Issue 50 August 2010 - Current Awareness: Children & parental rights
CHILDREN - Knox, Authority Reporter v S and L [2010] CSIH45
These two appeals, brought by way of stated case, give rise to the same question - whether on a proper construction of the Children (Scotland) Act 1995 (“the 1995 Act”) an unmarried father with a contact order in his favour in respect of his child is a “relevant person” in terms of s.93(2)(b),with consequent important procedural rights in respect of a Children’s Hearing held in relation to that child. S and L argued that their rights under arts 6 and 8 were infringed because they were allowed to attend such a hearing but could not be heard at it. They sought Declarations of Incompatibility.
Held: there would be a violation of art.6 if the fathers could not be heard before the Children’s Hearing. Using s.3(1) of the Human Rights Act 1998, s.93(2)(b) could be read in a way which was compatible with art.6.
(1) After ananalysis of the statutory provisions the question came to be whether a construction of the 1995Act, having the effect that an unmarried father with a contact order in his favour is not a “relevant person”, could be said to be incompatible with his art.6 and/or art.8 rights.
(2) In relation to art.6 the primary question which arises is whether,when a Children’s Hearing makes a supervision requirement providing for no contact between a child and his father (notwithstanding a contact order in his favour), it can be said to involve a determination of the father’s civil rights within the meaning of that art.6.
(3) Once granted, the orders were plainly enforceable against any party seeking to prevent their exercise. They may be lesser rights than parental rights and responsibilities, but they are nevertheless rights, and important ones at that. In particular, for an unmarried father the obtaining of a contact order is invariably an important step on the way to establishing family life. The question came to be whether, in so far as a Children’s Hearing makes an order which has the effect of preventing or limiting the exercise of contact under a contact order, it could be said to involve a determination of that civil right. It is, of course, true that a Children’s Hearing would have no power to create or to take away the right afforded by a contact order.
(4) It was well established that art.6 covers proceedings the result of which are decisive for private rights and obligations (Le Compte, Van Leuven and De Meyere v Belgium (1982) 4 EHRR 1 at para.44 and Ringeisen v Austria (1971) 1EHRR455 at para.94).That, however, does not mean that only proceedings which create or take away rights can be regarded as decisive for them. Equally, at the other end of the scale, a mere tenuous or remote connection between the outcome of proceedings and the civil right in question is not enough (see e.g.Fayed v United Kingdom (1994) 18 EHRR 393).
(5) Further, as was recently emphasised in the House of Lords in R (Wright and others) v Secretary of State forHealth [2009] 1 A.C. 739 at para.21, whereas art.6 does not ordinarily apply to proceedings in which provisional measures are taken, “[s]ome interim measures have such a clear and decisive impact upon the exercise of the civil right that Article 6(1) does apply” (Baroness Hale of Richmond). It was thus held that since the provisional listing of a care worker on a list of people considered unsuitable to work with vulnerable adults could result in irreparable damage to the person’s employment or prospects of employment, it amounted to a determination of a civil right within art.6(1).
(6) It was not suggested in the present case that the decision of the Children’s Hearings could be said to have been provisional or interim, and it could readily be said that loss of contact over any significant period could do real and possibly irreparable damage to a father’s prospects of establishing or maintaining contact, and thus family life, with his child in accordance with a contact order in his favour. In these circumstances the art.6 rights of an unmarried father with a contact order would be engaged in any Children’s Hearing which could reach a decision which would have the effect of suspending or materially restricting the exercise of the rights afforded by that order.
(7) It could not be disputed that if unmarried fathers in the position of S and L were not afforded “relevant person” status in respect of any relevant Children’s Hearing, they would not be afforded sufficient rights to enable them effectively to participate and thus to have a fair hearing in accordance with art.6.They would, in particular, not have the rights afforded to relevant persons in the Act and in the 1996 Rules. Although the Chairman of a Children’s Hearing has discretion to allow attendance under r.13(d), and this was allowed in L’s case, that would not be enough as it did not give a right to be heard.
(8) It followed that it cannot be said that, insofar as the relevant Children’s Hearings involved a determination of the civil rights of S and L, either of them was afforded a fair hearing in accordance with art.6.
(9) Having reached the conclusions on art.6 it was unnecessary to reach a decision in respect of the question of the compatibility of the provisions of the 1995 Act with art.8. However, there was no doubt that this was a more difficult matter for the unmarried fathers. First, there might be issues over whether a father might properly be said to have established family life with the child. Secondly it is plainly arguable, insofar as the 1995 Act requires an unmarried father in the position of S and L first to obtain a parental rights and responsibilities order in order to qualify as a relevant person, that while such an application could be refused, having regard, in particular, to the welfare of the child, any consequential interference with art.8 rights (in their procedural aspect) would fall to be regarded as legitimate and proportionate.
(10) Insofar as the Act, construed according to ordinary canons of construction, would be incompatible with the art.6 rights of unmarried fathers with contact orders in their favour, the question is whether the provisions of the Act can be construed in such away as to avoid that incompatibility. The duty under s.3(1) of the Human Rights Act 1998 is clear. “So far as it is possible to do so, primary legislation ... must be read and given effect in a way which is compatible with the Convention rights”. It is clear that this is a powerful tool, albeit that a meaning may not be adopted which departs substantially from a fundamental feature of an Act (see e.g. Lord Nicholls of Birkenhead in In Re S (Care Order: Implementation of Care Plan) [2002] 2A.C. 291, 313). It would be necessary to imply words by so that could be done and to make it compliant with art.6 the subsection would have to be read as: “Any parent enjoying parental responsibilities or parental rights or a right of contact in terms of a contact order under Part I of this Act”.