Ruling in In the matter of XY(AP) [2020] UKSC 26, the court unanimously dismissed the appeals of two adult siblings who, in separate cases, sought ‘relevant person’ status under the Children’s Hearings (Scotland) Act 2011, where their younger siblings were subject to compulsory supervision orders.
The designation of ‘relevant person’―the same status granted automatically to parents―gives them access to information and compels them to attend the proceedings.
However, Lady Hale and Lord Hodge, giving the lead judgment, also acknowledged the cases had ‘served to uncover a gap in the children’s hearings system which has had to be adapted to meet the requirements of art 8 in relation to siblings and other family members.
‘There is now a clear recognition of the interest of both the child and the sibling in maintaining a sibling relationship through contact (or through placement if both are subject to CSOs) in most cases. The nature of the sibling relationship will vary from family to family and there needs to be a nuanced approach which addresses the extent of family life in that relationship, the home circumstances, how far the interests of the parents, the sibling and the child coincide and the possibility that the child, the parents and other siblings may have art 8 rights which are in conflict with those of the sibling.
‘There needs, in short, to be a bespoke enquiry about the child’s relationship with his or her siblings when the children’s hearing is addressing the possibility of making a CSO.’
The judgment describes arrangements now in place in the children’s hearing system which make it ‘operate compatibly with the art 8 rights of siblings and other family members’. They conclude: ‘But we are persuaded that the legislative scheme of the 2011 Act can be operated in accordance with those rights.’
Henry Setright QC, 4PB, who represented the safeguarder for the children, said: ‘The court’s views will be central to a considerable range of private and public law children’s cases in England and Wales, and provide critical guidance on what is a matter of current controversy.’
Andrew Powell, 4PB, who appeared as junior counsel for the safeguarder, said it would be a ‘welcome judgment among family practitioners in that it addresses the importance of sibling relationships to children and the proportionality of their inclusion in judicial consideration, including the need for them to be joined to proceedings’.
