Scottish Court of Session Decisions

[1] The point raised by this appeal is as to which Sheriff Court or Courts has, or have, jurisdiction in an application for transfer of parental rights and responsibilities relating to a child in terms of section 86 of the Children (Scotland) Act 1995 ("the 1995 Act"). Section 86(1) of the 1995 Act provides that,

[2] The question has arisen in the present case in the following way. On 31 August 1999, the appellants lodged an application at Glasgow Sheriff Court for transfer of the appropriate parental rights and responsibilities relating to Jacqueline Eileen Meiklem, born 16 April 1986, to them in terms of section 86 of the 1995 Act. The applicant is a local authority, having its headquarters at City Chambers, Glasgow. It is the social work authority for the local government area of the City of Glasgow. On 24 August 1995, a children's hearing made the child the subject of a home supervision order in terms of section 44(1)(a) of the Social Work (Scotland) Act 1968 ("the 1968 Act"). On 17 March 1997, the child's supervision requirement was varied to allow her to live with foster-carers, Mr. and Mrs. A in Airdrie. The child has continued to live with Mr. and Mrs. A in Airdrie from 17 March 1997 to date. On 18 February 1999 the children's hearing in Glasgow continued the supervision order in respect of the child. The child's curator ad litem and reporting officer lodged her reports on 7 October 1999. The sheriff assigned 26 October 1999 as a diet of hearing in terms of Regulation 2.42 of the Act of Sederunt (Child Care and Maintenance Rules), S.I. 1997/No. 291. At the hearing on 26 October 1999, the application was sisted on the motion of the solicitor for the first respondent. On 8 February 2000, on the applicant's unopposed motion, the sist was recalled and 29 February 2000 was assigned as a further diet of hearing. At the hearing on 29 February 2000 the applicant was asked to proceed by way of an initial writ with the first respondent lodging defences thereto, the first respondent being the child's mother. The second respondent, the child's father, has had no contact with the child for many years and has not sought to enter the proceedings. The purpose of the applicant being asked to proceed by way of an initial writ and the first respondent to lodge defences was to ascertain areas of agreement and disagreement with a view to possible curtailment of evidence and expedition of the application. The application next called in Glasgow Sheriff Court on 23 May 2000, at which time the issue of jurisdiction was raised by the sheriff ex proprio motu and a hearing on jurisdiction was assigned for 16 June 2000. At that hearing the sheriff was addressed on the matter of jurisdiction by the respective solicitors for the applicant and first respondent. In the result, the sheriff held that he had no jurisdiction to hear the application and that the proceedings were incompetent. In particular, he held that jurisdiction was determined by where the child was residing at the time of the application, this being Airdrie, and accordingly outwith the jurisdiction of Glasgow Sheriff Court.

[3] The applicant authority now appeals against the sheriff's decision on the matter of jurisdiction. The ground of appeal is that:

[4] Mrs. Scott, for the appellants, said that her primary submission was that, in terms of section 86(1) of the 1995 Act, the application could be made in any sheriffdom. However, should the sheriff take the view that it would be appropriate for a case to be heard in another sheriff court, then he could consider remit pursuant to Rule 2.21 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999, such remit being "on cause shown" in terms of Rule 2.21(1). While this was the technical position, in practice inconvenience and expense in such applications would virtually always be minimised by the application being made in the sheriffdom of the local authority concerned. Mrs. Scott explained that her submission was based firstly on "common sense" and, secondly, on the relationship of section 86 to other provisions in Part II of the 1995 Act. She explained that, failing acceptance of her primary submission, she submitted in the alternative that the sheriffdom with jurisdiction was the sheriffdom with jurisdiction in relation to other matters arising under Part II of the 1995 Act, which would ordinarily be the sheriffdom of the local authority making the application, which failing the sheriffdom in which the child habitually resided having regard to his or her membership of the household of one or both parents, which failing, as the sheriff had held, the sheriffdom in which the child was presently residing.

[5] Of the various alternative submissions made by Mrs. Scott, the only one which would render the present application incompetent was that last-mentioned, which would result in either dismissal or remit.

[6] Mrs. Scott said that parental responsibilities orders were the successors to assumptions of parental rights in terms of section 16 of the 1968 Act. The new provisions were to be found in Part II, Chapter 4, sections 86 to 89 of the 1995 Act. The provisions of Part II, Chapter 4, repealed the provisions by which a parent could lose parental rights by administrative action. The court was to be involved in every case, whereas previously court involvement only arose on service of a counter-notice, which removed the application from simply administrative procedure. The new provisions take adoption proceedings as a model in so far as a parent must either consent or consent must be dispensed with on the same grounds as apply to adoption. The new provisions provide for a curator ad litem and reporting officer with duties similar to those involved in adoptions (section 87(4) and Child Care and Maintenance Rules 1997 Rules 2.37-2.42). Again, continuing parental contact is provided for, an application being made to the sheriff in terms of section 88. There remains a recognised link with the children's hearing in terms of section 73(4)(c), (13) and (14) of the 1995 Act. The general result is that the child will be "looked after" by the local authority within the meaning of section 17(6) in Chapter 1. Chapter 4 of Part II shares the "overarching principles" of section 16 with other chapters of Part II. Chapter 4 is an integral part of the provisions for public intervention in relation to children made by Part II of the 1995 Act. Part II should be viewed as a whole. This was the intention of the legislature, as appears from Hansard (Scottish Standing Committee 28 February 1995; House of Lords 9 May 1995).

[7] Mrs. Scott pointed out that the child remains subject to a supervision requirement made by the children's hearing in Glasgow. That hearing was asked to consider and advise the sheriff in relation to the application for a parental responsibilities order in terms of section 73 of the 1995 Act on 7 July 1999. They supported the application. The application was also supported by the curator and reporting officer. The proceedings, which are in the form of a summary application, had been pending for almost a year and were in a reasonably advanced state when the sheriff dismissed the action.

[8] Mrs. Scott submitted that in construing a statute the ordinary sense of words is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument (Caledonian Railway Company v. North British Railway Company (1881) 8 R. (H.L.) 23 per Lord Blackburn at page 30). The ordinary words used in section 86, the general statutory intention and the need to avoid absurdity and repugnance all pointed in the same direction. In the present case the absurdity argument was particularly compelling. Local authorities regularly deal with brother/sister groups who have different needs and are differently placed. They may be placed in Scotland or potentially in England and Wales (1995 Act section 70(4)). If the sheriff was correct on the matter of jurisdiction a local authority might be required to commence separate proceedings in several sheriffdoms in each of which a child of the family was present, the same evidence requiring to be led several times over, with potential for conflicting decisions on the same facts. These cases were often complex on their facts and might each take several weeks in the sheriff court. In the event that a child had been placed in England or Wales no application under section 86 could be made at all. Local authorities would be faced with a conflict between meeting a child's immediate need to remain in, or be placed in, a particular establishment or foster home, perhaps separately from siblings, and the need to preserve jurisdiction, or avoid several sets of proceedings in an application for an order under section 86. The result would be that there could be delays of over a year in placing children with significant and urgent needs, or children's placements could be disrupted. The "overarching principle" in dealing with children under Part II of the 1995 Act is to secure their welfare as a paramount consideration (section 16(1)). This was emphasised as the intention of the legislature in the Special Standing Committee on 28 February 1995.

[9] Mrs. Scott submitted that Chapter 4 was an integral part of the provisions for public intervention in relation to children in Part II of the 1995 Act. There were numerous references to "the sheriff" in Part II, principally in the context of the children's hearing. Such reference is to be found in relation to child assessment orders (section 55), child protection orders (section 57), directions to apply to a sheriff for finding in relation to grounds of referral (section 65(7) and (9)), warrants for further detention of a child (section 67), application to a sheriff to establish grounds of referral other than in the case of an alleged offence by the child (section 68), appeals against a decision of the children's hearing (section 51), parental responsibility orders (section 86), and provision for all applications under Part II to be heard by the sheriff in chambers (section 93(5)). In terms of section 16 the "overarching principles" are common to all applications to the courts. No distinction is made in the Act between the various chapters of Part II. If Part II is read as a whole then it is logical that the references to "sheriff" are to the same sheriff. There is no reason to adopt a different interpretation of "the sheriff" for the purposes of section 86. Furthermore, where the Act intends to place a limitation on "sheriff" it does so expressly. This does occur in two instances. The first of these is in the case of criminal proceedings (section 68(3)(a)). This was originally introduced by the Criminal Justice (Scotland) Act 1980, schedule 7, para. 21. The second instance is in the case of exclusion orders under section 76 (see section 80(2)). So far as the exception with regard to criminal proceedings is concerned this maintains consistency with criminal procedure. So far as exclusion orders are concerned this is comprehensible given that the issue relates to heritable property and will require to be enforced at any particular place. The need to specify a particular sheriff in these cases supports the argument that there is otherwise unrestricted jurisdiction. Apart from these two exceptions, the jurisdiction of the sheriff in "Part II" matters is unrestricted.

[10] Mrs. Scott said that the question of jurisdiction of the sheriff in matters related to the children's hearing was considered in L v. McGregor 1980 S.L.T. 17. The case related to section 42(2) of the 1968 Act, which is in similar terms to section 65(7) of the 1995 Act. The ratio applies to the 1995 Act. It supports the proposition that there is no restriction on the sheriffs to whom an application may competently be made other than in the special cases mentioned. Further, it has to be noted that since L. v. McGregor there has been re-organisation of the reporters' service, which is now a national service, under the Principal Reporter, in terms of the Local Government (Scotland) Act 1994. The reporter is not confined to any particular region or local authority area. In the case of Mitchell v. S. (2000 S.L.T. 524) it was held that to qualify for referral to the hearing the child must be in Scotland at the date of referral, regardless of where conduct leading to him being referred had taken place, and regardless of where he or she was placed or taken after the referral. The Mitchell case tends to support the view that the Act requires to be viewed on a national, namely Scottish, basis. There is no contradiction between the McGregor and Mitchell decisions. Hansard is devoid of references to any issue of jurisdiction, save a comment in relation to contact applications for children subject to parental responsibilities orders, which tends to reinforce a robust and pragmatic view (Special Standing Committee 9 March 1995).

[11] Mrs. Scott submitted that the sheriff appeared to have proceeded on the basis that jurisdiction must follow the child because of what he described as the "normal rules of jurisdiction". His analysis in this respect is flawed. It neither reflects the jurisdictional rules in the areas he discusses nor addresses the particular specialty of a parental responsibilities order. It can be said that there are three broad categories of jurisdictional rule, namely (1) the rules applicable to "private law" disputes, (2) the rules applicable to adoption and (3) the rules applicable to "public law". So far as the "private law" rules are concerned, they are to be found in the Family Law Act 1986 ("the 1986 Act"). The sheriff does not appear to have proceeded on the basis that he is bound by the 1986 Act, although he seems to have been influenced by it. It was submitted that he was wrong to pay any regard at all to habitual residence. In any event he misapprehended the law relating to habitual residence. Analysis of the 1986 Act demonstrates this. The general principle in private law cases is that there is jurisdiction in the place where the child is habitually resident in terms of section 9. The mere presence of the child is the basis of jurisdiction only in the exceptional circumstances of the child present, but not habitually resident, in Scotland (section 10), or when there is resort to the emergency jurisdiction in section 12. There are distinctions between habitual residence and presence which the sheriff failed to recognise. For example, a child present in Scotland may still be habitually resident in another part of the United Kingdom by virtue of section 41 of the 1986 Act. A child's habitual residence depends upon his or her parent's or parents' habitual residence and cannot be changed by one parent with the responsibilities and rights without the consent of the other (Dickson v. Dickson 1990 S.C.L.R. 692). A child who is subject to a supervision requirement probably remains habitually resident at the home of his or her parent. This is consistent with the "temporary" nature of a supervision requirement (Aitken v. Aitken 1978 S.C. 297 at page 302) and the continued membership of the parent's household (McGregor v. H. 1983 S.L.T. 626). If the parent moved to England, leaving the child in a foster home in Scotland, and jurisdiction depended upon habitual residence, then jurisdictions would be removed at a stroke. Exclusion from this regime of action by public authorities is logical and appears to be the intention of the statute. Section 1 of the 1986 Act confines the operation of the Act to "private law" applications. Section 1(1)(b)(i) excludes from the Act's jurisdictional provisions an order "committing the care of a child to a local authority or placing a child under the supervision of a local authority". An order which results in the child being "looked after" by the local authority is in effect an order committing the care of the child to the local authority. There is express provision excluding orders formerly made under Parts II and III of the 1968 Act. An order under section 16 is transformed into a section 86 order by the transitional provisions in the 1995 Act, schedule 3, para. 3. While there is no express provision for orders made in terms of Part II of the Children (Scotland) Act 1995, it appears that section 1(1)(b)(i) operates to exclude a parental responsibilities order entrusting a child to the local authority in terms of section 86. The discussion before the Special Standing Committee tends to confirm that the intention of the legislature was to put in place provisions which were clearly distinguished from the "private law" arrangements governed by the 1986 Act (see 9 March 1995 col. 578-9, also 28 February 1995, and in the House of Lords on 9

[12] Furthermore, Mrs. Scott submitted that it appears that the sheriff has misapprehended the law and practice in relation to applications under the Adoption (Scotland) Act 1978. Section 56 of that Act provides for the sheriff court of the sheriffdom within which the child is present to exercise jurisdiction, or the Court of Session. A child who is the subject of adoption proceedings is, by definition, neither in a settled home with birth parents nor legally secure with an adoptive family. Habitual residence of the child is not an apt basis for jurisdiction. Presence is not necessary in every case. A child who is not in Scotland at all can be adopted in Scottish proceedings, provided these are raised in the Court of Session. Jurisdiction depends on the domicile or habitual residence of the prospective adopters (sections 14(2)and 15(2)). The problem of dealing with sibling groups living in different parts of Scotland can be overcome by raising proceedings in the Court of Session. This is more likely to arise in applications to free children for adoption, but it has happened in adoption petitions by different adopters, which have been heard together in the Court of Session. It appeared that the sheriff had not appreciated this point.

[13] So far as applications under Part II of the 1995 Act are concerned, Mrs. Scott submitted that the absence of any express limitation on the question of which sheriff may exercise jurisdiction leaves matters open rather than restricts jurisdiction. Jurisdiction is not hampered by the sometimes complex considerations associated with "habitual residence". It is not tied to "presence". Presence is a basis for jurisdiction in special cases which are clearly defined in statute, such as emergencies, the child not being habitually resident in the U.K. and the special case of adoption when in the Sheriff Court. In all these cases the Court of Session has alternative jurisdiction. These "technical" rules are omitted from the cases involving welfare of children in "public law" cases arising under Part II of the 1995 Act. Furthermore, the Court of Session has encouraged a pragmatic approach to such matters as an issue in this case (Girvan v. Girvan 1988 S.L.T. 866). Furthermore, the scope for remit to another sheriff court already referred to provides a remedy in the particular circumstances of the particular case.

[14] Mrs. Scott then turned to make submissions on alternative bases for jurisdiction should her primary submission not be accepted. We have already noted Mrs. Scott's submissions on that basis. Her first alternative, namely that jurisdiction lies with the sheriff actually exercising jurisdiction in relation to the child for the purposes of Part II of the 1995 Act, i.e. the sheriff with jurisdiction with reference to the children's hearing which has made a supervision order in relation to the child, (who would ordinarily be the sheriff with jurisdiction for the area of the local authority) would provide jurisdiction in the present case as the children's hearing was in Glasgow. So far as the next alternative basis for jurisdiction is concerned, namely the child's habitual residence, the child's parents have remained habitually resident in Glasgow, albeit not together, so that again there would be jurisdiction for the sheriff in Glasgow in this case. Finally, if jurisdiction was confined to the sheriffdom in which the child was actually present at the time of the application, the application should not have been dismissed but opportunity should have been given for a motion to be made by the applicant for remit of the application to the sheriff at Airdrie, particularly where the proceedings were so well advanced. Accordingly, if presence of the child was the test, the court should allow the appeal to the extent necessary for remit to the sheriff for him to deal with a motion for remit to Airdrie.

[15] Mr. Macnair, for the first respondent, submitted that the sheriff had decided correctly that he had no jurisdiction to entertain the application. There required to be a statutory basis for the sheriff having jurisdiction. The general statutory powers so far as jurisdiction was concerned are to be found in the Sheriff Courts (Scotland) Act 1907 ("the 1907 Act"), sections 4, 5 and 6. In particular, for a sheriff to have jurisdiction in the present matter such jurisdiction must be conferred in terms of section 6 of the 1907 Act or in some separate statutory provision. Mr. Macnair referred to the case of Kitson v. Kitson (1945 S.C. 434). In that action, it was held on appeal that the sheriff had no jurisdiction in an action by a husband for the custody of the child of his marriage where his wife had taken the child with her to England where she resided and pleaded no jurisdiction. In particular it was held that under section 5(2) of the 1907 Act, read in conjunction with other statutory enactments, the only actions for regulating the custody of children competent in the sheriff court were actions in which the defender was resident within its jurisdiction. It is to be noted that the primary ground for jurisdiction advanced was ex reconventione relating to an action in the sheriffdom by the wife against the husband for recovery of furniture, this ground being rejected on appeal. Mr. Macnair next referred to the Civil Jurisdiction and Judgments Act 1982 ("the 1982 Act"). Section 20(3) of that Act states that, "Section 6 of the Sheriff Courts (Scotland) Act 1907 shall cease to have effect to the extent that it determines jurisdiction in relation to any matter to which schedule 8 applies." However, schedule 8 has no application to the present proceedings. Schedule 9 expressly excludes proceedings for regulating the custody of children from application of schedule 8. The present proceedings could be said to be such proceedings.

[16] Mr. Macnair said that his primary submission was that the only sheriffdom with jurisdiction was that of the child's habitual residence. This was expressly provided for by section 9 of the 1986 Act. In particular the order sought was a Part I order within the meaning of section 1(1) of that Act. If he was wrong in that submission, then jurisdiction could be found in any sheriffdom in which at least one defender resided (section 6 of the 1907 Act).

[17] Mr. Macnair referred to the provisions for appeals to the sheriff in the case of licensing applications under the Licensing (Scotland) Act 1976. He said that the procedure for such appeals provided for in the Civil Government (Scotland) Act 1982 (schedule 1 paragraph 18) was an example of reference to "the sheriff" denoting not any sheriff but the sheriff in the sheriffdom of the licensing board, the board being the respondent in the appeal concerned.

[18] Mr. Macnair submitted that the order sought in the present application was not of a type excluded from being a Part I order under any of the provisions of section 1(1)(b) of the 1986 Act. In particular it was concerned not with the placing of a child under the supervision of a local authority, or in the care of the local authority (section 1(1)(b)(i) but with residence and the upbringing of a child. A care order was more limited than a parental responsibilities order. It would have been easy for Parliament to amend section 1(1)(b) to include by way of exception an order made under section 86 of the Act in similar terms to section 1(1)(b)(iv) or alternatively replacing section 1(1)(b)(vi) to bring that up to date. He said that he was not contending that the relevant legislation was well drafted, or that the scheme of legislation was sensible, but that the correct position in law was as he contended.

[19] Mr. Macnair submitted that the habitual residence of a child was primarily a question of fact. The habitual residence of the child had been in Glasgow but this could be altered by the local authority in implement of a statutory power.

[20] In reply, Mrs. Scott said that the 1995 Act had made special arrangements for jurisdiction and the task of the court was to construe the provisions of the 1995 Act in order to determine the issue of jurisdiction.

[21] Mr. Macnair was, in our opinion, correct in his submission that it is necessary to find a statutory basis for determining which sheriff has jurisdiction. Such a basis may be found in general provisions as to the jurisdiction of the sheriff, or in particular provisions dealing with applications of the sort in question. In our opinion, general provisions do not assist in the present case. Section 6 of the 1907 Act sets out the grounds on which a sheriff may exercise jurisdiction. Those grounds include the residence of the defender (section 6(1)). Section 6 was repealed by section 20(3) of the 1982 Act "to the extent that it determines jurisdiction in relation to any matter to which Schedule 8 applies". Schedule 9, however, lists as matters excluded from Schedule 8 inter alia proceedings concerning the status or legal capacity of natural persons, proceedings for regulating the custody of children, and proceedings regulating the guardianship of children. Although the language of those provisions is somewhat different from that now used in the 1995 Act, it seems to us to be clear that an application under section 86 of that Act comes within a broad category of proceedings in respect of which jurisdiction was not intended to be regulated by Schedule 8 of the 1982 Act. It follows that section 6 of the 1907 Act remains in effect in respect of such proceedings. It would therefore be possible to hold, on the ground that the respondents are resident in Glasgow, that the Sheriff was wrong to hold that he had no jurisdiction in the present application. We do not consider, however, that it would be satisfactory to bring the search for the basis for the sheriff's jurisdiction in relation to section 86 applications to an end at that point. It is necessary to examine also the provisions of Part I of the 1986 Act and those of Part II of the 1995 Act. The general provisions of section 6 of the 1907 Act, which is expressly made subject to Chapter II of Part I of the 1986 Act, may also yield to other more particular provisions.

[22] Section 9 of the 1986 Act confers jurisdiction to make a Part I order (within the meaning of section 1(1) of that Act) on the sheriff within whose sheriffdom the child concerned was habitually resident at the date of the application: it is therefore necessary to consider whether an order made under section 86 of the 1995 Act is a Part I order. In our opinion, it is not. Section 1 of the 1986 Act provides inter alia as follows:

As counsel pointed out, section 1(1)(b)(i) uses language which is not used in more recent legislation (a child, including a child in relation to whom a section 86 order has been made, is now "looked after by" rather than "in the care of" a local authority - see section 17 of the 1995 Act), but in our view that change of statutory language does not render it impossible to give effect to section 1(1)(b)(i). The reference in section 1(1)(b)(vi) to Parts II and III of the 1968 Act has survived the repeal of provisions such as section 16 of that Act (the provision replaced by section 86 of the 1995 Act) and almost all of Part III by the 1995 Act, and no corresponding reference to the replacement provisions has been added. We are not persuaded, however, that the intended effect was to make a section 86 order a Part I order. It seems to us that broadly the intention was to include "private law" orders in, and excluded "public law" orders from, the scope of Part I orders. We are therefore of opinion that section 9 of the 1986 Act does not regulate jurisdiction to make a section 86 order.

[23] Throughout Part II of the 1995 Act there are repeated references to "a sheriff" or "the sheriff" (see sections 51, 55, 57, 58, 65(7) and (9), 67, 68, 76-80, 85, 86, and 93(5)). In only two specific contexts is further specification given. These are (i) in relation to an application to the sheriff to establish grounds of referral on the condition referred to in section 52(2)(i) (commission of an offence), where by section 68(3)(a) jurisdiction is conferred on the sheriff who would have jurisdiction if the child were being prosecuted; and (ii) in relation to sections 76-80 (exclusion orders), where section 80(2) specifically confers jurisdiction on the sheriff for the sheriffdom in which the family home is situated. The reasons for those specific provisions are easily understood. The question which arises is whether in those contexts in which no specific provision is made identifying the sheriff on whom jurisdiction is conferred, jurisdiction is to be taken to be conferred on any sheriff in Scotland without regard to any geographical connection the case may have with his sheriffdom, or whether in the scheme of the legislation there is to be found some basis for inferring a limitation to a particular sheriff.

[24] We would be slow to hold that the reference to "the sheriff" in section 86 and elsewhere in Part II of the 1995 Act should be construed as conferring jurisdiction on any sheriff in Scotland, leaving the applicant with an uncontrolled choice of forum. Two considerations, in particular, dissuade us from that course. One is that we are not persuaded that there is any good reason for construing the reference to the "the sheriff" in that unlimited way. There may be good reason for thinking that there could be circumstances in which it would be convenient for more than one sheriff to have jurisdiction, but we do not consider that any sufficient reason was advanced for regarding the matter as wholly unregulated. The second consideration is that there are other statutory contexts in which reference is made to "the sheriff", and we would be reluctant to adopt a construction in the present case which might have repercussions in other contexts, without careful consideration of those other contexts. In the event we do not consider that it is necessary to construe the reference to "the sheriff" as widely as Mrs. Scott suggested.

[25] It is, in our view, reasonable to regard the various provisions in Part II of the 1995 Act as forming part of a coherent statutory scheme for regulating the intervention of third parties (primarily public authorities) in the care of children. There is, therefore, in our view, good reason for construing the references to "the sheriff" consistently throughout Part II, if that is possible. It seems to us that, by adopting that approach, it is possible to infer that by "the sheriff" is meant, in reference to intervention by a public authority, the sheriff in whose sheriffdom lies the area of the public authority involved in the proposed or actual intervention. Section 39 provides for the constitution of a children's panel in each local government area, and for the sitting of members of the panel as children's hearings. It seems to us to be clear that in relation to applications to the sheriff in connection with the proceedings of children's hearings, the reference is to the sheriff of the sheriffdom in which that panel is constituted. That geographical connection is reinforced by the role played in such proceedings by the social work department of the local authority. That approach is, in our view, consistent with the approach of this court in L. v. McGregor 1980 S.L.T. 17, although the point there in issue was superseded by the legislation that finds its present form in section 68(3)(a). When it comes to an application by a local authority under section 86 (where the child in question will, in all probability, already be the subject of children's hearing proceedings), it seems to us to be consistent with the general scheme of Part II to construe the reference to "the sheriff" as being a reference to the sheriff in whose sheriffdom the applicant authority has its area. That approach is also consistent with the fact that the sheriff's jurisdiction in relation to orders under section 16 of the 1968 Act was similarly, albeit expressly, founded.

[26] Although it is not a consideration on which we rely directly in reaching our conclusion as to the sound construction of the reference to "the sheriff" in section 86 and as to the identification of the sheriff who will in any given case have jurisdiction, it is satisfactory to note that that conclusion avoids the practical difficulties in dealing with split families and with cases where children are placed outside Scotland which Mrs. Scott identified as attending the conclusion that jurisdiction depended on the habitual residence of the child.

[27] For the reasons which we have given, we hold that jurisdiction to entertain an application under section 86 does not depend on the habitual residence of the child in question, but is conferred on the sheriff in whose sheriffdom lies the area of the local authority making the application. On that basis the present application falls within the jurisdiction of the sheriff at Glasgow.

[28] In the whole circumstances we allow the appeal and remit to the sheriff to hear the application.