Principal Reporter v K

The Supreme Court considered whether a sheriff court interlocutor of 27 October 2006, which granted an unmarried father limited parental rights so that he could take part in children’s hearings, was incompetent and whether the statutory definition of a "relevant person" in section 93(2)(b) of the Children (Scotland) Act 1995 was compatible with Convention rights. The court rejected the First Division’s conclusion that the interlocutor was incompetent: any defect was one of specification in wording rather than a failure to apply the overarching principles in section 11(7).

The court held that the exclusion of some unmarried fathers from the procedural protection of children’s hearings could breach article 8 of the European Convention on Human Rights (and in practice article 14 taken with article 8), because parents who have established family life with a child must be afforded a proper opportunity to participate in decision-making which may interfere with that family life. Article 6 added nothing beyond article 8 in the circumstances of this case.

As a remedy the court read section 93(2)(b)(c) so as to include persons who appear to have established family life with the child with which a children’s hearing decision may interfere, thereby curing the incompatibility under section 3 of the Human Rights Act 1998. The appeal was allowed and the First Division’s interlocutor was recalled.

Background and facts:

• The appellant K is an unmarried father of L (born 6 May 2002). After the parents separated, K sought parental responsibilities and rights and a contact order under section 11 of the Children (Scotland) Act 1995; an interim contact order was made in May 2004 and contact continued until December 2005.
• Allegations of sexual abuse by K were later made and investigated; a referral to the Principal Reporter was made in March 2006 and children’s hearings followed in June and July 2006, at which K was notified but not permitted to participate as he was not regarded as a "relevant person" under section 93(2)(b).
• The sheriff remitted the case to the children’s hearing (11 August 2006) and, on 27 October 2006, after a child welfare hearing attended by K, Sheriff Totten issued an interlocutor granting K parental rights and responsibilities "to the extent that he becomes a relevant person" in the referral, continued interim contact and assigned a further child welfare hearing to monitor contact.

Procedural posture:

• The Principal Reporter later sought suspension of the sheriff’s interlocutor as incompetent. The Lord Ordinary suspended it ad interim in March 2009. The First Division (Court of Session) refused K’s reclaiming motion and granted suspension (reported at [2010] CSIH 5; earlier at [2009] CSOH 94). K appealed to the Supreme Court.

Relief sought and issues:

• The appellant sought to overturn the Court of Session’s suspension of the interlocutor and, in the alternative, relied on Convention rights to contend that the statutory scheme excluding some unmarried fathers from participation in children’s hearings was incompatible with articles 6, 8 and 14. The court was asked to consider whether section 93(2)(b) could be read down under section 3 of the Human Rights Act 1998 or whether a declaration of incompatibility was required.

Issues framed by the court:

1. Whether the interlocutor of 27 October 2006 was competent.
2. Whether section 93(2)(b) of the 1995 Act, insofar as it limited participation in children’s hearings, was incompatible with articles 6, 8 or 14 of the Convention.
3. If incompatible, whether it could be read down under the Human Rights Act or whether a declaration of incompatibility was necessary.

Court’s reasoning and conclusions:

• On competency of the interlocutor: the court concluded that the interlocutor’s wording was imperfect (a specification defect) but did not demonstrate that the sheriff failed to consider the overarching principles in section 11(7). The interlocutor was therefore not incompetent; the First Division’s suspension was unsound on that basis.
• On Convention compatibility: the court held that unmarried fathers who have established family life with a child are entitled under article 8 to procedural protections and to participate in decision-making that may interfere with that family life. The statutory scheme, as then formulated, risked excluding such fathers and therefore infringed article 8 (and, in practice, article 14 taken with article 8). Article 6 did not add materially to the article 8 analysis in this case.
• On remedy: the court preferred a reading-down solution under section 3 of the Human Rights Act rather than a declaration. It read section 93(2)(b)(c) to include persons "who appear to have established family life with the child with which the decision of a children’s hearing may interfere." This remedy was judged to be consistent with the statutory scheme and to bring the legislation into conformity with Convention rights.

Outcome: the appeal was allowed; the First Division’s interlocutor was recalled, K’s pleas sustained and the petition dismissed; the court declared how section 93(2)(b)(c) should be read and found K to be a relevant person as so read.

Appeal allowed. The Supreme Court held that the sheriff’s interlocutor of 27 October 2006 was not incompetent: defects were of specification rather than a failure to apply the overarching principles in section 11(7). The court held that the statutory scheme for participation in children’s hearings risked breaching article 8 rights of fathers (and children) who have established family life, and that section 93(2)(b)(c) should be read under section 3 of the Human Rights Act 1998 to include persons who appear to have established family life with the child with which a children’s hearing decision may interfere. The First Division’s interlocutor was recalled and the petition dismissed.

Sheriff Court (Glasgow): interlocutors and family court proceedings culminating in interlocutor of 27 October 2006; Lord Ordinary (Outer House) suspended that interlocutor ad interim (27 March 2009); First Division of the Court of Session (reclaiming motion refused and suspension granted) reported at [2010] CSIH 5; appeal to the Supreme Court from [2010] CSIH 5 and [2009] CSOH 94.