Janet Cormack, from Clan Childlaw writes about meeting siblings’ rights to participate in Children’s Hearings following the Supreme Court judgment in two Scottish cases…

In November 2019, the UK Supreme Court heard two Scottish cases, ABC v Principal Reporter and In the matter of XY, on the rights of siblings in the children’s hearing system. The two cases were had different circumstances, but the court heard them together because they both hinged on the same question: whether or not the Children’s Hearings (Scotland) Act 2011 and related subordinate legislation, if operated sensibly, give siblings of the child at the centre of the Hearing sufficient opportunity to take part in the decision-making process. When the Court handed down its judgment in June 2020, it ruled that, following adaptations to Children’s Hearing made since the initiation of these legal cases, as long as Hearings are operated in compliance with the guidance given by the Principal Reporter and Children’s Hearings Scotland, they will now fulfil what is required by the legal right to family life under article 8 ECHR in relation to siblings and other family members.

The judgment is the first time the highest UK court has deliberated over the right to family life for siblings. The judgment opens with: “Siblings can be as important as parents in the lives of those who have them. While parents have been likened to the doctors doing their ward rounds to see the bigger picture, siblings have been likened to the nurses: they are there every day”. The Court emphasised that “where a child is being cared for away from the family, what matters is the maintenance and development of the relationship between the siblings, whether through placing them together or through staying in regular contact with one another” (para 29).

The cases have helped increase recognition of the urgent need to better protect the sibling relationships of children in the care system and the right of brothers and sisters to be involved in decision-making. The judges “acknowledge that the initiation of these challenges has served to uncover a gap in the children’s hearings system which has had to be adapted to meet the requirements of article 8 in relation to siblings and other family members. There is now a clear recognition of the interest of both the child and the sibling in maintaining a sibling relationship through contact (or through placement if both are subject to CSOs) in most cases… There needs, in short, to be a bespoke enquiry about the child’s relationship with his or her siblings when the children’s hearing is addressing the possibility of making a CSO” (paragraph 52).

The Court said that to “make effective the rights of the sibling and other family members with a similar interest in maintaining contact with a child, it is necessary both that the relevant public authorities are aware of those interests and that the siblings and family members are informed of the nature of the proceedings concerning the child and of their rights in relation to the proceedings. Each person involved in the process – the Principal Reporter, the Children’s Panel members, the local authority, the social worker preparing a care plan, and the safeguarder – need to be aware of those interests if the system is to operate compatibly with the article 8 rights of siblings and other family members.

The new Children (Scotland) Act 2020, passed by the Scottish Parliament in August, paves the way for a new category of participation rights for siblings and other family members, so that they are able to participate in a children’s hearing when they are not a relevant person (see section 25 of the Act). They will have the right to be notified of the hearing; the right to provide a report or other document to the hearing; the right to be provided with specific documents; authorisation to attend the hearing; the right to be represented at the hearing; and the right of review of a CSO at a further children’s hearing after 3 months. The detail on the rights will be set out in children’s hearings rules, which will be consulted on. The Scottish Government said in Parliament that the changes will “allow the hearing to keep the relationship between the child and their siblings under close review if needed, and it will permit quick adjustments to be made to measures in the child’s legal order”. Furthermore the 2020 Act strengthens section 29A of the Children’s Hearings (Scotland) Act 2011 so that when deciding whether to include a direction regulating contact between the child and another person, Children’s Hearings will have an express duty to consider the relationships between the child and relevant persons, siblings and any other person with whom the child has resided and with whom the child has an ongoing relationship with the character of a relationship between siblings (see section 14 of the 2020 Act).

Until this new regime comes into force, the arrangements to be followed by Children’s Hearings are those the Supreme Court sets out in paragraphs 32-40 of the judgment. These are:

  • Notification and attendance at a Hearing

It is now the practice for notice of hearings to be given to the siblings of a child if they are sufficiently mature, for invitations to attend a hearing to be sent to a sibling and for the chairing member of the hearing to exercise her or his discretion to allow the sibling to attend the hearing.

Paragraph 9.2 of SCRA Practice Direction 3, as revised in March 2019, says that when arranging a Hearing, the Reporter should consider whether there is anyone other than the child and relevant persons whose attendance is likely to be necessary. The Reporter should invite anyone who has established family life and an ongoing relationship with the child, and sufficient age and maturity to participate in the Hearing, where the Hearing is likely to consider including a contact direction about them in a CSO for the first time or to vary a contact direction about them in a CSO, or the person has made clear that they want the Hearing to consider their contact with the child.

The chairing panel member can allow the person to attend “if their attendance is necessary for the proper consideration of the matter” (s78(2)(a) of Children’s Hearings (Scotland) Act 2011).

Paragraph 9.3 of SCRA Practice Direction 3 states that where it was not foreseen that the panel would be considering a contact measure or that a person was of sufficient age and maturity would be invited, the Reporter is directed to invite the Hearing to satisfy itself that it has their views in relation to contact, or if not, that they have been given an opportunity to give those views. If not, the panel can defer the decision to make sure that they are able to give their views directly or indirectly.

  • Panels must inform everyone at Hearing of substance of relevant papers

Siblings and others who are not relevant persons do not have access to papers, but the chair of the panel is required to inform every person present at the hearing of the substance of any relevant document (ss91, 119 and 138 of 2011 Act and rule 60(2)(a) of the Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Rules 2013).

  • Decision-makers must have adequate information about family members and the history of their involvement or contact with the child and panels should consider how children’s sibling relationships can be maintained

Paragraph 8.26 of the Children’s Hearings Practice and Procedure Manual, updated in September 2019, states “Panel members should have information about a child’s relationships with their brothers and sisters and give careful consideration to how these relationships can be maintained and protected.” Para 8.27 lists the key considerations for the hearing as: identifying all the child’s brothers and sisters, including those who have had a similar role in the child’s life, such as children brought up in the same placement; the views of the children about their relationships and existing contact provisions; promoting face-to-face contact where possible; the practical and emotional capacity of carers to facilitate contact; how contact can be achieved in as relaxed and natural manner as possible.

  • Local authorities must assess a child in their care’s need for contact with siblings

The Supreme Court referred to local authorities’ duties to safeguard and promote the welfare of any child they are looking after (s17(1) of the Children (Scotland) Act 1995 Act), and to ascertain the views of any person whose views the local authority consider relevant before making a decision about the child (s17(3)), and the requirement in the Looked After Children (Scotland) Regulations 2009 to, when making assessments, obtain details of a child’s siblings and their contact with the child (regulations 3-4 and Schedule 1, paragraphs 7-8), resulting in a ‘child’s plan’ which must include arrangements for contact between the child and others (regulation 5 and Schedule 2, paragraph 7). 

  • The Principal Reporter can require a local authority to produce a report on the child, including information about his or her siblings

Under section 66(4) of the 2011 Act, the Principal Reporter, when investigating whether the child needs protection, guidance, treatment or control, can require the local authority to produce a report on the child, including information about his or her siblings. The Principal Reporter can then request further information once they have decided that a CSO is necessary. They can request a report from the implementation authority when arranging a hearing to review a CSO.

  • Hearings have a duty to consider including in a CSO a requirement for contact

Under section 29A of the 2011 Act, when making, varying or continuing a CSO in relation to a child, the children’s hearing must consider whether to include in a CSO a contact direction.

  • Relevant persons can share the views of the child’s siblings with the panel

Parents and the referred child can make representations on behalf of the wider family to protect their Article 8 interests (see the Supreme Court judgment in Principal Reporter v K, paragraph 68). Those who meet the test for relevant person status will have the right to be deemed a relevant person under s81(3) of the 2011 Act and the right to call for a review of a contact direction s126 of the 2011 Act and article 2 of the Children’s Hearings (Scotland) Act 2011 (Review of Contact Directions and Definition of Relevant Person) Order 2013.

  • Release of documents to assist hearing’s decision on CSO

Once grounds have been accepted, a Children’s Hearing can direct the release of documents under rule 61(1)(g) of the 2013 Rules where this is necessary to allow the hearing to decide whether to make a CSO.

The above information was written by Janet Cormack, Legal Policy Manager at Clan Childlaw, in November 2020 – for further information from Clan Childlaw, call 0808 129 0522 or email info@clanchildlaw.org

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