Human Rights compatibility of Child Protection Orders
21 February 2013
NJ and EH v Lord Advocate  CSOH 27 were two cases heard together in which Child Protection Orders (“CPOs”) granted by sheriffs in respect of two new born babies were found to be incompatible with Article 8 of the European Convention on Human Rights.
CPOs are typically granted as an emergency measure in order to protect children. CPOs may be granted after an application to the sheriff where a parent has not been heard. There is no provision in the sheriff court rules to allow caveats to be lodged so that CPOs cannot be granted without hearing parents first. Once granted, CPOs are by statute subject to speedy review either by the sheriff or children’s hearing, at hearings which involve parents.
Lord Brailsford found as follows:
(a) There was a lacuna in the rules of court which meant that the preliminary pleas raised by the respondents (that the petition should not be heard because there were alternative remedies which had in fact been exercised, and it was academic) had been heard along with the merits at the first hearing. Although the preliminary pleas had merit and gave grounds for substantial concern whether the petitions should be allowed to proceed, because Lord Brailsford had in any event heard the arguments on the substance of the petition, he declined to sustain the preliminary pleas.
(b) There was no violation of Article 6 due to the absence of provision to allow caveats to be lodged in respect of applications for CPOs.
(c) There was a violation of Article 8 on the facts due to the failure to involve the mothers in the initial applications for the CPOs. There was no immediate risk or threat to the babies, and a hearing could have been arranged expeditiously in the sheriff court which allowed the mothers to be heard before the CPOs were granted.
Anna Poole QC of Axiom Advocates acted on behalf of Renfrewshire Council, one of two Interested Parties in the cases.
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