Supreme Court holds that sibling participation rights in the Children’s Hearing System are compatible with human rights law
Date: 25th June 2020
Category: Family Environment and Alternative Care
The UK Supreme Court has published its judgment in relation to two Scottish cases which challenged the compatibility of the Children’s Hearing System and the participation rights of siblings with Article 8 of the European Convention of Human Rights (ECHR).
A child, known as ABC, wanted to have a say in decisions made about his sibling at children’s hearings. The legislation did not allow this, as only ‘relevant persons’ have the legal right to attend a hearing and appeal decisions in the Children’s Hearing System and most siblings do not meet the criteria for this status.
Permission to appeal to the UK Supreme Court was granted, based upon a challenge that this was incompatible with the right to family life protected by Article 8 of the ECHR. This case was heard alongside another similar case - XY.
After almost three years of court proceedings, the Supreme Court ruled that, following adaptations to children’s hearings since the start of the proceedings, the requirements of Article 8 ECHR were met in relation to siblings and other family members. However, the judgement acknowledged that the cases “served to uncover a gap in the children’s hearing systems” and emphasised that to make effective the rights of brothers and sisters, it was necessary for the relevant public authorities to be aware of siblings’ Article 8 rights and take steps to ensure siblings are afforded appropriate opportunities to participate in decisions which may interfere with their family life.
Lucy Frazer of Clan Childlaw, solicitor for ABC said:
We are disappointed by the outcome. It leaves a huge amount of discretion to those operating children’s hearings who will have to follow complex procedures to ensure compatibility with a brother or sister’s right to family life. Our experience is that despite these procedures being recently put in place, they are not being followed universally. In most cases judicial review proceedings, which are difficult to access without legal representation, will be the only means for young people to ensure their rights are protected in the hearing system. For those who are unrepresented, it is unclear how they will ensure procedures are followed to protect their rights.
Research from 2017 showed that 68% of care experienced children in Scotland were separated from at least one of their biological siblings. Many care-experienced young people have said they are frustrated because they feel sibling contact is not prioritised by social workers.
The need to ensure children are supported to continue sibling relationships has been highlighted as a priority in the Promise set out as part of Independent Care Review and the Children (Scotland) Bill which is currently progressing through the Scottish Parliament. The Bill includes provisions which would strengthen sibling rights of children and young people in care.