The UK Supreme Court held that a brother or sister does not have to be given the same formal status as a parent in a Scottish children’s hearing in order for article 8 of the European Convention on Human Rights to be respected. What is required is a sufficient opportunity, in the circumstances, to take part in the decision-making process as a whole. The Court dismissed both appeals and refused to declare the relevant provisions of the Children’s Hearings (Scotland) Act 2011 outside the Scottish Parliament’s legislative competence.
The issue
These appeals concerned brothers and sisters in Scotland’s children’s hearings system. A hearing can make a compulsory supervision order, which may decide where a child lives and regulate contact with specified people. ABC and XY were siblings of children subject to such orders. They said that their article 8 right to respect for private and family life was protected only if they could obtain the status of a “relevant person”. The Court, in a judgment by Lady Hale and Lord Hodge with which Lord Kerr, Lord Wilson and Lady Arden agreed, held that something more flexible could suffice.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
Article 8 covers both a duty not to interfere without justification and, in some circumstances, a positive duty to maintain family ties. The process leading to an interference must be fair. The Court was not persuaded that the article 6 right to a fair hearing added anything here.
Relevant persons
A children’s hearing is not a court. Three trained volunteers conduct it as a discussion, aiming to keep it informal, child-friendly and limited in numbers. The welfare of the referred child throughout childhood is the paramount consideration, although the hearing must also act compatibly with Convention rights.
A relevant person is normally a parent or guardian with parental responsibilities or rights, or another person on whom statute confers parental responsibility. Someone who has, or has recently had, a significant involvement in the child’s upbringing may be deemed a relevant person. That status brings notification, a legally enforceable duty to attend, the papers, a power to accept or reject the grounds of referral, legal representation, submissions, and rights of appeal and review. Most siblings would not meet the upbringing test. The proceedings showed that the legislation and guidance had left a gap in how sibling relationships were addressed.
The two cases
ABC wished to take part in a hearing about contact with a younger sibling. He was excluded from one hearing. At a later stage he was able to make his views known, and contact was preserved.
ABC sought judicial review and a declaration that the definition of a relevant person, the deeming mechanism and the contact-review provisions were incompatible with article 8 and therefore outside legislative competence. He claimed notice, all the papers, attendance with representation, a right to make representations, appeal or review, a right to require review of a sibling contact direction after three months, and adjournment where a sibling had not been notified.
XY sought relevant-person status in proceedings concerning siblings. The panel refused because he had not recently played a significant part in their upbringing. This raised the same legal issue as ABC’s challenge, although the family circumstances differed.
The courts below
In ABC’s case, the Lord Ordinary read the deeming provision, in light of Principal Reporter v K, as covering people whose established family life might be interfered with and who needed relevant-person status for protection. She nevertheless refused the orders sought. The First Division refused his reclaiming motion but recalled that reading-in. It held that the Convention did not require relevant-person status, or even an opportunity to apply for it. A relative other than a parent would not generally need a parent’s level of involvement. Written information might be required, but attendance only exceptionally. The legislation was flexible enough. XY’s appeal was refused on the same reasoning. The Division also shared concerns about the children’s privacy, the numbers attending and the disputatious nature of the hearings.
Why the same status was not required
The Court accepted that siblings may enjoy family or private life together and that their relationships can strongly affect a child’s welfare. Where a child is cared for away from the family, however, what ordinarily matters is maintaining the relationship through placement together or regular contact. A parent’s role in deciding how a child is brought up is qualitatively different. Respect is shown if, looking at the process as a whole, the sibling can take part to a degree sufficient to protect his or her interest. The degree depends on the bond and on any role in the child’s life.
The Court agreed that the Act, the rules, the common law and the article 8 duties of the officials could comply if operated sensibly. Practice had already changed. Sufficiently mature siblings are notified and invited. The chair may allow attendance where necessary for proper consideration, or more generally unless the child or a relevant person objects. Guidance directs reporters to invite a person with established family life, an ongoing relationship and sufficient maturity where contact concerning that person is likely to be considered or has been requested. Otherwise, the hearing should ensure that the person’s views are available, deferring if needed. A reporter would advise against refusing to obtain the views of a sufficiently mature sibling.
Siblings do not thereby receive the papers, but after the grounds are accepted the chair must tell those present the substance of any relevant document. Local authorities must gather information about siblings and contact and include contact arrangements in a looked-after child’s plan. The reporter can require reports, and a hearing making, varying or continuing an order must consider a contact direction. Guidance also tells panels to identify brothers and sisters, consider the children’s views, and promote practicable face-to-face contact. Parents and the child can speak for wider family members. These measures, the Court held, should work if hearings are conducted practically and in accordance with the guidance.
Principal Reporter v K did not require a different result. Its reading of an earlier definition protected an unmarried father and a limited class of people with a significant involvement in upbringing. It was not a formula for everyone with family life with the child. Relevant-person status would also be inappropriate: attendance is a criminal duty; a power to accept or reject the grounds could cause unnecessary sheriff-court proceedings; and the papers may contain sensitive information about the child and parents. Article 8 protects their privacy too. One of XY’s sisters objected in order to preserve hers, and ABC’s father was concerned about disclosure of information concerning him. The chair must also minimise the number of people present. Article 8 therefore does not require relevant-person status for a sibling without a significant involvement in the child’s upbringing. The competence challenges failed for essentially the same reasons as those given by the First Division.
The Court nevertheless recognised the gap the cases had exposed. Both child and sibling will usually have an interest in maintaining their relationship, but the enquiry must be tailored to the family, including any conflict between the article 8 rights of the child, parents and siblings. Everyone involved in the process needs to know of those interests, and siblings need to be told the nature of the proceedings and their rights. Whether further protective steps are desirable was left to the public authorities. The 2011 Act can, the Court held, be operated compatibly with article 8.
Verdict: The Supreme Court unanimously dismissed both appeals. Article 8 required sufficient participation to protect sibling relationships in the circumstances. It did not require every sibling to receive all the rights of a relevant person. The Court declined to declare the legislation outside the Scottish Parliament’s competence.
Source: ABC v Principal Reporter and another (Scotland) [2020] UKSC 26
