MB AGAINST THE PRINCIPAL REPORTER

Factual and Procedural Background

This opinion concerns a petition by the Petitioner, the older brother of four sisters aged 12, 10, 8 and 1, who challenges the procedural fairness surrounding Interim Compulsory Supervision Orders ("ICSOs") issued in respect of his sisters. The Principal Reporter made referrals to the Children's Hearing for each sister based on concerns related to a close connection with someone alleged to have committed relevant offences under the Sexual Offences (Scotland) Act 2009. The Petitioner is named as a person with a close family connection and is alleged to have committed relevant offences, though not against the sisters. The parents dispute the grounds for referral. Due to Covid-19 related delays, evidential hearings have not taken place, and the sheriff court has extended ICSOs multiple times, each including a prohibition on the Petitioner having contact with his sisters. The Petitioner does not challenge the merits of the ICSOs but seeks to challenge the procedural fairness of the decision-making process.

Legal Issues Presented

1. Whether the procedures followed in granting and extending ICSOs, particularly regarding intimation and participation rights of the Petitioner, were compatible with the procedural aspects of Article 8 of the European Convention on Human Rights (ECHR) concerning respect for family life.
2. Whether the Petitioner had adequate opportunity to make representations, access relevant documents, and receive reasons for decisions affecting his family life.
3. The extent to which the UK Supreme Court decision in ABC v Principal Reporter applies to ICSO proceedings and the participation rights of siblings in such proceedings.
4. Whether any procedural breaches warrant declaratory relief, interdict, or damages.

Arguments of the Parties

Petitioner's Arguments

• The Petitioner contended there was a failure to act compatibly with Article 8 ECHR procedural rights in the ICSO process, including lack of direct intimation of applications and decisions affecting his family life.
• He argued for the necessity of receiving documents relevant to the applications to properly address the decision-maker and to understand the basis of the orders, citing the UK Supreme Court decision in ABC v Principal Reporter and other authorities emphasizing sibling participation rights.
• The Petitioner highlighted multiple occasions where he was not formally intimated or provided with reasons for decisions, limiting his ability to participate effectively and creating inequality of arms.
• He emphasized the importance of eliciting the views of the affected children and argued that the sheriff failed to ensure their views were obtained.
• He sought declarator that the procedural failings amounted to breaches of Article 8, damages for the violations, and interdict to ensure future compliance with Article 8 procedural safeguards.

First Respondent's Arguments

• The First Respondent submitted that the Petitioner’s participation rights had been adequately respected through a bespoke procedural scheme consistent with the UK Supreme Court’s decision in ABC v Principal Reporter.
• The reporter’s decision not to include the Petitioner in formal intimation forms was reasonable, focusing on the welfare of the children who are the subject of the proceedings, and the sheriff was the ultimate decision-maker on intimation.
• Informal intimation and the opportunity to make written representations through the reporter sufficed for the Petitioner’s participation rights.
• The First Respondent acknowledged some procedural errors, such as a typographical error affecting the timing of submissions, but contended these did not amount to breaches of Article 8.
• The sheriff had properly considered the various interests and had mechanisms to obtain the views of the children and the Petitioner, including through the safeguarder and local authority.
• The First Respondent argued that no damages should be awarded even if a declarator were granted and that interdict was incompetent against an unnamed office holder such as the sheriff.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the significant impact of the Covid-19 pandemic on the ability to hold oral hearings, limiting participation to written representations. The court recognized the binding authority of the UK Supreme Court decision in ABC v Principal Reporter, which requires a bespoke approach to sibling participation in proceedings affecting family life, emphasizing the welfare of the child as paramount.

The court analyzed four key procedural issues raised by the Petitioner: intimation of applications, opportunity to address the decision-maker, access to relevant documents, and intimation of outcomes. It found that, except for one instance, the reporter’s procedural scheme—consisting of informal intimation, opportunity to submit written representations via the reporter, and the sheriff’s discretion on intimation—was adequate and consistent with Article 8 requirements.

The court noted that the Petitioner was aware of hearings and had opportunities to make written representations in three of the four challenged ICSO extensions. A typographical error causing confusion over submission deadlines in September was acknowledged but not deemed to have caused a substantive breach of rights given the overall context and ongoing participation in related proceedings.

Crucially, the court identified a procedural failure in the November 2020 hearing where the sheriff did not consider the Petitioner’s submitted representations, resulting in deprivation of meaningful participation and a breach of Article 8 procedural rights. The court found this failure isolated and not reflective of the overall procedural scheme, which otherwise balanced the competing interests appropriately.

Regarding access to documents, the court distinguished the Petitioner’s sibling interest from parental rights in McMichael, concluding that there was no blanket entitlement to all documentation but that tailored disclosure could be ordered by the sheriff as necessary. The Petitioner had sufficient information to make effective representations.

On intimation of outcomes, the court accepted informal notification as adequate given the Petitioner’s limited role and the procedural arrangements in place.

The court emphasized the necessity of a fact-sensitive, bespoke approach in each case, balancing the welfare of the children with the participation rights of siblings, and declined to set rigid future guidelines.

Holding and Implications

The court issued a declarator that the procedure followed in the November 2020 ICSO hearing was incompatible with the Petitioner’s right to respect for family life under Article 8 ECHR due to the failure to consider his representations, rendering that decision unlawful.

In all other respects, the court found the procedural scheme devised by the reporter and the sheriff to be adequate and compliant with Article 8 in the exceptional circumstances of the Covid-19 pandemic.

No damages were awarded, and all other orders sought, including interdict, were refused. The court noted that the procedural deficiency identified was isolated and that ongoing procedural safeguards and future hearings would provide further opportunities for the Petitioner’s participation.

The decision does not establish new precedent but reinforces the importance of bespoke, proportionate procedural arrangements in ICSO cases involving siblings, consistent with the principles set out in ABC v Principal Reporter.