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APPEAL BY STATED CASE BY LO AND EO AGAINST ANNE MARIE McGINLEY, LOCALITY REPORTER MANAGER, SCOTTISH CHILDREN'S REPORTER ADMINISTRATION [2022] ScotCS CSIH_50 (22 November 2022)
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[2022] CSIH 50,
[2022] ScotCS CSIH_50
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2022] CSIH 50
XA20/22
Lord Doherty
Lord Boyd of Duncansby
Lady Wise
OPINION OF THE COURT
delivered by LORD DOHERTY
in the Appeal by Stated Case under section 163(1)(a)(iii) of the Children's Hearing
(Scotland) Act 2011
by
LO and EO
Appellants
against
ANNE MARIE MCGINLEY, Locality Reporter Manager, Scottish Children's
Reporter Administration
Respondent
Appellants: Party
Respondent: Scullion; Anderson Strathern LLP
22 November 2022
Introduction
[1]
This is an appeal by stated case against a decision of the sheriff at Glasgow refusing
an appeal from a decision of a children's hearing dated 19 November 2021. The main issues
raised are whether the sheriff erred in law (i) in deciding not to entertain the appellants'
argument that the children's hearing did not have jurisdiction; (ii) in deciding that the
2
children's hearing's decision not to request an Italian court to assume jurisdiction in
terms of Article 15 of Council Regulation 2201/2003 (Brussels II bis) was justified.
Relevant legislation
[2]
The Children's Hearing (Scotland) Act 2011 ("the 2011 Act") provides:
"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,
...
(6) In this section--
...
`schedule 1 offence' means an offence mentioned in Schedule 1 to the Criminal
Procedure (Scotland) Act 1995 (c.46) (offences against children under 17 years
of age to which special provisions apply).
...
83
Meaning of `compulsory supervision order'
(1)
In this Act, `compulsory supervision order' in relation to a child, means an
order
(a)
including any of the measures mentioned in subsection (2),
(b)
specifying a local authority which is to be responsible for giving effect to
the measures included in the order ( the `implementation authority') and
(c)
having effect for the relevant period.
(2)
The measures are
(a)
a requirement that the child reside at a specified place
......
3
154 Appeal to sheriff against decision of children's hearing
(1) A person mentioned in subsection (2) may appeal to the sheriff against a
relevant decision of a children's hearing in relation to a child.
(2) The persons are--
(a) the child,
(b) a relevant person in relation to the child,
(3) A relevant decision is--
(a) a decision to make, vary or continue a compulsory supervision order
...
156 Determination of appeal
(1) If satisfied that the decision to which an appeal under section 154 relates is
justified, the sheriff--
(a) must confirm the decision ...
163 Appeals to sheriff principal and Court of Session: children's hearings etc.
(1) A person mentioned in subsection (3) may appeal by stated case to the sheriff
principal or the Court of Session against--
(a) a determination by the sheriff of--
...
(iii) an appeal against a decision of a children's hearing,
...
(3) The persons are--
...
(b) a relevant person in relation to the child,
...
(9) An appeal under this section may be made--
(a) on a point of law, or
(b) in respect of any procedural irregularity.
(10) On deciding an appeal under subsection (1), the sheriff principal or the Court
of Session must remit the case to the sheriff for disposal in accordance with
such directions as the court may give.
(11) A decision in an appeal under subsection (1) or (2) by the Court of Session is
final.
..."
4
[3]
Schedule 1 to the Criminal Procedure (Scotland) Act 1995 lists certain sexual and
other offences relating to children under the age of 17 including:
"...
2.
Any offence under section 12, 15, 22 or 33 of the Children and Young Persons
(Scotland) Act 1937 ...
3.
Any other offence involving bodily injury to a child under the age of 17 years.
..."
[4]
Council Regulation (EC) No 2201/2003 (Brussels II bis) provides:
"
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 15
Transfer to a court better placed to hear the case
1.
By way of exception, the courts of a Member State having jurisdiction as to the
substance of the matter may, if they consider that a court of another Member State,
with which the child has a particular connection, would be better placed to hear the
case, or a specific part thereof, and where this is in the best interests of the child:
(a) stay the case or the part thereof in question and invite the parties to
introduce a request before the court of that other Member State in
accordance with paragraph 4; or
(b) request a court of another Member State to assume jurisdiction in
accordance with paragraph 5.
2.
Paragraph 1 shall apply:
(a) upon application from a party; or
(b) of the court's own motion; or
(c)
upon application from a court of another Member State with which the
child has a particular connection, in accordance with paragraph 3.
5
A transfer made of the court's own motion or by application of a court of another
Member State must be accepted by at least one of the parties.
3.
The child shall be considered to have a particular connection to a Member State
as mentioned in paragraph 1 if that Member State:
...
(b) is the former habitual residence of the child; or
(c)
is the place of the child's nationality; or
(d) is the habitual residence of a holder of parental responsibility;
...
4.
The court of the Member State having jurisdiction as to the substance of the
matter shall set a time limit by which the courts of that other Member State shall be
seised in accordance with paragraph 1. If the courts are not seised by that time, the
court which has been seised shall continue to exercise jurisdiction in accordance with
Articles 8 to 14.
5.
The courts of that other Member State may, where due to the specific
circumstances of the case, this is in the best interests of the child, accept jurisdiction
within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this
case, the court first seised shall decline jurisdiction. Otherwise, the court first seised
shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
...
Article 16
Seising of a court
1.
A court shall be deemed to be seised:
(a) at the time when the document instituting the proceedings or an
equivalent document is lodged with the court, provided that the applicant
has not subsequently failed to take the steps he was required to take to
have service effected on the respondent;
or
(b) if the document has to be served before being lodged with the court, at
the time when it is received by the authority responsible for service,
provided that the applicant has not subsequently failed to take the steps
he was required to take to have the document lodged with the court.
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
6
jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has
no jurisdiction."
[5]
Brussels II bis applies to children's hearing proceedings (Principal Reporter v LZ 2017
SLT 961). It applies to the present proceedings notwithstanding Brexit because they were
commenced prior to 1 January 2021 (The Jurisdiction and Judgements (Family, Civil
Partnership and Marriage) (Same Sex Couples) (EU Exit) (Scotland) (Amendment etc)
Regulations, Regulation 6; EU Withdrawal Agreement, Article 67.1).
Background
[6]
The appellants are a married couple. They have four children, P (aged 21), MO
(aged 17), NO (aged 11) and EO (aged 6). This appeal concerns only the two youngest
children, NO and EO. The petitioners and their children all have dual nationality as Italian
and Nigerian citizens. In 2016 their home in Italy was badly damaged by an earthquake and
they became homeless. The family were housed in emergency temporary accommodation
in Italy. The two older children attended boarding school in Nigeria. In November 2016
the appellants came to Glasgow with NO and EO. LO's sister lives in Glasgow and they
stayed with her initially, but on 6 December 2016 the appellants obtained a private sector
tenancy of a house. The lease commenced on 6 December 2016 and the term was to end
on 30 June 2017. Shortly after the family's arrival in Scotland steps were taken to have NO
enrolled in school. In January 2017 the appellants removed P and MO from boarding school.
The boys travelled Glasgow, where the appellants arranged for them to attend school. All
of the family members were registered with a GP practice in Glasgow. The appellants,
NO and EO were registered on 14 November 2016, and P and MO were registered very
shortly after their arrival. The applications to register were for permanent registration
7
rather than temporary registration (up to 3 months). In addition to GP appointments, the
family used practice services such as the health visitor and the staff nurse, and other NHS
services such as the Specialist Children's Paediatric Services.
[7]
In late February 2017 MO disclosed to teachers and social workers that he had been
physically and emotionally abused by the appellants over a period of several years. On
28 February 2017 the sheriff (Cathcart) made child protection orders under sections 37 - 39
of the 2011 Act in respect of all four children.
[8]
On 7 March 2017 notification letters were sent for a children's hearing to be held
on 10 March 2017 to consider the statement of grounds of referral. Thereafter, grounds of
referral were duly prepared.
[9]
On 16 March 2018, after many days of evidence, the sheriff (McCartney) found that
grounds of referral were established in terms of section 67(2)(a), (b) and (c) of the 2011 Act
in respect of P and MO, and in terms of section 67(2)(c) in respect of NO and EO. She found
P and MO to be credible and largely reliable witnesses. She did not find the appellants to
be credible witnesses. She found that they had assaulted and abused P an d MO in both Italy
and Scotland. She described the evidence of abuse which she heard as "overwhelming",
and as being:
"so clear and strong that in my view it would not be possible to reach any
conclusion other than to be satisfied not only on the balance of probabilities
but beyond reasonable doubt that that [P and MO] were subjected [to] assault
by both parents."
The appellants did not appeal the sheriff's decision.
[10]
On 14 May 2018 (by which date P was aged 17) the children's hearing made MO,
NO and EO subject to compulsory supervision orders, and the appellants' appeal against
8
them was refused by the sheriff (Mackie) on 23 June 2018. None of those children have lived
with the petitioners since the child protection orders were granted in February 2017.
[11]
The appellants were prosecuted for assaulting P and MO in Scotland between
1 January 2017 and 28 February 2017. On 8 November 2018 they were acquitted after P,
who had previously spoken to the assaults, retracted his evidence at the appellants' trial
and the prosecutor decided not to lead any further evidence. Following their acquittal the
appellants appealed against the continuation of the compulsory supervision orders. The
appeal was refused by the sheriff (Cameron) on 7 March 2019, and a further appeal against
that decision was refused by this court on 19 November 2019 (LO and EO v Children's
"[7] At the criminal trial one of the boys did not repeat his evidence as to the
assaults, but this does not remove the earlier establishment of the grounds for
referral, nor take away any cause for concern in respect of the children's welfare.
P's retraction meant that the evidence of MO would be uncorroborated and this
resulted in the acquittal. It is relevant that MO remains fearful of his parents
and does not wish to return to them. The children's hearing retained a jurisdiction
and a responsibility to consider and keep the children's welfare in the forefront.
Notwithstanding the parents' acquittal it was entitled to reach the view that
compulsory protective measures were still required."
[12]
On 18 June 2019 an appeal against a further decision of the children's hearing dated
13 May 2019 was allowed by the sheriff (Reid) in respect of NO and EO. The sheriff directed
the children's hearing to hold a review. In a note appended to his interlocutor he queried
whether the children were habitually resident in Italy at the commencement of the referral
proceedings. At a children's hearing on 18 July 2019 the appellants argued for the first time
that the children had not been habitually resident in Scotland at the commencement of the
proceedings (7 March 2017), and that therefore the hearing did not have jurisdiction. The
children's hearing disagreed. It determined that it had had, and did have, jurisdiction. It
continued the compulsory supervision orders.
9
[13]
At the children's hearing on 28 October 2019 the appellants renewed their
submission about jurisdiction. By this time the children's hearing had received written
advice from the National Convener of Children's Hearings Scotland (2011 Act, section 8).
The National Convener advised that in his view the children had been habitually resident in
Scotland on 7 March 2017 because (i) the family had made a planned move to Scotland from
temporary accommodation in Italy, and they had obtained stable long-term accommodation
in Scotland; (ii) the two older children had been brought from Nigeria; and (iii) the children
had all been enrolled in schools. The children's hearing agreed with that advice. The
appellants appealed. The appeal was heard by the sheriff (Kelly) over the course of 3 days.
On 16 January 2020 he refused the appeal. Although he did not append a note to his
interlocutor, it is common ground that the issue of jurisdiction was a central part of the
appeal. He confirmed the decision of the children's hearing that the children were
habitually resident in Scotland at the commencement of the proceedings. The appellants
did not appeal against that decision.
[14]
In July 2020, the Central Authority in Italy informed the Central Authority in
Scotland that the appellants had asked the Juvenile Court of Ancona to request the Scottish
courts in terms of Article 15 to transfer jurisdiction in the proceedings relating to MO, NO
and EO to it. On 7 December 2020 the Juvenile Court declined to make such a request. By
letter of 10 February 2021, the Italian Central Authority sent a copy of the court's judgment
to the Central Authority in Scotland. In that judgment the court determined that it would
not be in the best interests of MO, NO and EO to request that the proceedings be transferred
to Italy from Scotland. It observed that over a lengthy period the proceedings in Scotland
had "adopted the most appropriate measures in the best interests of the children, taking into
10
account the dangerous situations reported." It noted that over the years the appellants had
not always acted straightforwardly or honestly with the Italian authorities.
The children's hearing of 19 November 2021
[15]
A hearing was held 19 November 2021 to review the existing compulsory
supervision orders relating to NO and EO. The orders were varied in certain respects which
we need not specify, but otherwise they were renewed. For present purposes it is only
necessary to mention two of the arguments which were advanced by the appellants at the
hearing. First, they renewed the argument that the hearing had no jurisdiction. Second,
they contended that the hearing should ask the Italian courts to make an Article 15 request
to assume jurisdiction over the proceedings. The hearing had before it a note by the
reporter which addressed each of those arguments. The note reminded the hearing that it
was jurisdiction when the children's hearing was first seised which was relevant, and that it
had first been seised on 7 March 2017. The children's hearing had previously decided on
28 October 2019 that it had jurisdiction, and that decision had been upheld on appeal by the
sheriff on 17 January 2020. So far as an Article 15 request was concerned, the hearing could
only make a transfer request if it was satisfied that an Italian court would be better placed
to hear the cases and if it would be in the best interests of the children to make the request.
Neither of those requirements was satisfied. The reporter's note also directed the children's
hearing to the Italian court's judgment of 7 December 2020.
[16]
The children's hearing did not record in writing its decision and reasons in relation
to the jurisdiction and the Article 15 submissions, but it gave its decision and reasons on
those matters orally. It was satisfied that jurisdiction had already been established; on that
point it referred to the sheriff's decision of 16 January 2020. It was also satisfied, not least
11
because of the terms of the judgment of 7 December 2020, that the Italian court was not
better placed to hear the cases, and that it would not be in the best interests of NO and EO
for the hearing to make an Article 15 request.
The appeal to the sheriff
[17]
On appeal to the sheriff (Divers) the main points argued by the appellants were
(i) that the children's hearing did not have jurisdiction; and (ii) that it had erred in declining
to make a request in terms of Article 15.
[18]
The sheriff recognised that the hearing had not provided a written decision or
reasons on these points, but he did not consider there had been procedural irregularity
because an oral decision containing adequate reasons had been given .
[19]
The sheriff observed that the question of jurisdiction had already been decided by
Sheriff Kelly on 20 January 2020, which decision had not been appealed. Revisiting that
decision would be tantamount to reviewing the decision of a fellow sheriff, which he had no
power to do. The children's hearing had been in a similar position. It had had no power to
revisit the issue. Its decision on the jurisdiction issue had been justified.
[20]
As for the Article 15 submission, having regard to the evidence before the children's
hearing, including in particular the terms of the judgment of 7 December 2020, it could not
be said that its decision to decline to make a request was not justified.
[21]
The sheriff notes four further points which the appellants argued made the
children's hearing's decision unjustified. First, the reporter had not referred in his note to
the fact that the appellants lived in Italy at the time of the hearing. Second, the hearing
had not had regard to the terms of a letter from the Italian Ministry of Justice which, the
appellants suggested, indicated that the Scottish Central Authority had conceded to the
12
Ministry that the Scottish courts did not have jurisdiction. Third, the hearing was said to
have failed to have proper regard to the terms of a letter dated 11 February 2019 from the
Consul General of Italy in Scotland to the reporter in which it was stated that the family
came to the UK on a temporary basis, that their home in Italy had been repaired, and that
they wished to return. That was said to support the appellants' submissions that the
hearing did not have jurisdiction and that it ought to have made an Article 15 request.
Fourth, it was maintained that the hearing had failed to give proper consideration to the
Italian judgment of 7 December 2020. The sheriff was not persuaded that any of these
points had substance. He was in no doubt that the hearing was well aware from the
material before it of the appellants' links with Italy. He did not consider that the letter from
the Italian Ministry of Justice ought to be construed as the appellants suggested, nor did he
think that the terms of the letter from the Consul General were of any great significance. He
was satisfied that the hearing gave appropriate consideration to the terms of the judgment
of 7 December 2020. None of the points provided a basis for concluding that the hearing's
decision was not justified.
The appeal to this court
[22]
As the parents of NO and EO the appellants are "relevant persons" with a right of
appeal against the sheriff's decision (2011 Act, section 163(1), (3)). They have exercised that
right in order to appeal to this court.
[23]
In the stated case the sheriff has set out the history of case, the arguments advanced
to him, and his findings. The case poses the following questions of law:
"1. Did I err in law in finding that the decision of the children's hearing on
19 November 2021 was justified?
13
2.
Did I err in law in finding that the decision of the children's hearing on
19 November 2021 to refuse the appellants' request under article 15 was justified?
3.
Did I err in law in not reconsidering the question of jurisdiction, that matter
having been decided by this court in January 2020?
4.
Did I err in law in not declaring under article 17 that his court did not have
jurisdiction?"
Submissions for the appellants
[24]
Most of the appellants' submissions were directed towards seeking to persuade the
court that the children's hearing did not have jurisdiction at the time the proceedings were
instituted. It was submitted that on 7 March 2017 the appellants and their children had not
been habitually resident in Scotland because their presence was temporary while their
home in Italy was being rebuilt, and because they continued to have Italian residency and
nationality. Since the sheriff had not had jurisdiction, he ought to have exercised the power
in Article 17 to decline jurisdiction and declare that the Italian court had jurisdiction.
[25]
The second plank of the appeal was that the children's hearing and the sheriff
had erred in law in declining to make an Article 15 request that the Italian court assume
jurisdiction over the proceedings. Standing the family's strong connections with Italy,
and because the alleged abuse was said to have taken place there, it was plain that such
a request ought to have been made.
[26]
Finally, the four further points which had been advanced before the sheriff were
advanced to this court.
[27]
The court understood the appellants' position was that each of Questions 1 to 4
should be answered in the affirmative.
14
Submissions for the respondent
[28]
The sheriff had required to consider whether the children's hearing decision had
been justified; and if it was, he had to confirm it (2011 Act, section 156(1)(a)). For a sheriff
to uphold an appeal on the ground of a procedural irregularity, the irregularity must have
had a material effect on the conduct or outcome of the proceedings (C v Miller 2003 SLT 1379,
Opinion of the Court delivered by Lord Osborne at p 137). Locality Reporter Manager v
AM 2018 Fam LR 14 was an example of a procedural irregularity (a failure by a children's
hearing to record a decision regarding contact) which had not vitiated the decision.
[29]
"[37] ... I agree with the observations of Sheriff Principal Nicholson in Schaffer
[W v Schaffer] that a sheriff is not entitled to uphold an appeal simply because he/she
disagrees with a decision. `Instead, the sheriff's task is to see if there has been some
procedural irregularity in the conduct of the case; to see whether the hearing has
failed to give proper, or any consideration to a relevant factor in the case; and in
general whether the decision reached by the hearing can be characterised as one
which could not, upon any reasonable view, be regarded as being justified in all th e
circumstances of the case. The ground of appeal before a sheriff is accordingly quite
a narrow one' (2001 S.L.T. (Sh Ct) 86, pp.87-88)...
[38] ... [T]he sheriff should only uphold an appeal on the basis of an error in law,
procedural irregularity or the like, if satisfied that the decision cannot nonetheless
be supported. In other words the identified problem must go to the root of the
decision - it must vitiate it to a significant extent, and it must be clear that the
outcome is unjustified, in the sense that it is wrong on any reasonable appraisal of
the known facts...
[39] None of this requires the sheriff to conduct a wholesale review of the merits of
the matter and reach his own decision. He has no jurisdiction to do so... [S]imply
to point to an error in law or some other irregularity will not automatically lead to
a successful appeal. As the sheriff principal said, the ultimate requirement is to
consider whether the decision reached by the hearing or panel can be characterised
as one which could not, upon any reasonable view, be regarded as being justified
in all the circumstances of the case. An error of law may point strongly to a
fundamental problem with the decision making process, but nonetheless the sheriff,
having regard to the underlying facts may not be satisfied that the decision itself is
unjustified (an objective test)..."
15
[30]
The children's hearing of 28 October 2019 had been entitled to decide that the
children were habitually resident in Scotland on 7 March 2017, and the sheriff had been
entitled to hold on 20 January 2020 that that decision was justified. On the evidence before
them the appellants had come to Scotland to make it their home for a significant period
while their home in Italy was rebuilt. They had removed their two older children from
school in Nigeria in order to resume family life and education in Scotland. They had other
family in Scotland. They entered into a lease of a home. They registered with a GP and
availed themselves of other medical services. The children were enrolled in schools here.
There had been a level of stability in the living arrangements and a degree of social and
at para [16]. The sheriff's decision 20 January 2020 had not been appealed. In those
circumstances the children's hearing of 19 November 2021 and the sheriff in the subsequent
appeal had been entitled to hold that it had already been established that the children's
hearing had jurisdiction.
[31]
The sheriff had also been entitled to find that it had been open to the children's
hearing to decline to make an Article 15 request to the Italian court. Article 15 was an
exception to the general rule that the court where children were habitually resident when
proceedings were instituted ought to deal with the case (Practice Guide for the application
of the Brussels IIa Regulation, paragraph 3.3). Whether the Italian court was better placed
and whether a transfer would be in the children's best interests were both matters which
involved exercises of evaluation. It had been open to the hearing to find that, while NO
and EO did have a particular connection with Italy (Article 15(1) and (3)), the Italian court
was not better placed to hear the cases and it would not be in the best interests of the boys
16
paras [15], [16] and [55]). It could reasonably be inferred from the terms of the judgment of
7 December 2020 that the Italian court did not consider itself to be better placed to hear the
cases and did not believe that it would be in the children's best interests that the cases be
transferred to it.
[32]
The fact that the children's hearing had not issued a written decision had involved
procedural irregularity, but that irregularity had not in fact resulted in any injustice.
The appellants had been present at the hearing. They had heard the arguments and the
oral decision. They had not been prejudiced by the lack of written reasons. It had not
impeded them from appealing to the sheriff and from the sheriff to this court. Reference
was made to C v Miller 2003 SLT 1379, at p 1395 of the opinion of the court delivered by
Lord Osborne; CF v MF 2017 SLT 945, Lord Malcolm at paras [37] - [39]; Locality Reporter
para [41]. Had written reasons been given their position would not have been different in
any material respect.
[33]
The sheriff had been entitled to find that the children's hearing's decision was
justified. He had not erred in law in so finding.
[34]
In the application to the sheriff for a stated case the appellants suggested for the first
time that he ought to have exercised the power in Article 17 of Brussels II bis to declare of
his own motion that the court did not have jurisdiction. There had been no proper basis
for the sheriff to do that, since it had been determined that the children's hearing had
jurisdiction and the Italian court did not have jurisdiction.
17
Decision and reasons
[35]
The questions posed in the stated case require this court to rule on whether Sheriff
Divers erred in law in taking the approach which he did in relation to the question of
jurisdiction, and in relation to Articles 15 and 17 of Brussels II bis.
[36]
Sheriff Divers noted that the children's hearing of 28 October 2019 had determined
that NO and EO were habitually resident in Scotland at the time the proceedings were
instituted, and that on appeal Sheriff Kelly had upheld that decision. The appellants
had not appealed Sheriff Kelly's decision. The children's hearing of 19 November 2021
concluded that the question of jurisdiction had already been determined. It was correct
to do so. Sheriff Divers held that the issue of jurisdiction had already been decided by the
children's hearing and by Sheriff Kelly. He was right - it was not open to him to reach any
other conclusion. It follows that he did not err in law in finding that the decision of the
children's hearing on 19 November 2021 was justified. That is sufficient to dispose of that
aspect of the appeal.
[37]
Several times during the hearing the court reminded the appellants that the narrow
appellate jurisdiction which the 2011 Act confers on it does not empower it to reassess the
merits of the decision on habitual residence which the children's hearing of 28 October 2019
made. We observe, however, that none of the matters raised by the appellants cause us
to doubt that that hearing had been entitled to reach the decision which it did.
[38]
We turn to the Article 15 argument. We note at the outset that Article 15 applies
where a court has jurisdiction but, notwithstanding that, and exceptionally, the child has
a particular connection with another Member State; a court there is better placed to deal
with the case; and it is in the best interests of the child that there should be a transfer. Here,
however, the appellants' arguments before this court, the sheriff, and the children's hearing
18
were premised on the contention that the children's hearing did not have jurisdiction. For
the reasons already discussed, that is not a sound premise.
[39]
There were further reasons why the children's hearing was not convinced by the
appellants' Article 15 argument. It was not persuaded that the Italian court was better
placed to hear the cases, or that it would be in the best interests of the children that the
proceedings should be transferred. The sheriff held that the children's hearing's decision
on that matter was justified. We detect no error of law in his conclusion or reasons. The
material before the children's hearing indicated that it had been seised of the proceedings
since 7 March 2017 and that the children had been looked after in the care regime here since
then. The behaviour which gave rise to the proceedings had occurred in both Scotland and
Italy. The Juvenile Court of Ancona had declined to make a request that the proceedings
be transferred to it, notwithstanding that the appellants had asked it to make such a request.
We agree with the respondent that it may reasonably be inferred from the Italian court's
judgment of 7 December 2020 that in the particular circumstances it did not consider itself
better placed than the children's hearing to deal with the cases; and that it was not of the
view that it would be in the children's best interests for the proceedings to be transferred
to it.
[40]
It is unfortunate that the children's hearing did not deal with these two issues in its
written decision. We recognise that that was a procedural irregularity. In that regard we
differ from the sheriff. Nevertheless, we are satisfied that he was entitled to conclude that
the lack of a written decision and reasons did not have a material effect on the conduct or
outcome of the proceedings. The appellants were present at the children's hearing. They
heard the arguments and the oral decision. They were not prejudiced by the lack of written
reasons because they were aware of the basis of the decision. They demonstrated that
19
awareness in the appeal to the sheriff and in the present appeal. Had written reasons been
given their position would not have been different in any material respect. In the whole
circumstances the procedural irregularity did not cause injustice (C v Miller 2003 SLT 1379,
at p 1395 of the opinion of the court delivered by Lord Osborne; CF v MF 2017 SLT 945,
Lord Malcolm at paras [37] - [39]; Locality Reporter Manager v AM 2018 Fam LR 14; X & Y v
Principal Reporter [2022] CSOH 32, Lady Wise at para [41]). It did not preclude the sheriff
from finding that the decision of the children's hearing was justified.
[41]
That takes us to the Article 17 submission. It seems that the submission was not
advanced before the children's hearing or before the sheriff during the appeal. It was put
forward after he had issued his decision, during the application for the stated case. Be that
as it may, the sheriff has dealt with it in the stated case. Here too, we see no error of law in
the sheriff's approach. Article 17 only applies where the court is seised of a case over which
it has no jurisdiction under Brussels II bis and where the court of another Member State has
such jurisdiction. As the sheriff observed, since the children's hearing (and, on appeal, the
sheriff) had jurisdiction in the proceedings and the Italian court did not have jurisdiction,
there was no basis for him to declare that he had no jurisdiction.
[42]
Finally, for completeness, we mention the four other arguments which the appellants
advanced. Not all of them are relevant to the questions posed in the stated case. However,
that is of no moment since we agree with the sheriff's observations in relation to each of
them.
Disposal
[43]
We shall answer Questions 1, 2, 3 and 4 in the negative and remit to the sheriff to
proceed as accords.
