Petition Of Abc Against The Principal Reporter And Others
| Jurisdiction | Scotland |
| Judge | Lady Wise |
| Neutral Citation | [2018] CSOH 81 |
| Date | 31 July 2018 |
| Docket Number | P1229/17 |
| Court | Court of Session |
| Published date | 31 July 2018 |
OUTER HOUSE, COURT OF SESSION
[2018] CSOH 81
P1229/17
OPINION OF LADY WISE
In the Petition of
ABC
Petitioner
against
(FIRST) PRINCIPAL REPORTER; (THIRD) THE LORD ADVOCATE
Respondents
(FIRST) EAST LOTHIAN COUNCIL; (SECOND) XL; (THIRD) YL
Interested Parties
for
Judicial Review of certain decisions of the Children’s Hearing
Petitioner: Brabender QC, McAlpine; Clan Childlaw Ltd
First Respondent: R Dunlop QC, Innes; Anderson Strathern LLP
Third Respondent: L Dunlop QC, Irvine; SGLD
First Interested Party: Cartwright; Allan McDougall
Second Interested Party: Aitken; Lisa Rae & Co Court Solicitors
Third Interested Party: Gilchrist; BCKM
31 July 2018
Introduction
[1] This case involves a challenge to two decisions of a Children’s Hearing on the basis
that the petitioner, ABC, who is the full sibling of DEF, the child about whom decisions were
2
taken at those hearings, was not able to participate or at least fully participate in them,
notwithstanding his established family life with his sibling. The petitioner, whose identity has
been protected through anonymisation, including, unusually, in the petition itself, was born in
October 2003. The first respondent is the Principal Reporter whose office, The Scottish
Children’s Reporter Administration (“SCRA”) provides administration and a number of other
duties in respect of the Children’s Hearing. The third respondent is the Lord Advocate. The
first interested party is East Lothian Council, the implementation authority in terms of a
compulsory supervision order (“CSO”) in respect of ABC’s sibling DEF. The second interested
party is the father of both ABC and DEF. The third interested party is the mother of both ABC
and DEF. For convenience I will use the masculine personal pronoun “he” when referring to
both ABC and DEF, although Counsel took care to preserve anonymity to the extent of not
referring to the gender of either of them.
[2] DEF was born in October 2010 and is accordingly seven years younger than his full
sibling ABC. The two children lived together with their parents (and their other siblings) until
14 June 2016 when they were both accommodated with foster carers in terms of measures
included in CSOs made by the Children’s Hearing in respect of each of them. They were
accommodated with different foster carers. ABC was returned to the care of his parents on
26 July 2017. He challenges decisions made by the Children’s Hearing on 7 September 2017 and
5 December 2017 which made certain provisions in relation to the restriction of his contact with
DEF. The challenges he makes require consideration of the relevant provisions of the
Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”) and their compatibility or otherwise
with the procedural requirements of article 8 of the European Convention on Human Rights
(“ECHR”).
3
The relevant legislation
[3] The current legislation in this jurisdiction providing a statutory scheme for the operation
of the Children’s Hearing system is the Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”).
Subordinate legislation provides the relevant procedural rules, currently the Children’s Hearings
(Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Rules 2013/194 (“the
2013 Rules”) made under and in terms of section 177 of the 2011 Act. The provisions of the
2011 Act and relative rules with which this case is primarily concerned relate to those that make
provision for the definition of “relevant person”, that is someone who can attend and participate
fully in the Children’s Hearing. In the predecessor legislation, Part 2 of the Children (Scotland)
Act 1995, the term “relevant person” was also used. However the definition under the 2011 Act
is different. In addition, there is a new mechanism for determination of whether to deem a
person a relevant person for the purposes of participation in the Children’s Hearing. The
provisions of the 2011 Act germane to this petition are in the following terms:
“79 Referral of certain matters for pre-hearing determination(1) [Subsections
(2) to (5) apply] where a children's hearing is to be held in relation to a child by
virtue of section 69(2) or Part 9 to 11 or 13.
(1A) Subsection (5A) applies (in addition to subsections (2) to (5)) where the
children's hearing is—
(a) a subsequent children's hearing under Part 11, or
(b) held for the purposes of reviewing a compulsory supervision order.
(2) The Principal Reporter—
(a) must refer the matter of whether a particular individual should be
deemed to be a relevant person in relation to the child for determination
by three members of the Children's Panel selected by the National
Convener (a ‘pre-hearing panel’) if requested to do so by—
(i) the individual in question,
(ii) the child, or
(iii) a relevant person in relation to the child,
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Petition Of Abc Against (first) Principal Reporter; (third) The Lord Advocate
...person status in section 81(3) “is a narrower test than that carefully crafted by the UK Supreme Court in Principal Reporter v K” ([2018] CSOH 81, paragraph 55). ABC would have been entitled to relevant person status under the previous legislation as read down by the Supreme Court, but the ......