(Inner House, Court of Session, 11 July 2017)

Background: This case concerns Relevant Person status in the Children’s Hearings System. Clan Childlaw represented a 14-year-old girl who had initiated proceedings by requesting a pre-hearing panel to remove Relevant Person status from both her maternal grandparents. At her own request, she had not exercised contact with her grandparents for several years and considered that they no longer had a significant involvement in her upbringing. Despite this, because they had Relevant Person status, the grandparents were provided with sensitive personal information and had the right to attend and participate in her Children’s Hearings. The girl was successful in her request to the Children’s Panel to remove their relevant person status. Her grandparents appealed the Pre-Hearing Panel decision. Despite the child’s preference not to have her grandparents involved in her life the Sheriff took the view that this was not a relevant factor in the decision of the pre-hearing panel and on appeal quashed the decision of the Pre-Hearing Panel and deemed her grandparents Relevant Persons. The Sheriff concluded that “the pre-hearing panel fell into error by failing to attach due weight to the incidence of state intervention in restricting the grandparents’ involvement in the child’s upbringing since the date of the preceding determination of relevant person status; and, linked to this, by attaching undue weight to the mere passage of time”. The Sheriff thereafter quashed the decision of the Children’s Pre-Hearing Panel and made an order deeming the grandparents to be relevant persons. The girl then appealed the decision of the Sheriff by way of stated case to the Inner House.

Held: The Inner House unanimously concluded that the Sheriff had erroneously quashed the decision of the Pre-Hearing Panel in making an order deeming the grandparents to be relevant persons. Lord Drummond Young concluded “In the present case the Sheriff took the view that the child’s preference that her grandparents should play no part of her life was not a relevant factor in the decision of the pre-hearing panel. Once again, for similar reason, I am of the opinion that this view is erroneous”. [7] Lord Malcom stated “…it does not follow that, so long as the responsible person is fulfilling the obligations of a relevant person, they continue to meet the requirements of section 81 A(3). They must continue to have (or recently have had) a significant involvement in the upbringing of the child. On any reasonable understanding of what is meant by those words, it seems clear that MF and GF have not had any such involvement for several years. In my view, simply fulfilling one’s obligations as a relevant person is unlikely to meet the statutory test.” [45] “… The Panel was entitled to assess whether, given the longer period which had passed since there had been any significant involvement, the time had come when the test was no longer met. There is no statutory continuation of relevant person status if significant involvement is interrupted or prevented by state intervention.” [47] “… It is difficult to avoid the conclusion that the Sheriff overturned the panel’s determination simply because he disagreed with it. He took the view that, so long as the grandparents continued to exercise their rights as relevant persons, the test was not met. Even if that were a tenable view, nonetheless the decision was one for the panel to take.” [48] “…. In any event, each time section 81 A (3) is addressed, all relevant circumstances require to be taken into account.” [53].

The case will now be remitted to the Sheriff Court with a direction to refuse the appeal and confirm the decision of the pre-hearing panel.