3rd Jul 2020

In our latest blog post, Rehana Begum takes a look at an appeal which concerns the role of siblings in the procedures by which children in Scotland are made the subjects of compulsory supervision orders (“CSO’S”), (equivalent to Care Orders in England).

Article 8 (ECHR) of non-subject siblings in court proceedings relating to a sibling in care (in Scotland).
ABC (Appellant) v Principal Reporter and another (Respondents) (Scotland) In the matter of XY (Appellant) (Scotland) [2020] UKSC 26

Judgment given on 18.06.20
Lead Judgment delivered by Lady Hale and Lord Hodge (with whom Lord Kerr, Lord Wilson and Lady Arden agreed).

A gap in the legislation – is a sibling a “relevant person”
These appeals concern the role of siblings in the procedures by which children in Scotland are made the subjects of compulsory supervision orders (“CSO’S”), (equivalent to Care Orders in England).

The principal issue concerns the procedures required to make sure that public authorities comply with the obligation in article 8 of the European Convention on Human Rights (“ECHR”) to show respect for the private or family life established between a sibling and the child who is the subject of a CSO. Although concerned with Scottish Law, the convention rights under consideration apply in English Law in the same way.

The importance of sibling relationships was not in issue. It has long been recognised that the relationship between siblings can be the longest lasting and most stable a child in care might experience throughout his/her life. What was in issue was how the importance of that relationship should be reflected in the court proceedings. Should they be accorded the same status as parents as “relevant persons” or some other status? The proceedings which led to the appeals revealed a gap in the legislation with regard to the definition of relevant persons. The focus of the appeals is article 8 rights of siblings and the court has a duty to take account of those rights, but the welfare of the child in proceedings remains the court’s paramount consideration.

Sections 81 and 200 of the Children’s Hearings (Scotland) Act 2011 require notice of the date and time of a hearing to be given to any “relevant persons” and also any individual who has had significant involvement in the upbringing of the child (Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Rules 2013, rule 22 (SSI 2013/194)).

A relevant person in relation to a child has the right to attend a hearing[section 78(1)]. Section 200 defines a relevant person as including a parent or guardian with parental responsibilities or parental rights, and others upon whom Statute has conferred parental responsibility (including the Children Act 1989). The Act provides a mechanism under sections 79 – 81 whereby a person may be deemed to be a relevant person in relation to a child. The individual concerned can make a request for the issue to be decided at a pre-hearing panel The panel is bound to deem the individual a relevant person “if it considers that the individual has (or has recently had) a significant involvement in the upbringing of a child”.

A relevant person has the right to attend hearings, be legally represented and see the court papers and the right to appeal a decision of the panel and seek a review of a contact direction of a CSO.

A sibling who had lived with a sibling prior to the issue of proceedings would by this criteria appear to be a relevant person, however in most cases siblings are not given this status and it is that state of affairs that gives rise to these appeals.

The Facts
ABC is 16. His younger brother DEF is 9. ABC and DEF were made the subjects of CSO in 2016 and placed in different foster placements. In 2017 there was a hearing in respect of DEF to which ABC was not invited, nor were his views canvassed in advance of the hearing. ABC attended the hearing but was not permitted to speak or to stay. He was invited to the next hearing, the chairperson exercising discretion to allow ABC and his solicitor to express ABC’s views.

XY is 24 and has 3 sisters who are now 17, 16 and 14. He and his sisters were removed from their parents’ care and made the subjects of CSO’s in 2013. In 2017 a pre-hearing appeal panel refused XY’s application to be deemed a relevant person in relation to his sisters. That decision was overturned by the Sheriff but, on an appeal by the eldest sister to the Sheriff Appeal Court, the decision of the pre-hearing panel was restored in relation to her. In 2018 a children’s hearing determined that XY should not continue to be a deemed relevant person in relation to the two younger sisters. The hearing again refused to deem him a relevant person in respect of his eldest sister. XY appealed unsuccessfully to the sheriff and his appeal by stated case to the Inner House under section 164(1) was refused. As a result, XY is no longer a deemed relevant person in relation to any of his siblings.

The claims raised by ABC
ABC made an application for judicial review on the grounds that the decisions refusing to designate him a deemed relevant person were unlawful. He sought a declaration that (a) the definition of a relevant person; (b) the mechanism by which a person can be deemed a relevant person, and (c) the provisions for the review of a contact direction are all incompatible with his rights under Article 8 (ECHR), are outside the legislative competence of the Scottish Parliament and are therefore not law.

ABC contended that the way the children’s hearing system has been and is operated does not give adequate protection to the legitimate interests of siblings (and other family members such as aunts , uncles and grandparents, who do not have a significant involvement in the upbringing of a child) to preserve a family relationship with the child and, the legitimate interests of the child in preserving a family relationship with siblings and other relatives.

ABC contended that that his Article 8 rights entitled him to the following procedural rights in children’s proceedings:

  • Notification of a hearing and notification of whether or not a CSO and contact direction is being sought;
  • Access to all the papers which are to be considered at the hearing;
  • The right to attend the hearings and be legally represented;
  • The right to make representations;
  • The right to appeal or seek a review of the decision made at the children’s hearing;
  • The right to require the children’s hearing to review its direction as to contact between siblings after 3 months; and
  • A mandatory direction to the chairing member of a children’s hearing to adjourn a hearing if a sibling of the child has not been notified of the hearing.

The respondents to these appeals accepted that family members had legitimate interests but did not need to be afforded the status of relevant person in order for them to be respected (there being discretion to the chair person to allow information from such relatives to be obtained and considered by the panel).

The central question
The court surveyed the jurisprudence of the ECHR, which has long recognised that siblings have an article 8 right to family life together (including siblings who do not live under the same roof).

The key question is whether the current system allows sufficient opportunity for siblings to participate in the decision–making process, without being afforded the status of relevant person or whether that is only possible if such status is conferred.

The Decision
The appeal was dismissed and no declaration was made as to legislative incompetence. The Court held that Article 8 ECHR did not require the public authorities to give a sibling who has not recently had a significant involvement in the upbringing of the child, the status of a relevant person. This was on the basis that the sensible application of the ECHR, the provisions of the Act and subordinate legislation are sufficient to enable a sibling to make such important contribution as is required to the decision-making prior to the making of a CSO.

The Court did however acknowledge that the appeals did identify a gap in the children’s hearing system that has had to be adapted to meet the requirements of article 8 in relation to siblings and other family members.

The rights of the sibling and other family members can be upheld effectively by following the steps outlined (at paragraphs 32 to 40 of the judgment) and the legislative scheme of the 2011 Act can be operated in accordance with those rights.

Parallels in English Law
The English Law in respect of child protection is of course different to Scottish Law. The position of siblings and other relatives without parental responsibility who wish to have involvement with proceedings concerning a child is however similar in that they can apply for permission under section 10(9) to make an application in connection to a child who is the subject of proceedings. This case makes clear that such decisions must be considered carefully and that siblings should play a role in decision-making, whether by way of being made party or through being consulted in other ways.

Rehana Begum
18 St John Street Chambers
3 July 2020

Rehana Begum is head of the Family Department at 18 St John Street Chambers. If you have any queries about this or any other related subject, please feel free to contact us on our usual contact details and we will be delighted to assist you.