DM v Locality Reporter
| Jurisdiction | Scotland |
| Judgment Date | 27 November 2018 |
| Neutral Citation | [2018] CSIH 73 |
| Date | 27 November 2018 |
| Docket Number | No 10 |
| Court | Court of Session (Inner House) |
[2018] CSIH 73
First Division
Sheriff Court
ABC v Principal Reporter [2018] CSIH 72; 2019 SC 186; 2018 SLT 1281
Boyle v UK (A/282-B) (1995) 19 EHRR 179; [1994] 2 FCR 822
Haase v Germany (11057/02) [2004] ECHR 142; (2005) 40 EHRR 19; [2004] 2 FLR 39; [2004] 2 FCR 1; [2004] Fam Law 500
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
Children and young persons — Children's hearings — Sibling — “relevant person” — Children's hearing refused to deem 12-year-old half-sibling a relevant person — Whether sheriff erred in refusing appeal — Children's Hearings (Scotland) Act 2011 (asp 1), sec 81(3)
Human rights — Children's hearings — Sibling — “relevant person” — Whether the refusal to deem a half-sibling who lived with the child a relevant person contravened Art 8 of the European Convention on Human Rights and Fundamental Freedoms — Children's Hearings (Scotland) Act 2011 (asp 1), sec 81(3) — European Convention on Human Rights and Fundamental Freedoms, Art 8
The children's reporter referred a child to the children's hearing. The child's half-sibling, DM, applied to be deemed a relevant person in terms of sec 81(3) of the Children's Hearings (Scotland) Act 2011. The application was refused and DM appealed to the sheriff in terms of sec 160 of the Act. The sheriff refused the appeal. DM appealed by stated case to the Court of Session under sec 164 of the Act.
Section 81(3) of the Children's Hearings (Scotland) Act 2011 (asp 1) (‘the 2011 Act’) provides that a pre-hearing panel must deem an individual to be a relevant person where he or she has had “a significant involvement in the upbringing of the child.” A relevant person has the right to attend the children's hearing, make representations, and appeal to the sheriff. Section 78 provides that the children's hearing may allow a person to attend the hearing where that person's attendance is necessary for the proper consideration of the matter before it.
The four-month-old half-sister of DM was the subject of a referral to the children's hearing. DM, an adolescent child, lived with his half-sister along with his older brother and their mother. DM applied to be deemed a relevant person in terms of sec 81(3) of the 2011 Act in order to seek contact, but that application was refused on the basis that DM was not significantly involved in the upbringing of his half-sister. DM appealed to the sheriff who refused the appeal. DM thereafter appealed to the Court of Session.
DM argued that his involvement in his half-sister's upbringing was sufficient to entitle him to be deemed a relevant person. If he was not deemed a relevant person he would not be entitled to participate in the children's hearing and seek contact with his half-sister. A denial of relevant person status would be a breach of Art 8 of the European Convention on Human Rights and Fundamental Freedoms.
The respondents contended that sec 78 of the 2011 Act afforded practical and effective steps that DM could take. The children's reporter argued it was proportionate and justifiable that the status of relevant person was restricted to those whose interests were integral to all decisions to be taken at children's hearing.
Held that the half-brother's Art 8 rights could be protected without the conferment of the status of relevant person as the chair of the children's hearing could permit persons such as a half-brother to express their views or provide information on the question of contact and, if necessary, to attend the hearing (paras 13, 15); and appeal refused.
Principal Reporter v K 2011 SC (UKSC) 91 and ABC v Principal Reporter2019 SC 186referred to.
The cause called before the First Division, comprising the Lord President (Carloway), Lord Drummond Young and Lord Malcolm, for a hearing on the summar roll, on 28 August 2018.
At advising, on 27 November 2018, the opinion of the Court was delivered by Lord Malcolm—
Opinion of the Court— [1] This is an appeal by way of stated case from a decision of a sheriff. He refused an appeal against a decision of a children's hearing that DM (the appellant), a boy then aged 12 years (now 13 years), was not to be deemed a ‘relevant person’ in terms of sec 81(3) of the Children's Hearings (Scotland) Act 2011 (asp 1) (‘the 2011 Act’) in respect of his then four-month-old half-sister. The children's hearing accepted that, along with his older brother, the appellant had been living with his mother and his half-sister, and that the brothers helped their mother with feeding and changing the baby. However this was not ‘a significant involvement in the upbringing of the child’, thus the statutory test for deemed relevant person status was not met.
[2] In the appeal to the sheriff it was contended that a broader approach to the statutory test should have been taken to ensure that the appellant obtained the procedural protections afforded to a relevant person. As it was, the decision was incompatible with the appellant's Art 8 rights. This submission was rejected by the sheriff. The appellant had not had a significant involvement in his half-sister's upbringing. The decision of the children's hearing was intelligible, rational and justified. It had been argued that only relevant person status could safeguard the appellant's interest in maintaining contact with his half-sister, but this was misconceived. Relevant person status is a wholly different thing from the rights conferred by Art 8 of the European Convention on Human Rights and Fundamental Freedoms...
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