Children’s Hearing legislation read down to ensure participation test is ECHR-compliant

Lady Wise
Lady Wise
A teenage boy should be able to apply to participate in children’s hearings concerning his younger brother, the Court of Session has ruled.
A judge held that the current test for participation set out in the Children’s Hearings (Scotland) Act 2011 was “unduly narrow” and decided that words require to be read into the definition of a “relevant person” to make it compatible with article 8 of the European Convention on Human Rights (ECHR).
‘Unlawful decision’
Lady Wise heard that the 14-year-old petitioner “ABC” lodged a petition for judicial review against the Principal Reporter of the Scottish Children’s Reporter Administration (SCRA) to challenge two decisions made by a Children’s Hearing in relation to his seven-year-old brother “DEF”.
The two children lived together with their parents (and their other siblings) until June 2016 when they were accommodated with different foster carers in terms of measures included in compulsory supervision orders (CSOs) made by the Children’s Hearing in respect of each of them. 
ABC, who was returned to the care of his parents in July 2017, was seeking to challenge decisions made by the Children’s Hearing in September 2017 and December 2017 which made certain provisions in relation to the restriction of his contact with DEF. 
The challenge required consideration of the relevant provisions of the 2011 Act concerning the definition of a “relevant person” - ie someone who can attend and participate fully in Children’s Hearings - and their compatibility or otherwise with the procedural requirements of the right to respect for private and family life in terms of article 8 ECHR.
Senior counsel for the petitioner argued that the decision making process in September and December 2017 did not provide the requisite article 8 protection for ABC standing his “lack of involvement” in the September hearing and the “limited involvement” permitted at the time of the December hearing, and that the interference with ABC’s “established family life” with DEF was accordingly “unlawful”.
The petitioner’s submission was that the statutory and procedural mechanism by which a person may be deemed to be a relevant person could not and did not afford ABC the requisite protection of his interests, and that section 81 of the 2011 Act , which states that the panel must deem a person to be a relevant person if they have had “significant involvement” in the child’s upbringing, could not be read down to include anyone with an established family with which decisions of the Children’s Hearing may interfere as that would “go against the grain” of the legislation.
‘Generous interpretation’
However, on behalf of the Principal Reporter, senior counsel submitted that the petition should be dismissed.
It was accepted at the outset that ABC had established a family life with DEF with which the decisions of the Children’s Hearing could interfere, but it was argued that the petitioner’s article 8 rights were “adequately protected” when looking at the procedure as a whole. 
On the interpretation of section 81(3) of the 2011 Act, the expression “significant involvement in the upbringing”, while not defined in the Act, was “elastic enough” to be capable of being adapted to circumstances akin to those of ABC, especially read with section 3 of the Human Rights Act 1998.
For the Lord Advocate, the third respondent, counsel contended that taking DEF into care interfered with the rights of the parents and affected a number of family relationships, but it did not follow that each suffered interference with their article 8 rights, as the Children’s Hearing had in fact made provision for some contact, and if there had been interference such interference was “justified” by article 8(2).
It was submitted that the scheme as a whole was “convention compliant” and that the process had given “adequate protection” to ABC’s interests.
In relation to the definition of a relevant person, counsel argued that the test of “a significant involvement in the upbringing of the child” could be given “a fairly generous interpretation”.
‘Defective legislation’
On behalf the first interested party, East Lothian Council, it was submitted that the local authority had complied with all of its statutory duties, in particular that of securing ABC’s views and to that extent his participation had been ensured.
For the second interested party, the boys’ father, it was argued that the current legislation was “defective” in relation to participation in the Children’s Hearing by those who are not parents.
While none of the previous cases addressed the specific issue of a sibling such as ABC, it was argued that the test introduced by the Scottish Parliament has been causing “significant problems” in practice. 
It was submitted that if the Principal Reporter’s suggestion that the provision could be given a very wide interpretation without the need for reading down the result would be that a child’s ability to access it would be “insufficient”. 
Even if Parliament had intended a wider interpretation that was not in fact being adhered to and in practice a narrower, more restrictive interpretation was being placed upon it by reporters.
It was submitted that if a child was not told about a Children’s Hearing that was to take place in relation to his siblings with whom he had established family life and was not given the right to participate, the legislation did not give adequate protection to his article 8 ECHR right, adding that an invitation to attend was “insufficient” because the participatory right included the making of representations, access to papers, being informed formally of a decision and a right to appeal.
The third interested party, ABC’s mother, said she was “wholly supportive” of the petitioner’s position and adopted the submissions made on behalf of the boy’s father.
Reading down the legislation
The judge concluded that the current test for being able to participate in a children’s hearing, including obtaining copies of the papers and having a right to appeal, was not sufficient to allow those such as the petitioner to claim a right to participate, but she did not consider it necessary or appropriate to issue a declarator of incompatibility.
In a written opinion, Lady Wise said: “I have concluded that the section 81(3) test, even if purposively construed, is not quite sufficient as it stands to allow those such as ABC to claim a right so to participate. ABC’s particular position is that he has attained legal capacity and his parents cannot, therefore, formally represent his interests. Accordingly, his claim to participate in the hearing is not one that can be subsumed within his parent’s right to complain on his behalf. In so concluding, however, I acknowledge that there may be many cases where the parents’ involvement as relevant persons is sufficient to protect the interests of some or all of their children.
“While the Principal Reporter’s primary submission that the test in section 81(3) is broad enough to be interpreted purposively without any reading down is attractive, for the reasons given I have concluded that matters cannot be resolved that way, particularly given the decisions of those involved in this case (and in others) that someone in ABC’s position cannot properly fall within the test. I consider that the reading down proposed on behalf of the Principal Reporter, while somewhat inelegant, would resolve the difficulty that has arisen in this case and for any others in the particular position of ABC. 
“That would involve reading down section 81(3) so that it includes the words ‘or persons whose established family life with the child may be interfered with by the hearing and whose rights require the procedural protection of being a relevant person’ after the words ‘upbringing of the child’ in section 81(3). That would resolve matters for ABC, who does not seek the form of lesser participation provided for in section 126 of the Act. Accordingly, it is unnecessary, for the disposal of this petition, to express a view on the issues raised about the terms of that section.
“It follows from the decision that I have reached that the difficulties ABC has encountered have arisen primarily from the unduly narrow test in section 81(3) (absent reading down) than any actions on the part of the Reporter or the decisions of the Children’s Hearing. In order to avoid the perceived incompatibility complained of I consider it necessary to read down the legislation. While the decisions of the Children’s Hearing were made without ABC having an opportunity to invoke the provisions of ss79-81 of the 2011 Act, he will now be in a position to do so. 
“It will be for a pre-hearing panel to apply the test as read down if an application is made. In relation to that matter, it is not for this court to conclude that ABC should have been a deemed relevant person at the time of the hearings of September and December 2017, just that he should have been able to apply to participate using the appropriate statutory route. Accordingly, I cannot be satisfied at this stage that the decisions of the Children’s Hearings were unlawful.”

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