The Supreme Court confirmed that Article 8 imposes both negative and positive obligations on the State, meaning it must not interfere in family life without justification, and it must take positive steps to maintain and develop family ties, always having regard to the best interests of the child. Everyone has the right to respect for “family life”, including with siblings, which is protected by Article 8 of the European Convention on Human Rights and Article 16 of the United Nations Convention on the Rights of the Child. 

in June 2020 the UK Supreme Court expressly recognised the Article 8 rights of siblings in two Scottish court cases, ABC v Principal Reporter and In the matter of XY which concerned sibling participation in children’s hearings. The Supreme Court confirmed that Article 8 imposes both negative and positive obligations on the State, meaning it must not interfere in family life without justification, and it must take positive steps to maintain and develop family ties, always having regard to the best interests of the child.

From 26th July 2021 local authorities have a new legal duty to keep siblings together, if appropriate (The Looked After Children (Scotland) Amendment Regulations 2021 which make changes to the The Looked After Children (Scotland) Regulations 2009). 

Local authorities, when considering placing a child with a kinship carer, with a foster carer or in a residential establishment, and any sibling of the child is already looked after or about to be looked after, must, where appropriate, place the siblings together or near each other.

The preference should be living together whenever that’s safe. The alternative of homes near each other is only for situations where the local authority is satisfied that would better safeguard and promote the child’s welfare than placing them in the same home.

In deciding if any placement is appropriate the local authority must be satisfied that it safeguards and promotes the welfare of the child which is the paramount consideration.

A sibling is defined in the Regulations as:

1. a person who has at least one parent in common with the child, and
2. any other person with whom the child has lived or is living, and with whom the child has an ongoing relationship with the character of a relationship between siblings.

New duty on local authorities to promote contact with siblings
From 26^th July 2021, local authorities in Scotland must take such steps to promote, on a regular basis, personal relations and direct (i.e. face-to-face) contact between the child and their siblings as appear to the local authority to be appropriate, having regard to its duty to the child to safeguard and promote its welfare (section 13 of the Children (Scotland) Act 2020). 

This duty applies both where the children (or child and older adult sibling as the case may be) have at least one parent in common, and where the child and another person have lived together and have an ongoing relationship with the character of a relationship between siblings.

New duty on Children’s Hearings to consider contact with siblings
A children’s hearing or sheriff, when making, varying or continuing a Compulsory Supervision Order, must consider contact between the child and their siblings and anyone else with whom the child has lived and with whom the child has an ongoing relationship with the character of a relationship between siblings (Section 14 of the Children (Scotland) Act 2020 which amends s29A Children’s Hearing (Scotland) Act 2011).

When making decisions about a looked after child, the local authority has a duty to ascertain the views of the child, his parents (or anyone else with parental rights) and any other person whose views the local authority consider to be relevant to the matter to be decided (Section 17(3) Children (Scotland) Act 1995). From 26^th July 2021 the local authority must also ascertain the views of siblings and people in the child’s life who are like siblings (section 13 of the Children (Scotland) Act 2020 amends section 17(3)) . The local authority must have regard to those views, so far as practicable (Section 17(4) Children (Scotland) Act 1995). 

From 26th July 2021, there is a new category of participation rights in Children’s Hearings which give siblings who do not have relevant person status the opportunity to participate in their brother or sister’s Children’s Hearing (section 25 of The Children’s Hearings (Scotland) Act 2011).

New rules of procedure for Children’s Hearings set out four criteria a person must fulfil to become a ‘person afforded the opportunity to participate’ (see  (Rules of Procedure in Children’s Hearings) Amendment Rules 2021.).

An individual will be able to take part if:

• they are living/have lived with the child;
• they have an ongoing relationship with the character of a relationship between siblings (whether or not they have a parent in common);
• the Hearing is likely to make a decision significantly affecting contact or the possibility of contact between them and the child; and
• they are capable of forming a view on contact.

If a sibling becomes a person afforded the opportunity to participate, they will have these rights (set out in s25 of the Children (Scotland) Act 2020):

• the right to be notified of the Hearing;
• the right to provide a report or other document to the Hearing;
• the right to be provided with documents specified in the rules;
• authorisation to attend (part of) the Hearing;
• the right to be represented at the Hearing;
• the right to seek review of a decision after 3 months.

There is also a new review process to rectify situations where a brother or sister should have been able to participate but wasn’t.

These changes to the rules in Children’s Hearings follow the Supreme Court judgment in June 2020 in ACB and XY (read more about the cases here).