ABC v Principal Reporter & Anor (Scotland) [2020] UKSC 26

Two siblings challenged Scotland's children's hearings system, arguing article 8 ECHR required them to be granted 'relevant person' status in proceedings concerning their brothers/sisters subject to compulsory supervision orders. The Supreme Court dismissed the appeals but recognised a procedural gap requiring sensible operation to respect siblings' family life.

Facts

The appeals concerned two appellants, ABC (aged 16) and XY (aged 24), who sought to participate in children’s hearings under the Children’s Hearings (Scotland) Act 2011 concerning their siblings who were subject to compulsory supervision orders (CSOs).

ABC’s younger brother DEF had been placed in foster care under a CSO. ABC attended a hearing on 7 September 2017 without invitation, was not permitted to speak and was required to leave. Contact directions were made permitting fortnightly direct contact but prohibiting telephone contact. At a later hearing in December 2017, the chairperson exercised discretion to allow ABC to attend and express his views.

XY had three younger sisters, all subject to CSOs following removal from parental care. A pre-hearing panel initially refused his application to be deemed a relevant person in relation to his sisters. Following appeals, XY ultimately ceased to be a deemed relevant person in relation to any sibling. One sister supported his application, another opposed it on privacy grounds.

Issues

The central question was whether the 2011 Act and related subordinate legislation, if operated sensibly, afforded siblings sufficient opportunity to take part in the decision-making process under article 8 ECHR, without being given the status of relevant person, or whether only the conferral of that status would suffice. A subsidiary issue concerned whether the statutory definition of ‘relevant person’ (section 200) and the ‘deemed relevant person’ mechanism (sections 81 and 81A) were within the legislative competence of the Scottish Parliament.

Arguments

Appellants

ABC and XY argued that article 8 required them to have procedural rights including notification of hearings, access to papers, rights to attend, be legally represented, make representations, appeal and seek review of contact directions. They relied on Principal Reporter v K [2010] UKSC 56 as authority for reading down the statutory definition to include persons whose established family life with the child may be interfered with. Mrs Scott criticised the existing measures as a ‘hotchpotch’.

Respondents

The Principal Reporter and Lord Advocate submitted that the legislation was compatible with article 8 if operated sensibly, having regard to common law duties, the procedural requirements of article 8, and evolving practice including updated Practice Directions. They argued Principal Reporter v K should be read in context and did not create a formula applicable across the board.

Judgment

The Supreme Court (Lady Hale and Lord Hodge delivering the judgment, with Lord Kerr, Lord Wilson and Lady Arden agreeing) dismissed the appeals.

The Court accepted that siblings can enjoy family life together under article 8, citing the Strasbourg jurisprudence including Nazarenko v Russia, Lazoriva v Ukraine and Akin v Turkey. Article 8 imposes both negative and positive obligations. However, the role of a parent is qualitatively different from that of most siblings; where a child is cared for away from the family, what matters for siblings is maintenance and development of the relationship through placement together or regular contact.

The required degree of involvement in the decision-making process depends on the relationship and role. The Court reviewed the current arrangements, including SCRA Practice Direction 3 (paragraphs 9.1-9.3), the updated Children’s Hearings Practice and Procedure Manual (paragraphs 8.26-8.27), the chairing member’s discretion under section 78(2), the local authority’s duties under section 17 of the Children (Scotland) Act 1995 and the Looked After Children (Scotland) Regulations 2009, and the Principal Reporter’s powers to obtain reports.

Regarding Principal Reporter v K, the Court agreed with the First Division that the reading down of the previous statutory provision was limited to unmarried fathers and a limited class of others with significant involvement in the upbringing of the child, subsequently enacted in section 81(3).

Several reasons militated against extending relevant person status to siblings: (i) relevant persons have an attendance obligation enforceable by criminal law; (ii) relevant persons can accept or reject grounds of referral, which could cause unnecessary disruption; (iii) relevant persons have comprehensive access to sensitive papers, raising privacy concerns for the child, parents and others; (iv) section 78(4) requires minimising numbers at hearings. One of XY’s sisters had objected on privacy grounds; ABC’s father had similar concerns.

The Court concluded that article 8 does not require siblings without significant involvement in the child’s upbringing to be given relevant person status. The challenges to legislative competence failed.

Implications

The decision confirms that the statutory definitions of ‘relevant person’ and ‘deemed relevant person’ in sections 81, 81A and 200 of the 2011 Act are within the legislative competence of the Scottish Parliament and compatible with article 8 ECHR.

The Court acknowledged, however, that the challenges had uncovered a gap in the children’s hearings system requiring adaptation to meet article 8 requirements for siblings and other family members. A nuanced, bespoke enquiry is required into the child’s relationship with siblings when a CSO is being considered, addressing the nature of family life, home circumstances, coinciding interests, and potentially conflicting article 8 rights among family members.

Effective operation requires that the Principal Reporter, Children’s Panel members, local authorities, social workers and safeguarders are aware of siblings’ interests, and that siblings are informed of proceedings and their rights. The Court indicated that it is for public authorities to consider whether further steps are desirable but was persuaded the legislative scheme can be operated compatibly with article 8.

The judgment is significant for practitioners in Scottish child welfare law, reinforcing a flexible, procedural approach rather than expanding formal status. It acknowledges the importance of sibling relationships while balancing these against privacy interests of the referred child, parents and other siblings, and the statutory aim of child-friendly, informal hearings.

Verdict: Appeals dismissed. The Supreme Court held that article 8 ECHR does not require public authorities to confer relevant person status on siblings who have not had significant involvement in the upbringing of the referred child. The relevant provisions of the Children’s Hearings (Scotland) Act 2011 are within the legislative competence of the Scottish Parliament and can be operated compatibly with article 8 rights through existing procedural mechanisms.

Source: ABC v Principal Reporter & Anor (Scotland) [2020] UKSC 26