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ABC (Appellant) v Principal Reporter and another (Respondents) (Scotland) In the matter of XY (Appellant) (Scotland) [2020] UKSC 26

Date:28 JUN 2020
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Supreme Court case which determined that the Article 8 rights of two siblings of young children in children’s hearings in Scotland had not been breached by them not being afforded relevant person status.

Background

These appeals concerned the role of two siblings (ABC and XY) of young children who were subjected to Child Supervision Orders (‘CSOs’) in children’s hearings in Scotland. Both siblings sought to be afforded “relevant person” status which conferred certain rights including access to papers, notification of the hearing and the opportunity to make submissions. Under s.81(3) Children’s Hearings (Scotland) Act 2011 (‘2011 Act’), a person is deemed to be a relevant person if they have had (or recently had) significant involvement in the upbringing of the child.

ABC was the 16-year-old older brother of DEF, who was subject to a CSO. ABC was not a “deemed relevant person” in relation to DEF. ABC appealed this decision, arguing that this was incompatible with his Article 8 rights guaranteed by the ECHR. The Lord Ordinary dismissed ABC’s petition for judicial review but held that the test for deemed relevant person status in s.81(3) was too narrow to be compatible with Article 8, unless it was “read down” to include a broader range of people. The First Division of the Inner House of the Court of Session dismissed ABC’s appeal and reversed the finding that there was a need to read down s.81(3).

XY was the 24-year-old brother of three younger sisters who were the subjects of CSOs. XY’s application to be deemed a ‘relevant person’ for the purposes of the CSO proceedings was refused by a pre-hearing panel. He appealed to the Sheriff, arguing that the relevant legislation was incompatible with his Article 6 and 8 rights. This appeal was dismissed, as was an appeal by way of case stated to the Inner House of the Court of Session.

Both cases eventually came before the Supreme Court as conjoined appeals. The central issue therefore was whether the 2011 Act afforded the appellants a sufficient opportunity to take part in the decision-making process in children’s hearings, without them being given the status of a relevant person.

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The Appeal

The Supreme Court considered that Article 8 was the appropriate framework to determine the issue. The court acknowledged that the appeals had served to uncover a gap in the children’s hearing system and there were legitimate concerns relating to the representation of the interests of siblings and other family members in these hearings. However, it was not accepted that it was necessary to afford the status of relevant person in order to address these concerns. Whilst the guidance had not always been clear, there were arrangements in place by which adequate participation could be achieved. This included a direction to Reporters to consider whether there was anyone other than a (deemed) relevant person who ought to be invited to a hearing under s.78 of the 2011 Act. Children’s hearings also had recourse to advice from a variety of sources including guidance on obtaining information about a child’s relationships with their siblings and how this might be protected.

The court drew a distinction between the rights of those family members, such as parents, who were directly involved with the upbringing of the subject child, and siblings who did not play a “significant role” in the upbringing. At paragraph 46 of the judgment, Lady Hale observed:

“It is important to recognise that there are differences between the relationship of a parent and a child and the relationship between a sibling and a child. People who have parental responsibilities are treated as relevant persons because of those responsibilities and people who have a significant role in the upbringing of a child also have the right to be deemed a relevant person.”

The interference with the Article 8 rights of such people was thus qualitatively different from the interference with the Article 8 rights of siblings. Relevant person status also included obligations to attend children’s hearings, enforceable through criminal law, that would not be appropriate to impose on a sibling.

The court noted that a relevant person was given comprehensive access to confidential information about the child and their parents. Consequently, the rights to privacy of the referred child, the parents and others must also be respected. The views of the child were an important consideration in the decision-making process.

The court concluded that Article 8 did not require public authorities to give a sibling who has not, and has not recently had, a significant involvement in the upbringing of a child the status of a relevant person.

The appeals were dismissed.