A Polish child is caught in a bizarre legal catch-22 after a Sheriff ruled the the Scottish courts had no power to hear his case.
The boy, known in court as Z and now around a year old, was taken into foster care when he was four months old, amid concerns that his elder sister Y had been deliberately injured by one or both of his parents.
Glasgow City Council took the at-risk infant into care last year when his mother flew from Poland with him for a 'fleeting visit'.
However the fact that he is seen as ordinarily resident in Poland seems set to leave him in an endless cycle of failed referrals to the children's panel.
In a ruling in January, at Glasgow Sheriff Court, which has just been published, Sheriff Stuart Reid determined that while social services have the power to intervene to protect children resident outside the UK if they are at risk, the child cannot then be referred to a children's panel.
According to Lord Reid's findings the older child Y was taken into care many months before her brother was born, following allegations that her parents had harmed her, and she remains in the care of Glasgow City Council.
The normal order of events when a child is in danger would be for a social worker to seek a child protection order in the courts, and subsequently refer the case to a children's hearing for a decision about his or her future care.
But if the parents dispute the grounds for that referral, or if the child is too young to understand it, the case must be referred to a sheriff for a 'proof' hearing - effectively to decide whether the official 'grounds' are true.
Because the baby, unlike his sister, was 'ordinarily' resident in Poland after his birth, Sheriff Reid said the Glasgow court could not rule on the case.
Under European international law, the child protection agencies in one state can take 'provisional' protective measures if a child is at risk, while alerting the authorities in the child's 'home' country.
However this did not cover a court deciding on the factual basis of allegations in the grounds of referral.
In a 28 page judgement, Sheriff Reid concluded the proceedings were not competent under Scottish law when the child did not reside in Scotland and did not fall under key exemptions to council of Europe regulations: "This court has no jurisdiction as to the substance of the matter," he said. "Therefore I dismissed the application as incompetent and discharged the grounds of referral."
As his judgement notes, this does not prevent the council from continuing to act to protect child Z and it has continued to do so since the judgement. But child protection orders expire after 21 days. "If the present proceedings were dismissed, Glasgow City Council... could simply make further applications for successive child protection orders based on the same concerns," Sheriff Reid noted.
The Herald understands this is what has transpired, with each successive CPO automatically triggering a fresh referral to a children's hearing, which cannot take place - as the grounds cannot be established in court.
The legal limbo could be broken by a "belated " response from the Polish authorities, the judgement states, adding "to date the Polish Courts have taken no action."
The case is also being appealed by the Scottish Children's Reporter's administration.
Child Z remains in foster care.
Children's Hearings Scotland made no comment on the case. the Scottish Children’s Reporter Administration (SCRA) also declined: A spokeswoman said: “As proceedings, including an appeal against this judgment, are still ongoing, it would be inappropriate to comment.”
A spokesman for Glasgow City Council said: “Local authorities do not have a locus in respect of appeals against decisions by the Children’s Panel.
“However, we will study this judgement so we can understand what implications it may have for our service.”
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