Siblings not to be treated as "relevant persons": UKSC
It is not a breach of the right to family life for a child's siblings to be denied "relevant person" status in relation to children's hearings, the UK Supreme Court ruled today.
Five Justices unanimously dismissed two appeals by young people who sought to be regarded as relevant persons in proceedings involving younger siblings in respect of whom compulsory supervision orders ("CSOs") had been made under the Children’s Hearings (Scotland) Act 2011.
Under s 81(3) of the Act, a person is deemed to be a relevant person if that person has (or has recently had) significant involvement in the upbringing of the child. The status confers a right to be notified of, and an obligation to attend, any children’s hearing in relation to the child, and ancillary rights, such as access to the papers, the right to make submissions, and the right to seek a review of any CSO.
In the first case, that of ABC, a 16-year-old whose younger brother, DEF, was subject to a CSO which regulated his contact with ABC, the Lord Ordinary held that the test in s 81(3) too narrow to be compatible with article 8 of the ECHR, unless it was “read down” to include a broader range of people having established family life with the child. However the First Division reversed this finding. This decision was followed in the case of XY, is a 24-year-old with three younger sisters all subject to CSOs.
The appellants argued that the relevant person scheme was incompatible with their right to respect for their family life under article 8 of European Convention on Human Rights, and therefore outside the legislative competence of the Scottish Parliament, unless it could be read down so as to render it compatible.
In a joint judgment, Lady Hale and Lord Hodge, with whom Lord Kerr, Lord Wilson and Lady Arden agreed, considers that article 8 provided the appropriate framework for analysis, and that article 6 did not add anything in the present circumstances.
In each case, the relevant interest for the purposes of article 8 was the maintenance and development of the relationship between the sibling and the referred child. In the context of a children’s hearing, respect is shown to that interest if, in the particular circumstances of the case, the sibling was enabled to have an involvement in the decision-making process, seen as a whole, to a degree sufficient to protect that interest.
The required degree of involvement would vary based on the nature and extent of the sibling’s relationship with the referred child. Article 8 did not require public authorities to grant relevant person status to a sibling who did not have, and had not recently had, a significant involvement in the upbringing of the child.
The court agreed with the respondents' submissions that it should look not only to the regime set out in the 2011 Act and related subordinate legislation, but also to the requirements of the common law and the procedural rights under article 8 which governed the behaviour of the relevant public officials. It noted that the present challenges had resulted in changes of practice in relation to children’s hearings.
It highlighted a range of measures which could be used to ensure compatibility with the article 8 rights of family members who were not relevant persons. Reporters were directed, when arranging a hearing, to consider whether there was anyone other than a (deemed) relevant person who ought to be invited under the discretionary powers in s 78 of the Act. The National Convener of Children's Hearings Scotland advised hearings against refusing to obtain the views of a sibling of sufficient age and maturity. Children’s Hearings Scotland’s Practice and Procedure Manual directed children’s hearings to obtain information about a child’s relationships with siblings and to give careful consideration to how these relationships could be maintained and protected. Under the Children (Scotland) Act 1995 and the Looked After Children (Scotland) Regulations 2009, the responsible local authority had to obtain details of the child’s siblings and their contact with the child and prepare a "child’s plan", with arrangements for contact between the child and others.
In addition, the Principal Reporter might require the local authority to provide a report or further information about a child, including relevant information about siblings. The child or any relevant person might also make representations on behalf of the child’s wider family, including siblings.
Taken together, these mechanisms allowed children’s hearings to show respect for the family life of those who were not entitled to the status of relevant person, provided that hearings are conducted in a practical and sensible manner and in line with the guidance of the Principal Reporter and Children’s Hearings Scotland. As such, the relevant provisions of the 2011 Act were within the competence of the Scottish Parliament and did not need to be read down.
The judges further observed that those who have a significant involvement in the upbringing of a child were those who made decisions for the child. They were granted relevant person status because CSOs interfered with their rights to make such decisions. A sibling who was not affected in that way should not be given relevant person status. It would not be appropriate for every sibling to be required to attend all hearings under pain of criminal sanction, or to have comprehensive access to the referred child’s documents (which might include highly sensitive information about the child and other family members), or to have the power to delay or disrupt referrals by withholding their agreement to the underlying grounds. Nor would it be consistent with the statutory requirement for children’s hearings to minimise the number of people present at any given time.
However they observed: "We nonetheless acknowledge that the initiation of these challenges has served to uncover a gap in the children’s hearings system which has had to be adapted to meet the requirements of article 8 in relation to siblings and other family members. There is now a clear recognition of the interest of both the child and the sibling in maintaining a sibling relationship through contact (or through placement if both are subject to CSOs) in most cases. The nature of the sibling relationship will vary from family to family and there needs to be a nuanced approach which addresses the extent of family life in that relationship, the home circumstances, how far the interests of the parents, the sibling and the child coincide and the possibility that the child, the parents and other siblings may have article 8 rights which are in conflict with those of the sibling. There needs, in short, to be a bespoke enquiry about the child’s relationship with his or her siblings when the children’s hearing is addressing the possibility of making a CSO...
"It is for the public authorities involved to address whether further steps are desirable to protect the relevant article 8 interests. But we are persuaded that the legislative scheme of the 2011 Act can be operated in accordance with those rights."