Relevant Persons - Supreme Court Judgment
On 15 December 2010, the UK Supreme Court delivered its judgment in the case of Principal Reporter (Respondent) v K (Appellant) and others which relates to the right of unmarried fathers to take part in Children’s Hearings. The judgment focuses on the definition of relevant person in the Children (Scotland) Act 1995 and whether the definition is compatible with the European Convention on Human Rights.
You can view the full judgment or a summary.
This judgment has a number of implications for Reporters and our partners.
The Supreme Court determined that the definition of relevant person in section 93(2)(b)(c) of the 95 Act (any person who ordinarily has charge of, or control over, the child) should be read so as to include the words ‘or who appears to have established family life with the child with which the decision of a children’s hearing may interfere’.
The judgment means that some unmarried fathers who have not previously been regarded as meeting the statutory definition of relevant person in the 1995 Act will now be relevant persons.
The existence of family life in terms of Article 8 is essentially a question of fact that requires to be assessed in each case and depends upon the real existence of close personal ties or the potential for close personal ties.
Fathers who were living with the mother when the child was born, or were registered as the child’s father prior to 4 May 2006 or who are having contact with the child, whether by court order or by voluntary arrangement, will normally meet the test of having established family life. This is not an exhaustive list.
Non-parents, in particular grandparents and other near relatives, may also have Article 8 procedural rights which require to be protected. However in many such situations the participation of each parent and the child in the Children’s Hearing will adequately protect the Article 8 rights of relatives.
Malcolm Schaffer, SCRA’s Head of Practice and Policy said: “We welcome the judgment in terms of its content and direction, and we particularly welcome the clarity it gives us to apply the law and to ensure it is applied consistently and fairly.”
SCRA has taken steps to inform Reporters about the judgment.
Malcolm added: “On the day the judgment was delivered, SCRA issued Practice Instruction to all our Reporters advising them of the decision and of its immediate and significant impact on Reporter practice. In particular, Reporters were instructed that fathers who have established family life with the child, should now be regarded as relevant persons with immediate effect.
“Reporters were also instructed that other people who are not the child’s parents, such as grandparents or other near relatives, may also meet the definition of relevant person if they have established family life with which the Children’s Hearing may interfere.”
Partners are asked to be alert to the issue of which persons might now be ‘relevant persons’ in relation to a child when providing information to the reporter, both in relation to any new cases and in relation to current cases where the new definition of relevant person may now apply.
Partners are reminded that following the cases of Knox v S and L v Ritchie, any parent with a contact order is a relevant person under section 93(2)(b)(a) of the 95 Act. Reporters regard a non-parent with a contact order as a relevant person if a Children’s Hearing is likely to interfere with the exercise of the contact order (H v Docherty).
