LEGAL UPDATE
JULY 2020
1
ISSUES RELATING TO SIBLINGS
Children (Scotland) Bill 2019
On 23 June the Justice Committee unanimously agreed to remove the word “practicable” and to the
amendment from the Scottish Government on creating a duty on children’s hearings to consider
sibling contact. This represents a significant enhancement of the right of looked after children to
contact with their siblings when they are living apart.
It modifies the Children( Scotland) Act 1995, section 17, by placing a duty on the local authority to: “
take such steps to promote, on a regular basis, personal relations and direct contact between the
child and any person mentioned in subsection (1A) as appear to them to be appropriate having
regard to their duty to the child.”
The persons referred to are siblings, although the exact definition of who should be regarded as
such will be clarified at Stage 3 of the legislative process. That will decide if it includes all or some
of the current list of persons- full, half blood or foster sibling or someone with whom the child has
resided and has had a sibling like relationship.
Currently, the local authority has a similar duty in respect of people with PRRs (usually the child’s
parents) but that duty applies only where it is appropriate and practicable. This means that the new
legislation provides for siblings of a looked after child having a more unfettered right to contact with
the child that that of the child’s parents.
Recent Supreme Court Judgements
ABC (Appellant) v Principal Reporter and another (Respondents) (Scotland) In the matter of XY
(Appellant) (Scotland) [2020] UKSC 26
The judgement in these cases restated the importance of sibling relationships in the decision making
of Children’s Hearings involving looked after children and their siblings. It was found, however, that
the Article 8 rights of siblings had not been breached by them not being afforded relevant person
status. The court concluded that Article 8 did not require public authorities to give a sibling who has
not, and has not recently had, a significant involvement in the upbringing of a child the status of a
relevant person.
Background
The appeals concerned the role of two siblings (ABC and XY) of young children who were subjected
to Compulsory Supervision Orders (‘CSOs’) in children’s hearings. Both siblings sought to be
afforded “relevant person” status which conferred certain rights including access to papers,
notification of the hearing and the opportunity to make submissions. Under s.81(3) Children’s
Hearings (Scotland) Act 2011 (‘2011 Act’), a person is deemed to be a relevant person if they have
had (or recently had) significant involvement in the upbringing of the child.
ABC was the 16-year-old older brother of DEF, who was subject to a CSO. ABC was not a “deemed
relevant person” in relation to DEF. ABC appealed this decision, arguing that this was incompatible
with his Article 8 rights guaranteed by the ECHR. The Lord Ordinary dismissed ABC’s petition for
judicial review but held that the test for deemed relevant person status in s.81(3) was too narrow to
be compatible with Article 8, unless it was “read down” to include a broader range of people. The
