AEV and LE against Sharon McArthur, Locality Reporter Manager for an order requiring the sheriffs at Aberdeen to state a case (Court of Session)

Factual and Procedural Background

This opinion concerns an appeal by Appellant (mother) and Appellant (father) against refusals by sheriffs at The City to state a case under section 163 of the Children’s Hearing (Scotland) Act 2011. The subject is a child who was removed from parental care in February 2025 and who was the subject of successive Interim Compulsory Supervision Orders (ICSOs) imposed by the children's hearing and extended by sheriffs at The City. The applicants challenged seven interlocutors in total: extensions of ICSOs made on 28 July 2025, 18 August 2025, 8 September 2025, 29 September 2025 and 20 October 2025 (paras [15]–[20]), and interlocutors appointing and instructing a curator ad litem on 8 August 2025 and 25 August 2025. The parents contested the grounds of referral; after evidential hearings a sheriff found the grounds established on 9 January 2026 and the children's hearing made a Compulsory Supervision Order (CSO) on 16 February 2026. The present applications seek orders ordaining sheriffs to state cases in respect of the challenged interlocutors, and raise a related Devolution Minute.

Legal Issues Presented

1. Whether sheriffs at The City erred in refusing to state a case on the ground that proposed appeals against extensions of ICSOs would be academic because the ICSOs would have expired by the time of any appellate hearing.
2. Whether the applicants have been deprived of an effective remedy to challenge interim decisions (ICSOs) pending determination of the grounds for referral and, if so, whether the higher court should ordain sheriffs to state a case.
3. Whether the Devolution Minute raises a recognisable devolution issue requiring further procedure.

Arguments of the Parties

Appellant's Arguments

• The refusals to state a case were procedural decisions properly for the higher court, not the sheriffs; procedural technicalities should not defeat access to an effective remedy where fundamental human rights are engaged.
• Because ICSOs are of short duration, appeals become academic before hearing and thus the scheme denies an effective remedy; relief should be available for failure to comply with timescales.
• The court should ordain the sheriffs to state a case notwithstanding expiry of the ICSOs to avoid continued denial of an effective remedy.

Respondent's Arguments (Attorney for the Reporter)

• The two timeous applications lacked substance: they did not identify questions of law or procedural irregularity and amounted to a wholesale attack on the ICSO scheme or factual decisions not competent on a stated case (citing authority to that effect).
• Some applications were out of time and therefore incompetent; others were academic and frivolous because any appeal would have no practical purpose or value.
• The Devolution Minute did not raise a recognisable devolution issue; if a devolution issue had been raised, intimation procedures would be required.

Table of Precedents Cited

Court's Reasoning and Analysis

The court set out the statutory scheme governing ICSOs (sections 86, 93, 96–99, 110, 111, 132 and 163 of the Children’s Hearing (Scotland) Act 2011) and the relevant Rules of the Court of Session (RCS 41.8–41.10) on stated cases. It emphasised that the statutory test for extension (section 98(4)) is stringent given Article 8 implications and that each extension must be justified on necessity grounds (paras [5]–[9], [27]).

The court examined the challenged interlocutors and procedural history. Several proposed appeals were out of time and therefore incompetent; two applications were timeously lodged but were refused by the same sheriff on the principal ground that any appeal would be academic because the ICSOs would expire before hearing (paras [15]–[20], [29]–[31]).

The court held that an anticipated expiry of an order does not of itself render a proposed appeal academic: if a proposed appeal raises a point of law or procedural irregularity, the sheriff should not refuse to state a case on the sole basis of anticipated expiry (paras [29]–[31], [71]–[73]). The sheriff erred in so deciding on at least two occasions; that error justified appellate intervention (paras [31], [76]).

Nevertheless, the court exercised judgment about appropriate relief. It noted the changed context: the sheriff had found grounds established on 9 January 2026 and the children's hearing had made a CSO on 16 February 2026; statutory review and appeal routes against the CSO are available (paras [33]–[35]). The court expressed concern about delays, the cycle of short ICSOs, and decision-making that risked creating a prejudicial new status quo for the child (paras [28], [68], [80]).

Balancing these considerations, and mindful of the applicants' lack of legal representation and the availability of remedies against CSO decisions, the court concluded that, although the sheriffs had erred in treating timeously lodged appeals as academic, the appropriate course was not to ordain the sheriffs to state cases. Instead the court encouraged engagement with the children's hearing and use of statutory review/appeal routes (paras [35], [36], [85]–[86]). The Devolution Minute did not raise a recognisable devolution issue (para [37]).

Holding and Implications

Decision: The court declined to order the sheriffs to state a case in respect of the applications before it (para [36]).

Implications:

• The direct effect is that the applicants were not granted the order directing sheriffs to state cases; they are encouraged to engage with the children's hearing and to seek independent legal advice (paras [35], [85]).
• The court stressed that sheriffs must apply the necessity test rigorously before granting or extending ICSOs and should be slow to refuse to state a case; reasons for decisions extending ICSOs should be available to allow effective challenge (paras [27], [86]–[89]).
• The court did not find, on the face of the material before it, that the 2011 Act is incompatible with Article 8; rather, the problem identified was the practical handling of stated case applications and delays (paras [37], [89]).
• No broader constitutional or devolution issue was found to arise from these applications; statutory routes for review and appeal of CSOs remain available (paras [33], [37]).