Administration of justice – Human rights – Jurisprudence – Children’s hearings

Principal reporter v K: SC (Lords Hope (deputy president), Rodger, Kerr, Dyson, Lady Hale): 15 December 2010

The appellant (K), an unmarried father, appealed against a decision ([2010] CSIH 5) suspending a sheriff’s interlocutor granting him parental rights and responsibilities so as to make him a ‘relevant person’ for the purposes of a children’s referral relating to his daughter (X).

Although not living with X, K had enjoyed regular contact until it was stopped pending allegations of sexual abuse. Various children’s hearings took place, which K was not entitled to attend since registration of X’s birth predated the coming into force of the 1996 amendment to section 3(1) of the Children (Scotland) Act 1995 and he was not therefore a ‘relevant person’ for the purposes of section 93(2)(b) of the act. The sheriff granted him parental rights under section 11 to enable him to attend the hearings, but the First Division suspended the sheriff’s interlocutor on the basis that he had not considered the overarching principles in section 11(7). The key issues concerned: (i) the kind of orders made in the sheriff court which would be effective to give a father the right to participate in a children’s hearing; and (ii) human rights consequences arising from the statutory scheme relating to children's hearings.

Held: (1) The sheriff’s order had been competently pronounced and properly granted under section 11(1) of the act (see paragraph 24 of judgment). The right to be heard was one of the fundamental rules of natural justice and K needed to be made subject to parental responsibility to maintain relations with X, (paragraphs 14,17,25), Ceylon University v Fernando [1960] 1 WLR 223, PC (Cey) and Official Solicitor v K [1965] AC 201 HL considered. The defect in the order was one of specification, not of substance; it would have been preferable for the sheriff to set out more detail but his failure to do so did not make the interlocutor incompetent because there was no ambiguity and no sound basis for the view that the overarching principles had not been applied.

(2) As currently constituted, the children's hearing system violated article 8 of the European Convention on Human Rights 1950. The Family Law (Scotland) Act 2006 provided that all fathers registered after May 2006 were entitled to be present at children’s hearings irrespective of the strength of their family life with the child. It was difficult to see why the exclusion of fathers registered before that date was justified. (paragraphs 45-48). There were positive procedural obligations inherent in the right to respect for family life. Parents had to be enabled to play a proper part in the decision-making process before they experienced interference by public authorities, W v United Kingdom (A/121) [1988] 10 EHRR 29 ECHR applied and Elsholz v Germany (25735/94) [2000] 2 FLR 486 ECHR considered. Children’s hearings had to have the best and most accurate information, and excluding the very person whose conduct was in question deprived everyone of that information (paragraphs 41-48). The potential for violation of article 8 could be cured by inserting into section 93(2)(b)(c) the words ‘or who appears to have established family life with the child with which the decision of a children’s hearing may interfere’ (paragraphs 60-70).

Appeal allowed.

Janys M Scott QC, Alison Stirling (instructed by Drummond Miller WS) for the appellant; Morgan Wise, Lynda Brabender (instructed by Biggart Baillie) for the first respondent; Rosemary Guinnane, David Sheldon (instructed by Aitken Nairn WS) for the second respondent; David Johnston QC, Roddy Dunlop QC (instructed by in-house solicitor) for the first minuter; Marie Helen Clark (instructed by HBM Sayers) for the second minuter.