Lady Wise finds tests for participation in children’s hearing must satisfy Article 8 ECHR

The court recognised the difficulty with the current test for participation as being too restrictive and has decided that words require to be read into the definition of relevant persons to make it compatible with Article 8 ECHR.

The boy wanted to have a say in decisions made about his brother at children’s hearings, but the legislation was worded in a way which made it difficult for siblings and others with established family life to participate fully.

Lady Wise 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, is not sufficient to allow those such as the petitioner to claim a right to participate.

Lucy Frazer, solicitor at Clan Childlaw, which represents the child, said: “It has now been recognised that there was a difficulty with the current law. We are hopeful that this will mean that our client and others like him will be able to take part in children’s hearings in relation to their siblings to a greater extent in the future.

“At Clan Childlaw, we know there are lots of children in a similar situation across Scotland and this should give them this opportunity.”

The case is to call again shortly to discuss the proposed wording. The full judgment can be read here.