PETITION OF X & Y AGAINST THE PRINCIPAL REPORTER AND KB

Factual and Procedural Background

The petitioners, a couple who are foster carers and prospective adopters, sought judicial review of a decision made by a children's hearing on 7 September 2021. The hearing had decided to include the petitioners' names and address in a compulsory supervision order (CSO) concerning a child, who had suffered serious abuse and had been subject to CSOs since April 2018. The child had been placed with the petitioners after a plan for adoption was made. The petitioners were not present at the hearing and had not yet met the child at that time. The petitioners challenged the refusal of the hearing to withhold their names and address from the child's mother in the CSO. They also contended that the hearing breached procedural fairness by not allowing them to attend and by failing to provide written reasons for the refusal of non-disclosure. The petitioners subsequently lodged an adoption petition in the sheriff court and sought confidentiality protections in that process. The hearing's decision was challenged only insofar as it refused to make a non-disclosure order protecting the petitioners' identity and address from the mother.

Legal Issues Presented

1. Whether the petitioners, as prospective adopters and foster carers, were entitled to attend and make representations at the children's hearing regarding the non-disclosure of their names and address.
2. Whether the children's hearing's failure to provide written reasons for refusing a non-disclosure order constituted a procedural irregularity affecting the fairness of the proceedings.
3. Whether the children's hearing applied the correct legal test in deciding not to impose a non-disclosure order protecting the petitioners' identity and address.
4. Whether the inclusion of the petitioners' names and address in the CSO unlawfully interfered with their Article 8 rights under the European Convention on Human Rights (ECHR).

Arguments of the Parties

Petitioners' Arguments

• The petitioners argued that their Article 8 rights to private life were engaged by the decision to disclose their names and address to the child's mother, citing case law recognizing the protection of home and address as private life.
• They contended that the children's hearing breached procedural fairness by not inviting them to attend the hearing, as their attendance was necessary for proper consideration of the non-disclosure issue affecting their rights.
• The petitioners argued that the hearing failed to provide adequate written reasons for refusing the non-disclosure order, amounting to a procedural irregularity.
• They submitted that the hearing applied an incorrect or unclear legal test by focusing only on the risk of significant harm to the child rather than the broader welfare test required by statute.
• The petitioners asserted their right to confidentiality in adoption proceedings under the adoption rules and argued that the children's hearing decision was irrational as it abrogated those rights.
• They maintained that their absence from the hearing caused real prejudice, as they were deprived of the opportunity to represent their interests directly.

First Respondent's Arguments

• The first respondent submitted that the 2011 Act and associated rules provide a child-focused mechanism that prioritizes the welfare of the child and the rights of relevant persons, such as parents, over others with lesser involvement.
• It was argued that the petitioners had no automatic right to attend the hearing because they were not relevant persons and had never met the child.
• The discretion of the chairing member to permit attendance was lawfully exercised in not inviting the petitioners, as their attendance was not necessary for the hearing's proper consideration.
• The first respondent contended that oral reasons were given at the hearing and that failure to provide written reasons did not materially prejudice the petitioners or damage the justice of the proceedings.
• It was emphasized that the hearing's decision was governed primarily by the welfare test and necessity for protection, guidance, treatment, or control of the child, and that the refusal to impose a non-disclosure order was consistent with these statutory tests.
• The first respondent argued that the petitioners' desire for anonymity in adoption proceedings did not translate into an absolute right to anonymity in children's hearing proceedings, which involve different statutory schemes and considerations.

Second Respondent's Arguments

• The second respondent accepted that the petitioners' Article 8 rights to private life were engaged but not their family life rights, relying on comparative case law.
• She emphasized her fundamental parental interest in knowing where her child lives and ensuring her safety, which must be balanced against others' rights.
• The second respondent pointed out that the statutory framework provides for a presumption of disclosure to parents unless specific exceptions apply.
• It was submitted that there is no right to unqualified anonymity in children's hearing proceedings and that the petitioners had no procedural right to attend unless invited.
• The second respondent supported the view that the hearing properly balanced competing interests, and that the petitioners' interests were adequately represented by the implementation authority's social worker.
• She argued that no compelling evidence justified withholding the petitioners' identity and address and that the decision to include this information did not constitute a legal wrong.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework governing children's hearings, emphasizing the primacy of the child's welfare under the Children's Hearings (Scotland) Act 2011. It noted that the petitioners were not "relevant persons" entitled to automatic attendance and that the chairing member had discretion to limit attendance to those necessary for proper consideration of the matter. The court found that the petitioners' attendance was not necessary because they had not met the child and had made no request to attend. Their interests were adequately represented by the implementation authority's social worker.

The court accepted that the petitioners' Article 8 rights to private life were engaged but emphasized that such rights are qualified and must be balanced against the mother's parental rights and the child's welfare. The default position was that a parent retains the right to know the child's residence unless a non-disclosure order is justified. The court held that the hearing properly applied the statutory tests, including necessity and the risk of significant harm to the child, in deciding not to impose a non-disclosure order.

Regarding the absence of written reasons, the court acknowledged this as a procedural irregularity but concluded it did not materially prejudice the petitioners or damage the justice of the proceedings. Oral reasons were given at the hearing and conveyed to the petitioners through their social worker. Since the petitioners were not parties to the hearing and had no right of appeal, the lack of written reasons did not affect their position.

The court rejected the petitioners' argument that the adoption rules granted them an absolute right to anonymity in the children's hearing proceedings, noting the distinct statutory schemes and the importance of parental rights during the CSO process. The court emphasized that requests for anonymity in children's hearings must be considered case by case, with the child's welfare paramount.

Holding and Implications

The court DISMISSED the petitioners' application for judicial review and repelled their pleas in law.

The direct effect of this decision is that the children's hearing's refusal to withhold the petitioners' names and address from the child's mother in the CSO stands. The petitioners have no entitlement to attend the hearing absent an invitation and no procedural unfairness arose from their exclusion. The court confirmed that the statutory framework prioritizes the child's welfare and the parental rights of the mother, with non-disclosure orders being exceptional and requiring justification. No new legal precedent was established; rather, the decision affirms the application of existing statutory provisions and case law balancing competing rights in children's hearing proceedings.