IN THE PETITION OF MIDLOTHIAN COUNCIL FOR A PERMANENCE ORDER IN RELATION TO SC [2011] ScotSC 140 (29 August 2011)

IN THE PETITION OF MIDLOTHIAN COUNCIL FOR A PERMANENCE ORDER IN RELATION TO SC [2011] ScotSC 140 (29 August 2011)

The sheriff court does not have jurisdiction under section 118(2) of the Adoption (Scotland) Act 2007 as the child was not within the sheriffdom at the time of application. However, in the interests of the child and to avoid unnecessary delay and expense, the court has discretion under section 37(2A) of the Sheriff Courts (Scotland) Act 1971 to remit the cause to the Court of Session, notwithstanding the absence of jurisdiction.

Citation
[2011] ScotSC 140
Parties
Petitioner: Midlothian Council; Respondent: Natural mother; Respondent: Natural father
Jurisdiction
Scotland
Judgment Date
29 August 2011
Procedural Posture
Petition for Permanence Order (including Authority to Adopt) / Motion to Remit to Court of Session Due to Jurisdictional Challenge
Outcome
Remit to Court of Session granted; sheriff court declines jurisdiction.
Legal Topics
Permanence Orders, Adoption, Jurisdiction of Sheriff Court, Remit to Court of Session, Interpretation of Adoption (scotland) Act 2007
Family Law Child Law Jurisdiction Permanence Orders Adoption Jurisdiction of Sheriff Court Remit to Court of Session Interpretation of Adoption (scotland) Act 2007

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 13 Party arguments 2
Sign in to unlock

Parties

Midlothian Council

Petitioner

Natural mother

Respondent

Natural father

Respondent

Procedural Posture

Petition for Permanence Order (including Authority to Adopt) / Motion to Remit to Court of Session Due to Jurisdictional Challenge

Legal Issues

  1. 1 Whether the sheriff court has jurisdiction under section 118(2) of the Adoption (Scotland) Act 2007 to hear the petition for a permanence order where the child is not residing within the sheriffdom at the time of application
  2. 2 Whether the sheriff has power to remit the cause to the Court of Session under section 37(2A) of the Sheriff Courts (Scotland) Act 1971 in the absence of jurisdiction

Ratio Decidendi

The sheriff court does not have jurisdiction under section 118(2) of the Adoption (Scotland) Act 2007 as the child was not within the sheriffdom at the time of application. However, in the interests of the child and to avoid unnecessary delay and expense, the court has discretion under section 37(2A) of the Sheriff Courts (Scotland) Act 1971 to remit the cause to the Court of Session, notwithstanding the absence of jurisdiction.

Court Disposition

Remit to Court of Session granted; sheriff court declines jurisdiction.

Orders

  • The cause is remitted to the Court of Session pursuant to section 37(2A) of the Sheriff Courts (Scotland) Act 1971.