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APPEAL BY STATED CASE BY ANNE MARIE MCGINLEY, LOCALITY REPORTER MANAGER AGAINST LZ AND RZ


Submitted: 28 July 2017

Web Blue CoS

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 51

XA23/17

 

Lord Brodie

Lord Drummond Young

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD BRODIE

in the appeal by stated case against the decision of the sheriff under section 93(2)(a) and 94(2)(a) of the Children’s Hearings (Scotland) Act 2011

by

ANNE MARIE MCGINLEY, Locality Reporter Manager on behalf of the Principal Reporter

Applicant and appellant

against

LZ

First respondent

and

 

RZ

Second respondent

 

Appellant:  Brabender;  Anderson Strathern LLP

First Respondent:  Reid;  Lee Doyle, Solicitors

Second Respondent;  J Scott QC, Aitken;  Drummond Miller LLP

28 July 2017

Introduction
[1]        This is an appeal by way of stated case, as provided for by section 163 (1)(a)(i) of the Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”), from a decision of the sheriff at Glasgow (Sheriff Reid), made on 13 December 2016, finding that the court had no jurisdiction in terms of Article 17 of Council Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, and that, accordingly, applications by the Reporter in respect of the child AZ under sections 93 (2) (a) and 94 (2) (a) of the Act (“the sections 93 and 94 applications”) must be dismissed and the grounds of referral therein discharged.  The appellant is the Locality Reporter Manager on behalf of the Principal Reporter.  The first respondent is AZ’s mother.  The second respondent is AZ’s father.

[2]        The questions of law stated by the sheriff for the opinion of the court are:

(1)        Did I err in concluding that the present proceedings do not fall within the terms of Article 20(1) of the Council Regulation?

(2)        Did I err in dismissing the present proceedings and discharging the grounds of referral in respect of the child?

 

The Underlying Factual Circumstances
[3]        The following factual circumstances were either agreed or appear to be uncontroversial.

[4]        AZ was born in March 2016 in Poland.  He is a Polish national, and he was habitually resident in Poland on the date on which the Sheriff Court was seised of the present proceedings.  His mother is LZ, a Polish national, who is the first respondent.  His father is RZ, who is the second respondent.  LZ and RZ are married.  They married in Poland on 12 February 2014.  They are also the parents of a daughter, YZ, who was born in February 2014.

[5]        LZ, RZ and YZ lived together in Glasgow in 2015.  During that period YZ sustained very serious injuries.  YZ was the subject of a referral to a Children’s Hearing on grounds alleging that these injuries were caused by assaults on her by LZ and RZ or one or other of them, and further that LZ and RZ had failed to seek adequate medical attention for YZ, in contravention of section 12 of the Children and Young Persons Act 1937. YZ has been an inpatient in the Royal Hospital for Children, Glasgow, having been admitted on 3 September 2015. As at the date of hearing of this appeal she was in foster care.

[6]        LZ returned to Poland.  The appellant states that this was on 3 March 2016.  She remained there until coming back to Scotland with AZ on or about 25 July 2016 for what she intended to be a short visit, leaving on 4 August.  She held return airline tickets to Poland for herself and AZ.  However, on 1 August 2016 a child protection order in terms of section 37 of the Act was granted in respect of AZ by the sheriff at Glasgow to authorise his removal to a place of safety on the basis that there were reasonable grounds to believe that he would otherwise suffer significant harm and that the order was necessary to protect him from that harm.  AZ was removed from his mother’s care to a place of safety and looked after by local authority foster carers.  That section 37 order was an interim compulsory supervision order in terms of section 86 of the Act.  The order was extended following on application in terms of section 98, pending determination of the sections 93 and 94 applications

[7]        The sections 93 and 94 applications were made by the appellant on 12 August 2016.  The appellant had made a referral to a Children’s Hearing, believing that the grounds specified in section 67 (2)(d), (c) and (a) of the 2011 Act applied in respect of AZ.  Given that LZ did not accept the grounds and that because of his age AZ was not capable of understanding the grounds, the Children’s Hearing directed the appellant to apply to the sheriff in order that the sheriff might determine whether the grounds were established.

[8]        On 22 November 2016 a diet on 8 December 2016 was assigned as a procedural hearing, before Sheriff Reid, for discussion of the issue of jurisdiction.  Having heard submissions on behalf of LZ, RZ and the now appellant, on 13 December 2016 the sheriff made the orders under appeal.  Pursuant to Article 55(c) of the Council Regulation, the sheriff 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 and 66(c) of the Council Regulation.

[9]        Following upon the sheriff’s refusal of the sections 93 and 94 applications and his discharge of the referral, AZ was again referred to a Children’s Hearing which directed the Principal Reporter to make a further application to the sheriff to determine whether the grounds there specified (being the same grounds as were founded on in the applications under appeal) were established.  The sheriff at Glasgow permitted the further applications to proceed pending a determination on jurisdiction.  We observe parenthetically that Sheriff Reid envisaged the possibility of the making of such further applications and that he questioned whether given the passage of time and the continuing inaction of the Polish court having substantive jurisdiction, this could be said to be an “urgent” case and thus amenable to Article 20 compliant provisional and protective measures.  Repeated applications purportedly to seek provisional measures might, the sheriff suggested, be regarded as an abuse of process.  Moreover, he doubted whether the enforced presence of a child 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, could change the child’s habitual residence (cf In the matter of A (Children) [2013] UKSC 60, Baroness Hale at paragraphs 42, 43 and 56 per and Lord Hughes at paragraphs 88 and 91 to 93) (see sheriff’s note paras [75] to [77] and [143]).  Sheriff Reid of course did not require to come to a view on these matters.  Neither do we.

[10]      Again subsequent to the decision of 13 December 2016, the grounds of referral in respect of YZ have been found established in terms finding that RZ was responsible for the injuries sustained by YZ and that LZ was not.  On 6 April 2017 the Children’s Hearing made an interim compulsory supervision order in terms of which AZ was returned to the care of LZ on condition that RZ is not present and is not allowed unsupervised contact with AZ.  We were advised that steps are underway to return YZ to LZ’s care and that she proposes to return with her to Poland where she will have the benefit of family support.  As is more fully explained below, the Polish authorities have been informed of the Scottish proceedings.  We take it that they are or will be made aware of LZ’s imminent return to Poland.

 

An Academic Issue?
[11]      Put shortly, the issue raised in this appeal is whether the sheriff was correct to hold that he, or more properly the Scottish courts and in particular the Children’s Hearing, did not have jurisdiction to proceed further in matters of parental responsibility in respect of AZ.  The sheriff described that issue as “interesting and anxious”.  When the case was before him he was fully entitled to apply that description.  We have, however, been advised that there have been developments.  As has already been touched on, consistent with her position that the Children’s Hearing can and must seek to protect the welfare of AZ using the provisions of Part 6 of the Act the appellant has proceeded, full in the face of the sheriff’s determination of no jurisdiction, to make a further application.  In that she has had the cooperation of Sheriff Reid’s colleagues.  Notwithstanding agreement among the parties that as at August 2016 AZ was habitually resident in Poland we were advised that evidence as to habitual residence has been led in the further application.  Whatever might be said about that, the result is that our answers to the questions posed by the sheriff in the stated case will have no effect on what will happen to AZ.  As we understood it, the intention is that he will return to Poland together with his mother and sister and the Polish authorities will then have the opportunity to assess the situation and take such action, if any, as they consider proper. 

[12]      The question therefore arose as to whether we should entertain the appeal.  It is not the business of the court to deal with matters which are no longer of any practical importance to anybody involved in the case and have therefore become of merely academic interest.  However, Ms Brabender, on behalf of the appellant, and Mrs Scott, on behalf of the second respondent, urged us to hear argument with a view to issuing a decision.  Resolution of the jurisdiction question would be of assistance in respect of associated proceedings and more generally.  Mrs Scott referred us to what had been done in Sloan v B 1991 SC 412 and took us to the passage in Lord Hope’s opinion which appears at 431.  Mr Reid, on behalf of the first respondent, recognised that his client had already secured an outcome satisfactory to her but he expressed his willingness to present submissions with a view to assisting the court. 

[13]      Following the example of the court in Sloan, we decided to hear the appeal.  As of the date when the appeal came before us for hearing AZ was present in Scotland. As long as that remains the case, notwithstanding the further referral, determination of the appeal one way or the other may have practical consequences for AZ.  In any event, we were satisfied that the stated case raised a question or questions which are of real and practical concern and which have not been the subject of authoritative determination.  Our decision on the stated case may therefore be of some assistance in future cases.  Importantly, there had been considerable investment of time, skill and labour on the part of Sheriff Reid and the parties’ representatives which, if we were not prepared to take advantage of it, might be said to have been wasted or at least not fully utilised.  All in all, with all relevant parties present and prepared to argue the salient points and a court convened with time to hear argument, it seemed best to proceed.

 

Council Regulation (EC) No 2201/2003 of 27 November 2003
[14]      Jurisdiction in matrimonial matters and matters of parental responsibility is allocated among member states of the European Union by Council Regulation (EC) No 2201/2003 of 27 November 2003 (the “Council Regulation”) concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, sometimes referred to as Brussels II bis or Brussels IIR (“bis” or “IIR” because it revised and replaced the previous regulation, Brussels II).

[15]      The following provisions of the Council Regulation are of particular relevance:

“Whereas

 

(1) The European Community has set the objective of creating an area of freedom, security and justice, in which the free movement of persons is ensured. To this end, the Community is to adopt, among others, measures in the field of judicial cooperation in civil matters that are necessary for the proper functioning of the internal market.

 

(2) The Tampere European Council endorsed the principle of mutual recognition of judicial decisions as the cornerstone for the creation of a genuine judicial area, and identified visiting rights as a priority.

 

...

 

(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child's habitual residence, except for certain cases of a change in the child's residence or pursuant to an agreement between the holders of parental responsibility.

 

...

 

(16) This Regulation should not prevent the courts of a Member State from taking provisional, including protective measures, in urgent cases, with regard to persons or property situated in that State.

 

Article 1

Scope and Definitions

 

This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:

 

...

(b) the attribution, exercise, delegation, restriction or termination of parental responsibility

 

2. The matters referred to in paragraph 1(b) may, in particular, deal with:

...

(d) the placement of the child in a foster family or in institutional care;

...

 

Article 2

Definitions

For the purposes of this Regulation:

 

1. the term ‘court' shall cover all the authorities in the Member States with jurisdiction in the matters falling within the scope of this Regulation pursuant to Article 1; 2. the term ‘judge' shall mean the judge or an official having powers equivalent to those of a judge in the matters falling within the scope of the Regulation;

 

...

 

7. the term ‘parental responsibility' shall mean all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access;

 

...

 

Article 8

General jurisdiction

 

1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

 

...

 

Article 13

Jurisdiction based on the child's presence

 

1. Where a child's habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction.

 

2. Paragraph 1 shall also apply to refugee children or children internationally displaced because of disturbances occurring in their country.

 

Article 14

Residual jurisdiction

 

Where no court of a Member State has jurisdiction pursuant to articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State.

...

Article 17

Examination as to jurisdiction

 

Where a court of a Member State is seised of a case over which it has no jurisdiction under this Regulation and over which a court of another Member State has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction.

...

 

Article 20

Provisional, including protective, measures

 

1. In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.

 

2. The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.”

 

Children’s Hearings (Scotland) Act 2011
[16]      The 2011 Act provides, inter alia, as follows:

“PART 2 – THE PRINCIPAL REPORTER AND THE SCOTTISH CHILDREN’S REPORTER ADMINISTRATION

...

 

17 Duty as respects location of children's hearing

The Principal Reporter must ensure that, so far as practicable, a children's hearing takes place in the area of the relevant local authority for the child to whom the hearing relates.

 

PART 5 – CHILD ASSESSMENT AND CHILD PROTECTION ORDERS

 

....

 

37 Child protection orders

(1)        A person may apply to the sheriff for a child protection order in respect of a child.

(2)        A child protection order is an order doing one or more of the following—

(a)   requiring any person in a position to do so to produce the child to a specified person,

(b)  authorising the removal of the child by the specified person to a place of safety and the keeping of the child in that place,

(c)   authorising the prevention of the removal of the child from any place where the child is staying (whether or not the child is resident there),

(d)  authorising the carrying out (subject to section 186) of an assessment of—

(i)  the child's health or development, or

(ii) the way in which the child has been or is being treated or neglected.

(3) A child protection order may also include any other authorisation or requirement necessary to safeguard or promote the welfare of the child.

 

38 Consideration by sheriff: application by local authority only

(1)        This section applies where an application for a child protection order in respect of a child is made by a local authority.

(2)        The sheriff may make the order if the sheriff is satisfied that—

(a)   the local authority has reasonable grounds to suspect that—

(i)  the child has been or is being treated in such a way that the child is suffering or is likely to suffer significant harm,

(ii) the child has been or is being neglected and as a result of the neglect the child is suffering or is likely to suffer significant harm, or

(iii)  the child will be treated or neglected in such a way that is likely to cause significant harm to the child,

(b) the local authority is making enquiries to allow it to decide whether to take action to safeguard the welfare of the child, or is causing those enquiries to be made,

(c) those enquiries are being frustrated by access to the child being unreasonably denied, and

(d) the local authority has reasonable cause to believe that access is required as a matter of urgency.

...

PART 6 – INVESTIGATION AND REFERRAL TO CHILDREN’S HEARINGS

...

66 Investigation and determination by Principal Reporter

(1)        This section applies where—

(a)        the Principal Reporter receives in relation to a child—

(i)         notice under section 43 of the making of a child protection order,

(ii)        information from a local authority under section 60,

(iii)       information or a report from a constable under section 61,

(iv)       a section 62 statement,

(v)        evidence under section 63,

(vi)       information from a person under section 64,

(vii)      information from a constable under section 43(5)  of the Criminal Procedure (Scotland) Act 1995 (c.46) ,

(viii)     a reference from a court under section 48(1)  of the Criminal Procedure (Scotland) Act 1995 (c.46), or

(b)        it appears to the Principal Reporter that a child might be in need of protection, guidance, treatment or control.

(2)        The Principal Reporter must determine—

(a)        whether the Principal Reporter considers that a section 67 ground applies in relation to the child, and

(b)        if so, whether the Principal Reporter considers that it is necessary for a compulsory supervision order to be made in respect of the child.

 

67 Meaning of ‘section 67 ground’

(1)        In this Act ‘section 67 ground’, in relation to a child, means any of the grounds mentioned in subsection (2).

(2)        The grounds are that—

(a)        the child is likely to suffer unnecessarily, or the health or development of the child is likely to be seriously impaired, due to a lack of parental care,

(b)        a schedule 1 offence has been committed in respect of the child,

(c)        the child has, or is likely to have, a close connection with a person who has committed a schedule 1 offence,

(d)       the child is, or is likely to become, a member of the same household as a child in respect of whom a schedule 1 offence has been committed,

...

 

69 Determination under section 66: referral to children's hearing

(1)        This section applies where, having made a determination under section 66(2) in relation to a child, the Principal Reporter considers that it is necessary for a compulsory supervision order to be made in respect of the child.

(2)        The Principal Reporter must arrange a children's hearing for the purpose of deciding whether a compulsory supervision order should be made in respect of the child.

(3)        If the child is being kept in a place of safety under subsection (4) of section 43  of the Criminal Procedure (Scotland) Act 1995 (c.46) at the time the determination is made, the children's hearing must be arranged to take place no later than the third day after the Principal Reporter receives the information under subsection (5) of that section.

 

...

 

PART 9 – CHILDREN’S HEARING

...

93 Grounds not accepted: application to sheriff or discharge

(1)        This section applies where—

(a)        at least one of the grounds specified in the statement of grounds is accepted but the grounds hearing does not consider that it is appropriate to make a decision on whether to make a compulsory supervision order on the basis of the ground or grounds that have been accepted, or

(b)        none of the grounds specified in the statement of grounds is accepted.

(2)        The grounds hearing must—

(a)        direct the Principal Reporter to make an application to the sheriff for a determination on whether each ground that is not accepted by the child and ... each relevant person in relation to the child is established, or

(b)        discharge the referral.

...

(5)        If the grounds hearing considers that the nature of the child's circumstances is such that for the protection, guidance, treatment or control of the child it is necessary as a matter of urgency that an interim compulsory supervision order be made, the grounds hearing may make an interim compulsory supervision order in relation to the child.

 

94 Child or relevant person unable to understand grounds

(1)        Subsection (2) applies where the grounds hearing is satisfied that the child or a relevant person in relation to the child—

(a)        would not be capable of understanding an explanation given in compliance with section 90(1) in relation to a ground, or

(b)        has not understood the explanation given in compliance with section 90(1) in relation to a ground.

(2)        The grounds hearing must—

(a)        direct the Principal Reporter to make an application to the sheriff to determine whether the ground is established, or

(b)        discharge the referral in relation to the ground

 

...

 

201 Meaning of ‘relevant local authority’

(1)        In this Act, ‘relevant local authority’, in relation to a child, means—

(a)        the local authority in whose area the child predominantly resides, or

(b)        where the child does not predominantly reside in the area of a particular local authority, the local authority with whose area the child has the closest connection.

...”

 

Child Care and Maintenance Rules
[17]      The Child Care and Maintenance Rules, SI 1997/291 (the “CCMR”) are made and amended, by Act of Sederunt, in terms inter alia of section 32 of the Sheriff Courts (Scotland) Act 1971.  For present purposes the relevant amendment (to Rule 3.45(1)) was in terms of the Act of Sederunt (Children’s Hearings (Scotland) Act 2011 (Miscellaneous Amendments) SSI 2013/172.

[18]      As so amended, Rule 3.45(1) CCMR provides:

“Within a period of 7 days beginning with the date on which the Principal Reporter was directed in terms of section 93 (2) (a) or 94 (2) (a) of the 2011 Act to make an application to the sheriff, the Principal Reporter shall lodge an application in Form 60 with the sheriff clerk of the sheriff court district in which the child is habitually resident”

 

[19]      Rule 3.45 (1A) provides:

“Paragraph (1) is subject to the terms of section 102 (2) of the 2011 Act.”

 

The Decision of the Sheriff
[20]      Pursuant upon Article 17 of the Council Regulation the Sheriff Reid declared that the sheriff court had no jurisdiction in relation to the substance of the matter of which it was seised.  He has provided a full and careful judgment explaining that decision in the form of a note.  It is sufficient for our present purposes that we summarise that judgment in brief terms, as the sheriff himself did at the beginning of his note.  By doing so we intend no disrespect to what is a meticulous examination of the case in the light of a lengthy analysis of the Council Regulation and its associated jurisprudence.  The detail of the sheriff’s note was not the subject of the submissions before us.  It has nevertheless informed our consideration of the issues.

[21]      The sheriff records that it had been conceded before him that the present proceedings, being a civil matter relating to the attribution, exercise, delegation, restriction or termination of parental responsibility fell within the (wide) scope of the Council Regulation.  Domestic legislation did not confer a jurisdiction on the sheriff in relation to substantive decisions as to the attribution etc. of parental responsibility but applications under section 93 or 94 of the 2011 Act were an adjunct to and intertwined with proceedings before a Children’s Hearing arranged by virtue of section 69(2).  The sheriff accordingly took the view that for him to have jurisdiction to make an order on a section 93 or section 94 application having been made to him, the basis of that jurisdiction must be found in the Council Regulation.  Given the terms of Articles 8 to 14 the sheriff considered that he could only entertain the applications if he was permitted to do so by Article 20 (1). 

[22]      As at the date of his decision the Polish courts had taken no action (and that remained so when the appeal was considered by this court) but in the sheriff’s judgment, the proceedings under sections 93(2)(a) and 94(2)(a) of the 2011 Act did not fall within the exception provided by Article 20(1) of the Regulation.  There was nothing in section 43 of the Courts Reform (Scotland) Act 2014 that could be founded upon to confer jurisdiction.  Section 102 of the 2011 Act made explicit provision for jurisdiction in cases involving alleged criminal offending by children but that section did not apply in the present case and no other enactment or rule of law had been prayed in aid to allow the sheriff to entertain the present applications.  That, in the opinion of the sheriff was because, according to Scots domestic law, and specifically Rule 3.45 of the CCMR, proceedings must be presented to the sheriff within whose jurisdiction the child is “habitually resident”.  As AZ was not habitually resident within the jurisdiction of Glasgow Sheriff Court (or, indeed, anywhere in Scotland) the present proceedings were ex facie incompetent due to lack of jurisdiction. 

[23]      For these reasons the sheriff declared that the court had no substantive jurisdiction.  He dismissed the application as incompetent and discharged the grounds of referral.

 

Submissions of Parties
Generally
[24]      Each of the parties provided the court in advance of the hearing with full and clearly articulated notes of argument containing relevant citations of statutory provisions and authorities.  These were adopted as setting out the substance of the parties’ respective arguments.  Counsel also made oral submissions. 

[25]      Parties were agreed that the issue was a relatively narrow one.  The jurisdiction of the Children’s Hearing and the ancillary jurisdiction of the sheriff depended on the Council Regulation.  Given that it was agreed that AZ was habitually resident in Poland, the Polish courts and not the Scottish courts had jurisdiction in matters of parental responsibility, save in circumstances to which Article 20 of the Regulation applied.  The sheriff had been right to make the declaration that he had in terms of Article 17.  Article 20(1) of the Regulation provided that, in urgent cases, nothing in the Council Regulation prevented 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.  Thus, the Scottish courts (an expression which included the Children’s Hearing) only have jurisdiction in respect of AZ if:  (1) the case is urgent;  (2) the measures to be taken are provisional;  (3) AZ is present in Scotland;  and (4) the measures are available under Scots law.  Circumstances (1) and (3) were accepted as applicable to the case of AZ.  Circumstances (2) and (4) were disputed.  Thus, the focus came to be on two questions:  (i) were the proposed measures under Part 6 of the 2011 Act “provisional”? and (ii) were the proposed measures “available”?  The appellant submitted that both of these questions should be answered in the affirmative with the result that the Children’s Hearing be found to have jurisdiction.  Both the first and second respondents submitted that each of the questions should be answered in the negative but even if the first question were answered in the affirmative, the second question must be answered in the negative, with the result that the Children’s Hearing be found not to have jurisdiction.

 

The Appellant – The Locality Reporter Manager
[26]      The court was invited by the appellant to answer both questions stated by the sheriff in the affirmative, to recall part 2 of the sheriff’s interlocutor (refusing the application) and to remit to the sheriff to determine further procedure.

[27]      The appellant’s note of argument begins by advancing six propositions:

1.         Jurisdiction in applications in terms of section 93 and 94 of the Children’s Hearings (Scotland) Act 2011 is conferred by the Council Regulation (EC) No 2201/2003 of 27 November 2003 (“the Council Regulation”) and the terms of the said 2011 Act.

2.         The Children’s Hearings (Scotland) Act 2011 neither defines “the sheriff” nor limits jurisdiction to any particular sheriff except in terms of section 102.

3.         Rule 3.45 of the Child Care and Maintenance Rules is an administrative provision which neither confers nor excludes jurisdiction.

4.         The purpose of Article 20 of the Council Regulation is to ensure that no child is left unprotected in a member state which lacks substantive jurisdiction.

5.         The terms of Rule 3.45 the Child Care and Maintenance Rules do not limit the measures available in Scots law for the protection of children.

6.         If necessary, as there is an obvious drafting error in Rule 3.45 the Child Care and Maintenance Rules and had the error been noticed, the provision would have included presence of the child in absence of habitual residence in any sheriff court district, the court can read the terms of Rule 3.45 so as to correct the error.

[28]      While Article 20 (1), as an exception to the general rule stated in Article 8, must in principle be interpreted narrowly, “the courts must be permitted in urgent cases to take all the measures that are necessary in the interests of the child’s welfare”:  Proceedings brought by A Case-523/07, [2009] ECR I-2805 [2010] Fam 42 AG paragraph 56.  Theoretically the powers conferred by section 37 could be used to order the return of a child to its country of habitual residence but the submissions of the second respondent on this point ignored practicalities.  A child protection order had a maximum span of eight days whereas an order for return could only be made once arrangements had been made for the reception of the child which ensured the protection of its welfare.  In the present case the Polish central authority (the Ministry of Justice) had taken some time to respond to communications from the Scottish central authority.  The appellant had requested that the Polish central authority be informed early in August 2016 of AZ’s Polish habitual residence and the allegation made against his parents, with an offer to provide supplementary medical information.  It was counsel’s understanding that the Scottish central authority had immediately passed this on (although we note a reference in an email of 28 December 2016 from the Polish central authority to “your letter dated 1 September 2016” which might indicate a somewhat later initial communication from Scotland).  It was only on 24 October 2016 that the Polish authority replied, apologising for the delay, explaining that it was caused by it not knowing the address at which LZ had last lived in Poland, stating that the request had been submitted to the court of Wolomin and advising that “we want to carry out a home assessment at her actual place of residence”.  A reply was promised “within the next two weeks or so” but it was only on 28 December 2016 that the Polish authority emailed to advise: that it had had much difficulty in finding AZ’s place of residence prior to their leaving Poland but having contacted “the proper court in Warsaw”, if “the mother and child appeared in Poland, it would be immediately possible to assess the child’s social situation by the court guardian and, if necessary, to pass a court judgment ordering provisional measures to protect the child’s well-being.”  If, as the respondents argued, the appellant could never make a referral on a section 67 ground that would mean that proceedings in relation to a child who is not habitually resident in Scotland must always be brought to an end after eight days, with no enquiry into the facts. 

[29]      As AZ was habitually resident in Poland it had been correct for Sheriff Reid to make a declaration of no substantive jurisdiction and appropriate for him to send the interlocutor and the application to the Scottish central authority for onward transmission to the Polish central authority.  However, having regard to the Council Regulation and all the provisions of the Act, it was submitted that the Children’s Hearing has jurisdiction in relation to children present or found in Scotland and who are in need of protection, guidance, treatment or control.  In consequence of section 17 of the Act, if the Children’s Hearing is arranged it is then heard in the area of the local authority in which the child predominantly resides or, in the absence of such a local authority, in the area of the local authority with whose area the child has closest connection.  It is consistent that the jurisdiction of the sheriff should lie with the sheriff court district of habitual residence of the child or, where the child is not habitually resident in any sheriff court district, the sheriff court where the child is present.  That would allow for the provisions of the Act to apply to all children in need of protection including those who are present in Scotland but who are not habitually resident in Scotland. 

[30]      As far as the measures being “available” was concerned, the sheriff had erred in his reliance on Rule 3.45(1) of the CCMR.  The CCMR are merely administrative and procedural in nature.  They do not purport to confer jurisdiction on any particular sheriff.  Their administrative purpose is to promote proceedings taking place in a location that has a connection to the child, consistent with the provisions of the Act.  Rule 3.45(1) CCMR provides that an application in terms of section 93 or section 94 of the Act should be lodged with the sheriff clerk of the sheriff court district in which the child is habitually resident.  However, if it is to be interpreted in compliance with the Council Regulation the rule should be read to provide that where the child is not resident in any sheriff court district the application should be lodged with the sheriff clerk of the sheriff court district in which the child is present.  If on the other hand, the rule cannot be so interpreted it must be concluded that it contains an obvious and fundamental error of drafting which the court can correct applying the principles set out in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 and approved and applied in Scottish Water v Clydecare Ltd 2003 SC 330, Aberdeen City Council v Wokoma 2002 SC 352 and BP Oil (UK) Ltd v City of Edinburgh Licensing Board 2011 SC 632.  By inadvertence the draftsman of the provision amending CCMR, the Act of Sederunt (Children’s Hearings (Scotland) Act 2011 (Miscellaneous Amendments) SSI 2013/172, has failed to give effect to the jurisdictional requirements of the Council Regulation and the Act by failing to provide for children who are not habitually resident either in a particular sheriff court district or in Scotland whereas the jurisdictional requirements of the Council Regulation and the Act provide for such applications being made on the basis of the child’s presence in certain circumstances

 

The First Respondent – The Child’s Mother
[31]      The court was invited to answer both questions stated by the sheriff in the negative.

[32]      The terms of the Council Regulation reflected the judgement that the court best placed to assess the measures to be taken in the interests of a child was one which was geographically situated close to the child’s habitual residence: Purrucker v Vallés Pérez (No 1), C-256/090, [2011] Fam 254 at paragraph 91.  A national rule which prevented the application of that principle, as expressed in the Council Regulation, would require to be dis‑applied: Administrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77) [1978] ECR 629.  Given that the Scottish courts had no substantive jurisdiction in matters of parental responsibilities relating to AZ (as the Children’s Hearing should have declared) the question for the sheriff was whether he could nevertheless entertain the applications under appeal by virtue of Article 20.  However, Article 20 does not confer jurisdiction.  It merely permits the exercise of jurisdiction conferred by the domestic law:  Purrucker (No 1) AG paragraphs 103 to 116, EJC paragraphs 60 to 63.  The measures permitted are a matter for national law.  It would be a peculiar result if nevertheless it were Article 20 which determined the character of the permitted measures.  It is national law which should determine whether a measure is provisional or not.  Here the relevant provisions are found in the Act.  Adopting the submission for the second respondent, whereas orders made under Part 5 of the Act would qualify as provisional for the purposes of Article 20, a compulsory supervision order made pursuant to Part 6 would not.  A Part 6 order is aimed at finding a longer term solution; it is not provisional. 

[33]      The sheriff was correct to find that the measures proposed here, being measures in terms of Part 6 of the 2011 Act were not available in the case of AZ, albeit he was wrong to base his decision on CCMR Rule 3.45.  The CCMR are procedural only and cannot change the substantive law:  cf KP (Pakistan) v Secretary of State for the Home Department [2012] CSIH 38.  Rule 3.45 could not prevent the sheriff being seised by virtue of any of the alternative grounds provided by Articles 9 to 14 of the Council Regulation had they been applicable.  Whether there is jurisdiction is a matter of substantive law, to be determined by the terms of the 2011 Act (the sheriff having correctly identified that jurisdiction was not conferred by section 43 of the Courts Reform (Scotland) Act 2014).  The question then was what was meant by “the sheriff” in sections 93(2)(a) and 94(2)(a).  There were three options:  (a) any sheriff in Scotland;  (b) the sheriff in whose district the child happens to be;  and (c) the sheriff who would have jurisdiction under the Council Regulation.  Option (a) would be surprising in the light of the territorial nature of the sheriff’s jurisdiction.  It would run counter to the Purrucker (No 1) principle of the best interests of the child being best served by adjudication close to its place of habitual residence.  It would be inconsistent with section 41(5) of the 2014 Act which excludes proceedings under the Act from the power in the Scottish Ministers to confer all-Scotland jurisdiction.  Option (b) would be consistent with the decision in Glasgow City Council v M 2001 SC 415 but it would be inconsistent with the general jurisdiction established by the Council Regulation (and the Act should be interpreted in line with the Council Regulation);  Article 13 allows for jurisdiction based on the presence of the child, but only where the child’s habitual residence cannot be established.  Option (c) is the construction which is the most consistent with the scheme of the Act read with the Council Regulation but to read “the sheriff” in sections 93(2)(a) and 94(2)(a) as meaning simply the sheriff of the district in which the child is habitually resident is not tenable as a comprehensive construction in that only Article 8 of the Council Regulation grounds jurisdiction on habitual residence.  Jurisdiction based exclusively on habitual residence would mean that the sheriff would not have jurisdiction in any of the Article 9 to 13 cases.  Accordingly the construction must accommodate these articles as well as Article 8.

 

The Second Respondent – The Child’s Father
[34]      Properly analysed the Children’s Hearing had no jurisdiction in respect of the grounds of referral with a view to the making of a compulsory supervision order, as opposed to a child protection order (which is an Article 20 measure). 

[35]      The sheriff was correct to conclude that the proceedings before him did not fall within Article 20 of the Council Regulation and accordingly to dismiss them and discharge the grounds of referral.  AZ should be returned to Poland at the earliest opportunity so that the Polish authorities can take any necessary measures for his protection.  Had there been an emergency arising in Scotland that should have happened immediately.  The statutory code for the urgent and provisional protection of children is set out in Part 5 of the 2011 Act.  The sheriff’s Part 5 powers are extensive when applied to for a child protection order;  the order may include any authorisation or requirement necessary to safeguard or promote the welfare of the child:  section 37(3) of the Act.  The sheriff who granted the order in respect of AZ on 1 August 2016 could have required AZ to be produced to a person to be returned to Poland in terms of section 37(2)(a).  He could have made a direction that AZ be returned to Poland in exercise of his powers under section 42(2)(a).  The local authority will have notified the appellant under section 43 and a Children’s Hearing will have been arranged on the second working day after the child protection order was granted: sections 45 and 46.  The hearing had the power to continue, vary or terminate child protection order by making provision for return to Poland and notification of the relevant authorities.  Alternatively, had the parents applied to the sheriff under sections 48 and 49, there would have been no second working day hearing: sections 45(1)(c) and 46(1)(c), although there could have been a hearing to provide advice to the sheriff under section 50.  The sheriff would hear the case within three working days:  section 51(3), and it would be open to him to terminate, vary or confirm the child protection order making provision for return to Poland and notification of the relevant authorities.  None of this happened. 

[36]      In addition to the powers of the sheriff under Part 5 of the 2011 Act, in cases of urgency a police officer can remove a child to a place of safety in terms of section 56 and a justice of the peace may grant a short-term child protection order in terms of section 55.  In the past the Court of Session has exercised its nobile officium in the absence of statutory authority:  Humphries v X and Y 1982 SC 79, Cumbria County Council Petitioner 2017 SLT 34.  This is consistent with English authority where resort has been had to inherent jurisdiction in wardship when jurisdiction is uncertain:  In re E (A Child) [2014] 1 WLR 2670 paragraphs 38 to 48, but cf Re S (Care; Jurisdiction) [2009] 2 FLR 550 at paragraph 50. 

[37]      Consistent with the fact that provisional measures are exceptional they must be both urgent and it must be impossible in practice to bring the application before the court with substantive jurisdiction:  Detiček v Sgueglia (Case C-403/09 PPU [2010] Fam 104 paragraph 42.  In the context of measures for the protection of children this must mean that it would not be possible for the domestic authorities in the place of the child’s habitual residence to take immediate steps to protect the child.

[38]      While there are difficulties relating to the jurisdiction of Children’s Hearings it is not necessary to resolve what is the effect of the decision in Mitchell v H 2000 SC 334 and CCMR Rule 3.45 because the sections 93 and 94 applications have no independent existence, they are merely ancillary to the referral; proceedings are commenced when the reporter refers the child, this being the point of seisure for the purposes of the Council Regulation; and it is for the Children’s Hearing to declare it has no jurisdiction.  There was no jurisdiction to make a compulsory supervision order.  Whereas an interim compulsory supervision order may be provisional in its effect it can only be made in the context of a referral to a hearing.  The sheriff had been correct to dismiss the proceedings and discharge the grounds of referral. 

[39]      The court should, if necessary acting pursuant to its nobile officium, order the immediate return of the child to Poland and ordain his mother to notify the Polish central authority of the time of her arrival. 

 

Decision
Introduction
[40]      As narrated above, it is uncontroversial that in order for a Scottish court (which expression includes the Children’s Hearing) to take any measures in respect of matters of parental responsibility over a child it must have jurisdiction and that that jurisdiction must either be derived from or be permitted by the terms of the Council Regulation.  General (also referred in argument as “substantive”) jurisdiction is conferred by Article 8 on the courts of the Member State in which the child is habitually resident at the time the court is seised.  Articles 9 to 14 confer jurisdiction on courts other than those of the Member State in which the child is habitually resident in certain specified exceptional circumstances.  AZ was not habitually resident in Scotland at the relevant date.  None of the exceptional circumstances apply to his case.  The Children’s Hearing therefore did not have substantive jurisdiction and it, rather than the sheriff, should have made a declaration to that effect in terms of Article 17 of the Council Regulation, as soon as it was seised the case.  However that is not the end of the matter.  In urgent cases, Article 20 permits the taking of provisional, including protective, measures as may be available under the law of that Member State.  According to the respondents, while that may be, the measures which are proposed are neither provisional nor, in respect of a child who is not habitually resident, such as AZ, are they available.  We will address these points in turn. 

 

Provisional, Including Protective, Measures

[41]      We were advised by counsel that they had considered the text of Article 20 of the Council Regulation in a number of Community languages but their research had not disclosed an equivalent formulation of “provisional, including protective, measures” which suggested anything different from the natural English meaning of the relevant words.  The result of counsel’s research may therefore not be thought to have taken matters very far forward, but in our opinion the research was in the right direction: looking to understand the autonomous meaning of “provisional” within the context of Article 20.  We would see that autonomous meaning to be clear.  What is allowed by Article 20 are court orders which are temporary in their effect, liable to being superseded by orders of the court having substantive jurisdiction, and imposed for purposes which include the protection of a child at risk in situations of urgency. 

[42]      A distinction was made in argument between measures taken under Part 5 of the 2011 Act, on the one hand, and measures taken under Part 6, on the other.  Part 5 measures include child assessment orders (section 35), child protection orders (section 37), directions by the sheriff as to non‑disclosure, contact and parental responsibilities and rights (sections 40 to 42), orders made by a justice of the peace (section 55), and the removal of a child to a place of safety by a constable (section 56).  Parties were agreed that Part 5 measures were provisional, as that term is used in Article 20.  However, they were at issue on Part 6 measures.

[43]      Part 6 of the 2011 Act has as its cross heading “Investigation and Referral to Children’s Hearing”.  It contains provision for the giving of information to the Principal Reporter and the determination by the Reporter on the basis of that information or it otherwise appearing to him that a child might be in need of protection, guidance, treatment or control; whether he considers that a section 67 ground applies in relation to the child and that it is necessary that a compulsory supervision order should be made (section 66).  If the Reporter determines that it is necessary for a compulsory supervision order to be made in respect of the child, he must then arrange a Children’s Hearing (section 69).  It is the compulsory supervision order and the measures associated with making and reviewing it that were referred to in argument as Part 6 measures (albeit that provision for these measures is also to be found in Parts 7 to 18 of the Act).  It is the Children’s Hearing which makes a compulsory supervision order but a compulsory supervision order can only be made if the section 67 ground is accepted or is established.  Where, as in the present case, the grounds of referral are not accepted by the respondents and the child concerned is too young to understand the grounds, they must be established by the sheriff as provided for by sections 93 and 94 of the Act.  Thus, although it is not the sheriff who makes a compulsory supervision order, the applications that we are immediately concerned with are, as the sheriff put it, an adjunct to and intertwined with proceedings before a Children’s Hearing arranged by virtue of section 69(2).  They are applications with a view to the taking of Part 6 measures and fall to be considered accordingly.

[44]      Counsel emphasised the difference between Part 5 measures and Part 6 measures.  The former were summary and of very short‑term effect.  While the latter included an interim compulsory supervision order, as defined by section 86, such an order could only be made in the context of a referral to a Children’s Hearing with a view to the imposition of an order with longer effect.  Part 6 was concerned with the substance of the attribution, exercise, delegation, restriction or termination of parental responsibility with the relevant decisions being made for the longer term at a full hearing in the light of evidence.  While Part 5 measures were provisional within the meaning of Article 20 of the Council Regulation, Part 6 measures were not. 

[45]      We accept that a distinction can be made between the nature of Part 5 measures and the nature of Part 6 measures.  Insofar as they take the form of judicial orders, Part 5 measures have a purely interim character.  Part 6 measures, on the other hand, are aimed at a determination of whether a compulsory supervision order should be made and on what terms.  Such an order has a more long-term character, albeit that it is subject to review.  However, agreeing with the sheriff, concentrating on the general nature of a measure or procedure which may be taken or followed and then characterising it from the perspective of domestic law, is liable to miss the point.  In a case where the Children’s Hearing has jurisdiction as to the substance of the matter (by virtue of Article 8 of the Regulation), the taking of Part 6 measures and, in particular, referral to the hearing with a view to it deciding whether to make a compulsory supervision order is the means available under Scots law by which that substantive jurisdiction may be exercised.  It does not follow that where, as here, the Children’s Hearing does not have jurisdiction (because the child is habitually resident in another Member State), Part 6 procedures may not be utilised as a means of taking measures which can be characterised as provisional in the Article 20 sense in urgent cases.  In that connection we observe that a compulsory supervision order has a very wide definition in terms of section 83 and, in terms of section 83(2)(i), it might include an order that the local authority responsible for giving effect to the order make the necessary and appropriate arrangements to return a child to the Member State having substantive jurisdiction. 

[46]      Here, the appellant accepts that the Scottish courts do not have substantive jurisdiction.  She has nevertheless instituted the taking of measures under Part 6 of the Act because she believes them to be necessary for the protection of the welfare of AZ.  There is no issue as to the genuineness of that belief.  At least for present purposes it is accepted that the case is urgent.  The temporary and therefore provisional nature of the measures taken by the appellant arises from the fact that, pursuant to Article 20 (2) of the Regulation, they cease to apply when the Polish court has taken the measures it considers appropriate (something which is still awaited):  Proceedings brought by A at ECJ paragraph 48.  We therefore consider that the proceedings, including the section 93 and 94 applications, are “provisional” in an Article 20 sense.  We were, however, surprised that, recognising that its jurisdiction was purely provisional and that substantive jurisdiction lay with the Polish courts, the appellant had not made more progress in engaging with the Polish authorities.  It appears to us that where the Principal Reporter considers that he has a duty to invoke powers to take provisional measures as that expression is to be understood by reference to Article 20, he has a responsibility to do everything practicable to secure that the court with substantive jurisdiction becomes seised of the matter.

 

Available under the Law of that Member State
[47]      The sheriff determined that although the proceedings with which he was concerned could be regarded as “provisional”, there were not “available” because there was no valid ground of jurisdiction upon which a sheriff court could be seised of such proceedings where the child was not habitually resident in the sheriff court district.  He pointed to CMMR Rule 3.45(1).  We disagree with his conclusion.

[48]      We accept that measures are not “available under the law of [a] Member State” if the court which is applied to does not, whether by virtue of domestic law or the Council Regulation, have jurisdiction to impose the measures.  In Scotland the court for this purpose is the Children’s Hearing (cf Maher and Rodger, Civil Jurisdiction in the Scottish Courts para 10‑72), albeit that the ancillary position of the sheriff also requires to be considered.  The question therefore arises, in respect of which children does the Children’s Hearing have jurisdiction to impose Part 6 measures?

[49]      Referring to the Children’s Act 1995, Lord Justice‑Clerk Cullen (as he then was) said in Mitchell v H 2000 SC 334, at 336: “It is plain that the Act does not contain any express limit to the power of a Children’s Hearing by reference to the whereabouts of the child to whom the proceedings relate.”  That remains true for the 2011 Act.  The 2011 Act is framed in unitary and therefore Scotland-wide terms.  Section 14 provides that there will continue to be one officer known as the Principal Reporter and section 15 provides that there will be one body corporate known as the Scottish Children’s Reporter Administration (the “SCRA”).  In terms of section 2 there is one body corporate known as Children’s Hearings Scotland (“CHS”) and in terms of section 4 there is one Children’s Panel.  The impetus for the procedure which may lead to the taking of Part 6 measures, and in particular the making of a compulsory supervision order, comes from a determination by the Principal Reporter (in practice by an employee of the SCRA to whom the Principal Reporter’s functions have been delegated in terms of paragraph 9 of Schedule 3 to the Act) pursuant to section 66 (2) that a section 67 ground applies in relation to “a child” and that a compulsory supervision order should be made in respect of that child.  If the Principal Reporter so determines he must arrange a Children’s Hearing for the purpose of deciding whether a compulsory supervision order should be made in respect of the child (section 69(2)).  The hearing will be constituted by three members selected by the National Convenor of the CHS (in practice by a person to whom the functions of the National Convenor have been delegated in terms of paragraph 10 of Schedule 1 to the Act) from the Children’s Panel pursuant on sections 5 and 6.  That is the Children’s Hearing which is empowered to conduct a grounds hearing in terms of sections 90 to 92 of the Act and which, if the grounds are not accepted or “the child” is too young to understand the grounds, must direct the Principal Reporter to make an application in terms either of section 93 or section 94. 

[50]      Nothing in the above provisions specifies the children in respect of whom a Children’s Hearing conducting a grounds hearing may exercise its powers.  However, while it is the National Convenor who must ensure that a Children’s Hearing is held (section 7) the Principal Reporter must ensure that, so far as is practicable, a Children’s Hearing takes place in the area of “the relevant local authority for the child” to whom the hearing relates (section 17).  Similarly, if the Principal Reporter decides that there should be no referral to a Children’s Hearing, in terms of section 68(5)(a) he may refer the child to “the relevant local authority for the child”.  Thus, the Act assumes that there will be a relevant local authority “for” the child in respect of whom the Children’s Hearing may make an order.  It follows from that and from the responsibilities laid on Scottish authorities by the 2011 Act, that notwithstanding the unqualified references to “a child” and “the child”, the jurisdiction of the Children’s Hearing is limited to making orders in relation to a child who is present in Scotland at the relevant time.  We see no reason to depart from Mitchell v H at 338B as far as that is concerned.  Given the unitary or all-Scotland character of the Children’s Hearing we do not consider that its jurisdiction can be further limited, other than by the terms of the Council Regulation.  However, so far as is practicable, the Children’s Hearing must sit in the area of the relevant local authority for the child.  The expression “relevant local authority” in relation to a child is defined by section 201 of the 2011 Act.  It is (a) the local authority in whose area the child predominantly resides, or (b) where the child does not predominantly reside in the area of a particular local authority, the local authority with which the child has the closest connection.  What we take from this is that a Children’s Hearing may take provisional measures under Part 6 of the Act in respect of a child who is present in Scotland notwithstanding the fact that the child is habitually resident in another Member State (and therefore not habitually resident in Scotland) and notwithstanding the fact the child is not predominantly resident in the area of any particular local authority.  In such a case it is for the Principal Reporter to ensure that the Children’s Hearing takes place in the area of the local authority with which the child has the closest connection.  The critical word is “closest” not “close”.  Accordingly, if the child has a connection of some sort with the local authority area where the Children’s Hearing takes place (presence would be one example of connection) and no closer connection with any other local authority area the Children’s Hearing must have jurisdiction to consider grounds of referral with a view to making a compulsory supervision order, it always being understood that such an order, if made, will cease to apply when the court of the Member State having substantive jurisdiction has taken the measures it considers appropriate. 

[51]      What then of “the sheriff” to whom the Principal Reporter is directed to make an application in terms of section 93 and/or section 94?  There can be no doubt that “the sheriff” has the jurisdiction described in Part 10 of the Act, indeed he is required to hear a section 93 or section 94 application not later than 28 days after the application is lodged but, as counsel observed in submission, “the sheriff” is not a defined term.  It must be some sheriff but which sheriff? As it appears to us, the answer can only be the sheriff in whose district the relevant local authority area is situated.  This follows the approach approved by Lord Hope, giving the opinion of the court, in Sloan Petitioner 1991 SC 281 at 283.  The scheme of the Act is to constitute various bodies and provide for the appointment of various persons upon which it then imposes duties and confers powers.  The effect of that is to create a unitary jurisdiction (albeit to be exercised collaboratively by a number of different actors in different ways) the purpose of which is to safeguard and promote the welfare of “the child” throughout the child’s childhood (see section 25 (2)).  This jurisdiction is then localised in the area of the relevant local authority for the child.  Part of the scheme of the Act is to impose duties and confer powers on “the sheriff”.  At least as far as section 93 and section 94 applications are concerned this jurisdiction is auxiliary (Sheriff Reid described it as a an adjunct and counsel described it as ancillary) to that of the Children’s Hearing and exercisable only following a direction given to the Principal Reporter at a grounds hearing held in the area of the relevant local authority.  That being the context, the irresistible inference is that “the sheriff” in sections 93 and 94 and Part 10 of the 2011 Act means the sheriff whose territorial jurisdiction includes the area of the relevant local authority.  That sheriff therefore has jurisdiction to consider the relevant applications.  That of course is merely the domestic law on the matter.  The domestic law must give way to the Council Regulation but only if the Council Regulation requires it to do so.  The Council Regulation is concerned with the allocation of jurisdiction among the Member States rather than among particular courts within the Member States, but obviously no Scottish Children’s Hearing and no Scottish sheriff can exercise jurisdiction where the Council Regulation has allocated jurisdiction to a Member State other than the United Kingdom.  It is for that reason that it is conceded at all hands that substantive jurisdiction in respect of parental responsibility for AZ lies with the Polish courts.  However, the Council Regulation permits the exercise of a domestic jurisdiction in the circumstances specified by Article 20.  As we have explained, in our opinion these circumstances apply or at least applied to the present case: the case was urgent, the measures proposed were provisional and they were available both to the Children’s Hearing and, in respect of his auxiliary role, to the sheriff.

[52]      The reasoning which has led us to the conclusion that “the sheriff” in sections 93 and 94 and Part 10 of the Act means the sheriff whose territorial jurisdiction includes the area of the relevant local authority is very similar to the reasoning which led the court in Glasgow City Council v M 2001 SC 415 to interpret “a sheriff” or “the sheriff” throughout Part II of the Children (Scotland) Act 1995 Act as conferring jurisdiction upon the sheriff in whose sheriffdom lay the public authority  involved in the proposed or actual intervention in the child’s welfare. 

[53]      In the present case, the sheriff noted the decision in Glasgow City Council and, although he doubted whether its ratio survived the coming into force of the Council Regulation, was prepared to countenance an interpretation of “the sheriff” along the lines of that which we would adopt, at least in Part 5 of the 2011 Act.  However, while recognising that the same considerations might lead to the same interpretation of “the sheriff” in Part 6, once it was accepted that Part 6 measures might be provisional, in the sheriff’s opinion, such a reading could not prevail against the express terms of the amended CMMR Rule 3.45.  As can been from terms of Rule 3.45(1), it provides that in the event of the Principal Reporter being directed in terms of section 93(2)(a) or 94(2)(a) of the 2011 Act to make an application to the sheriff he shall lodge an application with the sheriff clerk of the sheriff court district in which the child is habitually resident.  Before the sheriff, it was argued on behalf of the second respondent, that because AZ was not habitually resident in the sheriff court district that rendered the applications incompetent.  The sheriff effectively accepted that argument.  In his opinion the recently amended rule imposed a jurisdictional criterion of habitual residence.  Therefore, where, as here, the child in respect of whom a section 93 or section 94 application was made was not habitually resident in the sheriff court district the sheriff had no jurisdiction to find the grounds of referral established. 

[54]      The argument which had been put to the sheriff under reference to Rule 3.45 was not advanced before this court.  The rule in its current form was introduced by the Act of Sederunt (Children’s Hearings (Scotland) Act 2011 (Miscellaneous Amendments) 2013 (SSI 2013 /172).  The source of the power to make the Act of Sederunt was section 32 of the Sheriff Courts (Scotland) Act 1971 and section 91 of the Children (Scotland) Act 1995.  Counsel accepted that the rule was procedural only, as is clearly the case; prima facie the rule purports to do no more than indicate with which sheriff clerk a particular form should be lodged.  As such, the rule could not change what is a matter of substantive law derived from a proper construction of an Act of the Scottish Parliament, even had that been the intention when the Act of Sederunt was made, which we do not consider that it was.  Thus, while the terms of Rule 3.45 may be inapposite, that is of no matter, it cannot deprive the sheriff of a jurisdiction that he otherwise has any more than it has any impact on the jurisdiction of the Children’s Hearing.  We do not see it necessary for this court to involve itself in the exercise of construction of the rule suggested by the appellant.  The section 93 and 94 applications were in fact received by the sheriff clerk and they were in fact considered by the sheriff.  While, in our opinion, the sheriff erred in holding that he had no jurisdiction, that can be adequately addressed by this court allowing the appeal.

 

Disposal
[55]      We shall therefore answer the questions in the stated case in the affirmative and allow the appeal.  We would be inclined to recall part 2 of the sheriff’s interlocutor of 13 December 2016 and remit to the sheriff to determine further procedure, as invited by the appellant but, as matters have moved on we shall rather bring the case out by order to be addressed on precisely what interlocutor would best meet the exigencies of the case.