Teenager prohibited from contacting seven-year-old brother loses appeal against sheriff’s decision not to give her notice of appeal

About this case:

• Citation:
  [2022] CSOH 80
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Brailsford

Petitioner KT, a resident of South Lanarkshire, sought to challenge a decision of a Hamilton sheriff on the grounds that notice of the appeal to the sheriff against the decision of the Children’s Panel was not intimated to her. It was her position that her exclusion from the decision-making process was an infringement of her rights under Article 8 ECHR.

The petition was considered by Lord Brailsford in the Outer House of the Court of Session. Aitken, advocate, appeared for the petitioner and Moynihan KC for the respondent.

Right to participate

On three dates from April to July 2021, a review hearing for a Compulsory Supervision Order made in respect of DJT was conducted by the respondent, which the petitioner attended. On 22 July 2021, the children’s hearing decided to continue DJT’s CSO and included a measure that there was to be no contact between KT and DJT. That order conflicted with a measure on KT’s own CSO which made provision for contact to operate.

An appeal against the decision was made by KT and DJT’s mother to the sheriff. On 1 September 2021, the sheriff issued an interlocutor appointing the sheriff clerk to intimate the appeal to the mother and the respondent, but no order was made in respect of KT and the sheriff did not seek any representations from her. On 17 September 2021, the sheriff refused the appeal.

Counsel for the petitioner accepted that not every sibling had a right by default to participate by attendance in the relevant forum. However, in this case the presence of KT ought to have been considered necessary for the proper determination of the matter, and the sheriff and the respondent had failed in their duties to ensure that the procedure was not incompatible with her rights.

Senior counsel for the respondent submitted that the petitioner personally had no right of appeal against the decision, and there was no reason to believe that the petitioner’s mother, who had a right of appeal as a relevant person, could not adequately represent the interests of the wider family. There was no necessity for the petitioner to be a direct participant having regard to the limited scope of the appeal.

Nuanced approach

In his decision, Lord Brailsford observed: “There is now authority which is binding upon me to the effect that compliance with Article 8 ECHR does not necessarily require personal attendance by a sibling at a hearing. What is required, on the basis of authority, is that the decision maker in a situation such as 16 that pertaining in the present matter must take ‘a nuanced approach which addresses the extent of family life in that relationship, the home circumstances, how far the interests of the parents, the sibling and the child coincide and the possibility that the child, the parents and other siblings may have Article 8 rights which are in conflict with those of the sibling’.”

Addressing that question, he said: “The relevant factors [are] first that KT’s mother, also the mother of DJT the subject of the appeal, had rights to participate in the appeal to the sheriff and was therefore able to address the wider interests of her family, including the question of inter sibling contact between KT and DJT. Second it was not disputed that KT’s mother’s grounds of appeal did discuss the merits of sibling contact. Moreover the mother’s grounds of appeal did contain material relative to KT and contact with her sibling.”

He continued: “Having regard to the foregoing factors it appears that the interests and rights of KT were matters which were expressly before, and therefore brought to the attention of, the decision maker at the time the decision complained of was made.”

Lord Brailsford concluded: “Having regard to that consideration I have concluded that the respondent’s submission that these features would entitle the decision maker to form the view that there was no need to formally intimate the relevant hearing to the petitioner for the reason that her interest was protected is, as a matter of law correct.”

The prayer of the petition was therefore refused.