Giving and taking away

To be a “relevant person” within the children’s hearing system is to hold a number of important rights and responsibilities in respect of a child who is referred to a children’s hearing. These include the right and obligation to attend the hearing, and the rights to challenge grounds of referral, to call for a review of any supervision requirement, to appeal against any decision and, since June 2009, to be accompanied to the hearing by paid legal representation (see my January 2010 column in these pages).

Currently, s 93(2) of the 1995 Act defines a “relevant person” as: (i) a parent enjoying parental responsibilities or parental rights under Part I of the 1995 Act; (ii) any (other) person who has parental responsibilities or parental rights under any Part of the Act; and (iii) any person who ordinarily has charge of or control over the child (other than by reason of employment). In practice it lies with the reporter to decide in the first instance whether any individual does or does not come within this definition (though a business meeting may sometimes assist the reporter in making that decision).

The first two categories leave little room for doubt because they are legally determined; category (iii), on the other hand, requires some assessment of the factual situation and the making of a judgment of whether or not a person “ordinarily” has “charge of or control over” the child. For some time the Scottish Children’s Reporter Administration resisted including long-term foster carers within category (iii), but in S v N 2002 SLT 589 the Court of Session held that the words of the statute imported a factual test and so had to be given their ordinary and natural meaning. There were clearly circumstances in which a long-term foster carer could be said ordinarily to have charge of and control over the child.

Status in fact

More recently the question of whether a person can seek by court action to be recognised as a relevant person has proved surprisingly troublesome. There had been a conflict of sheriff court authority on whether an individual could seek, by means of an order under s 11 of the 1995 Act, to be conferred what has come to be called “relevant person status”. In Principal Reporter, Petitioner 2006 SLT 1090 Lady Paton in the Outer House, entirely correctly, pointed out that such conferral would not be within the terms of s 11 and so would be incompetent as a claim on its own. That decision was subsequently affirmed by the Inner House in Principal Reporter v K 2010 SLT 309. A person may seek parental responsibilities and parental rights under s 11 and, if any of them are granted, will become by this means a relevant person, but he or she cannot seek a court order directly conferring “relevant person status”, with rights and responsibilities within the children’s hearing process but with no consequences beyond.

This position is, in the main, unproblematical. “Relevant person status” is enjoyed by all persons who either have one or more of the parental responsibilities or parental rights or ordinarily have charge of or control over the child. The exclusion of the father who has no parental responsibilities and parental rights (an ever-decreasing phenomenon since the Family Law (Scotland) Act 2006) is justified if he does not have charge of or control over the child; the test is wide enough to include the likes of grandparents and long-term foster carers who are in fact playing a significant role in the upbringing of the child.

The only difficulty is that the reporter has, in practice, the power to determine who ordinarily has charge of or control over the child, and the only way to challenge the reporter’s assessment of that fact is to wait until the hearing has made its decision and appeal the decision on the basis of procedural irregularity (failure to involve someone with a statutory right to be involved: see for example S v N). This is one of the difficulties that the Children’s Hearings (Scotland) Bill 2010 seeks to address.

No longer relevant

The bill retains the concept of “relevant person” as the key to full participation in a children’s hearing, but it makes a number of very significant changes both to the definition and to how “relevant person status” might be acquired.

Section 185(1) of the bill has a rather more limited definition of “relevant person” than is found in the 1995 Act. The definition is limited to those who currently have “parental responsibilities or parental rights” and will no longer include those who do not have such responsibilities or rights but who nevertheless have charge of or control over the child. Nor, because of a new provision in s 185(2), will the definition include, as the current law does (see S v Children’s Reporter 2008 Fam LR 84), any person whose only parental responsibility or right is that of contact. Another limitation (though this smacks of accident rather than design) is the omission of a child’s testamentary guardian from the definition of “relevant person”, for non-parents will be relevant persons under the bill only if they can trace their parental responsibilities and parental rights to an order under s 11(2)(b), and testamentary guardians of course obtain parental responsibilities and parental rights under s 7. Nor am I entirely convinced that adoptive parents will come within the definition, since they trace their parental responsibilities and parental rights to the adoption legislation and not the 1995 Act.

This more restrictive definition is balanced to some extent by a new process under which restructured “business meetings” (which will be renamed “pre-hearing panels”) will be able to deem an individual a relevant person, notwithstanding that he or she does not come within the definition, if they consider that the individual has (or has recently had) “a significant involvement in the upbringing of the child” (s 80). The effect of this is to move the power to assess the relevance of an individual to a child’s life from the reporter to the children’s hearing. But it also shifts the initiative from the official to the individual, with the result that foster carers, grandparents, unmarried fathers, and anyone else who wishes to be treated as a relevant person will now be required themselves to instigate a process to allow them to show that they satisfy the new test of “significant involvement”, where previously it was part of the reporter’s function to address that question whether asked to do so or not.

A clear improvement from the current system is that there will be a direct appeal to the sheriff from the decision on “relevant person status” (s 155), instead of the indirect mechanism described above.

Mechanisms and effects

There are some problems with the new rules in the bill. Sometimes the hearing system has to operate quickly and before any pre-hearing meeting can be held. And the process will use the definition of “relevant person” in s 185 until such time as a pre-hearing panel confers “relevant person status” on someone who does not fall within the s 185 definition. This will effectively exclude grandparents, foster carers and unmarried fathers from the emergency and interim processes within the system.

So for example when a child protection order is granted by a sheriff, notification must be given to the “relevant persons” (2010 Bill, s 41); likewise any relevant person may seek to have that order varied or terminated (s 46). Anyone who does not come within the s 185 definition will not have these rights, but nor will they have the time to request a pre-hearing panel to give them these rights. The effect is to exclude from some early stages of the system those individuals who would, under the 1995 Act, be included and who may well be included in later stages.

The same problem arises in the legal aid provisions. The Legal Aid (Scotland) Act 1986 is to be amended to allow legal aid for representation at pre-hearing panels, but only for children and relevant persons – not people who are requesting pre-hearing panels to give them relevant person status (and who would be relevant persons under the current law).

It seems then that the efforts to provide a more formal mechanism for a person who has no parental responsibilities or parental rights to achieve “relevant person status” will have the effect of excluding from certain parts of the overall process those who, by dint of being in fact relevant to the child’s life, would at present be centrally involved in all aspects of the process. Whether the removal of these rights is a price worth paying for the achievement of procedural certainty is a matter of political judgment. Ultimately, of course, the court may be called upon to determine the compatibility of whatever judgment the Scottish Parliament makes with the European Convention on Human Rights, and in particular the obligation to ensure family participation in legal processes of this nature.

• Kenneth McKnorrie is a Professor of Law in the University of Strathclyde