Reclaiming Motion by A against the Principal Reporter and others (Court of Session)

Factual and Procedural Background

The appeal concerns a reclaiming motion against the reduction of a decision made by a children's hearing regarding the status of the Appellant as a "relevant person" in proceedings concerning a child, "M," aged 15. The Appellant is the biological father of M but has no parental rights or responsibilities and has had no contact with M since M was under one year old. M resides with the mother, "B," who is a relevant person. The Appellant has been subject to a lifelong restriction order since 2013 following convictions for serious offences, including repeated rape and violence against B.

On 23 November 2023, the children's hearing determined that the Appellant was not a relevant person and excluded him from participating further in the review of a compulsory supervision order (CSO) concerning M. The Appellant sought judicial review of this decision, contending the hearing erred in law. The mother, B, and the child's curator ad litem opposed the Appellant's position, arguing that the Appellant’s inclusion as a relevant person constituted an unlawful interference with their rights under Article 8 of the European Convention on Human Rights (ECHR). The Lord Advocate participated as an interested party. The Lord Ordinary initially held that the children's hearing was not entitled to exclude the Appellant as a relevant person, but this decision was appealed to the Inner House.

Legal Issues Presented

1. Whether the children's hearing acted lawfully in determining that the Appellant was not a relevant person under the statutory scheme, particularly 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 article 3(2)(a) of the 2013 Order is compatible with the Convention rights of the child and other relevant persons, or whether it should be read down or disapplied due to incompatibility with Article 8 ECHR rights.
3. Whether the children's hearing's case management powers are sufficient to protect the Article 8 rights of the child and mother while including a biological parent without parental rights and responsibilities as a relevant person.
4. Whether the exclusion of the Appellant from the hearing and refusal of his application for contact with M involved procedural unfairness.

Arguments of the Parties

Appellant's Arguments

• The children's hearing erred in law by removing his status as a relevant person, misunderstanding the statutory provisions.
• Relevant person status is a statutory right conferred by the legislature and not subject to a welfare test or qualification based on family life.
• The hearing's decision was procedurally unfair as he was excluded from the hearing that refused his application for contact with M, denying him the right to participate.
• His Article 8 rights to family and private life are engaged due to his desire and efforts to maintain contact with M.
• The case management powers of the hearing are sufficient to protect the rights of B and M while allowing his participation.
• Reading down the 2013 Order to exclude fathers without parental rights and responsibilities would create discrimination and require complex procedures incompatible with the purpose of children's hearings.

Mother's (B) Arguments

• The inclusion of the Appellant as a relevant person under the 2013 Order constitutes an unlawful interference with her and M's Article 8 ECHR rights to respect for private and family life.
• The 2013 Order is irrational and incompatible with Convention rights because it confers relevant person status on biological parents who have no parental rights or responsibilities and pose risks to the child's welfare.
• The Appellant has no established family life with M, has caused serious harm to B, and his involvement in proceedings causes significant distress and impedes their participation.
• The case management powers are insufficient to protect their rights in this case, given the Appellant's history and ongoing impact.
• The 2013 Order should be read down or disapplied to exclude biological parents without parental rights and responsibilities who do not have an established family life with the child.

Curator ad Litem's Arguments

• Supported reading down or ignoring the 2013 Order to exclude parents without parental rights and responsibilities unlikely to obtain them, to protect the child's welfare and Convention rights.
• Emphasized the paramount importance of the child's welfare under UNCRC Article 3 and the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.

Principal Reporter's Arguments

• Supported the reclaiming motion and the Lord Ordinary's conclusion that the Appellant had no Article 8 rights relating to M.
• Agreed that article 3(2)(a) of the 2013 Order is incompatible with the Convention rights of M and B as applied in this case but that the incompatibility could be addressed by disapplying the provision in the circumstances.
• Noted that the 2013 Order works well in the majority of cases and that this is a "hard case" under the bright line test.

Lord Advocate's Arguments

• Supported the Lord Ordinary's finding that the 2013 Order is capable of being applied in a Convention compliant manner due to the children's hearing's case management powers.
• Argued that the 2013 Order was a legitimate policy decision to ensure all parents' Article 8 rights are protected and to allow potential positive relationships.
• Asserted that the case management powers allow exclusion or excusal of relevant persons as necessary to protect rights and welfare.
• Contended that if the 2013 Order was declared incompatible with Convention rights, an order under section 102 of the Scotland Act 1998 should be made to allow time for legislative amendment.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework governing children's hearings, focusing on the definition of "relevant person" under section 200 of the Children's Hearings (Scotland) Act 2011 and the 2013 Order, which extends relevant person status to all biological parents except those who have had parental rights and responsibilities removed by court order.

The Appellant, as a biological father without parental rights or responsibilities and with no established family life or contact with the child for over a decade, falls within the category conferred relevant person status by the 2013 Order. However, the court acknowledged the significant adverse impact of the Appellant's involvement on the welfare and participation of the child and mother, both of whom have Convention rights under Article 8 ECHR.

The court considered whether article 3(2)(a) of the 2013 Order was compatible with Convention rights and whether the children's hearing lawfully exercised its powers in excluding the Appellant. It noted that the 2013 Order represents a bright line, category-based legislative approach, which is generally permissible and proportionate, even if it produces difficult or "hard" cases.

The court found that the children's hearing possesses extensive case management powers to protect the rights and welfare of the child and other relevant persons, including exclusion and excusal powers. While these powers ordinarily suffice to ensure Convention compliance, in the exceptional circumstances of this case, involving the Appellant's serious criminal history and ongoing detention, the case management powers were insufficient to prevent the interference with the rights of the child and mother.

Accordingly, the children's hearing properly disapplied article 3(2)(a) in this case under section 6(1) of the Human Rights Act 1998 to avoid incompatibility with Convention rights. The court held that the hearing's decision to remove the Appellant's relevant person status was lawful and consistent with the statutory scheme and Convention obligations.

Regarding procedural fairness, the court acknowledged the exclusion of the Appellant and his solicitor from parts of the hearing that refused contact but concluded that, given the undisputed facts and the paramount welfare interests of the child, no procedural unfairness sufficient to invalidate the decision arose.

The court rejected the Appellant's argument that the children's hearing misapplied the law or that the 2013 Order should be read down to exclude biological fathers without parental rights and responsibilities. It emphasized the legislative intent to confer relevant person status broadly and the impracticality and incompatibility of a welfare test or case-by-case qualification in this context.

Holding and Implications

The court's final decision is to ALLOW THE RECLAIMING MOTIONS, RECALL the interlocutor of the Lord Ordinary dated 26 November 2024, and REFUSE the petition seeking reduction of the children's hearing decision dated 23 November 2023. This means that the children's hearing's determination that the Appellant is not a relevant person for the child stands.

The direct effect of this decision is that the Appellant remains excluded from participating as a relevant person in the children's hearing proceedings concerning M. The decision affirms the use of case management powers and the principle that subordinate legislation conferring relevant person status broadly can be disapplied in particular cases to protect Convention rights. No new precedent altering the statutory framework or the approach to relevant person status is established. The court recognizes the complexity and challenges of such cases and notes ongoing governmental review of the children's hearing system, including the definition of relevant person status.