Petition of A for Judicial Review (Court of Session)

Factual and Procedural Background

The Petitioner is the natural father of a child born in 2010, who has never held parental responsibilities or rights in respect of the child. The child's mother is the Second Respondent. The Petitioner was convicted of serious offences against the Second Respondent and has been in custody since 2013 under a lifelong restriction order. A children's hearing convened in November 2023 reviewed a compulsory supervision order ("CSO") relating to the child and determined that the Petitioner was not a relevant person entitled to participate in the proceedings. The Petitioner challenges this decision, asserting that he is a relevant person under the applicable legislation. The case involves consideration of the definition of "relevant person" under the Children's Hearings (Scotland) Act 2011 and subordinate legislation made pursuant thereto. The children's hearing excluded the Petitioner from participation, citing concerns about the impact on the child and the Second Respondent, including trauma and emotional distress caused by the Petitioner’s involvement. The Petitioner appealed to the sheriff, who allowed the appeal on procedural grounds but expressed doubt about the prospects of a different outcome upon remittal. The matter returned to a children's hearing in November 2023 where the Petitioner’s status as a relevant person was again questioned, leading to this judicial review.

Legal Issues Presented

1. Whether the Petitioner qualifies as a "relevant person" under article 3(2)(a) of the Children's Hearings (Scotland) Act 2011 (Review of Contact Directions and Definition of Relevant Persons) Order 2013 ("the 2013 order").
2. Whether the children's hearing was entitled to exclude the Petitioner from participation on the basis that he was not a relevant person.
3. Whether the 2013 order and the definition of relevant person within it are compatible with the European Convention on Human Rights (ECHR), particularly Article 8 (right to private and family life).
4. Whether it was lawful or necessary for the children's hearing to read down or ignore the 2013 order to avoid incompatibility with Convention rights.
5. The scope and application of case management powers under the Children's Hearings (Scotland) Act 2011 to limit participation or disclosure to a relevant person.
6. Whether the petition was competent given statutory appeal rights under section 154 of the 2011 Act.

Arguments of the Parties

Petitioner's Arguments

• The Petitioner contends that on a plain reading of the 2013 order, he is a relevant person entitled to participate in the children's hearing.
• The children's hearing improperly considered the absence of parental rights and responsibilities as a reason to exclude him, which was an immaterial consideration.
• The hearing erred in law by effectively “undeeming” him as a relevant person, which the hearing had no power to do.
• The hearing failed to consider or apply its case management powers that could have mitigated any distress or disruption his participation might cause.
• The proposed reading down of the 2013 order to exclude him would amount to an impermissible amendment of the legislation, not interpretation.
• The Petitioner's Article 8 rights are engaged, as his desire to participate in his child's life falls within private life, even absent established family life.
• Removal of relevant person status is disproportionate; less restrictive means are available to manage any conflict.
• Without relevant person status, the Petitioner lacks procedural safeguards and rights, including the ability to appeal or seek review effectively.
• The exclusion reintroduces discrimination between mothers and fathers, contrary to Article 14 ECHR read with Article 8.
• The remedy sought has practical purpose: to pursue limited contact (letterbox contact) with the child, which had not been lawfully determined due to procedural irregularities.
• The statutory appeal route was ineffective as the Petitioner did not receive notice of the hearing decision within the appeal period.

Second Respondent's Arguments

• The court should uphold the children's hearing decision and refuse to reduce it.
• If the 2013 order cannot be read down compatibly with Convention rights, it should be declared incompatible.
• The Petitioner’s treatment of the Second Respondent caused severe trauma, and any contact exacerbates this.
• The Petitioner has no family life with the child and no Article 8 rights engaged by the proceedings.
• Procedural rights under Article 6 are not engaged for the Petitioner.
• The Petitioner is effectively a stranger or unwelcome intruder in the child’s and Second Respondent’s private lives.
• The children’s hearing’s powers to exclude or restrict participation are limited and insufficient to protect the child and Second Respondent if the Petitioner is treated as a relevant person.
• It is unlawful under section 6(1) of the Human Rights Act 1998 for the children’s hearing to treat the Petitioner as a relevant person.

First Respondent's Arguments

• The Principal Reporter concedes the petition is competent due to procedural irregularity in notification but opposes reduction of the children's hearing decision.
• The making and review of CSOs involves state interference with family life and requires justification of relevant person status.
• Three principles govern Convention compliance: best interests of the child paramount; child’s interests may override parent’s; and procedural safeguards are necessary.
• Article 3(2)(a) of the 2013 order confers relevant person status more broadly than the Supreme Court’s decision in Principal Reporter v K, but this is not necessarily incompatible with Convention rights.
• Case management powers exist to limit or exclude participation of relevant persons where necessary to protect children or others.
• The Principal Reporter does not support the proposed reading down of the 2013 order, citing practical and procedural difficulties including lack of appeal against reporter decisions.
• The statutory scheme provides a "bright line" definition of relevant person, which is justified for certainty despite potential "hard cases".
• The children's hearing can secure Convention compliance by case-by-case management rather than legislative amendment.
• The Principal Reporter does not seek to overturn the entire 2013 order as it is the mechanism for including unmarried fathers without parental rights.

Third Respondent's Arguments

• The petition is incompetent because the Petitioner had a statutory right of appeal under section 154 of the 2011 Act.
• The definition of relevant person should secure participation only for those with established family life, protecting privacy and confidentiality.
• Existing powers to exclude or withhold information are insufficient to protect the child’s Article 8 rights if the Petitioner is treated as a relevant person.
• The children's hearing’s decision excluding the Petitioner as a relevant person was consistent with protecting the child’s Article 8 rights.
• The legislative scheme anticipates exclusion of parents deprived of parental responsibilities by court order and supports a qualitative approach to relevant person status.
• If the children’s hearing decision was not competent, the 2013 order is outside the competence of the Scottish Ministers.

Lord Advocate's Arguments

• The 2013 order is within devolved competence and not inherently incompatible with Convention rights.
• Broad conferral of relevant person status on parents, including those without parental rights, is justified to avoid closing off potential positive relationships.
• Any incompatibility in individual cases does not render the order incompatible; case management powers mitigate impacts.
• The statutory scheme draws a "bright line" for certainty, which is justified despite hard cases.
• The proposed reading down would impose difficult evaluative decisions on non-judicial actors without appeal rights, contrary to proper procedure.
• Convention rights of the Petitioner are not engaged as he has no established family life with the child.
• Case management powers and statutory safeguards provide adequate protection for the child and others.
• Legislation must be read and applied in a way compatible with Convention rights where possible, but the 2013 order does not require reading down or ignoring to achieve this.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by confirming that on a plain reading of article 3(2)(a) of the 2013 order, the Petitioner qualifies as a relevant person. The court examined the Human Rights Act 1998 and the Scotland Act 1998 obligations to interpret subordinate legislation compatibly with Convention rights and to avoid public authorities acting incompatibly with such rights.

The court carefully considered whether the 2013 order’s broad conferral of relevant person status, including on parents without parental rights or responsibilities and without established family life with the child, was compatible with Article 8 ECHR rights of the child and the other parent. It noted that while the inclusion of such parents increases the risk of disproportionate interference with privacy rights, the statutory scheme provides extensive case management powers to mitigate such risks, including exclusion from hearings, excusal from attendance, and non-disclosure of sensitive information.

The court rejected the Petitioner’s and Second Respondent’s submissions that the 2013 order must be read down or ignored to exclude parents without established family life. It found that such a reading down would impose difficult factual and evaluative determinations on non-judicial actors without appeal rights, which is inappropriate. The court emphasized the legitimacy of legislative "bright line" rules which confer status categorically, even if hard cases result, provided there is a rational legislative justification.

The court found no material before it evidencing the policy considerations underpinning the 2013 order’s broad definition, but accepted the Lord Advocate’s submission that a broad and inclusive approach was a justifiable policy to avoid closing off potential positive parental involvement.

The court analyzed the statutory scheme’s procedural safeguards and case management powers, concluding that the children’s hearing can operate the 2013 order compatibly with Convention rights by using these powers to prevent distress, protect confidentiality, and limit participation as necessary.

The court further held that the children’s hearing erred in law by excluding the Petitioner as a relevant person without first considering or exercising its case management powers to manage his participation and mitigate harm. The decision to remove the Petitioner’s relevant person status was unlawful because it was unnecessary to read down or ignore the 2013 order to avoid incompatibility with Convention rights.

Regarding competency, the court held that although the Petitioner could have appealed the children's hearing decision, he did not receive notice of the decision within the appeal period, constituting a procedural irregularity. Judicial review was therefore competent as a remedy of last resort in these circumstances.

Holding and Implications

The court REDUCED the decision of the children's hearing which excluded the Petitioner from participation as a relevant person.

The decision is remitted to the children's hearing for reconsideration in accordance with the court’s findings. The children's hearing is expected to exercise its case management powers to prevent unlawful disclosure of private information and to manage the Petitioner’s participation in a manner compatible with the Convention rights of the child and the Second Respondent.

No new precedent altering the statutory definition of relevant person or the legislative scheme was established. The ruling emphasizes the importance of applying existing case management powers before excluding a relevant person and clarifies that exclusion from relevant person status is not required to ensure Convention compliance in such cases.