“Statutory Relevant-Person Status is Inviolable: Lady Carmichael’s Re-statement of the Limits on Children’s Hearings”

1. Introduction

In Petition of A for Judicial Review ([2024] CSOH 106) Lady Carmichael was asked to determine whether a Children’s Hearing could remove the “relevant person” status that the Children's Hearings (Scotland) Act 2011 and the 2013 Order automatically confer on an unmarried father. The petitioner (“A”) is the biological father of “M”, a 14-year-old child. A has no parental responsibilities and rights (“PRRs”); indeed, he is serving an Order for Lifelong Restriction following serious offences against M’s mother (“B”).

When a Children’s Hearing convened on 23 November 2023 to review M’s Compulsory Supervision Order (“CSO”), it accepted submissions by B’s solicitor that conferring relevant-person status on A would breach the Article 8 rights of B and the child. By majority, the panel declared that A was not a relevant person and excluded him from further participation. A sought judicial review of that decision, arguing that his statutory status could not be withdrawn and that any ECHR concerns should be managed through existing case-management powers.

2. Summary of the Judgment

  • Competency: Although a statutory right of appeal existed in theory, A had not been notified of the decision about the CSO; therefore judicial review was competent.
  • Substantive Holding: Article 3(2)(a) of the 2013 Order automatically makes an unmarried father without PRRs a “relevant person” unless a court has removed his PRRs. A accordingly was a relevant person.
  • No Need to “Read Down”: The Children’s Hearing did not need to read down or ignore the Order to protect B’s and M’s Article 8 rights; it possessed ample statutory tools—exclusion, remote attendance, non-disclosure orders, etc.—to manage any risk.
  • Error of Law: By failing to consider those tools and by purporting to “undeem” A’s status, the Children’s Hearing erred in law; its decision was reduced.
  • Compatibility of the 2013 Order: The Order was within devolved competence and not inherently incompatible with Convention rights; any incompatibility can be avoided through case management.

3. Analysis

3.1 Precedents Cited

  • Principal Reporter v K 2011 SC (UKSC) 91 – Established that a parent with an established family life must be enabled to participate, prompting Ministers to make the 2013 Order extending automatic status to all genetic parents (save those stripped of PRRs by court order).
  • ABC v Principal Reporter [2020] UKSC 26 – Confirmed that siblings do not automatically require relevant-person status; emphasised privacy concerns and pointed to other procedural routes for participation.
  • Ghaidan v Godin-Mendoza [2004] 2 AC 557 – Leading authority on the section 3 HRA “interpretive obligation”, cited in discussions about whether the court or tribunal may “read in” words to subordinate legislation.
  • Strand Lobben v Norway (2020) 70 EHRR 14 – Reiterated that a parent cannot demand measures detrimental to the child; the child’s interests take precedence.
  • R (P) v Secretary of State for Justice [2020] AC 185 and Animal Defenders International v UK (2013) 57 EHRR 21 – Emphasised that legislatures may draw “bright-line” rules even if hard cases arise, provided justification exists.

3.2 Legal Reasoning

Lady Carmichael’s opinion proceeds in three main steps:

  1. Competency of Judicial Review
    She accepted that statutory appeal routes are generally exclusive, but where the petitioner is not even notified of a decision (because the tribunal wrongly decided he lacked standing) judicial review remains competent.
  2. Compatibility Analysis under HRA & Scotland Act
    • Section 3 HRA requires courts to read legislation compatibly with Convention rights “so far as possible”.
    • However, the court must first ask whether compatibility can be secured by application of existing statutory powers before resorting to rewriting the text (S v L and W v SSHD principles).
    • Article 3(2)(a) may create hard cases, but it is not intrinsically disproportionate. A Children’s Hearing can exclude, excuse, withhold documents, require remote attendance, and invoke section 178 (non-disclosure) to avoid any unjustified interference with the child’s or mother’s privacy.
  3. Error by the Panel
    The panel leapt to removal of status without attempting those mitigations. In doing so it:
    • Took into account an immaterial consideration (that A lacked PRRs) when statute deliberately extended status to such parents.
    • Ignored relevant considerations—its own case-management toolbox.
    • Pretended to exercise a power it did not have (to “un-deem” a statutory relevant person).

3.3 Likely Impact of the Decision

  • Operational Guidance: Children’s Hearings, reporters, safeguarders and social workers must treat every statutory relevant person as such. Any ECHR difficulties must be resolved by tailored case-management, not by denying status.
  • Training & Practice: Expect revisions to the Children’s Hearings Scotland Practice & Procedure Manual emphasising sections 76, 78, 178, rules 20C/20D, and the option of remote attendance.
  • Appeal Strategy: Litigants challenging disclosure or participation decisions are directed to focus on misuse (or non-use) of case-management powers, rather than disputing the statutory definition.
  • Legislative Reflection: Scottish Ministers may revisit section 132 (unfettered right to demand reviews) because Lady Carmichael identifies it as the provision most capable of future disproportionate interference.
  • Human Rights Jurisprudence: The judgment illustrates the Scottish courts’ adherence to the “application first, interpretation second” hierarchy in section 3 HRA cases and confirms the acceptability of “bright-line” legislative techniques so long as ancillary safeguards exist.

4. Complex Concepts Simplified

  • Relevant Person: Someone entitled (and obliged) to attend Children’s Hearings, receive papers and exercise rights of appeal/review. Automatic categories include parents with PRRs; article 3(2)(a) extends it to all genetic parents unless a court has removed their PRRs.
  • “Bright-Line” Rule: A fixed statutory test leaving no discretion (e.g., “all genetic parents are relevant persons”). Certainty is high, but it can produce hard cases. Courts accept bright lines where sufficient justification and mitigating mechanisms exist.
  • Reading Down (HRA s 3): Courts must interpret legislation compatibly with Convention rights “so far as possible” even if that means adding or omitting words, provided the change does not contradict a fundamental feature of the statute.
  • Case-Management Powers:
    • Section 76 – Exclude a person if their presence prevents the child giving views or causes significant distress.
    • Rule 20C – Allow attendance only via video link on similar grounds.
    • Section 178 / Rules 84-87 – Withhold documents or information likely to cause significant harm to the child.
  • Order for Lifelong Restriction (OLR): An indeterminate custodial sentence imposed where the offender presents a serious risk to the public; managed by the Risk Management Authority.

5. Conclusion

Lady Carmichael’s decision powerfully re-states that once the legislature automatically confers “relevant person” status, a Children’s Hearing has no jurisdiction to revoke it. Concerns about the safety, privacy or psychological well-being of the child and other participants must be addressed through the statutory safeguards already at the panel’s disposal—exclusion, remote attendance, non-disclosure, or excusal—not by re-writing subordinate legislation in the hearing room. The judgment thus preserves the integrity of the “bright-line” approach chosen by Scottish Ministers, while reminding decision-makers that the effective protection of Article 8 rights lies in thoughtful, proportionate use of case-management powers.

Going forward, panels will need to document carefully why each protective measure is invoked, ensuring that any limitation on participation or disclosure is both necessary and proportionate. Legal practitioners should, in turn, focus on how those powers are exercised rather than on challenging the underlying statutory status.