Relevant persons: an alternative
The Inner House has clarified the rights of individuals to appear at children’s hearings concerning their siblings, reversing the ruling that they are “relevant persons”. What are the implications?
The judicial review of ABC v Principal Reporter  CSOH 81, in which the petitioner was seeking to participate in children’s hearings concerning his siblings, was discussed at Journal, September 2018, 24. In summary, various declarators of incompatibility were refused, but Lady Wise concluded that the “relevant person” test in s 81(3) of the Children’s Hearings (Scotland) Act 2011 was “unduly narrow”, and that in accordance with Principal Reporter v K 2011 SC (UKSC) 91, words should be read into s 81(3) to protect persons whose established family life with the child might be interfered with by the hearing and whose rights required the procedural protection of being a relevant person.
The petitioner reclaimed against the finding that the decisions challenged were lawful. The Principal Reporter and the Lord Advocate cross appealed, successfully:  CSIH 72. The Inner House stated (at para 22): “Neither the Convention nor case law required that the petitioner be afforded relevant person status, nor the opportunity to apply for such… There has been no violation of his article 8 procedural rights”. Importantly, reversing the Outer House, the court added: “There is no need to read down the provisions of s 81(3) of the 2011 Act and related provisions”.
In a marked shift away from the Outer House approach, the Inner House stated (at para 17) that Principal Reporter v K was intended to be limited to unmarried fathers, and “to a limited class of others with a significant involvement in the upbringing of the child whose voice should be heard in respect of all decisions concerning the removed child”.
Lord Malcolm, delivering the opinion of the court, specifically rejected the contention that if a person is not a relevant person, they are excluded from anything that can be described as “fair or proper participation in the decisions being made”, and that if they are a relevant person, they would be involved in all decisions. That was flawed, as it assumed that the UK Supreme Court had in mind an extension of the category of persons entitled to relevant person status sufficiently broad to include siblings.
At para 19 he took the view that the onus would be on the panel to be mindful of the sibling’s interest and to take that into account. Only exceptionally would the attendance of the sibling be necessary. The presence of the parents, reporter and social workers would be sufficient for the panel to make a decision.
In DM v Locality Reporter  CSIH 73, the same bench refused an appeal by stated case from a decision of a sheriff (unusually). The sheriff had refused to deem a 12-year-old boy to be a relevant person in respect of his younger half sister. It was submitted for the child that if he was not a relevant person, he could not challenge a contact direction which prevented him spending time with his half sister. Counsel for the reporter contended that to impose relevant person obligations on the appellant (who himself was subject to child protection proceedings) would be “unattractive and disproportionate”. A consequence would be unproductive hearings and a proliferation of disputes.
The court adopted the view that s 78 afforded the chair of a hearing discretion to permit a person to attend if necessary. In any event, written information could be provided by a person such as DM, although the court acknowledged (at para 13) that “it will usually be better to permit participation in the matter which is of concern”. Beyond that, those who have the right to attend will provide sufficient protection and anything over and above that would be seen as the exception. The court also directed a fair degree of criticism towards the provisions of s 126.
At their discretion
Both of these decisions have significant implications. It is to be welcomed that the contentious point as to whether one can rely on Authority Reporter v K (in terms of the requirement to read down) has now been clarified. From my own experience of conducting numerous appeals, this point has arisen on many occasions. In addition, although the court stated that the chair has discretion to permit the attendance of a person at a hearing, that discretion could now be exercised to the effect that attendance is not necessary and a letter or something along these lines would be sufficient – especially as we are told that, for example, attendance by a sibling should be seen as exceptional. Challenge may be made to how and in what way that discretion is exercised.
Another implication of both cases is that panel members in particular will have to be rather more mindful of the interests notably of siblings who do not attend. There is no doubt that this angle of matters is something that will come under the microscope. We await with interest the outcome of any future appeals.
Alan W Robertson is a senior associate with MBS Solicitors, Edinburgh