ABC v Principal Reporter and another (Scotland)

Article 8 requires a sibling with an established private or family life with a child to be involved in children’s-hearing decision-making to a degree sufficient to protect that relationship. The required involvement depends on the particular bond and the sibling’s role in the child’s life.

A sibling without significant involvement in the child’s upbringing need not receive the full status and procedural rights of a relevant person. A flexible process may suffice if it identifies the relationship, informs the sibling, obtains and considers the sibling’s views, and balances those interests against the child’s welfare and the privacy rights of others.

Two siblings challenged the procedures governing compulsory supervision orders under the Children’s Hearings (Scotland) Act 2011. ABC sought judicial review after initially being excluded from a hearing concerning his younger brother. XY challenged decisions withdrawing his status as a deemed relevant person in proceedings concerning his sisters.

The Inner House dismissed ABC’s reclaiming motion in [2018] CSIH 72 and XY’s appeal in [2019] CSIH 19. The appellants contended that articles 6 and 8 required siblings with established family life to receive the comprehensive procedural rights of relevant persons. The central question was whether the statutory scheme could afford sufficient involvement without conferring that status.

1. Appeals dismissed. Article 8 did not require a sibling who had not, and had not recently had, significant involvement in the referred child’s upbringing to receive the status of a relevant person. The challenges to the Scottish Parliament’s legislative competence therefore failed.
2. Article 8 protects both private and family life and imposes negative and positive obligations. The existence of family life between siblings is a question of fact, depending on the real existence of close personal ties. Even a close relationship falling short of family life may come within private life. The decision-making process must provide an adequate evidential basis and allow interested persons, including children, to express their views.
3. A sibling must be involved in the decision-making process, viewed as a whole, to a degree sufficient to protect the sibling’s interest. The required degree depends upon the bond with the referred child and the sibling’s role in that child’s life. Unlike parents and others responsible for upbringing, most siblings are principally concerned with maintaining their relationship through contact or, where appropriate, placement together.
4. The reading of the predecessor legislation in Principal Reporter v K [2010] UKSC 56 was contextual. It protected an unmarried father and a limited class of others significantly involved in upbringing. It did not create a formula granting relevant-person status to everyone whose established family life might be affected.
5. Relevant-person status carried extensive consequences which were inappropriate for every sibling. These included compulsory attendance, power to accept or reject referral grounds, access to sensitive papers, rights of appeal and review, and the possibility of disrupting informal, child-focused proceedings. The referred child’s welfare remained paramount, while the privacy rights of the child, parents and others also required protection.
6. The statutory scheme could comply with article 8 when operated practically and sensibly. Reporters and hearings could notify and invite sufficiently mature siblings, obtain their views, permit attendance where appropriate, disclose the substance of relevant documents, obtain information from local authorities, consider contact directions and release documents where necessary. A bespoke inquiry was required into each sibling relationship and any competing Convention rights.
7. ABC’s initial opportunity to participate might have been inadequate, but the position had been rectified at the later hearing and subsequent reviews. No declarator or other order was necessary.

1. United Kingdom Supreme Court: Dismissed both appeals and upheld the conclusion that the statutory scheme could operate compatibly with article 8.
2. Inner House of the Court of Session: In ABC’s case, refused the reclaiming motion but recalled the Lord Ordinary’s reading-in declaration: [2018] CSIH 72. In XY’s case, refused the appeal from the sheriff: [2019] CSIH 19.
3. Outer House of the Court of Session: Refused ABC’s petition after reading additional words into section 81(3): [2018] CSOH 81.
4. Sheriff: Dismissed XY’s challenges to the decisions denying or withdrawing deemed-relevant-person status.