ABC v Principal Reporter

Court:Supreme Court
Docket Number:No 3
Judge:Hodge, Wilson, Hale, Lord Wilson of Culworth, Lord Kerr of Tonaghmore, Lord Hodge, Arden, Baroness Hale of Richmond PSC, Lady Arden of Heswall, Kerr
Judgment Date:18 Jun 2020
Jurisdiction:Scotland
Neutral Citation:[2020] UKSC 26

[2020] UKSC 26

Baroness Hale of Richmond PSC, Lord Kerr of Tonaghmore, Lord Wilson of Culworth, Lord Hodge and Lady Arden of Heswall

No 3
ABC
and
Principal Reporter
Cases referred to:

Akin v Turkey (4694/03) [2010] ECHR 435

Boyle v UK (16580/90) [1994] ECHR 9; (1995) 19 EHRR 179; [1994] 2 FCR 822

DM v Locality Reporter [2018] CSIH 73; 2019 SC 196; 2018 SLT 1308

Haase v Germany (11057/02) [2004] ECHR 142; (2005) 40 EHRR 19; [2004] 2 FLR 39; [2004] 2 FCR 1; [2004] Fam Law 500

Havelka v Czech Republic (23499/06) ECtHR, 21 June 2007, unreported

Lazoriva v Ukraine (6878/14) [2018] ECHR 328

McMichael v UK (16424/90) [1995] ECHR 8; (1995) 20 EHRR 205; [1995] 2 FCR 718; [1995] Fam Law 478

Maslov v Austria (1638/03) [2008] ECHR 546; [2009] INLR 47

Nazarenko v Russia (39438/13) [2015] ECHR 775; (2019) 69 EHRR 6; [2015] 2 FLR 728; [2015] Fam Law 1185

Principal Reporter v K [2010] UKSC 56; 2011 SC (UKSC) 91; 2011 SLT 271; [2011] 1 WLR 18; [2011] HRLR 8; 33 BHRC 352; 2011 Fam LR 2

SJP and ES v Sweden (8610/11) [2018] ECHR 681

W v UK (A/121) [1987] ECHR 17; (1988) 10 EHRR 29

Textbooks etc referred to:

Children's Hearings Scotland, Practice and Procedure Manual (Version 2.0, Children's Hearings Scotland, Edinburgh, September 2019), Pt 2, Ch 8, paras 8.26, 8.27 (Online: http://www.chscotland.gov.uk/media/231336/practice-and-procedure-manual-v20.pdf (5 July 2020))

Scottish Children's Reporter Administration, Practice Direction 3: Relevant Persons (Scottish Children's Reporter Administration, Edinburgh, June 2013), paras 9.1–9.3 (Online: http://www.scra.gov.uk/wp-content/uploads/2016/03/Practice-Direction-03-Relevant-Persons.pdf (13 July 2020))

United Nations Committee on the Rights of the Child, General Comment No 12: The Right of the Child to be Heard (CRC/C/GC/12) (UNCRC, Geneva, July 2009), para 34 (Online: https://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C-GC-12.pdf (5 July 2020))

White, N, and Hughes, C, Why Siblings Matter: The role of brother and sister relationships in development and well-being (Routledge, London, 2017)

Human rights — Children's hearings — Relevant person — Compulsory supervision order made restricting contact between appellants and siblings — Appellants unable to satisfy test to be deemed relevant person — Whether breach of Art 8 of European Convention on Human Rights and Fundamental Freedoms — Whether deemed relevant person provision should be read down — Whether deemed relevant person provision within legislative competence of Scottish Parliament — Children's Hearings (Scotland) Act 2011 (asp 1), sec 81(3) — European Convention on Human Rights and Fundamental Freedoms, Art 8

ABC presented a petition for judicial review seeking to review the continuation of a compulsory supervision order made by the children's hearing that restricted contact with his sibling, on the basis that his inability to meet the test to be deemed a relevant person was a breach of his Art 8 rights. On 31 July 2018, the Lord Ordinary (Wise) held that sec 81(3) of the Children's Hearings (Scotland) Act 2011 required to be read down ([2018] CSOH 81). The petitioner reclaimed and the principal reporter and Lord Advocate cross-appealed.

On 27 November 2018, the First Division (Lord President (Carloway), Lord Drummond Young and Lord Malcolm) refused the reclaiming motion and allowed the cross-appeal ([2018] CSIH 72; 2019 SC 186). ABC appealed to the UK Supreme Court, which granted permission to appeal on 27 June 2019.

XY appealed by way of stated case to the First Division (Lord President (Carloway), Lord Drummond Young and Lord Malcolm) against a decision of a sheriff to refuse appeals against decisions by the pre-hearing panel that he was not entitled to be deemed a relevant person. On 27 March 2019, the First Division refused the appeal and gave the following opinion ([2019] CSIH 19):

“Opinion of the Court— [1] XY is an adult brother of three younger sisters who are the subject of compulsory supervision orders and are now in foster care. While he has contact with them, there have been ongoing issues in respect of its nature and extent. Along with the children's parents he is strongly in favour of family reunification.

[2] In August 2017 a pre-hearing children's panel declined an application that XY be deemed a ‘relevant person’ in terms of sec 81(3) of the Children's Hearings (Scotland) Act 2011 (asp 1). This decision was overturned on an appeal to the sheriff. One of XY's sisters appealed to the Sheriff Appeal Court, which restored the original decision. In June 2018 a further application by XY to be granted relevant person status was refused by a pre-hearing panel. The sheriff heard an appeal against that decision. Arguments were presented based on the legislation's alleged incompatibility with Arts 6 and 8 of the European Convention on Human Rights and Fundamental Freedoms (‘ECHR’). Although those submissions were not before the Sheriff Appeal Court, the sheriff considered himself bound by its decision. As a result he simply refused the appeal.

[3] The sheriff has prepared a stated case setting out various questions for the opinion of the Court of Session. The case was sisted for a period pending the outcome of other appeals. The sist having been recalled, the court heard submissions on behalf of XY in support of the appeal, and on behalf of the locality reporter and, separately, the Lord Advocate in opposition.

[4] Senior counsel for the appellant indicated that she was asking the court to consider only questions 6 and 8 in the stated case. They are in the following terms:

‘6 Are the provisions of the Children's Hearings (Scotland) Act 2011 with respect to who is treated as a “relevant person” not within the competence of the Scottish Parliament and accordingly “not law” in terms of section 29(2)(d) of the Scotland Act 1998 [(cap 46)] on the ground that they are incompatible with Convention rights (this being a devolution issue in terms of section 98 and schedule 6 to that Act)?

8 Should the decision as to whether the applicant is to be treated as a relevant person be returned to the children's hearing for a fresh determination on the basis of an interpretation of the Children's Hearings (Scotland) Act 2011 that is compatible with articles 6 and 8 of the European Convention on Human Rights?’

[5] In a note of argument for the appellant it was stated that the appeal is based on a single proposition, namely that:

‘The test of “significant involvement in upbringing” adopted by the Children's Hearings (Scotland) Act 2011 for involvement in procedure relating to children under that Act is too narrow to satisfy the procedural requirements of articles 8 and 6 of ECHR.’

It was explained that the complaint concerns what was described as a ‘structural defect’ in the legislation. The restriction of deemed relevant person status to those who complied with the statutory test is too narrow. It is too restrictive in respect of other family members' Arts 6 and 8 procedural rights given the potential for interference with their private and family life. Reference was made to various cases, including W v UK [(9749/82) (1988) 10 EHRR 29], McMichael v UK [(16424/90) (1995) 20 EHRR 205], S v Miller [2001 SC 977], Knox v S [2010 SC 531] and Principal Reporter v K [2011 SC (UKSC) 91].

[6] At the outset of her submissions counsel for the Lord Advocate helpfully focused the appellant's position along the following lines: a family non-parent member who possesses Art 8 rights in respect of a referred child, but who has not been significantly involved in his or her upbringing, cannot obtain the maximum level of participation in the children's hearings concerning that child; this amounting to an incompatibility with their Art 8 rights, and therefore to a structural defect in the legislation. It was submitted that this proposition is not vouched by any authority; on the contrary the jurisprudence both domestically and in Strasbourg contradicts it. It wrongly assumes that all persons whose Art 8 rights might be interfered with are entitled to the same level of protection as parents and others who fall within the terms of the deemed relevant person status test. No separate issue arises under Art 6 ECHR.

[7] We do not consider it necessary to rehearse the detailed submissions of the parties. The key issues raised in this appeal have been addressed and decided in two recent decisions of this court, namely ABC v Principal Reporter [2019 SC 186] and DM v Locality Reporter [2019 SC 196]. While those opinions should be referred to for their full terms, the following summary may be sufficient to address and deal with the single proposition presented on behalf of the appellant:

  • (i) Where decisions are taken which affect the Art 8 rights of a relative other than a parent, generally this will not require the same level of involvement in the whole process as that of a parent (ABC, para 13).

  • (ii) The intention of the UK Supreme Court in Principal Reporter v K was to extend relevant person status to unmarried fathers and a limited class of others who had a significant involvement in the upbringing of the child, much as subsequently enacted in sec 81(3) (ABC, para 17).

  • (iii) In respect of other family members, exactly what is required to comply with the procedural protections afforded by Art 8 ECHR will vary depending upon the particular circumstances; however the system is sufficiently flexible to allow their legitimate interests to be taken into account (ABC, para 20; DM, paras 13, 16).

[8] The decision in ABC was that neither the Convention nor case law required that the petitioner be afforded relevant person status or the opportunity to apply for such. There had been no violation of Art 8 rights. Senior counsel for the appellant sought to distinguish the present case from both ABC and DM, but presented no basis for doing so. Failing that, and while recognising that...

To continue reading

Request your trial