Abstract
This case is available on the Scottish Courts website: www.scotcourts.gov.uk.
Finding by judicial review that the terms of the Children’s Hearings (Scotland) Act 2011 do not represent a breach of Article 8
Petition for judicial review by ABC against SCRA and East Lothian Council and other Interested Parties
31 October 2018 [2018] CSIH 72
November 2018
The matter before the original Children’s Hearing was the terms of contact between two brothers, the younger one of whom was looked after and accommodated away from the family home. The Hearing made a decision about contact but the child’s elder brother objected to the fact that he had been given no opportunity to participate in the decision-making process. He held that this infringed his Article 8 right to respect for private and family life and that the terms of the Children’s Hearings (Scotland) Act 2011 were incompatible with this right.
The drafting of the 2011 Act and the allegedly narrow interpretation of section 81(3) meant that the elder brother could not request to be deemed a Relevant Person as he did not have or had not recently had a ‘significant involvement in the upbringing of the child’. If he were afforded the opportunity to be considered as a Relevant Person, he would be entitled to full participation in the Children’s Hearings and to have his views considered by the Hearing.
Lady Wise had decided that to cure this legal fault, there should be a ‘reading down’ of the legislation so that the elder brother’s application to be deemed a Relevant Person might be considered.
She stated that: This case is not about imposing rights and obligations on siblings generally. It concerns the inability of an individual who, by concession, has established family life with his sibling to participate fully in decisions that directly affect him. In this context, I would add that I am satisfied that the decisions of the Children’s Hearing in the present case undoubtedly interfered with that established family life. After ‘upbringing of the child’ it includes the words ‘or persons whose established family life with the child may be interfered with by the Hearing and whose rights require the procedural protection of being a relevant person’.
The Inner House decided that there had been no violation of the brother’s Article 8 rights. There was therefore no need for him to be afforded the opportunity to apply for Relevant Person status.
Comment
There is in Scotland an increasing awareness among professionals of the importance of sibling relationships of looked after children. Stand up for Siblings is an organisation that provides information and advice based on experience and research.The high levels of sibling estrangement experienced by children who enter public care has a long-term impact on their mental well-being. There are many changes that could be implemented to improve this situation. As a starting point, Stand Up For Siblings has identified five priorities that it would seek support from the ICR to progress (see www.standupforsiblings.co.uk/wp-content/uploads/2018/01/SWSPresearchbriefing.pdf).
The legislation and guidance in respect of sibling rights is disjointed and there is no overarching principle that supports the need or importance of brothers and/or sisters being placed together or in terms of contact when placed apart.
The general rights of siblings in care in Scotland and the local authorities’ obligations towards them are summarised below.
www.legislation.gov.uk/asp/2007/4/contents
Section 14(5)
There is no duty by the court or adoption agency to take account of sibling relationships or in promoting co-residence or contact.
There is a general duty on the adoption agency where they are coming to a decision relating to the adoption of a child to take into account the views of relatives: ‘It must have regard, so far as is reasonably practicable, to the views of the parents, guardians and other relatives of the child.’
www.legislation.gov.uk/ssi/2009/154/contents/made
Regulation 14(1) (e)
There is a similar general duty in notifying within seven days of making the decision that adoption is in the child’s best interests: ‘any other relative of the child who has expressed a view on the placement of the child for adoption to the adoption agency’.
www.legislation.gov.uk/ssi/2009/210/contents/made
Regulation 4 – Assessment
The local authority must: … where appropriate, seek and take into account the views of any other person as the authority considers appropriate. Where the local authority are considering placing the child with a kinship or foster carer they must make an assessment of the contact arrangements with the child’s parents, their family and whether such arrangements should be changed.
www2.gov.scot/Publications/2011/03/101 10037/0
Page 42
Local authorities should discover and monitor a child’s wishes about continuing contact with his or her parents and other family members. The views of each child should be ascertained as far as is possible given their age and understanding. The local authority should, with the agency’s help, keep the child’s contact with his or her family under review.
Both in the early stages of placement, when holding on to familiar contacts is reassuring, and for children who spend prolonged periods looked after by a local authority away from home, contact with siblings living elsewhere and with other extended family members and friends needs similar attention as contact with parents. This should be recognised in its own right and not purely as part of contact with parents.
The guidance goes on to emphasise the need for the local authority to maintain as much as possible ‘familiar and comforting relationships’. It may be appropriate for frequent contact to be maintained.
The regulation uses the term ‘any other child in the same family’ rather than sibling. This highlights the need for awareness of the child’s view of ‘siblings’. Many families have complex structures with full, half- and step-siblings and research has shown that children’s perception of brothers and sisters and who is in their family is rooted as much in their living experience as biological connectedness.
www.legislation.gov.uk/ukpga/1995/36/section/11
Section 11
The local authority has a duty only in relation to contact between the child and parent or those with parental rights and responsibilities (PRRs).
Section 17: Duty of local authority to child looked after by them:
(1) Where a child is looked after by a local authority they shall…
(a) safeguard and promote his welfare (which shall, in the exercise of their duty to him be their paramount concern);
(3) Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the views of ‒
(a) the child;
(b) his parents;
(c) any person who is not a parent of his but who has parental rights in relation to him; and
(d) any other person whose views the authority consider to be relevant, regarding the matter to be decided.
(4) In making any such decision a local authority shall have regard so far as practicable ‒
(a) to the views (if he wishes to express them) of the child concerned, taking account of his age and maturity;
(b) to such views of any person mentioned above as they have been able to ascertain.
Section 11: Court orders relating to parental responsibilities, etc.:
The court may make an order where it thinks fit in relation to the removal or acquisition of PRRs in respect of a child under the age of 16.
The person acquiring these must be at least 16 years of age, which will exclude most siblings from seeking an order for contact:
(2) (i), (ii) The court may make such order … upon a person (provided he is at least 16 years of age or is a parent of the child) responsibilities; and giving that person such rights;
This would include:
(d) an order regulating the arrangements for maintaining personal relations and direct contact between a child under that age and a person with whom the child is not, or will not be, living (any such order being known as a ‘contact order’).
www.legislation.gov.uk/asp/2011/1/contents
Section 29: A duty to consider including contact direction:
A Children’s Hearing must, when making, varying or continuing a compulsory supervision order in relation to a child, consider whether to include in the order a measure of the type mentioned in section 83(2)(g). A sheriff must, when varying or continuing a compulsory supervision order in relation to a child, consider whether to include in the order a measure of the type mentioned in section 83(2)(g).
Section 83(2)(g): a direction regulating contact between the child and a specified person or class of person.
Measures are usually put in place only where there is a need to restrict the rights of those holding PRRs. For example, parents have a right to determine matters of contact with their children and also to have unlimited access to their children unless this right is prescribed and regulated.
Siblings do not have such a right and so the statutory intervention would need to be necessary in the best interests of the child ‒ that is the child about whom the Hearing is making the decision.
Compulsory supervision orders (CSOs) and the measures attached can only direct the implementation authority and the child who is subject of the CSO. It can’t compel another child to comply.
Hearings have been understandably loathe to make decisions that would affect another child, recognising that they do not have all the assessments and information about that child. While contact might be recommended for one child, it may not be in the best interests of the other one.
They would ask why the contact arrangements require a compulsory element and why these could not be made on a voluntary basis.
The above is an outline of the legislative position regarding siblings. International legislation and case law are consistent with this.