Abstract
Siblings
The draft legislation and Supreme Court judgment deal with the rights of the siblings of looked after children. In Scotland, there has been an increased awareness of the importance of sibling relationships. This has been particularly promoted by ‘Stand Up for Siblings’, a collaboration of a number of child welfare, children’s rights and legal organisations and academics within Scotland.
Children (Scotland) Bill 2019
On 23 June the Justice Committee unanimously agreed to remove the word ‘practicable’ and to the amendment proposed by which creates a duty on Children’s Hearings to consider sibling contact. This represents a significant enhancement of the right of looked after children to contact with their siblings when they are living apart.
It modifies the Children (Scotland) Act 1995, section 17, by placing a duty on the local authority to ‘take such steps to promote, on a regular basis, personal relations and direct contact between the child and any person mentioned in subsection (1A) as appear to them to be appropriate having regard to their duty to the child’.
The persons referred to are siblings, although the exact definition of who should be regarded as such will be clarified at Stage 3 of the legislative process. That will decide if it includes all or some of the current list of persons – full, half blood or foster sibling, or someone with whom the child has resided and has had a sibling-like relationship.
Currently, the local authority has a similar duty in respect of people with parental rights and responsibilities (PRRs) (usually the child’s parents) but that duty applies only where it is appropriate and practicable. This means that the new legislation provides for siblings of a looked after child to have a more unfettered right to contact with the child than that of the child’s parents.
Court decision
As previously mentioned in these notes, in Scotland, the vast majority (85% to 90%) of children with a plan for adoption or permanent fostering have their residence away from home legally protected through the Children’s Hearing System. Therefore, decision-making of the Children’s Hearing is of vital relevance to planning for the permanent placement of looked after children.
Supreme Court judgment
ABC (Appellant) v Principal Reporter and another (Respondents) (Scotland) In the matter of XY (Appellant) (Scotland) [2020] UKSC 26
The judgment in these cases restated the importance of sibling relationships in the decision-making of Children’s Hearings involving looked after children and their siblings. It was found, however, that the Article 8 rights of siblings had not been breached by them not being afforded relevant person status. The court concluded that Article 8 did not require Children’s Hearings to extend the definition of a ‘relevant person’ to include a child’s sibling where the test for deemed relevant person status had not, in fact, been met. Because each case was focused on the same point of law, they were conjoined at appeal before the Supreme Court.
Background
The appeals concerned two separate families and the role of ABC and XY who were siblings of children subject to Compulsory Supervision Orders (CSOs) issued by Children’s Hearings. ABC and XY sought to be afforded ‘relevant person’ status in respect of their respective siblings. A child’s parents and those with PRRs automatically attract relevant person status. There is a second category of ‘relevant person’ who does not have this automatic right but who may be deemed by a Children’s Hearing or Pre-Hearing Panel to fulfil the requirements necessary to be recognised as such. Under section 81(3) Children’s Hearings (Scotland) Act 2011 (2011 Act), a person is deemed to be a relevant person if they have had (or recently had) significant involvement in the upbringing of the child. This right depends on the current circumstances of the deemed relevant person and child; as such, this status is subject to review to ensure that the criteria continue to be met.
A relevant person in a Children’s Hearing has important rights in respect of the child, including the right to receive all case papers, to attend, make submissions and be represented at the child’s Hearing, to appeal the Hearing’s decision and to ask for a review of that decision after three months.
ABC was the 16-year-old older brother of DEF, who was subject to a CSO. ABC was not a ‘deemed relevant person’ in relation to DEF. ABC appealed this decision, arguing that this was incompatible with his Article 8 rights guaranteed by the ECHR. The Lord Ordinary dismissed ABC’s petition for judicial review but held that the test for deemed relevant person status in section 81(3) was too narrow to be compatible with Article 8, unless it was ‘read down’ to include a broader range of people. The First Division of the Inner House of the Court of Session did not agree with this interpretation, dismissed ABC’s appeal and reversed the finding that there was a need to read down section 81(3).
XY was the 24-year-old brother of three younger sisters who were the subject of CSOs. XY’s application to be deemed a ‘relevant person’ was refused by a pre-Hearing panel. He appealed to the Sheriff, arguing that the relevant legislation was incompatible with his Article 6 and 8 rights. This appeal was dismissed, as was the subsequent appeal to the Inner House of the Court of Session.
The central issue of the conjoined appeal was whether the 2011 Act afforded the appellants a sufficient opportunity to take part in the decision-making process in Children’s Hearings, without them being given the status of a relevant person.
Decision
The Supreme Court considered that Article 8 was the appropriate framework to determine the issue. The court acknowledged that the appeals had served to expose a flaw in the Children’s Hearing System and that there were legitimate concerns relating to the representation of the interests of siblings and other family members in these Hearings. (Since the initial Hearings, the Scottish Children’s Reporters Administration had taken steps to bridge this gap so that the views of siblings could be communicated to Children’s Hearing panel members so as to inform their decision-making.)
Notwithstanding the existence of this ‘gap’, it was not accepted that it was necessary to afford the status of relevant person in order to address these concerns. While the guidance had not always been clear, there were arrangements in place by which adequate participation could be achieved. This included a direction to Reporters to consider whether there was anyone other than a (deemed) relevant person who ought to be invited to a Hearing under section 78 of the 2011 Act. Children’s Hearings also had recourse to advice from a variety of sources including guidance on obtaining information about a child’s relationships with their siblings and how this might be protected.
The court drew a distinction between the rights of those family members, such as parents, who were directly involved with the upbringing of the subject child, and siblings who did not play a ‘significant role’ in the upbringing. At paragraph 46 of the judgment, Lady Hale observed: It is important to recognise that there are differences between the relationship of a parent and a child and the relationship between a sibling and a child. People who have parental responsibilities are treated as relevant persons because of those responsibilities and people who have a significant role in the upbringing of a child also have the right to be deemed a relevant person.
The court noted that a relevant person was given comprehensive access to confidential information about the child and their parents. Consequently, the rights to privacy of the referred child, the parents and others must also be respected. The views of the child were an important consideration in the decision-making process. The appeals were dismissed.
Cases dealing with contact directions during lockdown
Decisions about regulating contact between looked after children and their parents are often very difficult, particularly where the plan is for the child to be permanently removed from the parents’ care. Restrictions under lockdown added a complication where decisions made by Children’s Hearings were challenged in a number of unreported cases. The Scottish Children’s Reporter Administration (SCRA) provided a helpful synopsis of these judgments.
Application to terminate or vary a Child Protection Order (CPO)
Edinburgh Sheriff Braid
4 May 2020
The CPO as made contained a direction for such reasonable direct supervised contact (if any) as could be safely arranged between the child and both parents.
The Sheriff varied this to contact for one hour, four days per week, in the home of the parents. The Sheriff made clear that if the local authority could not offer supervision then contact must take place on an unsupervised basis. In a note to the interlocutor the Sheriff stated: The terms of the order however leave it open to the social work department to supervise contact in such manner as they reasonably deem to be appropriate, if they wish to do so. Whether that includes such measures as: sitting in the house, masked, in a separate room; observing contact through a window (which I accept would not be practical in the case of a flat which is not on the ground floor); or trying to supervise by remote means is not for me to determine; although I would make the point that in all walks of life, society is having to adapt to the ‘new normal’ and so non-traditional means of supervision may well have to be considered and adopted, if supervision by physical presence is deemed unsafe. For the avoidance of doubt, although it should be clear, if the social work department cannot devise a suitable and reasonable means of supervision, they must allow contact to take place on an unsupervised basis as ordered.
Appeal against decision of Hearing to make an Interim Compulsory Supervision Order (ICSO)
Tain Sheriff Matheson
13 May 2020
The Sheriff found the Hearing’s decision not justified and made a new ICSO with a contact direction specifying the child is to have contact with his mother twice per week, arranged and supervised by Care and Learning, this contact to include the sharing of photographs and pre-recorded videos. In the note to the interlocutor the Sheriff stated: In making an ICSO I was required to consider whether any provision for contact was appropriate. I was particularly concerned, during the disposal of this appeal, to understand that no direct contact has taken place between the appellant and the child. Coronavirus represents a massive challenge in that regard. However, when concerned with a young baby, as we are here, the need to afford the opportunity to bond with the mother is an enormous consideration. There must be a real risk that the child could have his emotional and thus overall health more affected by a lack of contact with his mother than by any exposure to coronavirus caused as a consequence of contact. I observe that the best interests of the child are what is important; whilst no doubt the authorities would want to limit any risk to the appellant, the child, or the foster home of coronavirus passing between them, it is only considerations relating to the child’s best interests that are relevant to any provision for contact in terms of the law. It would not be acceptable for me (or the Hearing) to fail to make a specific provision of contact whereby a policy of the local authority (e.g. that it is not possible to afford direct contact in the pandemic) may prevail (H v Petrie 2000 SLT Sh Ct 145). In my view, given the age of this baby and the need to promote bonding with his mother at this important stage of development a contact order is in his best interests. I made a condition of contact as a result, making it clear that issues of resource or risk presented by coronavirus are not to be lightly cited as barriers to face-to-face direct contact taking place.
Application to vary or terminate the CPO
Edinburgh Sheriff Mundy
21 May 2020
The CPO as made contained a direction leaving contact to the discretion of the local authority. The Sheriff varied the CPO to include a direction for contact by video. However, the Sheriff made clear in a note to the interlocutor that video contact was not a substitute for direct contact and that in the meantime the question of face-to-face contact either in the parents’ home or at an independent location should be explored, recognising that direct contact might not be as frequent as video contact. The direction was to be implemented immediately and ‘if direct contact can be arranged so much the better’.
Application to vary or terminate CPO
Glasgow Sheriff Swanson
22 May 2020
The CPO as made indicated that no contact would take place until the current Government restrictions in relation to COVID-19 have been relaxed.
The Sheriff varied the CPO by directing that face-to-face contact between the child and each of his parents, supervised if considered necessary by the local authority’s social work department and in such a manner and by such person as directed by the said department, should take place for a period of one hour on four days per week. The Sheriff stated in a note to the interlocutor: I am also satisfied, having had the benefit of the submissions for the parents, that there is no legislative barrier to supervised contact operating between a child in care and his parents on a face-to-face basis and no government guidance which precludes it. In the course of today’s Hearing that was conceded by GCC [Glasgow City Council]. Regulation 8 [1] sets out the defences to the charge of committing an offence by contravening Regulations 3 to 7 which include the restrictions on movement set out in Regulation 5. These include fulfilling a legal obligation and in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children. However, despite that concession, the position put forward by GCC was that, in the present circumstances, contact is neither practicable nor appropriate and that the risks in this case outweigh any benefits to the child. Submissions were made by the Council about the current circumstances being unprecedented, unclear scientific advice, the Scottish Government’s cautious approach, the difficulty in finding social workers willing and able to supervise and protective equipment for social workers. Of course the court has to take all of these aspects into account but the balancing exercise that is involved in that assessment leads me to the conclusion that for there to effectively be no contact during the restrictions is disproportionate and not ECHR compliant. While I appreciate that there are difficulties I echo Sheriff Braid’s view that in all walks of life at present society is having to adapt to the ‘new normal’ and the social work department will have to too. The order allows flexibility as to practicalities and timetable.
Appeal against an ICSO made by a Hearing
Glasgow
24 May 2020
The contact direction made by the Hearing was that ‘the child shall have contact with his mother and father a minimum of three times per week, supervised to the satisfaction of social work, in so far as the contact would not be contrary to Scottish or UK Government Guidance in relation to coronavirus’.
The parents had submitted at the Hearing that legislation and government guidance did not prohibit direct contact, but the social worker and the panel members took the view that it would be contrary to government guidance. It was clear that the Hearing did not expect any direct contact to take place under the contact direction.
In the appeal the Reporter accepted that the Hearing’s misunderstanding of the effect of legislation and guidance amounted to a procedural irregularity. Shortly before the appeal was heard the local authority indicated it would arrange direct contact and parties agreed that the Sheriff should make a new ICSO with a measure that included direct and virtual contact.
Judicial Review by Highland Council of a Sheriff’s decision in an ICSO application
Court of Session Judicial Review
29 May 2020
Highland Council sought suspension and reduction of the contact direction made by the Sheriff which specified contact to be direct face to face, either outside in the open air, which failing at the parents’ home, on a minimum of four occasions each week for a minimum of four hours on each occasion, to be arranged by Care and Learning and supported by them, if they consider that to be necessary.
The Council’s position was that the decision of the Sheriff was unlawful because she had not had representations direct from the Council and had failed to take into account a material consideration.
Lady Wise refused the petition.
There had been nothing unlawful in the Sheriff’s decision. The Reporter had sought the Council’s views on contact in advance of the ICSO hearing and had provided them to the Sheriff. It was open to the Council to provide written representations to the Reporter for consideration by the Sheriff or to seek to appear at the ICSO hearing. The Council had done neither of those things but had adopted the usual approach of its position being represented by the Reporter. It was for the Sheriff dealing with the next ICSO application to weigh up all the considerations (including the Council’s position reached after the ICSO application that the foster placement would need to be terminated if direct contact required to take place) and decide what is in the best interests of the child, taking into account the right to respect for family life of the child and parents.
If the Council sought to make direct representations to the Sheriff at the hearing of the next ICSO application, it would be for the Sheriff to decide whether to allow this. Where the Sheriff has ordered intimation on the local authority, Lady Wise thought it likely the Sheriff would allow direct representations.