Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

PO20/11

JUDGMENT   of   SHERIFF WILLIAM HOLLIGAN   In the petition of   MIDLOTHIAN COUNCIL, Midlothian House, Buccleuch Street, Dalkeith, EH22 1DN   For a Permanence order in relation to SC

 

Innes, Advocate, for the petitioners, Midlothian Council

Mr Aitken, Thorley Stevenson for the natural mother

Natural father - present

 

Edinburgh 29^th August 2011

The sheriff, having resumed consideration of the cause, having heard parties and for the reasons set out in the Note issued herewith, pursuant to section 37(2A) of the Sheriff Courts (Scotland) Act 1971, remits the cause to the Court of Session.

 

Note

 

[1] These proceedings concern a petition at the instance of Midlothian Council ("the Council") for the grant of a permanence order, including authority to adopt, in relation to the child SC who was born on 15^th May 2010. The natural mother ("the mother") has entered the process. The curator ad litem and reporter has lodged a report. An issue arises in this case as to the jurisdiction of the court to make the permanence order. The mother asks the court to dismiss the action for want of jurisdiction. The Council asks the court to remit the cause to the Court of Session.

 

[2] The material facts in this matter are not in dispute. SC was born at the Royal Infirmary of Edinburgh on 15^th May 2010. She was subject to a Child Protection Order granted on 18^th May 2010. She remained in the Infirmary from her date of birth until she was discharged on 19^th May 2010. She was then immediately placed with kinship carers both of whom reside in Clydebank. SC has resided at that address since 19^th May 2010. Grounds of referral to a Children's Hearing were found to be established on 30^th July 2010. SC was made subject to a supervision requirement pursuant to section 70 of the Children (Scotland) Act 1995 ("the 1995 Act") on 10^th August 2010 which included a condition of residence with her kinship carers in Clydebank. The petition in this matter was received by the Sheriff Clerk on 26^th April 2011.

 

[3] Before I turn to the arguments of the parties I set out parts of the relevant legislation. (Miss Innes helpfully provided a copy of section 37 of the Sheriff Courts (Scotland) Act 1971 ("the 1971 Act"), as amended. I note that the current edition of the Parliament House book appears to be incorrect (Vol.3 page D88/7)).

Section 37(1) provides:-

"(1) in the case of any ordinary cause brought in the sheriff court the sheriff -

...

(b) may, subject to section 7 of the Sheriff Courts (Scotland) Act 1907, on the motion of any of the parties to the cause, if he is of the opinion that the importance or difficulty of the cause make it appropriate to do so, remit the cause to the Court of Session.

...

(2A) In the case of any action in the sheriff court, being an action for divorce or an action in relation to parental responsibilities or parental rights (within the meaning of sections 1(3) and 2(4) respectively of the Children (Scotland) Act 1995) in relation to a child or the guardianship or adoption of a child the sheriff may, of his own accord, at any stage remit the action to the Court of Session".

 

The relevant parts of the Adoption (Scotland) Act 2007 ("the 2007 Act") are sections 80(1) and 118(1) and (2) which provide as follows:-

"80(1) The appropriate court may, on the application of a local authority, make a permanence order in respect of a child.

...

118(1) In this Act "appropriate court", as respects any application made by virtue of this Act is to be construed as follows.

(2) If the application relates to a child who is in Scotland when the application is made, the appropriate court is -

(a) the Court of Session, or

(b) the sheriff court of the sheriffdom within which the child is."

 

In the course of the argument before me I was referred to a number of authorities concerning the question of remit. The statutory provisions concerning remit were originally to be found in section 5 of the Sheriff Courts (Scotland) Act 1907 ("the 1907 Act") as amended by the Sheriff Courts (Scotland) Amendment Act 1913 and are referred to in the authorities. The relevant parts of section 5 were as follows:-

"5. Nothing herein contain shall derogate from any jurisdiction, powers or authority presently possessed or in use to be exercised by the sheriffs of Scotland, and such jurisdiction shall extend to and include -

...

(2) actions of aliment, provided that as between husband and wife they are actions of separation and aliment, adherence and aliment, or interim aliment, and actions for regulating the custody of children

...

Provided also that on cause shown or ex proprio motu the sheriff may at any stage remit to the Court of Session any action mentioned in the second subsection of this section."

 

Rule 4(1) of the Act of Sederunt (Sheriff Court Amendment)(Adoption and Children)(Scotland) Act 2007 Rules ("the adoption rules") provides:-

 

"The sheriff may make such order as he thinks fit for the expeditious progress of an application under the 2007 Act... in so far as it is not inconsistent with the provisions of these Rules."

 

Submissions

 

[4] For the Council, Miss Innes moved me to remit the cause to the Court of Session pursuant either to section 37(2A) of the 1971 Act or pursuant to rule 4(1) of the adoption rules. In her submission, it was unnecessary for the court to decide the question of jurisdiction. In Miss Innes's submission, and I did not understand Mr Aitken to demur, the terms of section 37(2A) were capable of comprehending a permanence order. I agree with that submission. A permanence order contains mandatory provisions relating to parental rights and responsibilities and, in this case provisions seeking authority for adoption. The power to remit was originally contained within section 5 of the 1907 Act and in relation thereto, Miss Innes referred me to the case of Lindsay v Lindsay (1939) 56 Sh Ct Rep 88. Put shortly, in the course of his opinion the sheriff (principal) said that if a plea of no jurisdiction was well founded then an action cannot be remitted to the Court of Session and the appropriate course is to dismiss the action. (See also paragraph 13.59 of MacPhail on Sheriff Court Practice 3rd edition). Miss Innes contrasted this decision with that of Wilson v Hay 1977 SLT (Sheriff Court) 52 in which Sheriff Principal Reid QC held that, in relation to motions to transfer causes from one sheriff court to another, it was competent for a sheriff in a court holding no jurisdiction to transfer a matter to a court which did possess jurisdiction. The ratio for this was explained upon the basis that, in effect, the reforms brought about by the 1907 Act created within Scotland a national system of sheriff courts. The rules for transfer are now to be found in OCR 26.1, and in particular, Rule 26.1(3). However, Miss Innes did not invite me to transfer the cause pursuant to that rule. At this stage I record that I drew parties' attention to the case of Lamont v Lamont 1939 SC 484, a decision concerning a question of remit pursuant to section 5 of the 1907 Act and invited them both to address me on it. Miss Innes distinguished Lamont and also submitted that it was not binding upon me as it concerns different statutory provisions. Section 5 of the 1907 Act relates to an extension of jurisdiction to which there were certain provisos. The structure of section 5 was to extend the jurisdiction of the sheriff court to certain causes but then make it subject to a number of provisos. The provisos have now all been repealed and section 5 contains provisions as to jurisdiction only. The current remit provisions are found in section 37 of the 1971 Act or the rules of court. Subsection 37 makes no reference to questions of jurisdiction and relates only to questions of remit. The ratio in Lamont was to the effect that, if there was no jurisdiction, the court could not then go on to exercise the discretion to remit the matter. In effect, the decision was made in terms of competency. In Miss Innes's submission, the court still has a discretion to remit the matter whatever its conclusion as to jurisdiction. The absence of jurisdiction may be a factor in the exercise of the court's discretion. Miss Innes accepted that, on the face of it, section 37(2A) provides that the right to remit may be exercised by the sheriff "of his own accord". By contrast, section 37(1)(b) provides that a remit may be made on the motion of either party. Miss Innes submitted that it could not be correct that the power to remit, pursuant to section 37(2A), could only be exercised by the sheriff and without any reference to the parties. There has to be a mechanism in which the parties can bring the matter before the sheriff inviting him to exercise his discretion to remit.

 

[5] Miss Innes also submitted that rule 4.1 of the adoption rules is broad enough to include a power to remit. The rule provides that the Sheriff "may make such order as he thinks fit for the expeditious progress" of an application. The making a remit would not be inconsistent with other provisions of the rules. It follows that the power to remit is contained within the general power contained in rule 4(1). On the facts of this case a remit to the Court of Session would expedite matters. Miss Innes referred briefly to the case of Mullan v Anderson 1993 SLT 835, a decision of the Inner House (5 judges). However, Miss Innes accepted, rightly in my view, that Mullan v Anderson does not have any application here because it was concerned solely with the provisions of section 37(1) only. The cause should be remitted in this case because: (a) if the cause were remitted to the Court of Session there would be no dubiety about the jurisdiction and the action could be progressed expeditiously and in the best interests of the child; (b) the matter is one which is self evidently of the greatest importance to the parties and in particular to the child who was the subject of the application; (c) the Court of Session is convenient for both the petitioners and the respondent. Contact is currently supervised within Edinburgh; (d) there would be only minimal delay in progressing the case. The remit can be dealt with quickly. It is in the best interests of the child that the process begun is brought to a conclusion expeditiously. The work which has previously been undertaken in the case will not be wasted; (f) delay in cases involving children has been the subject of adverse comment. Miss Innes referred to B v G 2011 SC 191 at paragraph [23]; (g) there is no prejudice to the respondent. She will receive legal aid in the Court of Session as she would in the sheriff court. The same agents can be retained. If there is any motion for interim orders they could be dealt with immediately on a remit; (h) the curator ad litem and reporting officer has already reported. His appointed can be preserved.

 

[6] In his reply Mr Aitken submitted that the Council's' motion to remit the matter to the Court of Session was done in order to avoid the court making a determination as to the matter of jurisdiction. The Council had made no concession concerning jurisdiction and their position before me was a smokescreen to avoid the question of jurisdiction being determined in this and indeed other cases. Mr Aitken submitted that the reasons for remit relied upon by the Council did not justify such a step. The only real basis for remit is the dubiety as to jurisdiction and that is not a good reason for a remit. The other provisions do not justify a remit. There is nothing in this case of exceptional difficulty. As a matter of practice, the Scottish Legal Aid Board take the view that these matters are not of sufficient complexity to justify the instruction of counsel. If importance to the parties was the reason for remitting then it would follow that in virtually every case a petition would fall to be remitted. In Mr Aitken's submission, the court could remit the matter to the Court of Session even if it held that it had no jurisdiction. In short, Mr Aitken did not submit that Lamont is binding although it is highly persuasive. For reasons similar to Miss Innes, he submitted that section 37(2A) is different from section 5. Also, Mr Aitken agreed with Miss Innes that the provision contained in section 37(2A) relating to the sheriff remitting "of his own accord" could not preclude a party making a motion for a remit or at least bringing the matter before the sheriff.

 

In Mr Aitken's submission, rule 4(1) of the adoption rules did not apply to a remit to the Court of Session. He drew attention to the different appeal provisions which would apply to a decision of the sheriff (see section 37(3) compared with that which would apply to the rule). In Mr Aitken's submission, a procedural rule could not confer upon the sheriff a power he does not have. If the sheriff has no jurisdiction then, in terms of rule 4, he cannot remit the matter. It would be odd if rule 4 applied where section 37(2A) does not. I confess I have some difficulty in seeing the distinction between Mr Aitken's approach to the interpretation of section 37(2A) and rule 4(1). I would have thought the consequences should be the same for both, namely dismissal. I ought to add that Mr Aitken did accept that, if I concluded that the ratio in Lamont does apply in relation to jurisdiction then it would be open to me to hold that a remit is not open to me in circumstances where the court has no jurisdiction.

 

[7] At this point I now turn to Mr Aitken's submission concerning the question of jurisdiction. In short, section 118 is clear in its terms. It makes reference to "any application made by virtue of this Act". In the context of this case the application is made when it is lodged with the sheriff clerk which, in this case was 26^th April 2011. Section 118(2)(b) makes reference to the sheriff court of the sheriffdom "within which the child is". When the application was made the child was in Clydebank not in Edinburgh. In Mr Aitken's submission, the word "is" means where the child is habitually, physically present. It is not a question of "habitual residence". Indeed, on the facts of this case, the child had not resided within the geographical jurisdiction of the court since she was 4 days old. Section 118 is in identical terms to section 56 of the Adoption (Scotland) Act 1978 ("the 1978 Act"). So far as Mr Aitken's researches had disclosed, section 56 had never been the subject of any judicial determination. In the course of his submission, Mr Aitken referred to paragraph 29.36 of Macphail and paragraphs 2.05-2.06 of McNeill on Adoption (3^rd edition) and paragraph 2.15 of the same work in its 4^th edition. He also referred to an extract from Hansard relating to the Children Act 1975 ("the 1975 Act") Mr Aitken then made reference, in detail, to the case of Glasgow City Council v M 2001 SC 415 which might be thought to give some support to the Council's position. It is sufficient for present purposes for me to say that, in Mr Aitken's submission, Glasgow City Council v M has no application to the proceedings before me. Apart from anything else, it dealt with substantially differently legislation. Accordingly, on the facts of this case, on a plain reading of section 118, this court does not have jurisdiction and the court ought to dismiss the petition.

 

[8] However, as I have said, Mr Aitken was prepared to concede that even if there was no jurisdiction the court might yet have power to remit. Section 37(2A) itself does not provide any test. The court should look at the case as a whole and decide what is the appropriate thing for it to do and in reaching its conclusion it should consider matters of natural justice and prejudice. On the facts of this case, if the matter is remitted to the Court of Session, there will be effects upon the mother principally because of the effect of sections 95 and 96 of the 2007 Act. In March 2011 a Childrens' Hearing reduced the mother's contact with SC to once every two months. It was accepted that the panel had proceeded upon certain erroneous information. That matter was appealed to the sheriff and the appeal was not resisted. However, by that time the present petition had commenced. The sheriff hearing the mother's appeal had remitted the matter back to the Children's Hearing to reconsider their decision. However, because of the provisions of sections 95 and 96 the Children's Hearing would be bound to prepare a report for the court and further procedure would be required. The net effect is that the decision of March 2011 remains in force which was prejudicial to the mother, particularly where it was conceded that the decision was based upon erroneous factual information. If the present petition was dismissed there would be no bar to the Childrens' Hearing dealing with the matter. In answer to this submission, Miss Innes submitted that even if the application was dismissed the Council would move to raise proceedings as soon as possible so section 96 would thus be re-engaged almost immediately.

 

[9] Mr Aitken also submitted that the advice that the Childrens' Hearing had produced to the court was similarly flawed because it was based upon erroneous information. If the present action were dismissed then fresh advice could be tendered by the Childrens' Hearing to the court. In Miss Innes's submission the court would only consider the question of the advice at the stage of granting the order. There is be nothing to stop the advice being reconsidered.

 

[10] Thirdly, Mr Aitken had a number of criticisms of the curator's report. I do not think it is necessary for me to record these. In short he submitted that it would be better if the action were to be dismissed and a new curator appointed. Miss Innes submitted that if the court did have any concerns about the curator's report he could be asked to clarify this in a fresh report. Finally, Mr Aitken submitted that although there would be some delay if the petition were to be dismissed it would not be long. The present petition had not yet reached the stage of the lodging of answers. Mr Aitken conceded it might be said that in fact delay would work to the prejudice of his client. Nonetheless, even if that were the case, the court should not proceed to deal with a matter where it had no jurisdiction.

 

[11] In relation to the question of jurisdiction, Miss Innes submitted that section 118(2) could be interpreted to include both where the child is and where the seat of the Council looking after the child is. The words "residence" or "presence" do not appear in the section. Section 81(1)(b) anticipates that the Council will have the power to regulate the residence of the child. That is one of the mandatory provisions. Miss Innes relied upon Glasgow City Council v M. In that case the Inner House had concluded that "sheriff" in section 86 of the 1995 Act related to the sheriff in whose area the local authority was situated. Miss Innes agreed with Mr Aitken that there was no authority on the interpretation of section 118(2) either in its current form or in terms of section 56 of the 1978 Act. She also referred to McNeill on Adoption although pointed out there is a slight difference in the wording between the 3^rd and 4^th addition. Miss Innes agreed with Mr Aitken that the provisions of section 56 derived, in practical terms, from the Children Act 1975 (section 100(3)(b)). The word "is" can include where the child is being looked after and that includes in terms of a Child Protection Order, a referral and a supervision requirement. Section 118(2) is not limited to physical presence.

 

Jurisdiction

 

[12] It is necessary that I determine the question of jurisdiction first, The issue of jurisdiction is the only reason why the motion to remit arises. If there is no such issue then, as Mr Aitken submitted, there is nothing else about these proceedings which would justify a remit. In my opinion, the question of jurisdiction falls to be determined by reference to the correct interpretation of section 118 of the 2007 Act. Section 80 provides that a local authority may make application for a permanence order. The definition of "local authority" found in section 119 is of no relevance. I agree with the submission that an application "is made" when it is lodged with the sheriff clerk. Section 80 refers to "the appropriate court" and that is defined in section 118(2) by reference to where the child is. Therefore, on a straightforward construction of sections 80 and 118 the application may only be made by the local authority to a court identified by reference to section 118(2). The question then arises as to what is meant by the words "within which the child is". Both parties agreed, rightly in my view, that one cannot construe the words literally. For example, if on the day that the application was made the child happened to be on holiday somewhere out of the sheriffdom, if section 118(2) is interpreted literally, then the court would not have jurisdiction. However, if one accepts that a literal interpretation cannot be correct one is driven to find some other form of words which satisfies "within which the child is". Section 118 does not apply only to permanence orders but to the entire 2007 Act which includes adoptions. Adoption cases may involve other considerations as to jurisdiction which may help to explain why there appears to be no authority on the issue (see sections 15 and 29 of the 2007 Act). I did wonder whether the provisions of part II, read as a whole, might lend themselves to resolving the issue of interpretation but that does not appear to me to be the case. In the course of argument, it was pointed out that, where there are siblings, it is by no means impossible that different members of the same family may, temporarily, be residing in different jurisdictions at the time an application is made. As is often the case there may be a supervision requirement before a Childrens' Hearing which is in a location different from the appropriate court. An interpretation leading to fragmentation of jurisdiction is undesirable. On the other hand, although it may not be relevant in this case, proceedings nearest to where the child is may be the most appropriate location so as to minimise inconvenience to the child should he or she be involved in the conduct of proceedings.

 

[13] Reference was made to the case of Glasgow City Council v M 2001 SC. Miss Innes relied upon it to support her position; Mr Aitken sought to distinguish it. In my opinion, this case is of no assistance. The primary issue in that case concerned the meaning of the "sheriff" in circumstances where the statute (the 1995 Act) gave no direct guidance as to jurisdiction. The Inner House held that "sheriff", in that context, meant the sheriff in whose sheriffdom lay the area of the public authority involved in the intervention (see paragraph [25]). In the present case the statute links the appropriate court to the child. I do not see that the ratio in Glasgow City Council v M has any application here.

 

[14] As was pointed, section 118(2) is in very similar, if not identical terms, to section 56 of the 1978 Act. Neither party was able to identify any authority on the interpretation of section 56. I do not derive any assistance from the text books to which I was referred. Although I do not rely upon it, I note that the extract from Hansard to which I was referred does seem to suggest that Parliament intended that there be a link between the court and the child.

 

[15] In interpreting section 118(2) I am not inclined to substitute one definition for another. If Parliament had meant "habitually resident" (and both parties agreed that it did not) or "physically present" or some other formula it could have said so. In my opinion, by phrasing section 118(2) in the way in which it has, Parliament has elected to link the court where proceedings are to be raised to the child; not the parents, not the family and not the local authority. I do not see any scope for reading the words of section 118(2) to mean where the local authority is. I cannot see that the words within the subsection permit of any other construction. In my opinion, deciding where the child "is" is a question of fact and involves consideration of all the surrounding facts and circumstances. That includes, but is not limited to, those at the time the application was lodged. On that analysis, the child was only ever within the jurisdiction of this court for a matter of days before being transferred to kinship carers pursuant to what I will call supervision proceedings. She has never, in any real sense, lived within the jurisdiction of this court. She has been residing outwith the jurisdiction for a considerable period of time before this petition was lodged. She is too young to have any sense of understanding of locality or involvement in the current proceedings. The kinship carers who look after her both reside in Clydebank, the natural parents do not. On the other hand, the child is where she is because of the supervision proceedings. Had they not been brought it is reasonable to assume that she would have lived with her parents within the jurisdiction of this court. In some respects, conditions of residence may, by an accident of local authority resources distort where a child (or indeed, in the case of siblings, children) may be living at the time an application is lodged. That is another reason why I do not favour a literal interpretation of section 118(2). However, having said all of that, having regard to all of the foregoing facts and circumstances in this case I feel constrained to conclude that that the terms of section 118(2) have not been satisfied and that this court does not have jurisdiction.

Remit

 

[16] That leads me to the second issue in this case, namely the matter of whether I can, and should, remit the matter to the Court of Session. At this point I should record that both parties referred me to a recent case in this court in which Sheriff Mackie remitted a permanence order to the Court of Session. However, both parties accepted that the matter of remit had not been the subject of argument and that the order was made of consent. I have already set out the statutory provisions. In my opinion, the statutory history of this matter is important in construing section 37(2A) of the 1971 Act. The power to remit what I will describe generally as family causes originally appeared in section 5 of the 1907 Act. Both parties laid some store by the fact that the section is headed "extension of jurisdiction". It is clear that, prior to the enactment of section 5, the jurisdiction of the sheriff court in family matters was limited (see paragraph 01.027 of Clive on Husband and Wife (4^th edition) and paragraph 9.21 of Wilkinson and Norrie, Parent and Child (2^nd edition)). The policy of the legislation was to extend the jurisdiction of the sheriff court to hear new classes of actions but reserving to the sheriff the right to remit a matter to the Court of Session. Although the proviso in section 5 is silent as to the circumstances in which such a remit ought to be made, it was clearly established at an early stage that a remit should only be made in cases of special difficulty (Dunbar v Dunbar 1912 SC 19). As originally enacted, section 37 of the 1971 Act had no application to family causes. Section 37 assumed its current form following an amendment thereto by section 16 of the Law Reform (Miscellaneous Provision) (Scotland) Act 1980 ("the 1980 Act"). That section, inter alia, enacted into law certain recommendations made by the Grant Committee ("The Sheriff Court" Cmnd 3248) in 1967. Paragraph 176 recommended the extension of the power of the sheriff to remit causes to the Court of Session in family cases to adoptions. I note the Committee considered that there may be difficult issues of jurisdiction As I have said, it was suggested that section 37 is materially different from section 5; section 5 extended the jurisdiction of the court and set out a proviso; section 37 does not extend the jurisdiction and contains a general power of remit. At this point I refer to the cases of Lindsay and Lamont. Lindsay is cited in Macphail (at the passage I referred to above) as authority for the proposition that it is not competent for a court to remit a matter in which it does not have jurisdiction. The facts of the case are not particularly relevant. In short, an action for aliment was raised in Lanark Sheriff Court in circumstances where the defender was only very briefly present within the jurisdiction. A plea of no jurisdiction was upheld. Both the sheriff substitute and the sheriff commented that had the court been asked to do so it probably could not have remitted the matter to the Court of Session because of an absence of jurisdiction. Lamont was also an action of adherence and aliment. The sheriff held that, as the action involved personal status he had no jurisdiction to deal with the matter and remitted the matter to the Court of Session. The ratio of this case was that the remit made by him was not competent because he had not exercised his discretion, having done so under an erroneous belief that his jurisdiction was excluded. The court held that he did have jurisdiction and the matter was remitted back to him to reconsider. The rubric of the case contains the observation that, had an action of declarator been raised and had the exception in section 5(1) applied, then the court would have been bound to dismiss the action as incompetent. In contrast, in relation to transfer, on one view, it might be thought to be an odd result to hold that a finding of no jurisdiction means that the sheriff cannot remit a cause to the Court of Session but, on the same finding, the sheriff can transfer the matter to another sheriff court. That is particularly so where the sheriff court and the Court of Session enjoy concurrent jurisdiction.

 

[17] I have already determined that this court does not have jurisdiction. In my opinion rule 4(1) of the adoption rules has no application to this matter. The power to remit is specifically addressed in section 37(2A). The general power conferred in the rule must yield to the specific provisions of section 37(2A). That said, as was discussed in the debate before me, there may well be said to be some overlap between the provisions of sections 37(1)(b) and 37(2A), particularly where an ordinary action is raised seeking an award of parental rights and responsibilities. However, that is an issue which does not arise in the present case. I was concerned that the decisions in Lindsay and Lamont might be said to be binding or at the least highly persuasive on the point in issue. I have come to the conclusion that the dicta in both cases as to the consequences of a finding of no jurisdiction to decision to remit are obiter. Furthermore, whereas I am not wholly convinced that the terms of section 37(2A), compared with section 5, can be said to be new statutory provisions in the sense contended for by the parties, I am nonetheless of the view that section 37(2A) does need to be considered in the context of the substantial changes to family law which have occurred since Lindsay and Lamont were decided and the 1907 and 1980 Acts enacted. These changes include, but are not limited to, the 1995 Act and the jurisprudence which has followed from its enactment. In my opinion, the law has reached the stage of development where, in cases relating to children, rules of procedure should be construed having regard to the welfare and interests of the child. (See in particular the guidance of the Inner House in B v G 2011 SC 191 at paragraph [23]). As I have said, section 37(2A) itself is silent as to the basis upon which the discretion should be exercised. Indeed, section 37(2A) appears to have no provision entitling a party to bring such a motion, leaving it to the discretion of the sheriff (contrast this with the terms of section 37(1)(b)). However, like the parties themselves, I am not inclined to attach significance to that issue. The matter before me arose in debate and it is now a matter for me to decide. Another feature is that both the sheriff court and the Court of Session enjoy concurrent jurisdiction as to permanence orders. The case could competently have been raised in the Court of Session. I am told that if proceedings are dismissed they will simply be re-raised. That will inevitably involve greater expense and, of greater importance, delay, neither of which is in the child's interest or the public interest. Mr Aitken referred to potential prejudice to his client if the petition is not dismissed. However, I consider these to be largely a consequence of a finding of no jurisdiction. Had there been no issue of jurisdiction they would never have arisen. Also, for the reasons given by Miss Innes, I consider that they are matters which can be addressed in the course of proceedings in the Court of Session. However, I would add that Mr Aitken's submission highlights the issues which are arising with increasing frequency where there is what I will describe as an overlap between supervision proceedings and applications for permanence orders. In my opinion, having regard to all the material before me the interests of SC would be best served by the remit of this matter to the Court of Session rather than dismissing the action. For these reasons I shall accede to the petitioner's motion and remit the matter to the Court of Session. However, I ought to add that, for my own part, I do not consider that remits to the Court of Session from this court should be considered a matter of routine. Each application will involve consideration of its own facts and circumstances.