit granted where action described as "perfectly straightforward" and defender's inability to fund Court of Session litigation was a powerful reason to remit. |
The court regarded Gribb as an outlier and noted it was not clear that McIntosh was cited in that reported decision; the court did not follow Gribb's emphasis on financing difficulty as determinative here. |
| Drimsynie Estate Ltd v Ramsay 2006 SLT 528 |
Expense of litigation is not, by itself, sufficient to justify a remit; "nature of the case" does not encompass one party's financial circumstances. |
The court cited Drimsynie for the proposition that cost alone is insufficient and that remits should be based on other aspects of the case's nature; this influenced the conclusion that the Defender's asserted funding issues did not require a remit. |
| Bell v Chief Constable, Strathclyde Police 2010 SLT 244 |
Affirmed litigant's right to raise an action in the Court of Session and expressed doubt that funding difficulties fall within "the nature of the action"; any change to that approach would be a matter for Parliament. |
The court relied on Bell to confirm that the Pursuer's right to choose forum is a significant consideration and that funding difficulties are not readily characterised as part of the "nature of the action". |
Court's Reasoning and Analysis
The court began from the statutory test in section 93(4) and (5) of the Courts Reform (Scotland) Act 2014 and the binding authority of McIntosh. That required a focus on the specific facts and circumstances of this case rather than on the general category of family actions.
The court accepted that while simplicity and increased costs in one forum are relevant considerations, they are not alone sufficient to justify a remit. The authorities indicate that a party's financial inconvenience is not enough; only where inability to pay would render a party unable effectively to participate in Court of Session proceedings would Article 6 ECHR require attention. The court therefore considered whether the Defender's evidence demonstrated an inability (rather than mere difficulty) to litigate in the Court of Session.
The court also considered whether UNCRC obligations required a remit if forum choice adversely affected the Child's welfare. The court concluded that there was no persuasive basis on the pleadings to regard UNCRC as engaged in a manner that dictated a remit, and emphasised that the Child's interests also favoured prompt resolution of the dispute.
On the facts the court found this case suitable for determination in either forum: both jurisdictions had specialist family judiciary and broadly similar procedures to progress matters to proof. However, the court placed weight on (i) the presence of an interdict against removal of the Child outside The Jurisdiction and to a Foreign State, which it described as an issue of a nature suitable for the Court of Session, (ii) the Pursuer's choice of forum, and (iii) the absence of evidence that the Defender would be unable to participate in Court of Session proceedings (the Defender's affidavit described "funding issues" rather than an inability to pay).
The court was not persuaded that remitting would necessarily lead to a more expeditious resolution; on the contrary, a remitted action's progress to proof was an "unknown quantity". The court emphasised the role of robust case management in controlling costs and achieving expedition in the Court of Session.
Finally, the court observed that granting the remit would, in effect, treat contact actions as unsuitable for the Court of Session — a change to the established approach that the authorities do not support and which, if desired, would be a matter for Parliament.
Holding and Implications
Motion to remit refused.
Direct consequences:
- The action remains in the Court of Session and will proceed under that court's case management (a case management hearing was already fixed and proof dates were likely to be set).
- The court found the expenses of the motion to be expenses in the cause.
Broader implications:
- The decision reaffirms the established approach under McIntosh that the court must focus on the particular nature of the case when considering a remit and that a pursuer's choice of forum remains an important factor.
- The court confirmed that while ECHR Article 6 and UNCRC considerations may be relevant where a party cannot effectively participate or where the child's welfare would be adversely affected by forum selection, mere financial difficulty is insufficient to require a remit.
- No new precedent was created: the opinion applies and clarifies existing authorities rather than establishing a new principle of law.
Administrative details (as described in the opinion): Opinion delivered by Judge Braid on 9 December 2025. Representatives recorded in the opinion as Attorney McEwan; Company A (The City) for the Pursuer, and Attorney Allison; Company B (The City) for the Defender.