Information for Professionals
What you need to know about sibling separation and contact, the law and good practice.
Law and policy resources
Human Rights - Family Life
In terms of the Human Rights Act of 1998, public authorities (including local authorities, courts and children’s hearings) have a duty to act compatibly with certain rights set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”).
Those rights include the right to respect for “family life” specified in Article 8 of ECHR. The existence of “family life” depends on “the real existence in practice of close personal ties” and includes a sibling relationship.
Recently the UK Supreme Court, in its judgement in the case ABC v Principal Reporter and In the matter of XY, confirmed that Article 8 imposes both negative and positive obligations on the State, meaning it must not to interfere in family life without justification, and it must take positive steps to maintain and develop family ties. In both cases, the authorities must have regard to the best interests of the child. Also, decision-making processes must show that the authorities had sufficient evidence for their decisions and that the interested parties, including the children themselves, were able to express their views.
The Supreme Court said that the role of a parent is different from the role of most siblings. It said 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 (see paragraph 29 of the judgment). It said that when it comes to decision-making about your sibling, the degree of involvement required by Article 8 depends upon the relationship or bond between the siblings, and the role of the sibling in the child at the centre of the decision’s life (see paragraph 30 of the judgment).
Law and Guide on Placement
The United Nations has issued Guidelines for the Alternative Care of Children including in Guideline 17: “Siblings with existing bonds should in principle not be separated by placements in alternative care unless there is a clear risk of abuse or other justification in the best interests of the child. In any case, every effort should be made to enable siblings to maintain contact with each other, unless this is against their wishes or interests.”
Guidance has been developed to assist with implementation of the Guidelines: “As a general rule, siblings should not be separated from each other in care placements unless there are compelling reasons for doing so. These reasons must always be in the best interests of any of the children concerned. While this may seem an obvious policy directive, the number of documented cases where siblings are separated without regard to their best interests made it necessary to stipulate it as a general principle of the Guidelines.”
National policy should: “Provide suitable guidance on the importance of keeping siblings together” and “Require planning and placement processes to take into account the need to place a child with his/her siblings unless this is not in the best interests of the child” (Moving Forward: Implementing the ‘Guidelines for the Alternative Care of Children’, CELCIS 2012, p. 38, 71, 74).
Duty to safeguard and promote the welfare of looked after children
Local authorities have a duty to safeguard and promote the welfare of a child looked after by them (Section 17(1) Children (Scotland) Act 1995). In terms of the Children and Young People (Scotland) Act 2014, sections 95 and 96, the local authority must exercise that duty in a way which is designed to safeguard, support and promote their wellbeing, under reference to the SHANARRI indicators: Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, and Included.
The Scottish Government has committed to introducing amendments to the Looked After Children (Scotland) Regulations 2009 to put a duty on local authorities to place siblings under 18 years of age together when they are looked after away from home when it is in their best interests to do so (see Part 10 of the Family Justice Modernisation Strategy of 3rd September 2019). These regulations are due to come into force at the same time as the Children (Scotland) Act 2020 (see Law and guidance on sibling contact section below).
Law and Guidance on Sibling Contact
Duty to looked after children
Local authorities have a duty to safeguard and promote the welfare of a child looked after by them (Section 17(1)(a) of the Children (Scotland) Act 1995). In terms of the Children and Young People (Scotland) Act 2014, sections 95 and 96, the local authority must exercise that duty in a way which is designed to safeguard, support and promote their wellbeing, under reference to the SHANARRI indicators: Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, and Included.
Section 17(1)(c) of the Children (Scotland) Act 1995 directs the local authority to “take such steps to promote … personal relations and direct contact between the child and any person with parental responsibilities …”. Significantly, section 13 of the Children (Scotland) Act 2020 extends this duty to siblings, so in the future (the Act is not yet in force), local authorities will have to take such steps to promote, on a regular basis, personal relations and direct contact between the child and their siblings as appear to the authority to be appropriate having regard to its duty to the child to safeguard and promote its welfare. This duty will apply to siblings in a broad sense, covering those with whom the child has at least one parent in common, and also ‘any other person with whom the child has lived and with whom the child has an ongoing relationship with the character of a relationship between siblings’.
Duty to assess
The local authority is under a duty to assess the child’s need for contact with family members where the local authority are considering placing a child away from the birth parents, with kinship carers, foster carers or in a residential unit (Regulation 4(3) & (4) Looked After Children (Scotland) Regulations 2009).
The Guidance on Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007 specifies:
“Contact should include not only parental but also sibling contact.” (p.41)
“Where it is not in children’s best interests for them to be placed together, or this has proved unachievable, then it may be appropriate for frequent contact to be maintained. This should be recognised in its own right and not purely as part of contact with parents.” (p. 43).
Children’s Hearings (Scotland) Act 2011
A children’s hearing or court, when making, varying or continuing a CSO (Compulsory Supervision Order) or ICSO (Interim CSO), must consider contact between the child and a specified person or class of person, who could be a sibling (Children’s Hearing (Scotland) Act 2011 s29A). Section 14 of the Children (Scotland) Act 2020 amends s29A to make it absolutely clear this includes contact with siblings and anyone else with whom the child has resided and with whom the child has an ongoing relationship with the character of a relationship between siblings.
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.” Paragraph 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.
Views of the Child in Decision Making
When making decisions about a looked after child, the local authority has a duty to ascertain the views of the child, his parents (or anyone else with parental rights) and any other person whose views the local authority consider to be relevant to the matter to be decided (Section 17(3) Children (Scotland) Act 1995). “Any other person” could include a sibling (and section 13 of the Children (Scotland) Act 2020 expressly adds siblings to the wording of section 17(3)) . The local authority must have regard to those views, so far as practicable (Section 17(4) Children (Scotland) Act 1995). If the looked after child concerned wishes to express his views, the local authority must take account of his age and maturity in assessing the weight to be accorded to those views.
Similarly, “A Children’s Hearing, pre-hearing panel or the sheriff…must, so far as practicable and taking account of the age and maturity of the child- (a) give the child an opportunity to indicate whether the child wishes to express the child’s views; (b) if the child wishes to do so, give the child an opportunity to express them; and (c) have regard to any views expressed by the child” (Section 27(3) Children’s Hearings (Scotland) Act 2011). A child aged 12 or over shall be presumed to be of sufficient age and maturity to form a view (Section 27(4) Children’s Hearings (Scotland) Act 2011).
Sibling participation in Children’s Hearings
In certain circumstances, a sibling may be deemed a relevant person in respect of another sibling, where they have had a ‘significant involvement in the upbringing of the child’. If not a relevant person themselves, someone who is a relevant person may share the sibling’s views with the panel making decisions about their brother or sister.
When arranging a Hearing, a Reporter should consider whether there is anyone other than the child and relevant persons whose attendance is likely to be necessary – this could be a sibling. 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 (SCRA’s Practice Direction 3, paragraph 9.2). 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).
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 must 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 (Paragraph 9.3 of SCRA Practice Direction 3).
The Children (Scotland) Act 2020 introduces, in section 25, a new category of participation rights in children’s hearings which, in the future, will give siblings and other family members who do not have relevant person status the chance to take part in a Hearing that is making decisions about a child or young person. There will be further rules about this, but section 25 says they will have the right to be notified of a hearing, to be provided with paperwork that is relevant to them, to be able to attend the hearing, be represented, and seek review of decisions after 3 months.
Participation of siblings in Hearings was the subject of a Supreme Court judgment in June 2020 – read more about what the Court said Hearings need to do to make sure they respect siblings’ participation rights under here.
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