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APPLICATION UNDER THE CHILDREN'S HEARINGS (SCOTLAND) ACT 2011 BY THE PRINCIPAL REPORTER IN RESPECT OF THE CHILD Z


Submitted: 17 January 2017

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

 

[2017] SC GLA 3

SW2012/16

NOTE

of

SHERIFF S. REID, Esq

in the application under sections 93(2)(a) and 94(2)(a)

of the Children’s Hearings (Scotland) Act 2011

by

the Principal Reporter

Applicant

in respect of the child

Z

For the reporter: Ms C. Rankin, Scottish Children’s Reporter Administration, Glasgow

For the mother: Ms L. Nicolson, Nicolson & Co., Glasgow

For the father: Mr S. Allison, Livingstone Brown, Glasgow

 

Summary

[1]        This application raises an interesting and anxious issue of jurisdiction.

[2]        The child at the centre of events is a nine month old baby (“the child” or “Z”). He was born in Poland to a Polish mother, he is a Polish national, and he was habitually resident in Poland on the date on which this court was seised of proceedings.

[3]        When he was four months old, Z and his mother visited the United Kingdom. It was intended as a fleeting visit. His mother planned to return with him to Poland two weeks later. To that end, she held return airline tickets to Poland for herself and the child. But a few days after their arrival in Scotland, a child protection order was granted by the sheriff at Glasgow. Z was removed from his mother’s care to a place of safety and has been looked after by local authority foster carers ever since, under a succession of extended interim compulsory supervision orders.

[4]        Of course, these events did not occur in a vacuum.

[5]        The child has an elder sibling, Y. She had been taken into local authority care many months prior to Z’s birth. She has remained there ever since. She is the subject of separate highly contentious referral proceedings in Glasgow Sheriff Court in which it is alleged that Y was injured deliberately by one or other of her parents. It is that allegation, and his connection with the alleged perpetrator(s), that forms the back-bone of the present proceedings in respect of the sibling, Z.

[6]        It is not in dispute that this court has no jurisdiction to adjudicate upon the “substance” of the matter of parental responsibility in respect of Z. That is because the general rule is that jurisdiction over matters of parental responsibility is determined by the habitual residence of the child at the time the court is seised of proceedings (Council Regulation (EC) No. 2201/2003 of 27 November 2003) (“the Council Regulation”).  In this case, it is agreed that Z was habitually resident in Poland on the date on which the relevant proceedings commenced and that only the courts of the state of Poland have substantive jurisdiction to determine the matters of parental responsibility forming the subject of these proceedings.

[7]        But that is not the end of the matter. Article 20(1) of the Council Regulation provides that, in urgent cases, nothing in the Regulation prevents the courts of a member state from taking “such provisional, including protective, measures” in respect of a child who is present there “as may be available” under the domestic law of that state. These measures cease to apply when the court of the member state having substantive jurisdiction has taken the measures it considers appropriate. To date, the Polish courts have taken no action.

[8]        The issue in dispute is whether these proceedings constitute “such provisional, including protective, measures” as are “available” under Scots (domestic) law in respect of a child who is present here, notwithstanding that the Polish courts have jurisdiction “as to the substance of the matter”, all in terms of article 20(1) of the Council Regulation.

[9]        In my judgment, the present proceedings, under sections 93(2)(a) & 94(2)(a) of the Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”), do not fall within the exception provided by article 20(1) of the Council Regulation.

[10]      While the present proceedings are capable of being characterised as “provisional” in nature (standing the conceded absence of substantive jurisdiction under the Council Regulation), they are measures that are not “available” under the domestic law of Scotland. That is because, according to Scots domestic law, specifically rule 3.45 of the Act of Sederunt (Child Care and Maintenance Rules) 1997 (SI 1997/291) (“the 1997 Rules”), the present proceedings must be presented to the sheriff court within whose jurisdiction the child is “habitually resident”. As the child is not habitually resident within the jurisdiction of this court (or, indeed, anywhere in Scotland) the present proceedings are ex facie incompetent due to lack of jurisdiction. Jurisdiction to pursue these proceedings as a “provisional measure” is not capable of being founded upon any other enactment or rule of law forming part of Scots domestic law. 

[11]      To the extent that the “provisional measures” comprise, not these proceedings under sections 93 & 94 of the 2011 Act but, rather, successive discrete applications by the reporter under sections 98 & 99 of the 2011 Act (for consecutive extensions of interim compulsory supervision orders in respect of the child), those successive applications are nevertheless ancillary to and dependent upon subsisting proceedings under sections 93 and/or 94 of the 2011 Act. As a consequence, they too are measures that are not “available” under Scots domestic law in the present circumstances because they are ancillary to and dependent upon ex facie incompetent proceedings.

[12]      Accordingly, pursuant to article 17 of the Council Regulation, I declared that the court has no substantive jurisdiction. Further, in respect that the proceedings are not competent under the (domestic) law of Scotland, absent the habitual residence of the child in Scotland in terms of rule 3.45 of the 1997 Rules, the proceedings do not fall within the scope of article 20(1) of the Council Regulation at all because they do not constitute such provisional measures as are “available” under Scots (domestic) law. Therefore, I dismissed the application as incompetent and discharged the grounds of referral.

[13]      Pursuant to article 55(c) of the Council Regulation, and in compliance with the spirit of the guidance issued by the European Court of Justice in Proceedings brought by A, Case C-523/07, [2010] Fam. 42 (at paragraphs 65 & 70), I appointed the sheriff clerk to communicate the import of this interlocutor to the relevant Polish court(s) via the Scottish central authority designated under articles 53 & 66(c) of the Council Regulation.

[14]      I undertook to issue this note to parties explaining my reasoning.

 

Submissions for the mother

[15]      For the mother, it was submitted that jurisdiction in proceedings of this nature was determined by the Council Regulation, specifically by reference to the habitual residence of the child at the time the court was first seised.  It was a matter of agreement that the child was habitually resident in Poland at the relevant date (which was said, by the mother, to be the date on which the application was lodged with the sheriff clerk.)  Accordingly, pursuant to article 17, I was invited to declare that the court had no jurisdiction over the substance of that application. 

[16]      Separately, while it was conceded that, for the purposes of article 20(1), urgency did exist at the time the court was seised of the present proceedings, it was submitted that these proceedings (and the remedies sought thereunder) could not constitute “provisional measures” because they sought and required a proof hearing under section 101 of the 2011 Act.  It was said that, by its very nature, such a hearing involved the determination of the “substance” of a matter of parental responsibility. Besides, the present proceedings, while involving a distinct statutory step, were characterised as an intrinsic part of the reporter’s referral proceedings before the children’s hearing, the express purpose of which was to determine whether a final compulsory supervision order should be made. Such an order was said to be plainly substantive, not provisional. Ancillary applications for extensions of interim compulsory supervision orders under sections 98 and 99 were said to be “on the dependence” of these proceedings and were, therefore, also not “legitimate”. I was invited to dismiss the application and discharge the grounds of the referral.

[17]      Reference was made to the Council Regulation; the European Commission Practice Guide for the application of the Brussels IIa Regulation; Proceedings brought by A, C-523/07, Court of Justice of the European Union (“CJEU”), [2010] Fam 42; In the matter of A (Children) [2013] UKSC 60; Mitchell v S 2000 SLT 524; Children’s Hearings (Scotland) Act 2011, sections 93 to 101; Act of Sederunt (Child Care and Maintenance Rules) 1997, rule 3.45(1); Wilkinson & Norrie, The law relating to parent and child (3rd ed.), paragraph 10.09; Norrie, Children’s Hearings in Scotland (3rd ed.), paragraphs 8.05-8.06.

 

Submissions for the father

[18]      The father’s agent largely adopted the submissions made on behalf of the child’s mother, with certain exceptions. It was disputed that there was a “single” set of proceedings: the present proceedings did not form part of the referral proceedings before the children’s hearing, still less did it form part of the child protection order application. The CPO, the referral by the reporter to the children’s hearing, and the present application were all “distinct” statutory steps (Mitchell, supra), initiated by separate “documents” for the purposes of article 16 of the Council Regulation. In any event, it was agreed the child was “habitually resident” in Poland at the time the court was seised of proceedings (whichever date in August 2016 that occurred).

[19]      Both the referral proceedings and the present proceedings (under sections 93 & 94 of the 2011 Act) were said to be incompetent because they were not truly “provisional” in nature, but, rather, were proceedings to determine the “substance” of the matter. To the extent that any interim compulsory supervision orders might properly be regarded as a “provisional measure” under article 20(1), it was nevertheless dependent upon the present incompetent substantive proceedings.  The only power to make an interim compulsory supervision order that did not require a “dependent” primary application was under section 109 of the 2011 Act.

[20]      An alternative (and simpler) approach was also urged upon me. The father’s agent characterised the present proceedings as a fundamental nullity because they stemmed from an act by the reporter that he had no power to take, namely the lodging of an application under sections 93 & 94 of the 2011 Act in a sheriff court within the jurisdiction of which the child was not habitually resident. This was said to be incompetent in terms of rule 3.45 of the 1997 Rules. The application should never have been warranted. The nullity was said to be irremediable. It was pars judicis to note the incompetency.  Reference was made to Sloan v B 1991 SC 412 and Glasgow City Council, Petitioner 2013 SLT 917. The case of Mitchell, supra was distinguished on the basis that it pre-dated the coming into force of the Council Regulation, and the amendment to rule 3.45 of the 1997 Rules in June 2013. There was said to be no discretion to “overlook” a fundamental incompetency in the proceedings.

[21]      I was invited to make a declaration under article 17 of the Council Regulation and, thereafter, to dismiss the application and discharge the grounds of referral.

 

Submissions for the reporter

[22]      For the reporter, it was agreed that the court was seised of these proceedings on the date the application under sections 93 & 94 of the 2011 Act was lodged with the sheriff clerk (being either 12 or 15 August 2016); that the child was habitually resident in Poland for the entire period of his life up to, and on, that date; that the Polish courts have substantive jurisdiction in respect of the child in terms of the Council Regulation; that this court does not have substantive jurisdiction; and that a declaration to that effect should be made in terms article 17 of the Council Regulation.

[23]      However, it was not accepted that the present proceedings were incompetent.  It was submitted that the present proceedings were “lawful” as “provisional measures” under article 20(1). I was urged to allow the proceedings to continue meantime, as they were “the only means by which the Scottish courts can take emergency protective and provisional measures, by way of interim compulsory supervision orders”. It was acknowledged that the legislation did not expressly provide for a “stand-alone” interim order to protect the child and that the sheriff had no power to extend an ICSO other than on the dependence of a subsisting proceedings under sections 93 or 94 of the 2011 Act. While the Scottish courts had no jurisdiction on the substance of the matter, the present proceedings should be allowed to continue in the meantime in order that the child could have the protection of an extended interim compulsory supervision order.  This was “necessary” to avoid the child “falling into a gap in jurisdiction” or, more accurately, a gap in which the court in Scotland could not take action to protect the child whilst waiting for a belated response from the Polish authorities. It was not proposed that the matter be allowed to continue “indefinitely” (though no specific deadline was proposed by which they were to be brought to a conclusion). 

[24]      Reference was made to the reporter’s inventory documenting the reporter’s unsuccessful attempts to date to engage the Polish judicial authorities to take action.  While the reporter’s communications via the Scottish central authority and direct with an (unspecified) Polish authority had been acknowledged, the reporter’s understanding of the current position was that some sort of application had been made in Poland for a “home assessment”; and that while a timescale of two weeks had previously been given to the reporter for a substantive response from the Polish authorities, that deadline had come and gone, and no further communication had been received by the reporter from Poland for four weeks now. 

[25]      To the extent that there was any incompetence, it was submitted that it could be “overlooked” in the best interests of the child (Glasgow City Council, Petitioner, supra). Besides, if the present proceedings were dismissed, Glasgow City Council, as the relevant local authority, could simply make further applications for successive child protection orders based on the same concerns.  As a result, the “best use of the process” would be for the present proceedings to be allowed to continue and for the related ICSO to be further extended.  Bearing in mind that such an interim order would endure for only three weeks, the matter could be regularly revisited to ensure “minimal drift” and to monitor progress and communications with Polish central authority. 

[26]      I was invited to assign a further procedural hearing several weeks hence to allow the reporter’s administration to pursue its communications with the Polish central authority.

 

Discussion

Jurisdiction in matters relating to parental responsibility

[27]      The single most important source of law on jurisdiction in proceedings relating to parental responsibility is a European Union regulation entitled Council Regulation (EC) No. 2201/2003 of 27 November 2003 (“the Council Regulation”). It has direct applicability within the United Kingdom.

[28]      Of the multiple other distinct jurisdictional regimes which operate in Scotland (and the United Kingdom as a whole) in relation to matters of parental responsibility, the Council Regulation takes precedence. It stands at the top of the jurisdictional hierarchy, with other regimes such as those prescribed by the Hague Convention on the Civil Aspects of International Child Abduction 1980 (as enacted by the Child Abduction and Custody Act 1985), the Family Law Act 1986 and, it may be said, all other provisions of Scots domestic law, “playing distinctly subsidiary roles” (Anton, Private International Law (3rd ed.), 17.16)

[29]      The Council Regulation is broad in its scope.

[30]      It applies in all civil matters relating to the attribution, exercise, restriction or termination of parental responsibility (article 1(1)(b)). “Parental responsibility” means (article 2(7)):-

“[A]ll rights and duties relating to the person or property of a child which are given to a natural or legal person by judgment, by operation of law or by agreement having legal effect.” 

 

The Council Regulation then provides an extensive, non-exhaustive list of particular matters that fall within that definition, including rights of custody and access; guardianship; the designation of and functions of any person or body having charge of the child; and the placement of a child in foster or institutional care. The term “rights of custody” includes rights and duties relating to the care of a child, including the right to determine the child’s place of residence (article 2(9)); and the term “rights of access” includes the right to take a child to a place other than his or her habitual residence for a limited period of time (article 2(10)).

[31]      There are certain matters to which the Council Regulation does not apply (article 1(3)). By way of illustration, these include proceedings to establish a parent-child relationship; adoption; the naming of a child; trusts and succession; and measures taken as a result of the commission of a criminal offence by a child.

 

The general rule: the child’s “habitual residence”

[32]      The child’s “habitual residence” lies at the heart of the jurisdictional regime prescribed by the Council Regulation.

[33]      In general, jurisdiction in matters of parental responsibility lies with the courts of the member state where the child is habitually resident at the time the court is seised (recital 12; article 8).  The underlying rationale is that those courts, given their geographical proximity to the child and its environment, will generally be best placed to assess the measures necessary to protect and promote the child’s best interests (Deticek, supra, paragraph 36).

[34]      The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment (A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2014] AC 1). The test is essentially a factual one, which should not be overlaid with legal sub-rules or glosses. A number of helpful propositions, distilled from Supreme Court and European jurisprudence on the subject, are conveniently summarised by Hayden J. in In re B (a child) (Custody Rights: Habitual Residence) [2016] 4 WLR 156. 

[35]      By way of exception, there are some alternative grounds of jurisdiction. These appear in articles 9 to 14. For example, in cases where a child moves lawfully from one member state to another and acquires a new habitual residence, the courts of the member state of the child’s former habitual residence are deemed, by a legislative fiction, to retain a “continuing” jurisdiction during a three month period for the limited purpose of modifying a pre-existing judgment on access rights (article 9).  In child abduction cases, the courts of the member state where the child was habitually resident immediately before the wrongful removal or retention retain jurisdiction on questions of custody before it (article 10). In limited circumstances, prorogation of jurisdiction is permissible (article 12). A so-called “residual jurisdiction” (article 14) may be exercised (being a jurisdiction determined by a member state’s domestic law) where no court of another member state has jurisdiction under articles 8 to 13 (Maher & Rodger, Civil Jurisdiction in the Scottish Courts, 10-79). Lastly, the child’s presence in a member state also provides an exceptional ground of substantive jurisdiction (article 13), but only when the child’s habitual residence cannot be determined at all (thus excluding article 8) and jurisdiction has not otherwise been prorogated (under article 12).

[36]      None of these exceptions applies in the present case.

 

When is habitual residence to be determined?

[37]      It is the child’s habitual residence “at the time the court is seised” that is relevant (article 8).

[38]      As a general rule, a court is deemed to be seised at the time when “the document instituting the proceedings… is lodged with the court” (article 16(1)(a)).

[39]      The term “court” has an extended definition. It covers all authorities in the member states with jurisdiction in matters falling within the scope of the Council Regulation. The terms “judgment” and “judge” likewise have expansive definitions, covering, respectively, any decision and any official having quasi-judicial powers.

[40]      The significance of those extended definitions is that the Council Regulation is the primary source of law to determine the jurisdiction of children’s hearings, as well as a sheriff, in referral proceedings. That is because such referral proceedings are, in nature, “civil” (S v Miller 2001 SC 977); they relate to matters of parental responsibility (see paragraphs [53] to [55], below); and the Council Regulation applies whether the proceedings involve a private law dispute or public law measures relating to child protection (Proceedings brought by A, Case C-523/07, CJEU, paragraph 29; [2010] Fam. 42).  (This would be the case even if the ground of referral concerns a criminal offence committed by the child under section 67(2)(j) of the 2011 Act. While “measures taken as a result of criminal offences committed by children” are excluded from the scope of the Council Regulation by article 1(3)(g), this exclusion has been interpreted as relating only to measures of detention of a child imposed as punishment for the commission of a criminal offence, and not, for example, a placement accompanied by measures involving deprivation of liberty of the child, where that placement is ordered for the protection of the child, and not to punish him or her: Health Service Executive v SC & AC, Case C-92/12, CJEU, 26 April 2012, paragraph 65.)

 

Declaration of no substantive jurisdiction

[41]      Where a court of a member state is seised of a case over which it has no substantive jurisdiction under the Council Regulation, and over which a court of another member state has substantive jurisdiction under the Council Regulation, the former court must declare of its own motion that it has no jurisdiction (article 17).   

[42]      This obligation forms part of the wider principles of “judicial cooperation (preamble, recital (1)), “mutual recognition of judicial decisions” (recital (2)), and “mutual trust” (recital (21)) between member states that are sought to be achieved by the European legislature.

[43]      These principles are fortified by the creation of a structure within the Council Regulation to achieve mutual cooperation between member states in specific cases. Thus, each member state is required to designate a “central authority” to collect and exchange information on the situation of the child, on any procedures under way, and on decisions taken concerning the child, as well as to facilitate communications between courts of member states (article 55). 

[44]      In that context, the article 17 obligation of a court to examine whether or not it has jurisdiction under the Council Regulation is important for a number of reasons. Most immediately, perhaps, if a court determines that it does not have jurisdiction over the substance of the matter in terms of the Council Regulation, then that declaration will alert the courts of other member states (and the parties) to the fact that any measures that the declaring court does purport to take must necessarily be limited to, and require to be justified as, “provisional measures” under article 20(1) of the Council Regulation. Provisional measures have no extra-territorial effect. Such measures may be binding, according to national law, in the territory of the member state in which they are taken, but they will not be capable of being recognised and enforced in any other member state under the simplified system provided by the Council Regulation (Purrucker v Perez, C-296/10, CJEU, 15 July 2010, paragraphs 83 & 84) (“Purrucker I”).

[45]      Conversely, subject to the apparent exception discussed below, if a court decides that it does have substantive jurisdiction in terms of the Council Regulation (and, as a result, no article 17 declaration is made), then that decision is not susceptible to review by the courts of another member state, and the final judgment of the court asserting substantive jurisdiction will fall to be recognised and enforced in other member states in accordance with the Council Regulation scheme. It is this waiver of the right of member states to scrutinise and review the jurisdiction asserted by courts of other member states (or the merits of judgments issued therefrom) (articles 24 & 26) that is the logical corollary of the principle of mutual trust between member states (recital 21) and mutual recognition of judgments which is seen as the cornerstone for the creation of a genuine judicial area (recital 2). Therefore, the courts of each member state are being entrusted with an onerous duty to respect, and properly to apply, the Council Regulation. It is that mutual trust which enables a uniform and simplified system of jurisdiction and enforcement to be established.

[46]      The apparent exception is illustrated by the difficult case of Purrucker. It generated two separate judgments of the CJEU, discussed in more detail below. The apparent exception is this: where the substantive jurisdiction of a court is “not, plainly, evident” from the content of that court’s judgment, or where that judgment does not contain a statement which is “free from ambiguity” of the grounds in support of the substantive jurisdiction of that court (with reference to articles 8 to 14 of the Council Regulation), it may be inferred that that judgment was not granted in compliance with the Council Regulation (Purrucker I, supra, paragraphs 75 & 76).  In other words, if a court’s judgment is silent (or equivocal) as to the basis of its substantive jurisdiction under the Council Regulation, it can be inferred that that court had no jurisdiction over the substance at all – and, at best, the court was purporting to take “provisional measures” under article 20.

[47]      In that scenario, the court’s judgment (from which the basis of its substantive jurisdiction is plainly evident) would have effect only within the territory of the member state in which the judgment was issued; it would not be capable of being recognised and enforced in another member state; it could not found a plea of lis pendens; and it would not prevent the court of another member state that does have substantive jurisdiction under the Council Regulation from exercising that jurisdiction in respect of the child.  

[48]      Of course, it would remain to be seen whether the judgment in question falls within the scope of article 20(1) at all, as a purported “provisional measure” (Purrucker I, supra, paragraphs 76 to 78).  That is a separate question, discussed below.

 

 

 

Do the present proceedings fall within the scope of the Council Regulation?

[49]      It was matter of agreement that the present proceedings fall within the scope of the Council Regulation. In my judgment that concession was correctly made because the proceedings are a:-

“… civil matter… relating to… the attribution, exercise, delegation, restriction or termination of parental responsibility” (article 1(1)(a)).

 

[50]      Although this issue was not in contention, a difference of opinion between the parties did arise on an ancillary issue, namely as to the time at which the court is deemed to have been seised of the proceedings for the purposes of article 16. The date on which a court is deemed to be seised is important for several reasons, not least because that is the date by reference to which the child’s habitual residence, and the court’s general jurisdiction under article 8, are to be assessed.

[51]      A number of possible dates were mooted: 1 August 2016 (being the date on which a child protection order was granted); 11 August 2016 (the date of the “grounds hearing” before the children’s hearing under section 90 of the 2011 Act); and 12 or 15 August 2016 (when this application under sections 93 & 94 of the 2011 Act was lodged with, and thereafter warranted by, the sheriff clerk). In the event, the difference of opinion is acknowledged to be somewhat academic because it was a matter of express agreement that the child was habitually resident in Poland on all of these dates. Nevertheless, it may be instructive, briefly, to consider the nature of the proceedings and the date on which the court was seised of the proceedings, for the purpose of article 16.

[52]      On one view, proceedings before a sheriff under sections 93 & 94 of the 2011 Act are rather narrow in scope. It may be said that they do not involve the attribution, delegation, restriction or termination of parental responsibility at all. Instead, the sheriff’s role is restricted to determining whether a “ground of referral” is established in respect of the child. If the ground is established, the sheriff must simply direct the reporter to convene a children’s hearing. It is then for the children’s hearing to determine the appropriate disposal. If no ground of referral is established, the sheriff must discharge the referral. Either way the sheriff’s primary role is not to make any final decision on care measures for the child.

[53]      Viewed in isolation, that may be correct.  But section 93 or 94 proceedings must be seen in their proper context. The proceedings before the sheriff under sections 93 & 94 of the 2011 Act are an adjunct to – though distinct from – the subsisting referral proceedings before the children’s hearing arranged by virtue of section 69(2) of the 2011 Act. The proceedings before the sheriff are intertwined with the proceedings before the children’s hearing and, in some ways, are co-dependent. The shrieval proceedings are initiated by the reporter on the express direction of the chairperson of a children’s hearing (when the ground of referral before the children’s hearing is not accepted or is so deemed). The shrieval proceedings cannot exist without extant referral proceedings before the children’s hearing. Equally, where grounds of referral are disputed (or are so deemed), the proceedings before the children’s hearing assume a dependent and subordinate role to the proceedings before the sheriff in that (i) the children’s hearing is disabled from making a compulsory supervision order until the sheriff has determined that a ground of referral is established, and (ii) ultimately, the sheriff has power to discharge the ground of referral if it is not proved to his satisfaction. The proceedings before the sheriff are a necessary gateway to the determination of parental responsibility by the children’s hearing (at least in cases where the ground of referral is not accepted).

So, proceedings before the sheriff under sections 93 & 94 can properly be said to be linked with, and related to, the associated proceedings before the children’s hearing.

[54]      Meantime, the express purpose of those associated proceedings before the children’s hearing is to determine whether or not a compulsory supervision order should be made in respect of the child (section 69(2), 2011 Act). Such proceedings involve, directly, the “attribution, delegation, restriction or termination of parental responsibility” (article 1(1)(b), Council Regulation). Accordingly, referral proceedings before a children’s hearing fall squarely within the scope of the Council Regulation. (A children’s hearing is a “court” within the meaning of the Regulation’s extended definition in article 2(1).) 

[55]      Given the closeness of their relationship, and inter-dependency, with the associated children’s hearing proceedings, the shrieval proceedings under sections 93 and/or 94 of the 2011 Act also fall within the scope of the Council Regulation because they are civil proceedings “relating to” the attribution, delegation, restriction or termination of parental responsibility (article 1(1)).

[56]      The next question is this: when were the relevant “courts” seised of proceedings?

[57]      In my judgment the sheriff court was seised of the present proceedings on 12 August 2016, when the reporter’s application under sections 93 & 94 of the 2011 Act was lodged with the sheriff clerk (article 16(1)(a)). The children’s hearing was seised of its proceedings on 11 August 2016, when the children’s hearing arranged by virtue of section 69 of the 2011 Act opened proceedings to consider the grounds of referral presented to it (per section 90, 2011 Act).  The sheriff court was seised of the child protection order proceedings on 1 August 2016 (when that separate application was lodged with the sheriff clerk). 

[58]      The shrieval proceedings under sections 93 & 94 of the 2011 Act, while they are sufficiently closely connected with the referral proceedings before the children’s hearing to justify the conclusion that they both relate to matters of parental responsibility, nevertheless involve different procedural processes, initiated by the lodging of entirely different documents (article 16), for a different purpose, pursuant to different legislative provisions, and, most importantly, before different courts (article 2(1)).  Notwithstanding the connection and inter-dependency of the two sets of proceedings they have never been regarded by Scots law as a “procedural unit” (cf. Purrucker v Perez, C-296/10, CJEU, 9 November 2010, paragraph 80) (“Purrucker II”). They are distinct.  

[59]      A fortiori the child protection order process is a discrete process. Besides, it is now long defunct, having had a finite existence of only eight working days (section 54, 2011 Act).

[60]      In any event, it is expressly agreed that the child was habitually resident in Poland on each of the mooted dates between 1 and 15 August 2016.

 

Does this court have substantive jurisdiction in the present case?

[61]      It is a matter of agreement between the parties that this court has no substantive jurisdiction in terms of the Council Regulation.

[62]      That is because these are civil proceedings “relating to... parental responsibility over a child” (article 1(1)(b)); they fall within the scope of the Council Regulation; but this court can assert neither the general ground of jurisdiction prescribed in article 8 of the Regulation (based on the child’s habitual residence) nor any of the exceptional grounds of jurisdiction (in articles 9 to 14), to justify asserting jurisdiction over the substance of the matter.     

[63]      From the outset, the reporter has fairly and properly conceded as much. Quite properly, the parties have invited the court to make a formal declaration to that effect, in terms of article 16 of the Council Regulation.

[64]      That agreed conclusion is important because it means that, at best, these proceedings (and the measures sought to be taken in them) can constitute no more than “provisional measures” in terms of article 20(1) of the Council Regulation. However, whether the proceedings (and any steps taken within them) properly fall within the scope of article 20(1) at all (as purported “provisional measures”) remains to be seen. The answer will depend solely upon whether the cumulative constituent elements or conditions of article 20(1) are demonstrated. These hurdles are considered further below.

[65]      One of those cumulative conditions is that the provisional measures sought to be justified are “available” under the internal (domestic) law of the member state in which the measure is taken. Of necessity, in the present case, this entails an examination of Scots (domestic) law to ascertain whether the purported provisional measure is indeed “available” under our own domestic law.  Ultimately, it is on this qualifying condition that the present proceedings founder.

 

Provisional and protective measures  

[66]      That brings us to the key issue in dispute in the present case.

[67]      Notwithstanding that a court seised of proceedings relating to parental responsibility does not have substantive jurisdiction over the substance of that matter (and, indeed, notwithstanding that it has so declared under article 17 thereof), the court’s involvement does not necessarily end.

[68]      That is because article 20(1) of the Council Regulation provides that, in urgent cases, nothing in the Regulation shall prevent the courts of a member state from taking “such provisional, including protective, measures” in respect of the child “as may be available under the law of that member state”, even if the court has no jurisdiction “as to the substance of the matter”. Article 20(2) goes on to provide that such measures, once taken, shall cease to apply when the court of the member state having jurisdiction “as to the substance of the matter” has taken the measures it considers appropriate.

[69]      Since article 20(1) is an exception to the jurisdictional regime laid down by the Regulation it is recognised that it must be interpreted strictly (Deticek [2009] ECR I-12193, Case C-403/09, paragraph 38; Health Service Executive v SC & AC, supra, paragraph 65).

[70]      Article 20(1) has four defining conditions: (i) it applies only in “urgent cases”; (ii) it applies only to persons (or assets) located within the member state taking the measure; (iii) the measures taken must be truly “provisional”; (iv) it merely permits the taking of such provisional measures as are “available” under the internal (domestic) law of the member state (Proceedings brought by A, supra, paragraphs 47, 50-52 & 65; Purrucker I, supra, paragraph 79). If any of these conditions is absent, the asserted “provisional measure” cannot fall within the article 20(1) exception (Proceedings brought by A, supra, paragraph 47; Purrucker I, supra, paragraph 76 to 78).

[71]      It may be convenient to look at each condition in turn.

 

 

“Urgent cases”

[72]      The concept of urgency in article 20(1) relates both to the situation of the child and to the impossibility in practice of bringing an application concerning parental responsibility before the court with jurisdiction as to the substance (Deticek, supra, paragraph 42). The urgency is to be assessed at the time the court is seised of the proceedings.

[73]      In the present case, the parents’ agents conceded that the condition of urgency was satisfied as at the time the court was seised (in August 2016).

[74]      With some hesitation, I am prepared to accept that that concession was properly made, insofar as urgency in the case is to be assessed with reference to the time at which the proceedings were commenced (i.e. in August 2016).

[75]      My hesitation arises from the fact that urgency, in this context, includes consideration of the practical impossibility of substantive proceedings being brought before the court having substantive jurisdiction (Deticek, supra, paragraph 42). When provisional measures are taken by the court of a member state under article 20(1), the court with substantive jurisdiction is merely being replaced temporarily for reasons of time and distance. Since the Polish central authority appears to have been well aware, for many months prior to Z’s birth, of the separate subsisting referral proceedings in Scotland concerning Z’s elder sibling, including the ground of referral (indeed, the Polish central authority had refused to accede to an earlier request via the Scottish central authority for cooperation in those separate proceedings concerning Z’s sibling); and, despite that knowledge, no steps were taken by any person or entity to commence proceedings in any Polish court in respect of Z throughout the first four months of his life during which time he was habitually resident in Poland; and that the seizure of Z upon his arrival in Scotland was founded, principally, upon the pre-existing concerns regarding the treatment of the elder sibling, and not upon some newly-emerged perceived risk to Z; the inference might well be drawn that there was, in truth, no practical impossibility in commencing substantive proceedings in Poland at all. On the contrary, it may be said that, prior to August 2016, there had been more than adequate opportunity to do so; and that, as at the date on which these proceedings commenced, no genuine urgency existed.       

[76]      But the factual position is not sufficiently clear to allow me to reach any such conclusion. For example, I cannot be satisfied, on the information available to me, that the designated Polish central authority was aware of the mother’s return to Poland from Scotland shortly prior to Z’s birth; or indeed of the child’s birth there (though the birth was duly registered in Poland); or of his residence in Poland for the four month period or so thereafter; or of the mother’s intentions. The factual position regarding timing, and the extent of the Polish central authority’s knowledge about Z, is sufficiently opaque to justify accepting the concession that the necessary urgency existed as at the date on which these proceedings were initiated.

[77]      That said, I would observe that the position might be different if, following dismissal of these proceedings, a fresh application was subsequently presented to a Scottish court purportedly for provisional measures in respect of Z (such as a second child protection order or fresh referral proceedings) on broadly identical grounds. With the passage of so many months, during which time the designated Polish central authority has now manifestly been well aware of Z’s status as an habitual resident of Poland, and of the perceived risks as ventilated in the Scottish proceedings and communicated via the Scottish designated central authority (see the reporter’s inventory  items 1 to 3 documenting communications to and from the Polish central authority since August 2016), during which time no steps have been taken to initiate proceedings in Poland, it may be difficult to justify the contention that it is impracticable for the Polish courts to exercise their substantive jurisdiction. On the contrary, given the passage of time, it may more readily be inferred that the Polish courts have had an adequate opportunity to exercise their substantive jurisdiction on the matters of parental responsibility in contention and that there is no practical impossibility in them doing so. Accordingly, any such new proceedings in Scotland for provisional measures may not be truly “urgent” in the Deticek sense of that concept. In the event, I do not require to express a final view on this issue.

 

Presence of child in the member state taking the provisional measure

[78]      Provisional measures can only be taken in respect of persons (or assets) located within the member state taking such measures. This will require the presence of the child within the member state that is seeking to take the provisional measure in respect of him or her (Deticek, supra, paragraphs 39 & 50).

[79]      It was not in dispute that the child was present within the territorial jurisdiction of the sheriff court at Glasgow at the time when the court was seised of the proceedings.

 

The measures must be “provisional”

[80]      Article 20(1) permits the taking only of “provisional, including protective, measures”. But when is a measure characterised as “provisional” for the purposes of article 20(1)?

[81]      The Council Regulation does not prescribe the types of provisional measures that can be taken. It may be tempting to begin, therefore, by embarking upon an analysis of domestic law to ascertain whether a particular decision or process is properly characterised as “provisional” in nature. There is perhaps a natural inclination to interpret the term “provisional” in a conventional sense as involving the grant of some form of interim or interlocutory relief, temporary in duration, taken without full or final consideration of the underlying substance of the dispute, perhaps by means of a summary procedure that may lack the usual safeguards of a substantive hearing, perhaps with restricted rights of appeal, and generally with the specific intention of its being superseded by a subsequent (final) decision on the merits.  This was broadly the approach urged upon me by the agents for the child’s parents. On that analysis, it was submitted that the present proceedings under sections 93 & 94 of the 2011 Act were properly characterised as substantive, not provisional, in nature, because, under domestic law, they were aimed at finally determining the substance of a matter of parental responsibility at a full hearing, as a precursor to the making of a final order by a children’s hearing in the shape of a compulsory supervision order.

[82]      Provisional measures may often exhibit some of the conventional characteristics referred to above. However, in my respectful judgment this approach to the issue – whereby one seeks first to ascertain the characterisation or nature of the measure from the perspective of domestic law – is liable to miss the point.

[83]      To explain, the avowed purpose of the Council Regulation is to establish a uniform system concerning jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility. A “judgment” given in one member state must be recognised and enforced in the other member states (except in limited circumstances). There is no scope to review the jurisdiction of the court of the member state of origin and under no circumstances can such a judgment be reviewed as to its substance.

[84]      Within that ambitious scheme of uniform recognition and enforcement, the Council Regulation makes no explicit distinction between a “final” judgment and a “provisional” judgment. The term “judgment” is defined very broadly in article 2(4). It includes a decree, decision or order, by whatever name it may be called. It does not distinguish between, on the one hand, a final, firm or substantive decision and, on the other hand, a mere interim, interlocutory or provisional decision. Indeed, article 23(d) contemplates that a judgment may be given in cases of urgency, implying that it may be “provisional” in the conventional sense of that term. Further, no explicit distinction is drawn in the Regulation based upon the nature of the proceedings, specifically whether the proceedings seek interim relief or a substantive determination. Nor is there any good reason to do so. A court with substantive jurisdiction may well make an interim (or, in that conventional sense, “provisional”) decision, fundamentally affecting rights and duties relating to a child. Such a decision still qualifies as a “judgment” that must be recognised and enforced in other member states in accordance with chapter III of the Regulation, notwithstanding the prima facie interim, interlocutory, and perhaps summary nature of that order. In other words, even a “provisional” measure (in the conventional sense described above), taken by a court having substantive jurisdiction in terms of the Council Regulation, must be recognised and enforced under the Regulation’s uniform scheme. For example, in Deticek, supra, the CJEU held that a provisional award of custody by the court having substantive jurisdiction prevailed over a subsequent provisional award (purportedly made pursuant to article 20) by a court in another member state to which the child had been removed, unlawfully in terms of the earlier award.

[85]      In contrast, a “provisional” measure taken in terms of article 20(1), as properly understood, is not capable of being recognised and enforced in other member states under the uniform scheme created by the Regulation. A “provisional” measure taken in terms of article 20(1), as properly understood, has no extra-territorial effect. Proceedings for a “provisional” measure in terms of article 20(1), as properly understood, do not constitute lis pendens for the purposes of article 19. These are important consequences for measures taken under article 20(1). How then is such a provisional measure to be recognised?

[86]      In my judgment, the primary and “crucial issue” is to determine whether the measure in question is taken in proceedings that are “directed” to obtaining a judgment from a court having jurisdiction as to the substance of the matter, in terms of the Council Regulation (Purrucker II, supra, paragraph 75).

[87]      The primary distinction that should be drawn is between a measure taken in terms of article 20(1) (by a court which does not have, or does not assert, substantive jurisdiction) and a measure that is taken by a court other than in terms of article 20(1) (by a court which does have, or does (adequately) assert, substantive jurisdiction under one or other of articles 8 to 14 of the Council Regulation). A measure taken by a court that does not have substantive jurisdiction in terms of the Regulation, whether that measure is characterised as interim or final, interlocutory or substantive, under the domestic law of that jurisdiction, falls to be regarded as merely “provisional” in nature in terms of article 20(1) (though in order to fully qualify as a “provisional measure” in terms of article 20(1) it must satisfy the whole other constituent criteria within that article). Conversely, a measure taken by a court having substantive jurisdiction in terms of the Regulation, whether that measure is characterised as interim or final, interlocutory or substantive, under the domestic law of that jurisdiction, can never qualify as a “provisional measure” in terms of article 20(1). 

[88]      That is because the “provisional” nature of a measure taken under article 20(1) arises primarily from the fact that, pursuant to article 20(2) of the Regulation, such a measure ceases to apply when the court of the member state having jurisdiction as to the substance of the matter has taken the measures it considers appropriate (Proceedings against A, supra, paragraph 48).  It is the fact that the court having substantive jurisdiction is merely displaced temporarily that renders “provisional” all other measures taken by courts not having that substantive jurisdiction. In this context, therefore, the term “provisional” may be said to have an autonomous meaning derived directly from the terms of article 20(2) and, more broadly, from its position within the structure of the Regulation as a whole.

[89]      There is also a sound policy reason why the provisional nature of a measure should not be determined by reference to the domestic characterisation of the nature of the measure (or of the proceedings in which it is taken).  In the first instance, the nature of the proceedings and of the measure taken (specifically, whether or not it is a “provisional” measure under article 20(1)) should be more readily ascertainable, if not self-evident, from the judgment itself, in order that the simplified scheme of mutual recognition and enforcement can operate efficiently. The rationale for that approach is that the court of a member state that is presented with a judgment from the court of another member state for recognition and enforcement cannot otherwise be expected to know, or be equipped swiftly to ascertain, the idiosyncratic features and domestic characterisation of measures taken by that foreign court.

[90]      For these reasons, in seeking to ascertain whether a measure is “provisional” in nature, the proper test is simply to determine whether or not the proceedings in which the measure is granted are “directed” to obtaining a judgment from the court having jurisdiction as to the substance of the matter in terms of the Council Regulation (Purrucker II, supra, paragraph 75).

[91]      This ought to be a relatively straight-forward exercise.

[92]      Bear in mind that every court of a member state that is seised of proceedings relating to a matter of parental responsibility is enjoined to examine the basis of its own jurisdiction (article 17).  If it has no jurisdiction as to the substance of the matter in terms of one or other of articles 8 to 14 of the Council Regulation, then that court must declare of its own motion that it has no substantive jurisdiction.

[93]      Such a declaration has important consequences. First, as already touched upon (paragraph [44], above), it will mean that courts of other member states are alerted to the fact the proceedings before that first court are “directed” to obtaining a judgment from a court which has no jurisdiction as to the substance of the matter under the Council Regulation.  Any measures taken by such a court will, by definitional necessity, be “provisional” in nature because the proceedings will ex facie be before a court with no substantive jurisdiction under the Regulation. This is the primary qualifying criterion of a “provisional measure” under article 20(1). Of course, the whole other criteria also require to be satisfied. A second consequence of the declaration will be that proceedings before that first court cannot constitute lis pendens in terms of article 19. Any court subsequently seised of prima facie substantive proceedings will not be compelled to stay those later proceedings.     

[94]      A trickier situation can arise where a court seised of proceedings fails properly to make an article 17 declaration (in circumstances where it should have done so) or purports to assert substantive jurisdiction but fails adequately to explain the basis of that assertion. How are those proceedings (and any measures thereunder) to be characterised?

[95]      This was part of the delicate dilemma that arose in the Purrucker case.

[96]      As the case raises a number of subtle issues of relevance to the present proceedings, it is worth pausing to consider it in more detail.

 

The Purrucker Judgments

[97]      In Purrucker, the CJEU was confronted with a tangle of parallel proceedings and potentially conflicting judgments.

[98]      Ms Purrucker, a German national, went to live in Spain with Mr Perez, a Spaniard. Their relationship resulted in the birth of twins, Merlin (a boy) and Samira (a girl). Under Spanish law, the parents had joint rights of custody. The twins had dual Spanish and German nationality. The parents’ relationship broke down. Ms Purrucker returned to Germany with one of the twins but, because of health problems, the other twin remained in hospital in Spain with Mr Perez.

[99]      Three sets of proceedings emerged.

[100]    The first, brought in Spain by Mr Perez, explicitly involved the granting of urgent provisional measures, including custody of both children, an injunction preventing the children leaving Spain without judicial approval, and delivery of the children’s passports to Mr Perez. However, the position was complicated by the fact that these (explicitly) provisional measures ceased to have effect unless substantive proceedings were commenced within 30 days of the date of service of the judgment containing the provisional measure. Accordingly, in order to preserve the efficacy of those interim orders, further proceedings were subsequently commenced in Spain by Mr Perez aimed (explicitly) at obtaining a final substantive decision on the same issues as in the proceedings for provisional measures. The Spanish court asserted jurisdiction over the substance of the matter. According to Spanish law, the proceedings for provisional measures, together with the substantive proceedings brought subsequently, constituted one “procedural unit”.

[101]    The second set of proceedings, brought in Germany by Mr Perez, concerned the enforcement of the Spanish judgment granting the provisional measures. These proceedings resulted in the judgment in Purrucker 1 (on 15 July 2010).

[102]    The third set of proceedings, brought by Ms Purrucker in Germany, was concerned with the award of rights of custody of both children. These proceedings resulted in the judgment in Purrucker II (on 9 November 2010)

[103]    The two judgments should be read together. In Purrucker I, the CJEU ruled that “provisional measures” taken in terms of article 20(1) do not have extra-territorial effect. Further, the CJEU opined that if a court is to assert jurisdiction as to the substance of the matter in terms of the Council Regulation (as the Spanish Court had done), the court’s judgment should contain material that “unquestionably demonstrates” the basis of that substantive jurisdiction such that the ground of substantive jurisdiction is “plainly evident” from the content of the judgment, or is otherwise disclosed in a statement therein that is “free of any ambiguity”. The CJEU (and the advising advocate general) clearly struggled to understand the legal basis of the Spanish court’s asserted substantive jurisdiction. It was, therefore, to be “inferred” that the Spanish court had no substantive jurisdiction at all; the measures that were taken by the Spanish court were, at best, “provisional measures” under article 20(1); and, as such, they could not be enforced in Germany under the Regulation’s simplified scheme.

[104]    In Purrucker II, the specific issue was whether the German court was obliged to stay the proceedings before it in terms of article 19 (lis pendens), by reason of the subsisting proceedings in Spain. The CJEU ruled that article 19 could never be triggered by proceedings raised only for provisional measures in terms of article 20(1), because such measures ceased as soon as the court with substantive jurisdiction was engaged. But how was one to identify if proceedings were raised for provisional measures?

[105]    The CJEU decided that the primary and “crucial issue” is to determine whether the proceedings before the court first seised are “directed” to obtaining a judgment from the court with jurisdiction as to the substance of the matter, within the meaning of the Council Regulation (Purrucker II, supra, paragraph 75).  That involves ascertaining the “object of the action” (that is, the end the action has in view), having regard to the claim in that action, and the facts and legal rules relied upon (Purrucker II, supra, paragraph 68; Gantner Electronic [2003] ECR I-4207; Tatry [1994] ECR I-5439).  If it is “manifestly clear” (Purrucker II, supra, paragraph 77) from a consideration of the object of an action, and from the account of the facts set out therein, that that action contains no ground on which the court could justifiably claim substantive jurisdiction within the meaning of the Council Regulation, then that action will, by definition, be incapable of triggering article 19 (lis pendens). Put another way (as it was articulated in Purrucker I, paragraph 76), where the court’s substantive jurisdiction in accordance with the Council Regulation is “not, plainly, evident” from the content of the court’s issued judgment, or where that judgment does not contain a statement “which is free from ambiguity” of the grounds in support of the substantive jurisdiction of that court under articles 8 to 14 of the Council Regulation, then “it may be inferred” that that judgment was not issued in accordance with the rules of substantive jurisdiction laid down by the Council Regulation. The consequence would be that the “object” of the proceedings in which that judgment was made would, at best, be deemed to be the taking of measures that were “provisional” in terms of article 20(1).

[106]    However, in Purrucker II the CJEU also conceded the possibility that “linked” actions may exist (the first for “provisional measures”, the second for a determination on the substance of the matter) which might be viewed as a “procedural unit” under domestic law (paragraphs 86 & 80, respectively).

[107]    The interesting implication of that concession is that, if such linked proceedings did exist, and if they did indeed constitute a “procedural unit”, then the Spanish proceedings, viewed as a whole, might well have constituted lis pendens for the purpose of article 19; the time at which the Spanish court would have been seised of proceedings might then have been back-dated to the date on which the earlier but linked (“provisional measures”) action was initiated; and the so-called “provisional measures” of the Spanish court might then have been enforceable in other member states.

[108]    In my judgment, though, in that scenario the measures taken in the first part of Spanish proceedings, while initially properly characterised as “provisional measures” under article 20(1), would, upon initiation of the “linked” substantive Spanish proceedings, have required to be re-characterised as interim relief granted (within the same procedural unit) by a court having (or properly asserting) substantive jurisdiction. Such interim relief could never truly constitute “provisional measures” in terms of article 20(1) because such measures can only ever be granted by a court with no substantive jurisdiction.  Analysed in this way, the Spanish judgment granting the interim relief (as now viewed in the context of a “procedural unit” before a court having substantive jurisdiction) would have had extra-territorial effect, and would have been enforceable in other member states under the Regulation scheme.

[109]    In the event, this theoretical scenario never materialised because the CJEU also opined that the onus lay on the Spanish court to demonstrate its alleged substantive jurisdiction under the Regulation, and to do so within a reasonable time; and, if it failed to do so, the German court was entitled, indeed obliged, to proceed with consideration of the chronologically later proceedings before it.  Despite assiduous efforts by the German court to obtain information demonstrating the basis of the Spanish court’s asserted substantive jurisdiction, the CJEU noted that those efforts had “proved fruitless” (paragraph 34).    

[110]    In conclusion, the solution proposed by the CJEU is essentially a pragmatic one, to ensure the smooth operation of a scheme of near-automatic recognition and enforcement of judgments.  The court’s approach (per paragraph [105], above) does not involve a “review” of the jurisdiction of the court of origin (in breach of article 25) by courts of other members states but, rather, offers a straight-forward, workable mechanism to ascertain quickly the basis on which a court asserting substantive jurisdiction considers itself competent. The onus lies firmly on the courts of member states to state, “free from ambiguity”, a justifiable basis for asserting substantive jurisdiction (Purrucker I, supra, paragraph 75).

 

 

Do the present proceedings constitute “provisional measures”?

[111]    Returning to the present proceedings (under sections 93 & 94 of the 2011 Act), they are directed to obtaining a judgment from a court that, self-evidently, has no substantive jurisdiction in terms of any of the grounds of jurisdiction specified in articles 8 to 14 of the Council Regulation. This is properly conceded by all parties. A declaration to that effect under article 17 has been sought and made.

[112]    Accordingly, for the reasons explained above, in my judgment these proceedings (and any measures thereunder) are “provisional” in nature in the autonomous sense of that term within the meaning of article 20 of the Council Regulation.

[113]    Whether they satisfy the remaining criterion of article 20(1) is a different matter.

 

The provisional measures must be “available” under domestic law

[114]    Lastly, the provisional measures sought to be taken by a court with no substantive jurisdiction are limited to those that are “available” under the domestic (internal) law of the member state within which they purport to be taken.

[115]    In this context, it is vital to note that article 20 does not confer jurisdiction as such (Purrucker I, supra, paragraph 61; Purrucker II, supra, paragraph 70).

[116]    Unlike articles 8 to 14 (which explicitly establish grounds of jurisdiction), article 20 is merely permissive in its terms. One must look to the domestic law of the member state to find both a permissible type of measure and a viable ground of jurisdiction upon which to take that measure. It is for the national legislature to lay down the measures that can be taken by national courts in order to protect the best interests of the child and to lay down procedural rules for their implementation (Proceedings brought by A, supra, paragraphs 65 & 72.3).

[117]    Is there a rule of domestic law that can be founded upon by this court in order to justify the subsistence of these proceedings and the taking of any measures therein?

[118]    The answer is no.

[119]    Section 43 of the Courts Reform (Scotland) Act 2014 applies for the purpose of determining, generally, the jurisdiction of a sheriff in relation to any civil proceedings that may competently be dealt with by a sheriff.  It applies unless displaced, impliedly or explicitly, by any other legislation or rule of law (section 43(3)). While it came into force on 1 April 2015, it re-enacts the broadly identical provisions of section 6 of the Sheriff Courts (Scotland) Act 1906. There is nothing in section 43 of the 2014 Act that could conceivably be founded upon to confer jurisdiction upon this court in the present proceedings.

[120]    Section 102 of the 2011 Act makes explicit provision for jurisdiction in cases involving alleged criminal offending by children. Where an application is to be made to the sheriff by virtue of section 93 or 94, and the ground of referral concerns the alleged commission of an offence by the child (section 67(2)(j), 2011 Act), the application must be made to the sheriff who would have jurisdiction if the child were being prosecuted for the offence(s).  But this section does not apply in the present case.

[121]    No other enactment or rule of law was prayed in aid to confer jurisdiction upon this court to entertain the present application under sections 93 & 94 of the 2011 Act (whether as substantive proceedings or as proceedings directed at obtaining provisional measures).

[122]    The explanation lies in rule 3.45 of the Act of Sederunt (Child Care and Maintenance Rules) 1997 (SI 1997/291) (“the 1997 Rules”). It makes specific provision determining jurisdiction in relation to applications by the principal reporter under sections 93 & 94 of the 2011 Act. Rule 3.45 provides that such an application “shall” be lodged “with the sheriff clerk of the sheriff court district in which the child is habitually resident” (my emphasis). The language is mandatory in tone. Naturally, even if a child is not habitually resident within the jurisdiction of a sheriff, an application may yet be presented to a sheriff under sections 93 or 94 of the 2011 Act on the basis of one or other of the exceptional grounds set out in articles 9 to 14 of the Council Regulation because the Council Regulation is directly applicable, it takes precedence over domestic law, and provisions of domestic law may have to yield to the Regulation to ensure the full effectiveness of European Union law (Purrucker I, supra, paragraph 99). But such proceedings (if founding upon one of the exceptional grounds under articles 9 to 14) would be proceedings directed at a court having jurisdiction as to the substance of the matter. They would not be proceedings – such as the present application – directed to obtaining “provisional measures” under article 20(1).

[123]    The present proceedings are, by concession, and by virtue of the declaration to be made under article 17, directed to obtaining “provisional measures” under article 20(1). In order to qualify under that exception, the measures sought must be “available” under Scots domestic law. In the event, the measures are not “available” because the proceedings could not competently be commenced in circumstances where the child was not habitually resident within the territorial area of Glasgow Sheriff Court (or indeed anywhere in Scotland) at the date the application was lodged. The application should never have been warranted.

[124]    There is no other viable ground of jurisdiction under Scots domestic law that would entitle this court to be seised of the present proceedings as a provisional measure under article 20(1).

[125]    Interestingly, rule 3.45 of the 1997 Rules was amended only recently to its current form, with effect from 24 June 2013, by the Act of Sederunt (Children’s Hearings (Scotland) Act 2011 (Miscellaneous Amendments) 2013 (SSI 2013/172).  Prior to that amendment, rule 3.45 did not include any specific jurisdictional criterion (relating to habitual residence or otherwise). In the context of the preceding legislative provisions (within the Children (Scotland) Act 1995), the absence of any such express, contrary jurisdictional direction allowed the Inner House to interpret the word “sheriff” (throughout part II of the 1995 Act) as conferring jurisdiction upon the sheriff in whose sheriffdom lay the public authority (whether that be a children’s hearing or local authority) involved in the proposed intervention in the child’s welfare (Glasgow City Council v M 2001 SC 415). Be that as it may, the ratio of Glasgow City Council v M, supra, if it survives the coming into force of the Council Regulation at all (which seems doubtful), certainly cannot prevail against the contrary express jurisdictional criterion now appearing in amended rule 3.45 of the 1997 Rules in relation to applications to a sheriff (whether that application is directed at obtaining a determination on the substance of a matter of parental responsibility or for provisional measures only).

[126]    In contrast, cases such as Mitchell v S 2000 SLT 524 and Walker v C (No. 1) 2003 SLT (Sh Ct) 319 discussed the grounds on which a children’s hearing (not a sheriff) could exercise jurisdiction in the context of the statutory predecessor to the 2011 Act. In Mitchell, supra, the Inner House concluded that the mere presence of the child in Scotland was a sufficient, though not a necessary, criterion for the children’s hearing to exercise jurisdiction. Other grounds could be founded upon. Again, in my judgment, the ratio of these decisions cannot survive the coming into force of the Council Regulation’s uniform scheme of jurisdiction, at least in relation to proceedings directed to obtaining a determination on the substance of the matter. However, in contrast with applications to a sheriff under sections 93 or 94, there has been no domestic legislative amendment otherwise to limit the scope of jurisdiction of a children’s hearing, with the result that, perhaps, the reasoning of Mitchell and Walker, supra, can still apply as a basis for a children’s hearing to assert jurisdiction, but only in the context of proceedings directed at obtaining “provisional measures” under article 20(1) of the Council Regulation (see paragraphs [137] & [138], below).

[127]    Returning to the present proceedings under sections 93 & 94, the upshot is that neither the warranting of the original application nor any decision or order therein can constitute “provisional measures” in terms of article 20(1) of the Council Regulation because they are not measures that are “available” under the internal (domestic) law of the member state (or territorial unit thereof) in which they are taken. They are not “available” because they cannot competently be sought from or granted by this court due to the court’s ex facie lack of jurisdiction under domestic law in terms of rule 3.45 of the 1997 Rules. By extension, to the extent that these proceedings are themselves a “gateway” or prerequisite to the grant of other provisional measures (such as extensions of interim compulsory supervision orders by applications under sections 98 & 99 of the 2011 Act), then it is a gateway that is closed, due to the fundamental incompetency of the present proceedings upon which they are dependent.

[128]    I am fortified in this conclusion by the broadly analogous position that pertained in relation to the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (“the Brussels Convention”). The Brussels Convention had roughly the same structure. It too prescribed a general ground of jurisdiction (domicile of the defender), alternative exceptional special grounds of jurisdiction, and a further exception for the taking of “provisional, including protective, measures”. This latter exception was likewise universally recognised as conferring no ground of jurisdiction as such. This created a potential problem at the time of the accession of the United Kingdom to the Brussels Convention because Scots law did not have any protective measures which were independent of substantive Scottish proceedings. There was no obligation on a member state to legislate for such protective measures to be “available”, but it was thought to be inconsistent with the spirit of the Convention to deny litigants in other member states the benefit of such provisional measures as might otherwise be available to litigants in the Scottish courts (Report of the Maxwell Committee, paragraph 5. 236; Maher & Rodger, Civil Jurisdiction in the Scottish Courts, 9-01 & 9-02). The answer was to change the law to make specific provision for the Court of Session to have power to grant certain types of protective measures on the dependence of subsisting or contemplated foreign proceedings. That change in the law was effected by sections 28 & 29 of the Civil Jurisdiction & Judgments Act 1982.

[129]    In urgent cases, article 20(1) of the Council Regulation likewise permits the courts of member states to take such provisional and protective measures as are available under their internal law. Notwithstanding the absence of substantive jurisdiction, proceedings for “provisional measures” under sections 93 or 94 of the 2011 Act and related ancillary applications might well have been competent, pending the intervention of a court of another member state with substantive jurisdiction, if such measures had been “available” under domestic law. But they are not “available”, absent a valid ground of jurisdiction upon which a sheriff court may be seised of such proceedings.   

[130]    In fairness to the reporter, faint resistance was advanced to the assertion that the present proceedings were incompetent. Two particular arguments were put forward in answer.

[131]    First, I was invited to “overlook” any such incompetency on the basis that the present proceedings were a necessary means to a just end, namely the interim protection of the child pending intervention by the Polish courts. The reporter founded upon dicta of the Lord Ordinary in Glasgow City Council, Petitioner 2013 SLT 917 at paragraph [17].  However, those dicta were explicitly obiter and, in my respectful judgment, they are not supported by authority. In Sloan v B 1991 SC 412, the First Division authoritatively confirmed that it was pars judicis to notice any incompetency in the course of referral proceedings and, in appropriate cases, for a sheriff to deal with the matter as a preliminary issue prior to hearing evidence on the merits of the referral. There is no reference in Sloan (or in any of the reported cases cited therein) to any power of judicial forbearance or indulgence in the face of an ex facie incompetency.

[132]    Second, it was submitted that rule 3.45 of the 1997 Rules allowed an application to a sheriff other than that of the child’s habitual residence “on cause shown” (Norrie, Children’s Hearings in Scotland (3rd ed.), page 132).  In my judgment, while rule 3.45(1B) allows a sheriff, on cause shown, to remit an application to another sheriff court, it is axiomatic that either the remitting or the receiving court must itself have jurisdiction. A mere power to transfer proceedings between courts does not, of itself, create a ground of jurisdiction where none exists.

 

 

Are any provisional measures available under domestic law?

[133]    While proceedings under sections 93 or 94 of the 2011 Act and related ancillary applications are therefore not competent as “provisional measures” in terms of article 20(1), it may be of assistance to consider what other measures might be available under Scots (domestic) law to address the present circumstances.

[134]    Section 56 of the Children (Scotland) Act 1995 (which survived the repealing scythe of the 2011 Act) allows a police constable to take a child to a place of safety for a maximum period of 24 hours. That said, this is not, strictly, a “provisional measure” in terms of article 20(1) at all, because it involves no civil proceedings before any court.

[135]    A child protection order under sections 37 to 46 of the 2011 Act may seem to be the epitome of a protective, provisional measure in the conventional sense: ephemeral, summary in nature and non-determinative of the substance. Nevertheless, a child protection order remains a “civil matter... relating to parental responsibility”, directed at obtaining a judgment on the restriction of legal rights and duties of a parent, however temporary (article 1(1)(b)). Therefore, it is the directly-applicable Council Regulation that determines whether jurisdiction exists in an application for a child protection order. As a general rule that will mean that an application for a child protection order can only be presented to the court of a member state (or territorial unit thereof, such as Scotland) in which the child is habitually resident (unless one of the other exceptional grounds of jurisdiction under articles 9 to 14 applies).

[136]    However, in the context of proceedings directed to obtaining a judgment from a court with no substantive jurisdiction (e.g. where, as here, the child is not habitually resident in Scotland and no other exceptional ground applies), a basis of jurisdiction for the proceedings must be found elsewhere in domestic law. That jurisdiction may be found in part 5 of the 2011 Act. Those sections require that an application for a child protection order is to be made to the “sheriff”, without further specification. In contrast with applications under sections 93 & 94, no specific jurisdictional criterion of habitual residence is further prescribed by domestic law. Accordingly, following the approach adopted in Glasgow City Council v M, supra (at paragraph 25), the reference to “sheriff” in part 5, read in the context of the legislation as a whole, may reasonably be interpreted as meaning that jurisdiction lies with the sheriff in whose sheriffdom lies the area of the public authority involved in the proposed or actual intervention. By that mechanism, Scots (domestic) law may confer a viable ground of jurisdiction upon the sheriff court to be seised of child protection order proceedings that are directed to obtaining provisional measures only (i.e. where the sheriff court otherwise has no substantive jurisdiction under the Council Regulation). 

[137]    A similar logic may apply to referral proceedings before a children’s hearing arranged under section 69 of the 2011 Act.  Referral proceedings are a “civil matter... relating to parental responsibility” (article 1(1)(b)). Therefore, it is the directly-applicable Council Regulation that determines whether jurisdiction exists in the context of proceedings “directed” to obtaining a judgment from a children’s hearing upon the substance of such a matter. That means that grounds of referral can only be presented to a children’s hearing in a member state (or territorial unit thereof, such as Scotland) in which the child is habitually resident, unless one of the other exceptional grounds of jurisdiction under articles 9 to 14 applies.

[138]    However, if the referral proceedings are directed to obtaining “provisional measures” only from a children’s hearing (e.g. where the child is not habitually resident in Scotland and no other Regulation-based ground of jurisdiction exists), a basis of jurisdiction would require to be found elsewhere in domestic law. Again, that ground of jurisdiction may be found within the 2011 Act itself. Absent a specific jurisdictional direction to the contrary, the rationale of Mitchell and Walker, supra, would apply. By that mechanism, Scots (domestic) law may confer a viable ground of jurisdiction upon the children’s hearing seised of referral proceedings directed only to obtaining provisional measures, in respect of a child who is merely present in Scotland. 

[139]    But the same logic cannot apply to proceedings under sections 93 or 94 of the 2011 Act, standing the specific jurisdictional criterion of habitual residence prescribed by domestic law in rule 3.45 of the 1997 Rules.

[140]    The upshot would appear to be that the absolute maximum period during which the child Z could lawfully be kept in local authority care under provisional measures taken by Scottish courts is the aggregate of 8 working days (under a child protection order) plus up to 66 days under consecutive interim compulsory supervision orders made by a children’s hearing (section 96(4), 2011 Act). The ICSO made by the children’s hearing could not be further extended (beyond the 66th day of its existence) because, to do so, an application would require to be made to a sheriff under section 98 of the 2011 Act; such an application is, by implication, dependent upon subsisting proceedings before the sheriff under sections 93 or 94 of the 2011 Act; but, of course, no such proceedings under sections 93 or 94 could competently be presented and pursued (even as a provisional measure under article 20(1)) by virtue of the inability to satisfy the express domestic  jurisdictional criterion in rule 3.45 of the 1997 Rules.

[141]    That said, even this calculation of the maximum period may be too generous. On one view, it may be said that, in such circumstances, a children’s hearing can competently issue only one ICSO (at the “grounds hearing”) for a maximum period of 22 days.  Following the subsequent failure of the reporter to lodge a (competent) section 93 or 94 application within 7 days thereafter (in breach of rule 3.45 of the 1997 Rules and in default of the chairperson’s direction), it has been suggested that the referral “falls” (Norrie, supra, 8-04).  That said, I am not aware of any specific authority to vouch the proposition that the referral would automatically “fall” due to the reporter’s failure timeously to lodge a section 93 or 94 application. Instead, more technically perhaps, the correct analysis may be that no subsequent children’s hearing could competently extend the “grounds hearing” ICSO under section 96 of the 2011 Act, because the qualifying condition in section 96(1)(b) could not be satisfied and/or that the re-convened children’s hearing would be obliged to discharge the ground of referral. I need not express a concluded view on the correct analysis.

[142]    For completeness, it should be noted that applications for other provisional measures (such as interim interdict, interim diligence or orders under section 1 of the Administration of Justice (Scotland) Act 1971) could, in theory, also competently be pursued in proceedings for “provisional measures” in terms of article 20(1). Jurisdiction under domestic law for the grant of such provisional measures by the Scottish courts (notwithstanding the absence of substantive jurisdiction under the Council Regulation) is conferred by a different rule of law, namely by virtue of sections 27 & 28 of the Civil Jurisdiction & Judgments Act 1982, as extended to civil matters relating to parental responsibility by the Civil Jurisdiction and Judgments Act 1982 (Provisional and Protective Measures) (Scotland) Order (SI 1997/2780) (Maher & Rodger, supra, 9-06 to 9-07).

[143]    Lastly, it was mooted in submissions that, in the event of the present proceedings being dismissed, the local authority would be free simply to present a fresh child protection order, and the reporter could present fresh grounds of referral, in respect of the child on broadly similar grounds, in order to maintain the status quo. Alternatively, it was suggested that substantive proceedings may be capable of being pursued, on the basis that the child’s habitual residence may now be in Scotland, given his presence here in the preceding months.  As a strictly preliminary observation, I would note, in the first place, that an issue might arise as to whether successive “recycled” proceedings purportedly for provisional measures (such as a child protection order or repeated interim compulsory supervision orders in child referral proceedings) would satisfy the criterion of “urgency” in article 20(1) of the Council Regulation (see paragraphs [75] to [77], above). In the second place, an issue might arise as to whether such successive recycled proceedings constitute an abuse of process and, by extension, whether they are truly “available” under domestic law. In the third place, it seems doubtful to me that the place of a child’s habitual residence could be said to have changed in the period during his or her wrongful enforced residence in a country pursuant to a series of incompetent measures taken by the State a fortiori in the face of opposition from the child’s parents (In the matter of A (Children) [2013] UKSC 60, at paragraphs 42, 43 & 56 per Baroness Hale and paragraphs 88 & 91-93 per Lord Hughes). However, I did not hear full argument on any of these issues therefore I express no final view upon them.

 

Decision

[144]    For the foregoing reasons, pursuant to article 17, I declared that this court has no jurisdiction as to the substance of the matter in terms of the Council Regulation.

[145]    Further, in respect that the proceedings are not competent under the domestic law of Scotland, absent the habitual residence of the child in Scotland as required by rule 3.45 of the 1997 Rules, I concluded that the proceedings do not fall within the scope of the exception in article 20(1) of the Council Regulation as they do not constitute such provisional measures as are “available” under the (domestic) law of the member state (and territorial unit thereof) in which they are taken. Therefore, I dismissed the application as incompetent and discharged the grounds of referral.

[146]    Lastly, a declaration of no jurisdiction under article 17 may trigger an obligation on the part of a court to communicate that decision to the court of the member state that does have substantive jurisdiction, in order that the latter court may take such measures as it considers appropriate for the protection of the child’s best interests (Proceedings brought by A, supra, paragraphs 65 & 70; [2010] Fam. 42). It seems appropriate to do so in the present case. Pursuant to article 55(c) of the Council Regulation, and in compliance with the spirit of the guidance issued by the CJEU in Proceedings brought by A, supra, I appointed the sheriff clerk to communicate the import of this interlocutor to the relevant Polish court(s) via the Scottish central authority designated under articles 53 & 66(c) of the Council Regulation.