ABC, PETITION OF AGAINST THE PRINCIPAL REPORTER AND OTHERS [2018] ScotCS CSOH_81 (31 July 2018)

ABC, PETITION OF AGAINST THE PRINCIPAL REPORTER AND OTHERS [2018] ScotCS CSOH_81 (31 July 2018)

The statutory scheme under the Children’s Hearings (Scotland) Act 2011, as applied, failed to provide ABC, a sibling with established family life with the subject child, with sufficient procedural protection required by Article 8 ECHR. The test for 'relevant person' was too narrow to guarantee participation for siblings in ABC’s position, and the alternative mechanisms did not remedy the lack of notification, participation, and appeal rights. The legislation was not ECHR compliant in this respect.

Citation
[2018] ScotCS CSOH_81
Parties
Petitioner: ABC; First Respondent: Principal Reporter; Third Respondent: The Lord Advocate; First Interested Party: East Lothian Council; Second Interested Party: XL; Third Interested Party: YL
Jurisdiction
Scotland
Judgment Date
31 July 2018
Procedural Posture
Judicial Review / Outer House, Court of Session – Opinion
Outcome
Petition sustained in part; declaration of incompatibility with Article 8 ECHR; damages awarded.
Legal Topics
Children's Hearings, Article 8 ECHR, Procedural Fairness, Relevant Person Status, Sibling Rights
Public Law Family Law Human Rights Children's Hearings Article 8 ECHR Procedural Fairness Relevant Person Status Sibling Rights

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 13 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

ABC

Petitioner

Principal Reporter

First Respondent

The Lord Advocate

Third Respondent

East Lothian Council

First Interested Party

XL

Second Interested Party

YL

Third Interested Party

Procedural Posture

Judicial Review / Outer House, Court of Session – Opinion

Legal Issues

  1. 1 Whether the Children’s Hearings (Scotland) Act 2011 and its application to ABC, a sibling, provided sufficient procedural protection under Article 8 ECHR.
  2. 2 Whether ABC should have been treated as a 'relevant person' or otherwise involved in the Children’s Hearing process regarding his sibling DEF.

Ratio Decidendi

The statutory scheme under the Children’s Hearings (Scotland) Act 2011, as applied, failed to provide ABC, a sibling with established family life with the subject child, with sufficient procedural protection required by Article 8 ECHR. The test for 'relevant person' was too narrow to guarantee participation for siblings in ABC’s position, and the alternative mechanisms did not remedy the lack of notification, participation, and appeal rights. The legislation was not ECHR compliant in this respect.

Court Disposition

Petition sustained in part; declaration of incompatibility with Article 8 ECHR; damages awarded.

Orders

  • Declaration that the Children’s Hearings (Scotland) Act 2011, as applied, is incompatible with Article 8 ECHR in failing to provide procedural protection to siblings with established family life.
  • Award of damages to ABC for just satisfaction under the Human Rights Act 1998.