Procedural status: First instance, interlocutory. Written opinion issued following refusal of a motion to remit. Later history checked 3 August 2026; no later decision found.
A rare written opinion on when a family action raised in the Court of Session will be remitted to the sheriff court. The motion to remit was refused.
Background
On 24 November 2025 Lord Braid refused the defender’s motion to remit a family action to Glasgow Sheriff Court under sections 93(4) and (5) of the Courts Reform (Scotland) Act 2014. Given the dearth of authority on how the Court of Session approaches remits in family actions, counsel for the pursuer invited him to issue a written opinion, and this is that opinion.
What the court decided
Both parties accepted that McIntosh is the leading authority and is binding. The court must focus on the particular case before it rather than on the type of action in general, and simplicity or increased costs in one forum over the other are not in themselves factors justifying a remit.
Lord Braid accepted that Article 6 considerations could become relevant where the cost of the chosen forum created a genuine inability to participate effectively, and that children’s-rights considerations under the UNCRC could also be relevant where the choice of forum materially affected the child’s interests. Neither was treated as a binding rule. The pursuer’s right to determine the forum nevertheless remains a factor.
Much of the argument concerned which court would resolve matters more quickly. The defender relied on an email from the sheriff clerk’s office suggesting earlier proof dates in Glasgow and the possibility of disposal following a child welfare report. The pursuer countered that there was no real basis for supposing the case would be prioritised, that instructing a child welfare report would itself likely delay the fixing of a proof, and that such a report would not resolve the factual issue of abuse. Both counsel offered anecdotal examples of delay in each forum.
The court considered that with robust case management costs should be capable of being kept within proportionate bounds, and observed that granting the motion would have been tantamount to holding that actions for contact are not suitable for determination in the Court of Session.
Why this decision matters
Choice of forum in a contested family action is a real strategic decision, and the pursuer’s choice carries weight. A defender seeking a remit must point to something specific about the case, not to the general proposition that family work belongs in the sheriff court.
Cost and simplicity alone will not justify a remit, though an inability to pay severe enough to prevent participation may engage Article 6.
Anecdotal comparisons of waiting times are unlikely to persuade the court without a proper evidential basis.
Legal review: Brian Rooney, Managing Partner and Law Society of Scotland Accredited Specialist in Family Law.