ABC v Principal Reporter and another (Scotland)

The Supreme Court considered whether siblings (and similar family members) who have not had a significant involvement in the upbringing of a child must be afforded the status of a "relevant person" under the Children’s Hearings (Scotland) Act 2011 so as to secure their article 8 ECHR rights when a compulsory supervision order is sought. The Court held that article 8 requires public authorities to ensure decision-making is fair and to take positive steps to maintain family ties where appropriate, but it does not require that every sibling be given the statutory status of a relevant person. The Court accepted that the 2011 Act, read with subordinate rules, practice directions, common law duties and updated guidance, can be operated so as to give siblings of sufficient maturity effective procedural involvement (for example, notice, invitation to give views, opportunity to attend in appropriate cases, and consideration of contact directions) without conferring full relevant-person status.

The Court distinguished Principal Reporter v K and read that decision in context, limiting its reach to parents and those with significant involvement in upbringing. The Court emphasised competing privacy interests of the referred child and others, the need to limit numbers at hearings, and the serious consequences attaching to relevant-person status (access to papers, criminal sanction for non-attendance, power to accept or reject grounds). Applying those considerations, the Court found no legislative incompetence and dismissed the appeals.

This case concerned two consolidated appeals by siblings (ABC and XY) challenging aspects of the children’s hearings system in Scotland, in particular the statutory definition and mechanism for deeming a person to be a "relevant person" under the Children’s Hearings (Scotland) Act 2011. Both appellants argued that their article 8 rights required that siblings who have established family life with a referred child be afforded the procedural protections of relevant-person status (notice, access to papers, right to attend and make representations, rights of appeal/review, and periodic review of contact).

The procedural posture was appellate: ABC appealed from the Inner House (First Division) which had refused his reclaiming motion ([2018] CSIH 72) after a Lord Ordinary had considered a reading-down of section 81(3) ([2018] CSOH 81). XY’s appeal came by way of a devolution challenge under the Scotland Act 1998 and followed decisions at sheriff and Inner House levels ([2019] CSIH 19). Permission to appeal to the Supreme Court was granted in 2019.

The Court framed the legal issues around article 8 ECHR: whether siblings enjoy family life with the referred child for article 8 purposes; what procedural safeguards article 8 demands in the children’s hearings context; and whether those safeguards require conferral of relevant-person status where the sibling has not had a significant involvement in upbringing.

The Court analysed Strasbourg and domestic authorities (including Nazarenko, Akin, McMichael, W v United Kingdom and Principal Reporter v K) and distinguished Principal Reporter v K as principally concerned with parents and those with a significant role in bringing up the child. The Court accepted that article 8 imposes both negative and positive obligations and requires a fair decision-making process with a sufficient evidential basis and opportunities for affected persons to express their views.

On the facts and law the Court concluded that the 2011 Act and associated subordinate legislation, practice directions and guidance, together with common law duties, can be and have been operated so as to afford siblings of sufficient maturity effective procedural involvement without extending the status of relevant person to all siblings. The Court emphasised considerations against broadening relevant-person status: confidentiality of sensitive material, statutory duty to minimise numbers at hearings, the criminal sanction for non-attendance, and the power of a relevant person to accept or contest grounds. The Court noted updated practice (notice and invitations for mature siblings, discretion of chairing member under section 78(2), updated Practice Direction and Children’s Hearings Scotland guidance) which ameliorate the identified gap.

Accordingly, the Court refused the declarator of legislative incompetence and dismissed the appeals, finding that the legislative scheme can be operated compatibly with article 8 without reading down section 81(3) to confer relevant-person status on siblings who lack significant involvement in upbringing. The Court observed that the litigation had prompted improvements in practice to protect sibling relationships.

The appeals were dismissed. The Court held that article 8 of the ECHR requires procedural fairness and positive steps to protect family ties but does not require that siblings who have not had a significant involvement in the child’s upbringing be given the statutory status of a relevant person. The Children’s Hearings (Scotland) Act 2011, read with subordinate rules, practice directions, guidance and common-law duties, can be operated to afford sufficient protection for siblings’ article 8 interests without conferring relevant-person status; concerns about confidentiality, minimising persons at hearings and the serious consequences of relevant-person status justified that conclusion.

Lord Ordinary (Lady Wise) [2018] CSOH 81 (judgment relied upon reading-down language); First Division, Inner House refused reclaiming motion in ABC: [2018] CSIH 72 (opinion delivered by Lord Malcolm); First Division in XY: [2019] CSIH 19. Permission to appeal to the Supreme Court granted June–July 2019. Appeal heard in the Supreme Court and dismissed [2020] UKSC 26.