Barriers to sibling contact
The legal obstacles to separated siblings seeking contact with each other: something for the Scottish Government to act on as part of the promised bill on children’s rights
With children’s rights currently at the forefront of debate through the recent consultation on the Children and Young People Bill, cl@n childlaw is concerned that a child’s ability to maintain contact with their siblings is not being effectively addressed.
Over the past year cl@n childlaw has seen an increase in the number of children and young people seeking advice in relation to sibling contact. Some young people have lost touch with their siblings following parental separation. For others, this has occurred at the time they were accommodated by the local authority. However this has arisen, unless there is agreement from the adults involved that siblings should have contact with each other, it can be difficult for those siblings who wish to maintain contact to keep in touch.
So how does the current law allow for children to re-establish contact with their siblings?
Remedy under s 11?
Take David, 14, and Emma, nine. Their parents have recently separated acrimoniously. David has chosen to stay with his dad and does not have any contact with his mum. Emma stays with her mum and has minimal contact with her dad. The siblings do not see each other for a number of months. David wants to do something about this. His guidance teacher puts him in touch with a solicitor for advice. In the absence of an agreement, what are the options open to David?
Section 11 of the Children (Scotland) Act 1995 may provide a remedy for David in seeking a contact order in relation to his younger sister. But how easy is it for a child to seek an order in relation to another child? Two reported cases, D v H 2004 SLT (Sh Ct) 73 and E v E 2004 Fam LR 115, tackle the issue of sibling contact for under-16s. Their conflicting outcomes hinge on the interpretation of the restriction in s 11 that only permits parental rights and responsibilities to vest in someone over the age of 16.
In D v H, a child was prevented at the stage of raising an action for contact with his sister on the basis that he was too young to possess the parental right of contact. Conversely, in E v E, it was determined that a contact order did not vest parental rights or responsibilities in the holder, and therefore a child could pursue such an order in relation to a sibling.
These cases are debated more fully in Professor Kenneth Norrie’s article at www.journalonline.co.uk/Magazine/49-10/1001018.aspx. The approach of E v E is certainly more appealing to those who advocate for children’s rights, as its broad interpretation fits more comfortably with the provisions of the UNCRC and ECHR. Its reasoning has also found favour in other cases, such as Children’s Reporter v D 2008 SLT (Sh Ct) 21, where it was noted that a contact order only regulates contact rather than imposing any parental responsibilities and rights on the person in whose favour it has been granted.
If David can apply for a contact order under s 11 in relation to his sister, how might the order be framed? E v E suggests two possible solutions: (1) an order in favour of the child who raised the action; or (2) an obligation on the parents of the children to ensure supervised contact takes place between the siblings. However, which of the siblings’ welfare would be considered paramount? Should the court consider both David and Emma’s welfare equally and balance the two, or should it prioritise the welfare of Emma, as the child who is the subject of the contact order?
In the English case Re S (A Minor) (Adopted Child: Contact)  3 WLR 504, a nine-year-old girl sought contact with her seven-year-old half-brother. The court held that the “child concerned” would be the child or children in respect of whom a contact order can be made. It was reasoned that an approach which has to balance the competing interests of two children does not promote the best interests of either child.
The sparse case law in this area leads to uncertainties when advising young clients like David. Resorting to litigation also raises other issues for this vulnerable group, including difficulties in obtaining legal aid, access to legal representation, and the prospect of conflict with family members. A specific right under legislation for children to seek contact with siblings may resolve the uncertainty and create a clear route to address sibling contact.
Looked-after and accommodated children
How would this change if Emma is accommodated by the local authority and contact continues not to take place?
There is a duty on the local authority under s 17 of the Children (Scotland) Act 1995 to promote personal relations and direct contact on a regular basis between a child who is looked after by them and any person with parental responsibilities, subject to the contact being conducive to the child’s welfare and the contact being practicable and appropriate. The duty however does not extend to personal relations and contact with siblings.
The Looked After Children (Scotland) Regulations 2009 impose a duty on a local authority to assess the child’s need for contact with family members where the local authority is considering placing a child away from the birth parents, with kinship carers, foster carers or in a residential unit. However this is a duty to assess, not to promote contact. The guidance to the regulations elaborates on this, saying: “for children who spend prolonged periods looked after away from home, contact with siblings living elsewhere… needs similar attention as contact with parents… This should be recognised in its own right and not purely as part of contact with parents”.
Whilst the guidance is in more positive terms than the regulations themselves, perhaps a duty on local authorities to promote contact between separated siblings would lead to more positive outcomes for looked-after children. Contact with siblings can be a reassuring link to the family home, which may come without the pressures that parental contact can often bring, such as supervision and assessment. The experience of cl@n childlaw is that there are many potential barriers to contact taking place between siblings where one or more of the siblings are accommodated. It is often thwarted by an unwilling parent refusing to give permission, the lack of resources of social work departments in facilitating contact, and the lack of free legal advice available to looked-after children and young people to help them raise issues effectively.
Emma is now subject to a supervision requirement put in place by a children’s hearing. David is now 16 and moved out of his dad’s home. He wants to spend some time with Emma. Emma’s mum and social worker are not keen for this to happen.
It is unlikely that David, as a sibling, would have parental rights and responsibilities, an order for contact under s 11, or ordinary care of or control of Emma. Unless David falls within one of these categories, to be considered as a “relevant person” for children’s hearings proceedings David would have to argue that he has “established family life” with Emma, “with which the decision of a children’s hearing may interfere” (see Principal Reporter v K  UKSC 56). If David were to be considered as a “relevant person”, he could take part in full discussions around Emma’s care, appeal any decision, and be informed of future hearings.
Many siblings however have no desire to take part in the wider discussions surrounding their sibling’s care. For many, becoming a relevant person may not be appropriate due to their age or family circumstances, and they will be left to rely on others to raise the issue of sibling contact on their behalf before the hearing. Although a hearing has a duty to consider contact between the child and any other person, the relevant issues must be brought to their attention. If David is not considered to be a relevant person, he may not even know that a hearing has been scheduled. There are obvious disadvantages to David if he is not given the opportunity to attend the hearing personally to fully discuss the issue, or challenge the position of others in attendance who may be opposed to contact between the siblings taking place.
The future: the 2011 Act
Whilst “established family life” may provide a remedy for some siblings under the 1995 Act, the relevant person criteria are to be altered by the Children’s Hearings (Scotland) Act 2011 and accompanying rules, expected to come into force in June 2013. The rules are currently in draft form.
Under the new legislation, the reporter must notify certain individuals that a children’s hearing is taking place and that they have a right to ask for a determination as to whether or not they are a relevant person. These individuals include anyone who appears to the reporter to have (or recently have had) significant involvement in the upbringing of the child, any person who appears to have established family life with the child, and any person who has a contact order in relation to the child. Assuming that a sibling would not meet the criteria for automatically being treated as a relevant person, they would have to show that they have (or recently have had) significant involvement with the upbringing of the child in order to be deemed a relevant person. It is not clear how this provision will be interpreted, but it appears to be a higher threshold for siblings to overcome than that of “established family life”.
There may be more scope under the 2011 Act for those who purely wish to discuss contact with the child rather than become a relevant person. If a contact direction is made, then anyone who had been notified of the children’s hearing may also request a hearing to review that direction if they can show they have an established family life with the child. This may allow siblings the opportunity of requesting a hearing to discuss their own contact. However, this provision is specifically about varying or removing contact directions and may not be interpreted to allow for new conditions to be added.
There are currently over 10,000 children who are looked after away from their home in Scotland and who are potentially affected by a loss in contact with their siblings. In our recent response to the consultation on the Children and Young People Bill, cl@n childlaw called for a specific right for a child to maintain personal relations and direct contact with a sibling, as well as appropriate provisions for a child to apply to the court or children’s hearing for an order, or condition of contact. We would also welcome a specific duty on local authorities to promote sibling contact for looked-after children and young people.
Despite the obstacles outlined, we have had some successes in re-establishing sibling contact. More often, however, it has been a disappointing and frustrating experience for children and young people who often worry about their siblings. We are keen to hear of the experiences of others. As part of their consultation on the bill, the Scottish Government aspires to “making real the rights of children and young people”. A concrete step towards achieving this ambition would be to explore and overcome the numerous barriers to sibling contact, in order to make the law work for children and young people in Scotland.
Vicki Straiton, solicitor, cl@n childlaw
cl@n childlaw offers a unique legal advocacy service to children and young people within Edinburgh and the Lothians. It aims to make the law more accessible to children and young people, including the most vulnerable in our society, by providing free, specialist legal advice and representation at a place suitable to them at the time that they need it.
t: 0131 475 2567