Significant ruling issued for brothers and sisters in care

July 31st 2018

(31 July 2018) A court has today ruled that a 14-year-old boy should now be able to apply to participate fully in his brother’s children’s hearing.

The court recognised the difficulty with the current test for who can participate as being too restrictive and has decided that words require to be read into the definition of relevant persons to make it compatible with Article 8 ECHR.

The boy wanted to have a say in decisions made about his brother at Children’s Hearings, but this was not possible due to the way the legislation was worded which made it difficult for siblings and others with established family life to participate fully. 

Lady Wise concluded that the current test for being able to participate in a children’s hearing, including obtaining copies of the papers and having a right to appeal, is not sufficient to allow those such as the petitioner to claim a right to participate.

This means that words require to be read into the definition to make sure that siblings like the petitioner are told about the children’s hearings and can take part in them. The case is to call again shortly to discuss the proposed wording.

The full judgment is available here.

Contact between brothers and sisters where one sibling is in care or where both or all siblings are in care is a huge 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 often lose contact with each other.

Clan Childlaw are particularly motivated to improve sibling contact across the care system. It is part of a partnership of organisations called “Stand Up for Siblings” aiming to improve and change legislation, policy and practice. The Independent Care Review, which aims to identify and deliver lasting change in the care system, is also exploring further this issue as it was raised as a problem by a large number of care experienced young people. The Review has pledged to work alongside Stand Up for Siblings. 

The Child Abuse Inquiry in Scotland is hearing evidence from adults who were placed in care in the past, sometimes as a whole family, and the siblings were then separated and didn’t even know they were in care with their brothers or sisters.

This is one of the most significant cases in relation to care-experienced children for some time.

Lucy Frazer, solicitor at Clan Childlaw who represents the child, said: “It has now been recognised that there was a difficulty with the current law. We are hopeful that this will mean our client and others like him will be able to take part in Children’s Hearings in relation to their siblings to a greater extent in the future. At Clan Childlaw, we know there are lots of children in a similar situation across Scotland and this should give them this opportunity.”

For more information, contact Alison Reid, Principal Solicitor and Chief Executive of Clan Childlaw, on 0131 475 2567.

About us

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.

Clan Childlaw, with offices in Edinburgh and in Glasgow, provides direct legal help to children and young people the majority of whom have experience of the care system. It also provides training and contributes towards policy development.

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