Inner House rules convicted rapist father not relevant person obliged to attend children’s hearing

About this case:

• Citation:
  [2025] CSIH 9
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Beckett

A petition was raised by A, the father, who sought contact by letter with his son M, now 15 years old, who did not wish to have contact with his father. The lord ordinary found in favour of the petitioner, against which the child’s mother B and the curator ad litem in respect of M appealed to the court.

The appeal was heard by the Lord Justice Clerk, Lord Beckett, with Lord Malcolm and Lady Wise. Byrne KC and Blockley, advocate, appeared for the petitioner and respondent, Scott KC for the first reclaimer, and Brabender KC and J Laing, advocate, for the second reclaimer.

No interest to protect

The petitioner was made subject to an OLR in 2013 and had since completed the punishment part of his sentence. He was convicted of nine charges including repeated acts of rape and the use of serious threats of violence against B, the mother of M. M knew that his biological father was seeking contact with him, and that he had hurt his mother, and did not wish to have contact in any form. The petitioner last had contact with M when he was less than a year old.

On 23 November 2023, a children’s hearing determined that the petitioner was not a relevant person. It followed that the petitioner was excluded from the proceedings relative to M and was not entitled to continue to take part in the review of a compulsory supervision order he had previously instigated. The petitioner contended that the hearing erred in excluding him as a relevant person, notwithstanding his lack of a family life with M, while the respondent argued that his involvement was an unlawful interference with her rights under Article 8 ECHR.

The lord ordinary concluded that statutory case management powers could protect the Article 8 rights of B and M without the necessity of depriving the petitioner of relevant person status. She held that the hearing erred in omitting to consider the capacity of its case management powers to protect the Article 8 rights of M and B.

For the first reclaimer, B, it was submitted that the petitioner had no interest to protect and no personal justification for participating in the hearing. The potential harm of introducing a person such as him to the hearing was obvious, including the potential re-traumatisation of B, and would defeat the object of the hearing. Whilst there could be cases where the case management powers could resolve Convention incompatibility, this was not such a case.

Counsel for the petitioner submitted that conferral of relevant person status upon him was a statutory right conferred by the legislature, not an act or omission by a public authority. The lord ordinary identified the irreducible minimum rights of a relevant person, and these rights could be managed by the hearing compatibly with B’s Convention rights. Decisions on case management would occur once and then continue to apply in further hearings.

Grave criminal conduct

Delivering the opinion of the court, Lord Beckett noted the impact of the petitioner’s conduct on B’s mental health: “The problem in this case is compounded by who the petitioner is. He remains in prison and is subject to an OLR because he was convicted of repeatedly inflicting serious violence on B, repeatedly raping her and issuing threats; both of abducting M and to B’s life. His conduct has had a serious and enduring impact on B’s mental health and general functioning in turn undermining her capacity to care for and raise her son. It has had a considerable impact on M’s education and he is a long way behind his peers. This has led to state involvement intruding into the family and private life of M and B.”

He added: “Given that his grave criminal conduct against B was established beyond reasonable doubt to have occurred, leading to his conviction, it can be taken that he is not well-disposed towards B. He has made his intentions clear; he wishes to be aware of what is happening in M’s life, to have contact with him and to hold accountable those he considers responsible for M’s situation. It is apparent he has in mind B as a person he wishes to hold to account. It can reasonably be concluded that he will exercise his statutory rights for as long as he has relevant person status.”

Assessing the lord ordinary’s conclusion that B’s Convention rights could be maintained without excluding the petitioner, Lord Beckett said: “The terms of the Children’s Hearings (Scotland) Act 2011 strongly support that each hearing or pre-hearing is a distinct hearing. The membership may vary. It is undisputed, and regrettable, that there was no continuity of membership whatsoever between the children’s hearings held between January and November 2023. The terms of the following sections concerning case management powers make it plain that it is each individual hearing that will require to determine whether to exercise a case management power.”

He concluded: “On this point the petitioner has failed to satisfy us that an exercise of a case management power would have to occur only once and would then bind all future hearings. In this regard the Lord Ordinary was correct. In the exceptional circumstances of this case, we disagree with the Lord Ordinary’s conclusion that the children’s hearing’s case management powers were sufficient to prevent a breach of M and B’s Article 8 rights.”

The court therefore allowed the appeal and recalled the Lord Ordinary’s interlocutor, with the effect that the children’s hearing determination that the petitioner was not a relevant person stood.