Supreme Court proves its worth

I had not anticipated returning to the human rights theme this week, but the Supreme Court's decision in Principal Reporter v K [2010] UKSC 56 (judgment 12 December) seems to me to be worth a comment. 

The court held that the right of an unmarried father (and those of his child) to family life in terms of article 8 of the European Convention on Human Rights were infringed when the father's rights of contact with the child were suspended by a children's hearing without the father being given a proper opportunity to take part in the decision making process. It also considered that it was wrong to require the father to go through a court procedure in order to be treated by the hearing as a "relevant person" when this was not required of married fathers.

In doing so the court took a more searching approach to the application of the Convention than the Inner House appears to have done. Not only that, its judgment probably has the effect that the Scottish Government will be obliged to extend by order the categories of those entitled to be treated as relevant persons under the recently passed Children's Hearings (Scotland) Bill.

It may be that the fundamentals of a case emerge more clearly as it goes higher up the appellate chain. Whether or not that is so, I suggest that in its recent decisions (Cadder; RBS v Wilson, as well as K) the court has shown a willingness to revisit settled but arguably questionable practices which we would not have seen if the Scottish-based courts had had the last word. Perhaps more clearly than with the House of Lords in its former appellate role, the "UK" in its title, along with its membership from the different UK legal traditions, seems to be giving it the authority - or is it confidence? aura? - of a body that will take a broader view, and perhaps more searchingly also, Scots law is being required to see itself as others see it, which is no bad thing, as Robert Burns himself would have pointed out. 

I do think that our law would be the poorer if there were to be any restriction on the court's jurisdiction, as part of the reconsideration of the devolution arrangements or otherwise, and I hope that will not come about.