Court of Session makes significant ruling for care experienced children and young people

Date: 29th August 2018
Category: Respect for the views of the child, Looked after children

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The Court of Session has ruled that a 14-year-old boy should be able to apply to participate fully in his brother’s children’s hearing.

The boy, who was represented by Clan Childlaw, wanted to have a say in decisions made about his brother at Children’s Hearings, but this was not possible due to the way the legislation was worded which made it difficult for siblings and other with established family life to participate. 

The court recognised the difficulty with the current test for who can participate 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.

Lucy Frazer, solicitor at Clan Childlaw, said:

It has now been recognised that there was a difficulty with the current law. We are hopeful that this will mean 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.”

Children and Young People’s Commissioner for Scotland said:

This judgment is a significant legal step in realising the rights of care experienced children and their siblings. It recognises the importance of wider family relationships and will allow children to claim the right to participate in a sibling’s Children’s Hearing, a place where decisions are made in relation to welfare, care and contact.

“Care experienced children have the right to respect for family life and they consistently tell us that relationships with siblings are fundamental to this.

“We know that maintaining positive sibling contact can contribute to a child’s mental health and development. Where a decision is made to separate siblings, local authorities have a duty to ensure that there is regular and consistent contact so that those family bonds are not broken.

“Children’s rights are protected by several international laws, including the European Convention on Human Rights which is enforceable at domestic level. This is not the case with the United Nations Convention on the Rights of the Child and the Scottish Government must incorporate this Convention to fully ensure children in Scotland have all of their rights protected in law.”

Clan Childlaw are a member of the Stand Up for Siblings partnership, which consists of a range of organisations aiming to improve and change legislation, policy and practice to ensure sibling contact is improved for children and young people in care.