PIL instrument(s)

Case number and/or case name

Application in respect of A and B Sheriff Court (Lothian and Borders) (Haddington) [2014] Fam. LR. 137, [2014] G.W.D. 38-698 (Sheriff J M Scott, QC)

Details of the court

Scotland, First Instance

Articles referred to by the court

Date of the judgement

01 September 2014

Appeal history

CJEU's case law cited by the court

Summary

This case concerned the issue of transfer of jurisdiction under Art 15 of the Regulation. A request was made by a German court to the Sheriff Court for the transfer of jurisdiction over proceedings in respect of two children who had been brought to Scotland by their mother. In Scotland, the children were made subject to interim compulsory supervision orders pursuant to which they were placed in foster care. Neither the father nor the curator in Germany intended to make an application for the return of the children to Germany. In the request for the transfer of jurisdiction, the German court stated that due to the presence of the children in Scotland, Scottish courts were better placed to adjudicate the case. Moreover, the father had not seen the children for several years and the mother had severed her connections with Germany. The German court considered that the Scottish court was in a position to make decisions in the case quickly and that this was in the best interests of the children. The Sheriff first examined the material scope of the Brussels IIa Regulation to confirm that the case fell within the scope of the Regulation. She was satisfied that according to Art 1.2 the issue of the placement of the child in a foster family fell within the scope of the Regulation, and that according to Art 2.1 the reference by the Regulation to a “court” covered all authorities with jurisdiction in the matters falling within the scope of the Regulation. Afterwards the Sheriff addressed the German court’s request for the transfer of jurisdiction. The Sheriff acknowledged that if jurisdiction was not accepted in Scotland, there was a risk that the children would be left unprotected. Indeed, the provisional arrangements under Art 20 of the Regulation could not continue indefinitely. The Sheriff therefore recognised that it was in the best interests of the children that jurisdiction was accepted. The Sheriff, however, pointed out that her decision did not bind the children’s hearing which had primary responsibility and would take any future substantive decisions in the case. Subject to the children’s hearing deciding to accept a transfer of jurisdiction, the Sheriff gave directions for a proof on the grounds of referral and in the meantime extended interim compulsory supervision orders pursuant to which the children remained in foster care for a further period. The Sheriff took this opportunity to point out that the children’s hearing as a lay tribunal was not well equipped to deal with applications under the Brussels IIa Regulation (or the 1980 Hague Abduction Convention). The procedural rules related to the possibility of the children’s hearing declining jurisdiction, considering a request for a transfer under Art 15, or making a request for transfer were unclear and this was clearly not in the best interests of children.