Disapplication of Bright-Line “Relevant Person” Status in Children’s Hearings to Protect Article 8 Rights

1. Introduction

This commentary discusses the Inner House decision in Reclaiming Motion by A against the Principal Reporter and others ([2025] CSIH 9), handed down on 15 April 2025. The core issue was whether the 2013 Scottish Statutory Instrument (“the 2013 Order”) imposing a bright-line rule that every biological parent is a “relevant person” under the Children’s Hearings (Scotland) Act 2011 could be overridden in order to protect the Article 8 rights (private and family life) of the child and primary carer.

Parties and Proceedings
– Petitioner & Respondent: “A” (the biological father).
– First Respondent: Principal Reporter.
– Second Respondent & First Reclaimer: “B” (the child’s mother).
– Third Respondent & Second Reclaimer: Curator ad litem for the child M.
– Interested Party: the Lord Advocate.

Background
“A” is serving an order for lifelong restriction (OLR) for serious sexual and violent offences against B dating back to 2013. He has had no contact with his son M since infancy. When M (now 15) came before a children’s hearing on grounds of lack of parental care, “A” was notified as a “relevant person” by virtue of article 3(2)(a) of the 2013 Order. B and M contended that his inclusion and participation—even remotely—inflicted significant distress and infringed their Article 8 rights. In November 2023 the hearing removed “A” from relevant-person status. “A” sought judicial review; the Lord Ordinary granted reduction of the hearing’s decision. B and the curator appealed to the Inner House. The core question became whether the hearing had power—under the Human Rights Act 1998, section 6(1)—to disapply article 3(2)(a) to protect Convention rights.

2. Summary of the Judgment

The Inner House (Lord Justice Clerk Beckett, Lord Malcolm, Lady Wise) unanimously:

Concluded that “A” had no Convention-protected private or family life with M given the 12-year absence of contact, and thus no Article 8 rights to assert in this context.
Held that the 2013 Order’s bright-line extension of “relevant person” status to all biological parents was a legitimate, proportionate policy choice and not ultra vires or incompatible in principle with Article 8.
Determined that, under HRA 1998 section 6(1), the children’s hearing—being a public authority—was obliged to act compatibly with M and B’s Article 8 rights and thus could disapply article 3(2)(a) in this case.
Found that the hearing’s decision on 23 November 2023 to exclude “A” from participation (including denial of letter-box contact) was lawful, proportionate, adequately reasoned and not procedurally unfair.
Allowed the reclaiming motion, recalled the Lord Ordinary’s interlocutor, and refused “A”’s petition for reduction. The hearing’s exclusion of “A” as a relevant person therefore stands.

3. Analysis

3.1 Precedents Cited

Principal Reporter v K [2011] SC(UKSC) 91 – Supreme Court held that any person whose family life might be interfered with by a children’s hearing must be able to participate. This triggered the 2013 Order’s broadened definition.
R (P) v Secretary of State for the Home Department [2020] AC 185 – House of Lords/Supreme Court: bright-line rules can be proportionate in social policy when individual assessment is impractical; courts assess proportionality of the categorisation, not of its impact on each hard case.
Animal Defenders International v UK (2013) 57 EHRR 21 – recognition of the legislature’s wide margin in choosing bright-line measures to balance competing rights and public interests.
Christian Institute v Lord Advocate 2016 SC(UKSC) 29 – ab ante proportionality review of primary legislation requires high threshold; subordinate legislation can often be disapplied in particular cases if incompatible with Convention rights.
AB v Principal Reporter 2020 SC(UKSC) 47 – summary of grounds for referral to children’s hearing and children's hearings’ welfare principles.
R (Osborn) v Parole Board 2014 AC 1115 – procedural fairness in public-law decision-making, especially when liberty or other fundamental rights are at stake.
Ghaidan v Godin-Mendoza [2004] 2 AC 557 – interpretation of legislation to secure Convention-compatibility where possible.
In re JR 123 [2025] UKSC 8 – reaffirmation of the legitimacy of bright-line schemes in welfare contexts and importance of a clear, simple legislative framework.

3.2 Legal Reasoning

The Court’s reasoning combined three strands:

No Article 8 rights for “A.” Given that “A” had last contact with M at under one year old and had shown no interest until these proceedings, he had no protected family or private life with M. That distinction cleared the way for the hearing to prioritise M and B’s rights without a balancing exercise.
Legitimacy of the 2013 bright-line rule. The Scottish Ministers responded to Principal Reporter v K by extending “relevant person” status to all biological parents. Under R (P) and related authority, such bright-line schemes are permissible where individual assessment of every parent would be unworkable and the legislative aim—ensuring Convention compliance for parents—was legitimate.
Disapplication under HRA 1998 s 6(1). A children’s hearing is a public authority. Section 6(1) makes it unlawful to act incompatibly with a Convention right. Subordinate legislation (an SSI) may be disapplied where necessary to avoid breach. Here, although the 2013 Order was valid, applying it to “A” would have unlawfully interfered with M and B’s Article 8 rights. The hearing therefore properly disapplied article 3(2)(a) by excluding “A”—a course fully supported by HRA jurisprudence (e.g. RR).

Moreover, the hearing acted within its extensive case-management powers (attendance, excusal, exclusion, non-disclosure of sensitive information) to safeguard M’s welfare (paramount under the 2011 Act) and B’s private life. Although each hearing must decide prospectively how to exercise such powers, in this exceptional case the panel’s November 2023 decisions were lawful, properly reasoned and proportionate.

3.3 Impact on Future Cases

Affirms that public bodies may disapply subordinate legislation in individual cases to protect Convention rights under HRA 1998 s 6(1).
Confirms the continued validity of bright-line definitions where individualised schemes are impractical, subject to case-by‐case disapplication to avert rights breaches.
Underlines the central role of children’s hearings’ case-management powers in reconciling statutory notification rights with welfare and privacy concerns.
Signals legislative policymakers to review the 2013 Order in light of the “hard case” it creates—consistent with the Scottish Government’s 2024 consultation on redesign.

4. Complex Concepts Simplified

Relevant Person Status: Under the 2011 Act, certain persons (parents, guardians, etc.) must be notified of and may attend children’s hearings. The 2013 Order added all biological parents unless they’d had parental rights removed.
Bright-Line Rule: A fixed legislative category (here, “all biological parents”) without discretion for public bodies—used when individual assessments are impractical.
Case-Management Powers: Tools given to children’s hearings—excusal, exclusion, remote attendance, non-disclosure—to ensure welfare of the child and rights of others.
Human Rights Act 1998, Section 6(1): Requires public authorities to act compatibly with Convention rights; allows disapplication of subordinate legislation that conflicts with those rights.
Order for Lifelong Restriction (OLR): An indeterminate sentence for serious offences, requiring Parole Board approval for release, demonstrating ongoing risk to public safety.
Compulsory Supervision Order (CSO): A children’s hearing order to safeguard and guide a child deemed in need of compulsory measures for protection or welfare.

5. Conclusion

This decision establishes that—even where Parliament adopts a bright-line SSI to confer notification and participation rights on a wide category of parents—a children’s hearing may disapply the rule in an individual case to protect the Article 8 rights of a child and primary carer. It underscores the importance of case-management powers in the children’s hearings system and confirms that subordinate legislation must yield where its application would infringe fundamental Convention rights under the Human Rights Act.

Looking forward, this ruling both reassures that the welfare and privacy of children and carers remain paramount and invites legislative refinement to address “hard cases” created by broad-brush definitions.