The Supreme Court handed down judgment in the case of the Principal Reporter v K and Others (Scotland) [2010] UKSC 56 on 15th December 2010. This case raised two distinct issues. The first related to the kind of order made in the sheriff court which would be competent to give a father the right to take part in such a children’s hearing. The second concerned the compatibility of the present scheme with the rights of the father under the European Convention on Human Rights.

The respondent K was the unmarried father of a child L, and had enjoyed residential contact rights with her until he was accused of having sexually abused L, at which point contact was stopped. The police having concluded that there was insufficient evidence to support the allegation, a sheriff’s interlocutor was granted affording K status of a “relevant person within the meaning of section 93(2)(b) of the Children (Scotland) Act 1995. This was later suspended, alleging that the interlocutor had been incompetently made, and a children’s hearing was held but K was not allowed to attend on the basis that he was a not K appealed on this ground, arguing that the provisions of the 1995 Act should be read and given effect in a way that was compatible with his rights under Articles 6 and 8 of the European Convention on Human Rights.

The Court found that the defect in the sheriff's interlocutor was one of specification, not one of substance. He had not referred to section 1(1), section 2(1), nor to section 11(2) of the 1995 Act, had not set out those parental rights and parental responsibilities that were relevant in K's case, nor had he referred to participation in the children's hearing as setting the limits within which the parental responsibilities and parental rights could have been exercised. There was nothing in the wording of the interlocutor itself which suggested that the sheriff had not addressed his mind to the overarching principles when he pronounced his interlocutor, and if anything, the second and third parts of it suggested to the contrary. There had not been a sound basis for the First Division's view that the sheriff had failed to apply the overarching principles but, in any event, failure to apply the correct principles when making an order, while it might well have been a ground for appeal, would not normally have rendered the order incompetent.

Article 8 of the European Convention on Human Rights required that it be established that father and child had a family life together, and that a public authority had interfered with the right to respect for his family life. Any court which regulated or restricted the “mutual enjoyment of each other's company” which “constitutes a fundamental element of family life” would amount to an interference. The Convention imposed positive procedural obligations to enable parents to play a proper part in the decision-making process before the authorities interfered in their family life with their children. The justifications for interfering with family life needed to be kept separate from the justifications for excluding the father from the decision-making process at a crucial stage. Such justification as there was would fall within the overall aim of protecting 'health or morals', 'rights and freedoms of others', and the interests of the child concerned. A parent whose family life with the child was at risk in the proceedings had to be afforded a proper opportunity to take part in that process.

There was no dispute that K had enjoyed a family life with L and that the public authority had interfered with the right to respect for that family life. The decision of a children's hearing to impose a supervision requirement empowering a public authority to intervene in the child's life would constitute an interference with its family life. The children's hearing had to have the best and most accurate information possible in order to make the best decisions about the child, and everyone was deprived of that information if findings of fact were made by agreement without the participation of the very person whose conduct was in question.

Allowing the appeal, the Supreme Court upheld the declaratory relief granted by the Court of Appeal. The children's hearing system in Scotland was held to be in violation of art. 8 of the European Convention on Human Rights, but this could be cured by inserting into section 93(2)(b)(c) of the Children (Scotland) Act 1995 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 Court finally made a finding that K is a “relevant person” within the meaning of the Act as so read.