Principal Reporter v K and others (Scotland)

A person whose established family life with a child may be affected by a children’s hearing must have a proper opportunity to participate in the decision-making process. Excluding such a person may violate the procedural protections inherent in article 8 of the European Convention on Human Rights.

The definition of a “relevant person” in section 93(2)(b)(c) of the Children (Scotland) Act 1995 must therefore include a person who appears to have established family life with the child with which the hearing’s decision may interfere. A court order granting limited parental responsibilities or rights may validly enable participation where its substance and intended scope are sufficiently clear, despite imperfect specification.

K, an unmarried father, had lived with his daughter and her mother, maintained contact after separation and obtained interim contact orders. When allegations concerning his conduct led to a referral under Part II of the Children (Scotland) Act 1995, he was initially excluded because he was not a “relevant person”. The sheriff later granted him limited parental responsibilities and rights so that he could participate in the children’s proceedings.

The Principal Reporter subsequently petitioned to suspend that order as incompetent. The First Division granted suspension and rejected K’s Convention challenge: [2010] CSIH 5. K appealed from that decision.

The Supreme Court considered whether the sheriff’s order was competent, whether the statutory scheme violated articles 6, 8 or 14 of the Convention, and whether any incompatibility could be cured through section 3 of the Human Rights Act 1998.

1. Appeal allowed unanimously. The sheriff’s interlocutor was competent. On a sensible reading, it imposed parental responsibilities and rights within section 11 of the Children (Scotland) Act 1995, limited to participation in the children’s proceedings. Its defect was one of specification rather than substance. Nothing established that the sheriff had failed to apply the welfare, minimum-intervention and no-order principles in section 11(7). Such a failure would ordinarily constitute an appealable error rather than render the order incompetent (paras 19–31).

2. The right to be heard is a fundamental requirement of natural justice, although its content depends on the circumstances and may yield to the child’s welfare. It was fundamentally unfair to determine allegations profoundly affecting the relationship between father and child without giving the father an opportunity to answer them (paras 14–17).

3. Article 8 protects an unmarried father where the facts demonstrate established family life. Biology alone is insufficient. Relevant matters include the parents’ relationship and the father’s demonstrated interest in and commitment to the child. Article 8 also contains a procedural obligation to involve a parent adequately in decisions that may interfere with that family life. Restrictions on contact require particularly strict scrutiny (paras 35–48).

4. The existing children’s-hearing scheme violated the article 8 rights of K and his child. Requiring him first to obtain a separate court order could exclude him while decisive findings and measures were being made. Exclusion was not proportionate to the aim of maintaining an informal and manageable hearing, especially where the grounds consisted substantially of allegations against him (paras 44–48).

5. The difference in procedural treatment between qualifying parents and an unmarried father who had established family life was also unlikely to be justified under article 14. Article 6 added nothing material because, where established family life was affected, the relevant civil right arose through the Convention right protected by article 8 (paras 49–59).

6. Applying section 3(1) of the Human Rights Act 1998, section 93(2)(b)(c) of the 1995 Act was to be read as including a person “who appears to have established family life with the child with which the decision of a children’s hearing may interfere”. That interpretation followed the grain and purpose of the legislation. The First Division’s interlocutor was recalled, the petition dismissed, and K declared a relevant person (paras 60–70).

1. United Kingdom Supreme Court: Allowed K’s appeal unanimously, recalled the First Division’s interlocutor, dismissed the Principal Reporter’s petition and declared K a relevant person under section 93(2)(b)(c) of the Children (Scotland) Act 1995 as read compatibly with article 8.
2. Court of Session, Inner House, First Division: Refused K’s reclaiming motion, rejected his Convention challenge and suspended the sheriff’s interlocutor: [2010] CSIH 5.
3. Court of Session, Outer House: Lady Stacey suspended the sheriff’s interlocutor ad interim and subsequently granted leave to reclaim: [2009] CSOH 94.
4. Glasgow Sheriff Court: Sheriff Totten granted K parental responsibilities and rights to the extent necessary for him to become a relevant person in the children’s referral, continued interim contact and appointed a further child-welfare hearing.