Uninvolved father of teenage child wins challenge against exclusion from children’s hearing as non-relevant person

About this case:

• Citation:
  [2024] CSOH 106
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Carmichael

Petitioner A, who at no point had any parental rights and responsibilities in respect of the child, M, had been in custody since 2013, a few years after M’s birth. He claimed that he was and is a relevant person in terms of section 200(1)(g) of the Children’s Hearings (Scotland) Act 2011 in the category of other persons specified by order made by the Scottish ministers.

The petition was heard by Lady Carmichael in the Outer House of the Court of Session. Both the petitioner and B were represented, along with the curator ad litem in respect of M and the Lord Advocate, who became involved due to a challenge to the compatibility of legislation with the Human Rights Act 1998.

‘Undeem’ as a person

Under the Children’s Hearings (Scotland) Act 2011 (Review of Contact Directions and Definition of Relevant Persons) Order 2013, it was stipulated that a parent of a child other than a parent falling within section 200(1)(a) or (d) of the 2011 Act was to be considered a relevant person for the purposes of section 200(1)(g). This order was made after the decision of the Supreme Court in Principal Reporter v K (2011), which extended the status of relevant person to include parents without parental rights or responsibilities unless they had been removed by order of a court.

M was referred to a children’s hearing by the first respondent, the principal reporter for the Scottish ministers. A CSO was made on 23 January 2023 by a children’s panel. A non-disclosure request was accepted by the panel on the basis that M did not have a relationship with his father, and it was important that M’s personal and sensitive information be withheld from him as this would cause emotional distress.

On 17 April 2023 the petitioner requested a review of the CSO. At a hearing in November 2023 considering whether he was a relevant person, the panel took the view that the 2011 Act had to be read in a way compatible with the Human Rights Act 1998, and the necessary balance of rights fell in favour of B and M. The panel proposed this could be done by reading a third category of excepted parent into Article 3(2) of the 2011 Act, being a parent with no established family life with the child and whose involvement would be incompatible with the rights of the child.

For the petitioner it was submitted that the panel had taken into account an irrelevant consideration, namely that he did not have parental rights and responsibilities. It had misdirected itself in respect that it had no power to “undeem” as a relevant person someone in the petitioner’s position. Significantly, the panel also failed to have regard to a range of case management powers available to it that would address the concerns raised by B’s agents about his participation in proceedings.

Go with the grain

In her decision, Lady Carmichael noted that on a plain reading of the Act the petitioner was a relevant person, saying: “The interpretative obligation under section 3 is far-reaching, and may require the court to depart from the unambiguous meaning the legislation would otherwise bear. The court cannot, however, adopt a meaning that is inconsistent with a fundamental feature of legislation. Words implied or read in must go with the grain of the legislation.”

She continued: “There is nothing inherently objectionable about choosing to confer the status of relevant person on a person with no parental rights and responsibilities. Such a person may have a family life with the child. Even if he does not, there may be situations in which it is desirable that he be involved in the children’s hearing. He may be the only living parent of the child. It may be in the child’s interests that he develop some form of family life with the child.”

Asking whether the panel’s reading-in of words was necessary to protect M, Lady Carmichael said: “Article 3(2)(a) is capable of being operated in a Convention compliant manner, at least so far as the conduct of a children’s hearing is concerned, because of the case management powers available to the children’s hearing. The children’s hearing has ample powers to prevent a person such as the petitioner from being in the same physical location as a referred child and his mother. It can require remote attendance and exclude him from all or part of the hearing if that is necessary to allow the child or another relevant person to participate effectively, or to avoid significant distress to them.”

She concluded: “The children’s hearing noted that the attendance of the petitioner was impacting on M’s and the second respondent’s participation in the hearing. It did not consider whether or how to exercise its extensive powers of case management so as to avoid the petitioner’s attendance doing so. In leaving out of account its case management powers under statute it erred in law at common law.”

The court therefore reduced the decision of the children’s hearing and remitted the matter to the panel for further procedure.

Representation:

Petitioner: Byrne KC, Allison, Blockley; Drummond Miller LLP
First Respondent (Principal Reporter): Moynihan KC; Anderson Strathern LLP
Second Respondent (Child’s mother): Scott KC, Aitken; Balfour + Manson LLP
Third Respondent (Curator ad litem and safeguarder): Brabender KC, Laing; Millard Law
Lord Advocate: Crawford KC, M Hamilton; Scottish Government Legal Directorate