Children’s hearing’s decision that half-brother was not a ‘relevant person’ did not breach his human rights

The Inner House of the Court of Session upheld a sheriff’s dismissal of a challenge against a children’s hearing’s decision that the boy did not have a “significant involvement in the upbringing of the child”, and refused the appeal after ruling that the argument that his right to respect for his private and family life could only be protected if was deemed a relevant person was “unfounded”. 

The Lord President, Lord Carloway, sitting with Lord Drummond Young and Lord Malcolm,heard that the sheriff refused an appeal against a decision of a children’s hearing that the 12-year-old appellant “DM”, now aged 13, was not to be deemed a “relevant person” in terms of section 81(3) of the Children’s Hearings (Scotland) Act 2011 in respect of his then four-month-old half-sister.

The children’s hearing accepted that, along with his older brother, the appellant had been living with his mother and his half-sister, and that the brothers helped their mother with feeding and changing the baby.  

However, this was not “a significant involvement in the upbringing of the child”, thus the statutory test for deemed relevant person status was not met. 

‘Procedural protections’

Before the sheriff it was contended that the decision was “incompatible” with the appellant’s rights under article 8 of the European Convention on Human Rights (ECHR) and that a “broader approach” to the statutory test should have been taken to ensure that the appellant obtained the “procedural protections” afforded to a relevant person.  

But that argument was rejected by the sheriff as “misconceived”, as relevant person status was a wholly different thing from the rights conferred by article 8. 

Parliament had deliberately restricted the scope of those entitled to participate as relevant persons and, in any event the children’s hearing will always seek to safeguard and promote the welfare of the appellant’s half-sister, including giving consideration to contact between her and her half-siblings.  

The participation of the mother, and potentially the father, afforded sufficient procedural protection in respect of any article 8 rights of the appellant (and his brother).

Further, it was open to the appellant to raise court proceedings seeking a contact order under section 11 of the Children (Scotland) Act 1995.

‘Incompatible with ECHR’

In the appeal to the Court of Session, it was submitted that unless afforded the procedural protections” arising from deemed relevant person status the appellant will be unable to contest the contact direction made by the children’s hearing which prevents him from spending time with his half-sister.

Unless he is a relevant person he has no right to notification of hearings; no right to attend and make representations at hearings; no right to legal aid or legal representation; no right to seek a review of decisions; and no right of appeal to the sheriff against adverse decisions.  

It was argued that the sheriff erred in law by not appreciating that section 81(3) was “sufficiently flexible” to allow the appellant to be given deemed relevant person status. Were it otherwise the current legislation would be “incompatible” with ECHR.  

Counsel submitted that ideally there should be an opportunity for someone such as the appellant to participate in “a more limited manner” if his interests were directly involved, but any proposed route under section 78 was “problematic” and a “better version” of section 126 of the 2011 Act would be a solution - but only the Scottish Parliament can devise a scheme which was compatible with ECHR. 

However, the appeal judged preferred the submissions of the respondents and refused the appeal.

‘Sufficient flexibility’

Delivering the opinion of the court, the Lord President said: “The contention for the appellant that his legitimate interests, including his article 8 rights, can only be protected by the conferment of deemed relevant person status is unfounded. It is true that the section 126 route has been closed off by what may well have been a drafting mistake (see the postscript to this opinion), however there remains more than sufficient flexibility in the system to accommodate those whose interests are directly affected by contact decisions made by a children’s hearing. 

“If a statutory basis is required for what would otherwise be covered by common law considerations, section 78 affords the chair of a children’s hearing a broad discretion to permit the attendance at a hearing of any person if such is ‘necessary for the proper consideration of the matter before the children’s hearing’. It is implicit that such a person can be given an opportunity to express views or provide information.

“There may be no need for this if the position of a person such as DM is already sufficiently clear, for example from written information supplied by him or on his behalf, or if others are able to protect his interests. 

“However if in doubt it will usually be better to permit participation in the matter which is of concern to a person making an application under section 78. The opportunity for contributions from all or on behalf of all with a direct interest in a particular issue will improve the quality of the decision-making, and thus promote the welfare of the child at the centre of the proceedings.   

“No doubt the need to be mindful of these matters will place onerous burdens on all those involved in preparing for and conducting children’s hearings, but this is part and parcel of the requirement for such hearings to comply with the rules of natural justice and articles 6 and 8 of ECHR.” 

Rule 22 of the Children’s Hearings Rules 2013/194 provides for mandatory notification of children’s hearings to certain people, but that does not mean that other persons with a direct interest in the decisions to be considered could be ignored with impunity be ignored, and same applied to rule 81.

“In summary,” Lord Carloway added, “it is axiomatic that if a decision-maker is considering making or altering an order such as a contact direction, the substantive and procedural interests of affected siblings, and anyone else directly involved must be kept in mind; and that, where it is appropriate and necessary, such a person has the opportunity to make representations on the matter.  It should be emphasised that this will not necessarily require their presence at the hearing.”

In a postscript, the judges called for a review of section 126 of the 2011 Act.

The Lord President explained: “Section 126 of the 2011 Act is headed ‘Review of contact direction’, and it seems plain that the intention was to address the interests of persons directly affected by such decisions. While the terms of the section and of the associated rules are not entirely easy to follow, in large measure the potential benefits of this provision have been removed by provisions which, in certain circumstances, restrict the scope of persons who can make an application thereunder to those who can satisfy the test for deemed relevant person status…  

“The court does not understand why this restriction was imposed. Without it there would be a specific remedy for someone in the appellant’s position. The authorities may wish to review not only this part of the statutory and regulatory framework, but also consider any other improvements which can be made in light of the court’s more general comments as to the need to ensure that those directly affected by decisions taken by a children’s hearing have their interests properly taken into account.”