The case was heard in November 2019. The judgment was delivered by Lady Hale and Lord Hodge, with whom Lord Kerr, Lord Wilson and Lady Arden agreed.

Two cases were heard together. In the first case “ABC” aged 16, had been made the subject of a compulsory supervision order, together with his younger brother “DEF”. The brothers were accommodated with different foster carers. ABC attended, uninvited, a children’s hearing for DEF. He was not given an opportunity to speak and was made to leave. The hearing made contact directions allowing him some contact with DEF. He appealed, but his appeal was held to be incompetent. He was invited to produce written information and to attend DEF’s next hearing, where he was allowed to present his views. ABC raised an application for judicial review in which he challenged the legislative provisions relating to the definition of a “relevant person” and the provisions for review of a contact direction.

In the second case XY, aged 24, had supervised contact with his three younger sisters who were the subject of compulsory supervision orders. The children’s hearing refused to deem him a “relevant person”. The sheriff reversed this on appeal, but the Sheriff Appeal Court allowed an appeal by the eldest sister. The children’s hearing then held that he should not have “relevant person” status in respect to any of his sisters. His appeals to the sheriff and then to the Inner House of the Court of Session were refused. He appealed to the Supreme Court on a “devolution issue” claiming that the provisions governing the right to “relevant person” status were not compatible with articles 6 and 8 of ECHR unless they could be read down under section 3 of the Human Rights Act 1998 to permit a sibling to be deemed a “relevant person”.

The Supreme Court recognised that family life may exist between siblings and that article 8 of ECHR imposes both negative and positive obligations. Authorities should not interfere with family life without justification and must take positive steps to maintain and develop family ties. However, a distinction had to be drawn between the role of a parent and that of most siblings. Being a parent generally involves the right to decide how a child should be brought up. A sibling’s role can be very important to the well-being and development of a child, but what matters is the maintenance and development of the relationship between the siblings, whether through placing them together or through staying in regular contact.

In the context of a children’s hearing respect is shown to the interest of a sibling if he or she is able to be involved in the decision-making process, seen as a whole, to a degree sufficient to protect his or her interests. The Children’s Hearings (Scotland) Act 2011 and related subordinate legislation, if operated sensibly, would afford siblings a sufficient opportunity to take part in the decision-making process, without their being given the status of a relevant person.

Being a relevant person involved an obligation to attend a children’s hearing. It conferred comprehensive access to the papers before the children’s hearing. The rights to privacy of the referred child, the parents and others had to be respected. The chairing member of the hearing was required to keep to a minimum the number of persons present at the hearing at the same time. These factors all militated against reading down the statutory definition of relevant person so as to confer that status on anyone who appeared to have established family life with the child referred to the children’s hearing. Article 8 of ECHR does not require that a sibling who does not have, and has not recently had, a significant involvement in the upbringing of the child, should have the status of a relevant person.

The Supreme Court nevertheless acknowledged that the initiation of the challenges in these two cases had served to uncover a gap in the children’s hearings system. In consequence the system has had to adapt to meet the requirements of article 8 in relation to siblings and other family members. It is necessary for each person involved in the process – the principal reporter, the Children’s Panel members, the local authority, the social worker preparing a care plan and the safeguarder – to be aware of the interests of siblings and other family members, if the system is to operate compatibly with their article 8 rights.

When the children’s hearing is addressing the possibility of making a CSO there should be a bespoke enquiry about the child’s relationship with his or her siblings. The practical and sensible operation of the system should take account of a number of developments in practice and guidance. Siblings, if sufficiently mature, should be invited to hearings and the chairing member of the hearing may exercise a discretion to allow a sibling to attend. The substance of reports should be explained. Further, the children’s hearing has the power to direct the release of relevant reports and documents to a sibling if that is necessary to allow for proper discussion and decision making.

If hearings are conducted in a practical and sensible manner and in compliance with the guidance now available, these measures should ensure that public authorities comply with the article 8 rights of family members.

Clan Childlaw instructed counsel for ABC.

Lucy Frazer, solicitor for ABC, said: “We are disappointed by the outcome. It leaves a huge amount of discretion to those operating children’s hearings who will have to follow complex procedures to ensure compatibility with a brother or sister’s right to family life.

“Our experience is that despite these procedures being recently put in place, they are not being followed universally. In most cases judicial review proceedings, which are difficult to access without legal representation, will be the only means for young people to ensure their rights are protected in the hearing system. For those who are unrepresented, it is unclear how they will ensure procedures are followed to protect their rights.”

Alison Reid, principal solicitor at Clan Childlaw, said: “We will continue to work with others to make sure that young people like ABC have their right to participate protected and to ensure that the system has the welfare of all children at its heart. We hope that this will lead to legislation that gives brothers and sisters ways of protecting their rights, and simplifies procedures required to make the system compatible with the right to family life.”