18th June 2020
The Supreme Court today published its judgment in relation to Clan Childlaw’s leading case involving the rights of brothers and sisters in children’s hearings. The Court decided that the children’s hearings system, “if operated in a practical and sensible manner and in compliance with the guidance given by the Principal Reporter and Children’s Hearings Scotland”, was compliant with the right to family life.
The case, known as ABC, involved a 14-year old who wanted to be involved in decisions made about his brother at children’s hearings. This did not happen due to the way the legislation was worded which made it almost impossible for brothers and sisters and others with established family life to participate fully in decision making.
After almost three years of ongoing court proceedings, the case was today determined by the Supreme Court who ruled that, following adaptations to children’s hearings since the start of these proceedings, the requirements of Article 8 ECHR were met in relation to siblings and other family members. It emphasised that to make effective the rights of brothers and sisters, it was necessary for the relevant public authorities to be aware of those interests and that siblings be informed of the nature of proceedings concerning their brother or sister and their rights in relation to those proceedings. The case was heard along with another involving siblings known as In the Matter of XY.
The case of ABC has led the way in Scotland to a wider understanding of the importance of sibling relationships and the need for brothers and sisters to be involved in decision making. It acknowledges that the system has developed over the duration of the case because of these legal challenges and this should result in more involvement of siblings in children’s hearings.
Lucy Frazer, solicitor for ABC said: “We are disappointed by the outcome. It leaves a huge amount of discretion to those operating children’s hearings who will have to follow complex procedures to ensure compatibility with a brother or sister’s right to family life. Our experience is that despite these procedures being recently put in place, they are not being followed universally. In most cases judicial review proceedings, which are difficult to access without legal representation, will be the only means for young people to ensure their rights are protected in the hearing system. For those who are unrepresented, it is unclear how they will ensure procedures are followed to protect their rights.”
The Children (Scotland) Bill is currently progressing through the Scottish Parliament and in its current form includes a strengthening of duties in relation to brothers and sisters for care experienced young people. Clan hopes that this judgment and the Care Review Promise, which recommends legislative changes, will result in amendments strengthening the rights of brothers and sisters within children’s hearings.
Alison Reid, Principal Solicitor at Clan Childlaw said: “We will continue to work with others to make sure that young people like ABC have their right to participate protected and to ensure that the system has the welfare of all children at its heart. We hope that this will lead to legislation that gives brothers and sisters ways of protecting their rights, and simplifies procedures required to make the system compatible with the right to family life.”
Clan Childlaw is a Scottish Charity aiming to improve the life chances of children and young people by using their legal skills and expert knowledge to help young people take part in decisions that affect them and by making sure that children’s rights are realised in Scots Law. They provide direct legal help to children and young people, the majority of whom have experience of the care system. They also provide training and contribute towards policy development. They have offices in Edinburgh and in Glasgow. Clan Childlaw is part of Stand Up for Siblings, a coalition of child welfare, children’s rights, advocacy and legal organisations and academics within Scotland aiming to improve and change legislation, policy and practice.
Contact between brothers and sisters where one sibling is in care or where both or all siblings are in care is a very serious issue. Because of the lack of foster placements who can take sibling groups, brothers and sisters are often placed in different foster placements and some local authorities perform poorly in terms of ensuring they remain in contact. It is unacceptable that, just because they are in care, brothers and sisters can lose contact with each other. This has been a serious issue of concern for our client group.
The Scottish Government has committed to delivering the vision and Promise set out by the Independent Care Review which concluded in February this year. One of the cornerstones of the Review’s vision for the Scottish care system is to ensure that sibling relationships are maintained. The Care Review Promise contains the clear message that the rights of siblings to be part of decision-making about their brothers and sisters must be protected and that this “must include the notification of forthcoming hearings…. and speedy rights of appeal if required”.
Link to the Supreme Court judgment: https://www.supremecourt.uk/cases/uksc-2019-0063.html
For other information, please contact Alison Reid on 0131 475 2567.