When is a person a “relevant person”?

The recent decision of MP v Templeton [2014] CSIH 66 once again highlighted the significance, and perhaps the potential difficulties in certain circumstances, of establishing whether a person can be deemed to be a relevant person.

The status of relevant person is something of importance to persons who attend at a children’s panel hearing and/or a children’s referral proof. It has implications in terms of representation and of course any appeal rights. However, whether a person can be deemed by a panel (or a pre-hearing panel for that matter) to be a relevant person is not something that can always be answered in a simple fashion.

There can be no doubt that many practitioners and reporters have experienced persons turning up at hearings or proofs only to be advised that they are not a relevant person. To a layperson this may admittedly be bewildering, given especially that such persons are likely to be family members or have some association with the family concerned. To practitioners and reporters alike, the point at which a person should be deemed a “relevant person” is not necessarily clear cut. A number of cases have been generated by the Children’s Hearings (Scotland) Act 2011 in this regard. These have offered some guidance as to the approach to be taken. Some further explanation is necessary first, however.

MP was an appeal taken on the now repealed s 93(2)(b) of the Children (Scotland) Act 1995. That section has been entirely replaced by s 200 of the 2011 Act. Whilst s 200 contains many similar provisions to the former s 93, it does not re-enact its reference to “any person who appears to be a person who ordinarily (and other than by reason only of his employment) has charge of, or control over, the child or who appears to have established family life with the child with which the decision of a children’s hearing may interfere”.

The prescribed categories in s 200 of persons who are to be relevant persons will not be discussed here, as they do contain many similarities to those in the former s 93 and thus do not present any issues as such. However s 81(3) of the 2011 Act states that a person is to be deemed to be a relevant person if a pre-hearing panel considers that “the individual has (or has recently had) a significant involvement in the upbringing of the child”. It is the interpretation and application of this particular provision that has generated some thought and debate. Some guidance can be drawn from a number of recent decisions.

“Significant involvement”

First, in H v Scottish Children's Reporter 2014 Fam LR 63, Sheriff Braid at Haddington heard an appeal by a mother against a pre-hearing panel's decision that a father could be deemed a relevant person. At para 8 the sheriff appeared to indicate that what is a “significant involvement” on the part of the relevant person must depend to some extent on the age of the child. He went on: “Indeed I would go further, and say that the age of the child when the involvement began is also a relevant consideration. The father who is involved from birth may have a more significant involvement than one who turns up after a year and is involved for only a few months.”

The sheriff added: “Here, we are dealing with a very young baby, and while I also accept that 'significant involvement' entails more than mere contact, I consider that changing nappies, feeding and bathing on a regular basis, from more or less immediately after the child's birth [from two weeks old] does amount to a significant involvement in that child's upbringing.”

He also highlighted that "recently" would vary according to the circumstances from one case to the next. The whole circumstances had to be considered.

In F v Principal Reporter 2014 Fam LR 57, Sheriff Reid sustained an appeal insofar as a panel had erred in law. Grandparents appealed a decision that they had not had a significant involvement in the upbringing of the child. The sheriff stated inter alia that the test for a relevant person is not to be applied on the basis that it would be in the best interests of the child to deem the individual to be a relevant person. Rather, the test is to be factual rather than judgmental. It is not some discretionary power, but “an inevitable consequence of the panel having found the factual test to be satisfied”.

Best interests test?

In M, Appellant 2014 Fam LR 55, Sheriff McCulloch allowed an appeal on the part of a grandmother where a pre-hearing panel had ruled that she was not of relevant person status. He appeared to differ in his approach initially when he stated that before deciding whether a person can be granted relevant person status, one must have at heart the “best interests of the child” principle.

At para 7, the sheriff highlighted that the appellant had been involved in the care and upbringing of the child on a regular, weekly basis; she had provided assistance and guidance to the child's mother; and for a period in excess of three weeks she had the sole responsibility for the care and upbringing of the child when he was placed with her by social workers.

In AG v Principal Reporter 2013 SLT (Sh Ct) 125, the same sheriff, at Kirkcaldy Sheriff Court, refused an appeal under s 160 of the 2011 Act by the parents of the children from a panel determination that foster carers were to be deemed relevant persons. He highlighted that s 200 did not make reference to foster carers, and doubted that it was Parliament's intention that they should be included in ss 79 and 81. However, while foster carers “are by their very nature a transient involver in a child's life”, it was obvious that the present carers had a significant involvement in the upbringing of the children. The sheriff did give consideration to whether the decision of the pre-hearing panel would cause any prejudice to the children and commented that above all else, the pre-hearing panel ought to have the child's welfare as its paramount consideration. A pre-hearing panel was bound to grant relevant person status if the test is met – there is no discretion. The sheriff stated above all else however that each application for deemed relevant person status had to be dealt with on its own merits.

In MP v Templeton, the court nevertheless appeared to endorse a number of factors which went against the appellant. These were that the appellant lived separately from the children; he never had care or shared care of the children; he was not related to the children and had never been a foster carer. Any input or contact with the school was of an occasional nature. The appellant had no parental rights, nor a contact order (the latter would now need to be analysed in more detail by virtue of the provisions of s 200(2) of the Act). However, one must be cautious when considering these matters given that this decision was an appeal under the 1995 Act.

Appeal route

There does now exist an appeal mechanism in relation to a decision as to who is to be a relevant person (ss 160 and 164). This is something new compared to the 1995 Act, where the particular issue could not competently be appealed, as was reaffirmed in MP v Templeton.

The Scottish Children’s Reporter Administration has issued a helpful practice direction dated 20 May 2014 (Practice Direction 3: Relevant Persons) as to how this issue ought to be tackled. The practice direction itself is enormously detailed, but contains various scenarios in appendix 1.

With all that in mind, one must be mindful of the UK Supreme Court decision of Principal Reporter v K [2010] UKSC 56, where the court held that the now repealed s 93 of the 1995 Act should be read to include the words: “or who appears to have established family life with the child with which the decision of a children’s hearing may interfere”, invoking the power in s 3(1) of the Human Rights Act 1998 to bring s 93 into line with the requirements of the European Convention on Human Rights. There is no reason why therefore that this decision should not stand even in light of the new 2011 Act.

On the merits

The mischief behind s 81(3) of the 2011 Act can potentially be drawn from the policy memorandum of the Children’s Hearings (Scotland) Bill, which (at para 478) states:

“The test is designed to take in persons who provide a significant amount of care for the child and who are significantly involved in decision making on the child’s upbringing. The intention is that persons who have such an interest should be able to make a decision on whether or not to become involved in the child’s progression through the hearing system. This will allow them to contribute to the hearing so that the hearing has all the facts before it. It is also intended to afford such persons greater protection of their relationship with the child through their involvement in the hearing.”

On a final note, the definition of “relevant person” can be adjusted by the Parliament by affirmative procedure (2011 Act, s 81(6)).

Perhaps above all else, it may be said that each case truly must be treated on its own merits. It appears that the proper approach is to consider each case by looking at the wider picture as opposed to one particular matter. It may be that Parliament will use the affirmative procedure to prescribe further persons who may be deemed to be relevant persons. Further appeals will likely follow in the future. Notwithstanding the narrower wording to be found in s 81(3) of the 2011 Act, the court will always be bound to give cognisance to its obligations under the Human Rights Act 1998. Above all else, however, what is particularly apparent, and less than surprising, is that whatever decision is to be made, for better or for worse, the child’s interests are something that will be the driving factor.