ABC v Principal Reporter and another
In the matter of XY [2020] UKSC 26
The Supreme Court recently dismissed two appeals concerning the role and rights of siblings in children’s hearings in Scotland. It held that the provisions of the Children’s Hearings (Scotland) Act 2011 in question were compatible with article 8 of the European Convention on Human Rights.
Background
The appeals concerned whether a sibling is a “relevant person” for the purposes of the Children’s Hearings (Scotland) Act 2011 (‘the 2011 Act’), which governs the children’s hearings system in Scotland.
A relevant person is defined as including a person who has parental responsibilities or rights in relation to the child (section 200(1) of the 2011 Act). If a person does not fall under this definition, they may still be classed as a relevant person under a procedure set out in sections 79-81. Section 81(3) provides that a person can be deemed a relevant person if it is decided that the person has, or recently had, a significant involvement in the upbringing of the child. In most circumstances, this would not include a sibling.
The classification of a person as a relevant person is important as it grants that person several rights and responsibilities in relation to a children’s hearing. The person has a right to be notified of their obligation to attend a hearing, and if they are required to attend it is a criminal offence to not do so. A relevant person has the right to legal representation at the hearing and can make submissions, and has access to the relevant papers before the hearing takes place. They are also able to appeal a children’s hearings decision or seek a review of a compulsory supervision order (CSO), which can include an order that regulates contact between a child and a specified person.
The appeals
The first appellant, ABC, has a younger brother who is subject to a CSO that regulates his contact with ABC. He was not deemed to be a relevant person, and therefore did not have the rights described above. He petitioned for judicial review, alleging that these decisions violated his right to respect for family life under Article 8 of the Convention. It was argued that provisions of the 2011 Act, including sections 200 and 81(3), were incompatible with the Convention, and a declaration of incompatibility under section 4 of the Human Rights Act 1998 (‘the HRA’) was sought.
The Outer House of the Court of Session dismissed ABC’s petition for judicial review. However, it considered that the test under section 81 (3) for determining whether a person was to be deemed a relevant person was too narrow to be compatible with article 8. It decided that the definition of a deemed relevant under section 81(3) had to be “read down” to include the words: “or persons whose established family life with the child may be interfered with by the hearing and whose rights require the procedural protection of being a relevant person”. This was in order to give effect to the provision in a way which was compatible with the Convention, as required by section 3 of the HRA. ABC then appealed to the Inner House, which dismissed the appeal, as well as disagreeing that there was a need to read down section 81(3).
The second appellant, XY, has three siblings, all of whom are all subject to CSOs that regulate his contact with them. Like ABC, he was not deemed to be a relevant person in relation to any of his siblings, although he had previously been granted this status for a short period of time. XY claimed that the decisions and the provisions of the 2011 Act unlawfully infringed his article 8 rights, as well as his right to a fair trial under article 6. He argued that the provisions of the legislation were therefore outside the competence of the Scottish Parliament according to section 29(2) of the Scotland Act 1998, and consequently were not law. The Inner House dismissed his appeal, relying on its decision in ABC’s case. Both cases were then appealed to the Supreme Court.
The decision
In a judgment delivered by Lady Hale and Lord Hodge, the Supreme Court dismissed the appeals. It held that the children’s hearing system sufficiently respected the article 8 rights of siblings and that there was no need to read down the relevant provisions of the 2011 Act. The Court assessed the issue under article 8, considering that XY’s claim under article 6 did not add anything to the case.
Siblings’ article 8 rights
Article 8(1) provides that everyone has the right to respect for their private and family life, and it includes procedural rights as well as substantive rights (McMichael v United Kingdom (1995) 20 EHRR 205). It can only be interfered with according to the exceptions set out in article 8(2). The state also has a positive obligation to maintain and develop family ties (Akin v Turkey (Application No 4694/03) 2010). In all cases, authorities must have regard to the best interests of the child. Furthermore, decisions must be evidence-based, and all interested parties must be able to participate and express their views (Havelka v Czech Republic (Application No 23499/06) 2007).
It was highlighted by the Court that, in most cases, siblings play a different role to parents in deciding how a child should be raised. What is important in the context of siblings is the maintenance and development of their relationship with each other. This is respected in a children’s hearing if a sibling can participate in the decision-making process and is able to sufficiently protect their own interests (SJP and ES v Sweden (Application No 8610/11) (unreported) 28 August 2018, para 92).
Principal Reporter v K
The appellants argued that they could only participate to a sufficient degree if they were granted the status of a relevant person. They sought to rely on the Supreme Courts’ judgment in Principal Reporter v K [2010] UKSC 56. This case concerned the article 8 rights of an unmarried father, who had no parental rights or responsibilities, to participate in a children’s hearing. At that time, the system was governed by Part II of the Children (Scotland) Act 1995. The father, K, had not been deemed to be a relevant person under these provisions. The Court found that this violated his article 8 rights. It considered that in order to remedy this, it was necessary to interpret the definition of a relevant person as including a person “who appears to have established family life with the child with which the decision of a children’s hearing may interfere.”
However, the Court rejected the appellants’ arguments that the same approach should be adopted in the current case. It considered that it was not appropriate for siblings to be accorded the status of a relevant person. It highlighted that there are important differences between the relationship between siblings and the relationship between a child and a parent. Parents are treated as relevant persons because of their parental responsibilities:
The parents and other people who have a significant involvement in the upbringing of the child are those who make decisions for the child. It is those decisions which are now being made by the public authorities through the CSO. The interference with the article 8 rights of such people is qualitatively different from the interference with the article 8 rights of siblings, which normally will be concerned with maintaining their relationship with the referred child (para. 46)
The classification of a person as a “relevant person” is an acknowledgment of the seriousness of the interference with the rights of the child, parents, and others who have a significant involvement in the child’s upbringing. The obligations imposed on a relevant person, which could be enforced by the criminal law, meant that it was not appropriate for most siblings to be deemed a relevant person and impose these obligations on them. The Court considered that conferring the status of relevant person on anyone who appears to have established family life with the a referred child would also not be consistent with “the requirement to respect the privacy of others, the concerns about the dissemination of sensitive information, and the statutory requirement on the chairing member to take all reasonable steps to keep to a minimum the number of persons present at a children’s hearing at the same time”.
Article 8 does not therefore require siblings (in most cases) to be deemed relevant persons. Their article 8 rights were protected as the current framework, when sensibly operated, provided siblings with the opportunity to participate in proceedings to a sufficient extent.
The framework
In order for a sibling’s article 8 rights to be effective, as well as those of other family members with an interest in maintaining contact with a child, the Court stated that:
it is necessary both that the relevant public authorities are aware of those interests and that the siblings and family members are informed of the nature of the proceedings concerning the child and of their rights in relation to the proceedings. (para 53).
The Court set out the measures that enabled this to happen in paras 32-40. This required looking at not just the 2011 Act and its relevant subordinate legislation, but also certain common law requirements and the procedural rights under article 8 that govern public authorities’ behaviour. It emphasised the need for a “bespoke enquiry” into the relationship of a child with their sibling if the hearing was considering making a CSO.
It found that it was common practice for siblings to be notified and invited to attend a hearing if they were sufficiently mature and the chairing member of a panel decides that they are allowed to attend. Other measures enabled siblings to be made aware of the content of relevant documents, and to be given access to reports in some cases. When operated in this way, the Court considered that system respected the article 8 rights of siblings. There was therefore no need to interpret the provisions of the 2011 Act in a different way.
Comment
This is an important case which draws attention to the importance of the relationship between siblings. It also emphasises the importance of including siblings in the decision-making process. This was affirmed by the Court on several occasions throughout the judgment, most notably in paragraphs 52 and 53.
Despite this, the judgment has drawn criticism from children’s rights campaigners, such as CLAN Childlaw. It stated that it was disappointed by the judgment as it gives too much discretion to the operators of children’s hearings. In order to respect the article 8 rights of siblings, the operators need to follow procedures which CLAN believes to be complex, and which are not followed consistently. It therefore believes that the rights of siblings will still not be respected in all cases.
Nevertheless it is hoped that the judgment will lead to a change in the legislative framework. Indeed, although the Court considered that the current system can function in a way that protects siblings’ article 8 rights, it stated that “it is for the public authorities involved to address whether further steps are desirable to protect the relevant article 8 interests.” The case may therefore still result in changes to the children’s hearing framework.
The judgment does not, and could not, address all of the problems with the children’s hearing system in Scotland. There are widespread concerns that the system does not respect the child’s right to privacy under article 8, due to the practice of all parties having complete access to reports on the child. The Court touched on this briefly, noting that “the child’s confidentiality is not […] protected” but it did not address this in great depth as it was not an issue in this case. It is therefore likely that we will see more cases concerning the children’s hearings system in Scotland in the near future.
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