On appeal from: [2010] CSIH 5; [2009] CSOH 94

This is a case about the rights of unmarried fathers to take part in children’s hearings under the Children (Scotland) Act 1995, Pt II. It raises two distinct issues. The first concerns the kind of order made in the sheriff court which would be effective to give a father the right to take part in the children’s hearing. The second concerns the compatibility of the statutory scheme for participation in the children’s hearing with the rights of the father (and indeed the child) under the EHCR, art 8.

In unanimously allowing the appeal, the Supreme Court holds: the order made in the sheriff court was competently pronounced. While it would have been better if the sheriff had expressly referred to the relevant provisions of the 1995 Act and to the relevant parental responsibilities and rights, and to the fact that participation in the children’s hearing set the limits for the exercise of those responsibilities and rights, the order was not incompetent because he did not do so. A parent (or other person) whose family life with the child is at risk in the proceedings must be afforded a proper opportunity to take part in the decision-making process. As currently constituted the children’s hearing system violated the art 8 rights of K. The children’s hearing has to have the best and most accurate information that it can in order to make the best decisions about the child. The only justification advanced for excluding a father unless and until he secures a parental responsibilities and parental rights order from the sheriff court is to ensure that only persons who can make a meaningful contribution to the hearing are present. However, it is difficult to see how excluding a father such as K can possibly be proportionate to that aim. All fathers registered since 4 May 2006 are entitled to be present. Further, when the alleged grounds for referring the child consist almost entirely of allegations against the father, it cannot possibly be legitimate to exclude him for the purpose of restricting the numbers. The incompatibility with art 8 can be cured by inserting the words “or who appears to have established family life with the child with which the decision of a children’s hearing may interfere” into s 93(2)(b)(c) of the 1995 Act.

For judgment, please download: [2010] UKSC 56
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII