The Commissioner has welcomed the Court of Session’s ruling that a 14-year-old boy should be able to apply to participate fully in his brother’s children’s hearing.
The court ruled in the boy’s favour on Tuesday 31 July, in a case where he was represented by Clan Childlaw.
About the case
The case is one of the most significant in relation to care-experienced children for some time.
It revolved around a boy who wanted to have a say in decisions made about his brother at Children’s Hearings, but who couldn’t due to the way legislation was worded— which made it difficult for siblings and others with established family life to participate fully.
The court recognised the difficulty with the current test for who can participate as being too restrictive.
It decided that words require to be read into the definition of relevant persons to make it compatible with Article 8 of the European Convention on Human Rights .
That means that there will be new wording added to the law that makes it clear that siblings like the boy in this case are told about the children’s hearings and can apply to take part in them.
Commissioner Bruce Adamson said:
“This judgment is a significant legal step in realising the rights of care experienced children and their siblings. It recognises the importance of wider family relationships and will allow children to claim the right to participate in a sibling’s Children’s Hearing, a place where decisions are made in relation to welfare, care and contact.
“Care experienced children have the right to respect for family life and they consistently tell us that relationships with siblings are fundamental to this.
“We know that maintaining positive sibling contact can contribute to a child’s mental health and development. Where a decision is made to separate siblings, local authorities have a duty to ensure that there is regular and consistent contact so that those family bonds are not broken.
“Children’s rights are protected by several international laws, including the European Convention on Human Rights which is enforceable at domestic level. This is not the case with the United Nations Convention on the Rights of the Child and the Scottish Government must incorporate this Convention to fully ensure children in Scotland have all of their rights protected in law.
“The work of Clan Childlaw and the wider Stand Up for Siblings partnership aims to change law, policy and practice within sibling contact. Clan Childlaw are truly changing children’s lives with this case. Cases like these are powerful tools in making a difference to the lives of children across Scotland. We must ensure that children’s rights and best interests are always taken into account when decisions that affect them are made and this judgment respects the strong views children have expressed about this issue.”
Contact between brothers and sisters where one sibling is in care or where both or all siblings are in care is a huge issue.
Because of the lack of foster placements who can take sibling groups, brothers and sisters are often placed in different foster placements and some local authorities perform poorly in terms of ensuring they remain in contact.