Grandparent’s Rights: Children’s Hearing Appeal J and S.Y. (MH) 

The Appellant in this case was grandmother to 2 children who were had been placed in foster care under a Child Protection Order and subsequently under a Supervision Order. The grandmother was appealing against a decision by the Children’s Hearing to i) refuse to consider her a ‘relevant person’ in terms of s93(2) of the Children (Scotland) Act 1995 and ii) to order that she was to have no contact with the children.

Generally speaking a relevant person is defined as:- 

         i.     any parent enjoying parental responsibilities or parental rights in terms;

        ii.     any other person in whom parental responsibilities or rights are vested; or

        iii.     any person who appears to be a person who ordinarily (and other than by reason only of his employment) has charge of, or control over, the child

(s93(2) 1995 Act)

Such a person is entitled to attend and make representations at the Children’s Hearing on behalf of the child concerned. Furthermore under Section 51(1) of the 1995 Act only a ‘relevant person’ has a right of appeal against a decision of the Children’s Hearing.

The grandmother in this case, who had a contact order to see the children on a supervised monthly basis, was invited to attend the Hearing but the Children’s Hearing decided that the grandmother’s limited contact with the children was not sufficient for her to be considered a ‘relevant person’ in terms of the Act.

The solicitor representing the grandmother argued on appeal that the refusal of the Children’s Hearing to consider the grandmother a ‘relevant person’ meant that she had been denied a fair hearing on the issue of contact with her grandchildren. The full papers presented at the hearing were not made available to her (including reports about her alleged behaviour and relationship status) and therefore she was not able to properly prepare for the Hearing to address the issues raised.

Her solicitor also argued that the fact the grandmother had a contact order in place meant that (although she did not exercise ‘parental rights and responsibilities’) she had nonetheless exercised a civil right and was therefore entitled to the protection of Article 6 (right to a fair hearing) of the European Convention of Human Rights (under s3 of the UK Human Rights Act).

Reliance was placed upon the case of Authority Reporter v S 2010 SLT 765 where the courts decided that an unmarried father (who did not have parental rights and responsibilities but did have a contact order in his favour) had acquired a civil right and in the determination of this civil right (to contact) he was entitled to a fair hearing under Article 6 of the ECHR. The court also went on to say that it was the court’s duty under the Human Rights Act to read the definition of ‘relevant person’ in s93 of the Children (Scotland) Act 1995 in such a way to be compatible with the Article 6 right to a fair hearing.

The Scottish Children’s Reporter and the Safeguarder of the children in question both argued that the grandmother was not a ‘relevant person’ however the court agreed with the submissions put forward on behalf of the grandmother and with the reasoning in the Authority Reporter v S case. In doing so the court decided that the grandmother should have been given relevant person status and therefore did have a right of appeal of the Children’s Hearing decision in terms of Article 51 of the 1995 Act. As to the actual issue of contact with the grandchildren; this was remitted back to the Children’s Hearing for reconsideration.

For the full judgement please see Children's Hearing Appeal J and S.Y (MH)

Children’s Hearing Appeal J and S.Y. (MH), Dumbarton Sheriff Court, 3rd November 2010 (Sheriff Pender)