Petition of A for Judicial Review (Court of Session) [2024] CSOH 106 (26 November 2024)

Petition of A for Judicial Review (Court of Session) [2024] CSOH 106 (26 November 2024)

On a plain reading of the 2013 Order, the petitioner was a relevant person, but the children's hearing was entitled to disregard or read down the provision to avoid acting incompatibly with the Article 8 rights of the child and mother, who had no family life with the petitioner and would suffer distress from his involvement. The mechanisms for managing participation were insufficient to protect their rights in this case. The petitioner's Article 8 rights were not engaged. The petition was competently brought due to lack of notification, but on the merits, the decision of the children's hearing was lawful.

Citation
[2024] CSOH 106
Parties
Petitioner: A; First Respondent: Principal Reporter; Second Respondent: B (M's mother); Third Respondent: Curator ad litem and safeguarder; Intervener: Lord Advocate
Jurisdiction
Scotland
Judgment Date
26 November 2024
Procedural Posture
Judicial Review / Final Judgment at First Instance (outer House, Court of Session)
Outcome
Petition refused
Legal Topics
Children's Hearings, Parental Rights, Judicial Review, ECHR Article 8, Interpretation of Subordinate Legislation, Competence of Scottish Ministers
Public Law Family Law Human Rights Children's Hearings Parental Rights Judicial Review ECHR Article 8 Interpretation of Subordinate Legislation +1 more

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Parties

A

Petitioner

Principal Reporter

First Respondent

B (M's mother)

Second Respondent

Curator ad litem and safeguarder

Third Respondent

Lord Advocate

Intervener

Procedural Posture

Judicial Review / Final Judgment at First Instance (outer House, Court of Session)

Legal Issues

  1. 1 Whether the petitioner is a 'relevant person' under the Children's Hearings (Scotland) Act 2011 and associated Order
  2. 2 Whether the removal of 'relevant person' status is compatible with ECHR Article 8 rights of the child and mother
  3. 3 Whether the subordinate legislation is within devolved competence and compatible with Convention rights

Ratio Decidendi

On a plain reading of the 2013 Order, the petitioner was a relevant person, but the children's hearing was entitled to disregard or read down the provision to avoid acting incompatibly with the Article 8 rights of the child and mother, who had no family life with the petitioner and would suffer distress from his involvement. The mechanisms for managing participation were insufficient to protect their rights in this case. The petitioner's Article 8 rights were not engaged. The petition was competently brought due to lack of notification, but on the merits, the decision of the children's hearing was lawful.

Court Disposition

Petition refused

Orders

  • Petition for reduction of the children's hearing decision refused
  • Third respondent's plea to competency repelled