Scotland

Circumstances of the case

The five-year-old child had resided for three years with his maternal grandmother, her partner and his half-brother. He was subject to a Compulsory Supervision Order (CSO) with a measure of residence with his grandparents, due to his parents’ inability to meet his needs. His mother had died, and his father resided in a relationship with his partner, their two children and her three children from a previous relationship. Father and son enjoyed regular contact. The grandparents sought a Kinship Care Order (KCO) under the Children (Scotland) Act 1995 section 11 to acquire Parental Rights and Responsibilities (PRRs) which they would share with the father. The court was asked to order residence with the grandparents. The father opposed the granting of the KCO, claiming it to be unnecessary as the CSO adequately met the child’s needs.

Decision

The court decided that with regard to the child’s welfare it was better that a KCO be made than not, that the child should reside with his grandparents and that contact between the child and the father should take place on a regular basis, the details of which were to be settled at a later hearing. In doing so, the sheriff made a number of observations:

The KCO would bring a sense of longer-term stability and certainty to the child’s life while a CSO can only be regarded as a ‘temporary measure’.

Comment

In such proceedings the Children (Scotland) Act 2020 states that in considering whether the child is capable of forming a view it is necessary to start with the presumption that she or he is able to do so, to give her or him the opportunity to express those views in a manner they prefer and to have regard of them. In this case, the child is bright and reaching the milestones of development for his age. It is perhaps surprising, then, that no apparent effort was made to ascertain his thoughts, but the sheriff was satisfied that the child was not capable of forming a view. The court decided that ‘Having regard to the child’s age and maturity, it was not practicable or appropriate to seek his views in respect of the orders sought’.

Given the acknowledged animosity between the father and grandparents, the concern is that there may be subsequent court callings where there are disagreements between them. The local authority could have considered applying for a Permanence Order removing PRRs from the father and thereafter sharing them with the grandparents. The difficulty is whether the circumstances would meet the threshold test for a Permanence Order, namely that for the child to reside with the father ‘it is, or is likely to be, seriously detrimental to the welfare of the child’.^v

Circumstances of the case

This is a private law case between parents where a mother living in Scotland had been granted permission by the sheriff to relocate to the Republic of Ireland with her five-year-old son. The father of the child appealed the decision of the sheriff and this was refused by the Scottish Civil Appeal Court. There were several grounds for appeal, one of which had not been that the sheriff had failed to take into account the views of the child; this was only raised as an issue at the appeal hearing.

Decision

In addressing the point raised in relation to the child’s views not having been sought, the court found that the sheriff had indeed raised the possibility with each parent of his speaking directly with the child. In his judgement, the sheriff noted that the parents agreed that it would be inappropriate to seek to ascertain the views of the child due to the legal concepts being beyond his chronological understanding and also because it could lead to distress and confusion for him.

The Appeal Court was ‘startled’ that the father then sought to base the absence of the child’s views as a ground for appealing the original decision. They acknowledged that each case turns on its own merits, but generally it will be practicable, albeit potentially distressing, to take the child’s views. However, in this instance the young age of the child along with the knowledgeable position of both parents who had a close and loving relationship with the child justified the approach adopted by the sheriff as to the practicability of seeking his views. In any event, even if the sheriff had erred, there was no suggestion that this would be sufficiently material to render the sheriff’s decision wrong in relation to relocation.

The court emphasised the importance of the counsel and solicitors’ duties as Officers of the Court, which supersedes their duty to their client.^vi The court was critical of any party neglecting to alert the sheriff to his making an order which might breach a statutory duty. As Officers of the Court, they are required to immediately bring this to the court’s attention, rather than allowing it to happen and then use it as a ground of appeal.

Comment

This case makes clear the duty of solicitors and counsel, as Officers of the Court, to act responsibly in supporting the sheriff in the proper execution of the law. This is particularly relevant where new legislation is operational, for example, in relation to enabling the participation of children in the legal process, in promoting, where appropriate, the sibling relationship and in the approach to be taken where vulnerable witnesses or parties are involved. This principle is equally applicable in adoption, fostering and kinship matters where Officers of the Court have a duty to conduct themselves to this higher standard.

Circumstances of the case

KT is the 16-year-old sister of the seven-year-old child subject to a Compulsory Supervision Order (CSO) made in terms of the Children’s Hearings (Scotland) Act 2011.The CSO was reviewed and varied at a Children’s Hearing on 22 July 2021, with a measure attached of no contact between the siblings. The reporter had invited KT to attend that hearing and two previous hearings, and the chair of the hearings had allowed her attendance when discussing contact. She did not have a right to attend but instead was invited to assist in the ‘proper consideration of the matter’, i.e., in relation to contact under Section 78(2)(a) of the 2011 Act. Interestingly, this order conflicted with a measure on KT’s own CSO which made provision for contact to occur. The mother, as a relevant person, appealed that decision and intimations were sent out of the appeal from the Sheriff Court; KT was not included in these intimations. The appeal was heard without her views being sought by the court and the hearing’s decision was upheld. KT sought a judicial review on the basis that her Article 8 rights had been breached in terms of the impact of the decision on her right to family life.

Further, she was deprived of a fair hearing in contravention of her Article 6 rights.

KT accepted that each case turns on its individual circumstances and that she did not have the rights of the relevant person either at the children’s hearing or in the court.^vii She submitted that the reporter had erred in not seeking her views to communicate to the court informally as had happened in MB v SCRA.^viii Had the appeal been intimated to her, she could have lodged answers and thereafter the sheriff could have made an informed decision about the appropriateness of her participation in the proceedings.

The reporter argued that since KT had no rights to attend either the children’s hearing or the appeal hearing, it was difficult to determine what would be an appropriate method of communicating her views. It was recognised that in some circumstances collective representation of the wider family by, for example, a relevant person may be sufficient.^ix The appeal submitted on behalf of the mother did refer to contact between the siblings, KT’s views were represented by her so clearly known about at the appeal, yet KT had made no effort to communicate her views to the reporter who might then inform the court of these.

The authorities referred to here and the proceedings turn on the old legislative framework prior to the amendments which came into force under the Children (Scotland) Act 2020. In the future, KT will have the rights provided by the amended legislation which may, depending on the siblings’ circumstances at that time, include the right to attend the hearing and appeal its decision.

Decision

The appeal court concluded that the determining issue was whether KT’s interest required that she receive intimation of the relevant hearing before the sheriff and consequently had a right to attend or whether that interest was protected by another means such as participation by her mother in the appeal.

There is authority which is binding to the effect that compliance with Article 8 of the European Convention on Human Rights does not necessarily require personal attendance by a sibling at a hearing.^x What is required is that the decision-maker in such a situation must take:

… a nuanced approach which addresses the extent of family life in that relationship, the home circumstances, how far the interests of the parents, the sibling and the child coincide and the possibility that the child, the parents and other siblings may have Article 8 rights which are in conflict with those of the sibling.

Having regard to the foregoing factors, it appears that the interests and rights of KT were matters which were expressed before and therefore brought to the attention of the decision-maker at the time the decision was made. Therefore, the sheriff was entitled to have formed the view that there was no need to formally intimate the relevant hearing to the petitioner for the reason that her interest was protected.

Comment

New legislation in relation to siblings is now operational.^xi When making a CSO, the court or hearing has a duty to consider a measure regulating contact between the child and a person who is not living with the child and is a sibling or is someone with whom the child has resided and with whom the child has an ongoing relationship with the character of a relationship between siblings.

The 2020 Act also grants eligible siblings and relatives the right to participate in a children’s hearing process, when there was no such right in earlier legislation. This applies where the ‘connected person’ lives with or has lived with the child, there is an ongoing sibling-like relationship, the hearing is likely to make a decision that significantly affects how or when contact occurs, and the sibling is able to give their views on when or how they want to have contact.

Therefore in future hearings, KT will be entitled to attend the hearing and give her views in relation to contact and similarly within the court process.