Introduction

The case MB v Principal Reporter ([2021] CSOH 19) adjudicated by the Scottish Court of Session on February 16, 2021, addresses critical issues surrounding the procedural fairness in the administration of Interim Compulsory Supervision Orders (ICSOs) under the Children's Hearings (Scotland) Act 2011. The petitioner, MB, challenges the decision-making process that led to measures restricting his contact with his four minor sisters. This case emerges in the aftermath of the UK Supreme Court's decision in ABC v Principal Reporter (2020 SLT 679), which underscored the necessity for Enhanced Procedural Safeguards to comply with the European Convention on Human Rights (ECHR), particularly Article 8 concerning the right to respect for family life.

Summary of the Judgment

Lady Wise, delivering the judgment, examined whether the procedural actions taken by the Principal Reporter in issuing ICSOs were consistent with Article 8 of the ECHR. The Court acknowledged procedural lapses in one out of four ICSO applications, specifically the November 2020 order, where MB was inadequately informed and excluded from meaningful participation. However, the Court found that, overall, the procedures employed were largely compliant, granting a declarator for the November decision while upholding the remaining ICSOs. The judgment emphasized the necessity for bespoke inquiries into sibling relationships and the importance of informing relevant parties adequately.

Analysis

Precedents Cited

The judgment extensively references pivotal cases that have shaped the interpretation of Article 8 in the context of family law:

• ABC v Principal Reporter (2020): The UK Supreme Court highlighted the importance of sibling relationships and procedural rights in Children's Hearings, mandating that public authorities ensure effective participation and information dissemination.
• McMichael v United Kingdom (1995): Established that denying access to confidential documents and excluding relevant parties from proceedings breaches procedural aspects of Article 8.
• W v United Kingdom (1987): Emphasized the necessity for parents to be involved in decision-making processes to protect their interests under Article 8.
• Akin v Turkey (2010) and Prospective Adopters for T v Herefordshire District Council (2018): Demonstrated the award of damages where procedural rights under Article 8 were violated.

Legal Reasoning

Lady Wise dissected the procedural adherence to Article 8, focusing on the rights of MB to participate in decisions affecting his family life. The Court analyzed the extent to which the Principal Reporter and the Sheriff Court complied with procedural requirements:

• Intimation of Applications: The Court evaluated whether MB was adequately informed about ICSO applications through formal channels as necessitated by procedural fairness.
• Opportunity to Address Decision-Makers: The judgment scrutinized if MB had meaningful avenues to present his case, highlighting failures in the November 2020 hearing.
• Access to Relevant Documents: Inspired by McMichael, the Court considered whether MB was deprived of necessary documentation to substantiate his position.
• Informing Outcomes and Reasons: The Court assessed if MB was properly apprised of the outcomes and rationales behind the ICSOs, ensuring transparency in judicial decisions.

The Court concluded that while most procedures were compliant, the November 2020 ICSO exhibited a significant procedural breach by not considering MB’s submissions, thereby violating his Article 8 rights.

Impact

This judgment reinforces the imperative for Scottish courts and public authorities to uphold procedural fairness in family law proceedings. Key impacts include:

• Procedural Vigilance: Public authorities must ensure that relevant parties, including siblings, are adequately informed and given opportunities to participate in proceedings affecting family dynamics.
• Bespoke Inquiry Mandate: Decisions regarding ICSOs must be tailored to the specific relationships and circumstances, avoiding one-size-fits-all approaches.
• Clarification on Participation: The judgment delineates the extent to which non-primary parties like siblings should be involved, balancing their rights with the primary focus on the welfare of the child subject to the ICSO.
• Damages and Remedies: Establishes that procedural breaches can warrant declaratory relief and potentially damages, although the latter was not granted in this case.

Complex Concepts Simplified

Conclusion

The judgment in MB v Principal Reporter underscores the critical balance between state intervention for child protection and the preservation of familial relationships as enshrined in Article 8 ECHR. While the Scottish Court of Session identified procedural shortcomings in handling MB’s participation, it affirmed the overall framework's compliance with human rights standards. This case serves as a pivotal reference for future ICSO applications, emphasizing the need for tailored procedural safeguards and reinforcing the judiciary's role in ensuring equitable and transparent decision-making processes. Legal practitioners and public authorities must heed these findings to foster practices that respect family dynamics while safeguarding child welfare.