Inner House rules current children’s hearings system is compatible with Article 8 ECHR

The case was appealed to the Inner House following a decision by Lady Wise in July which recognised that the current test for deciding who can participate in a children’s hearing was too restrictive and that words required to be read into the definition of relevant persons.

The case involved a 14-year-old who wanted to have a say in decisions made about his brother at children’s hearings. This was not possible due to the way the legislation was worded which made it difficult for siblings and others with established family life to participate fully.

Lady Wise concluded that the current test for being able to participate in a children’s hearing, including obtaining copies of the papers and having a right to appeal, is not sufficient to allow those such as the petitioner to claim a right to participate.

However, the Inner House decided that there was no need to read down the test for relevant persons as there was “more than enough flexibility in the current system, if sensibly operated, to allow …[those with an interest in contact decisions]… to be taken into account in a fair and procedurally satisfactory manner.” The judges also noted the essentially “informal child-centred nature of the children’s hearings system.”

Clan Childlaw’s Lucy Frazer, solicitor for the child, said: “We are disappointed by this decision. This gives our client no right to be told when his brother’s hearing is due to take place, nor does it give him a right to receive any written information or to appeal the decision, despite decisions being taken about how often he can see his brother.”

Alison Reid, principal solicitor at Clan Childlaw, added: “We know that there are children’s hearings all over the country making decisions about contact arrangements between brothers and sisters without giving one of the siblings a proper opportunity to participate in that decision-making process.

“Also, some children’s hearings are not considering sibling contact at all when they are making decisions. We will continue to work with others to make sure that young people like our client have their right to participate protected and to ensure that the system has the welfare of all children at its heart.”

Read the judgment here