On 15 December 2010 the UK Supreme Court ruled unanimously that Scottish legislation which excluded an unmarried father from hearings relating to his child breached Article 8 of the European Convention on Human Rights and required reading down under the Human Rights Act. Principal Reporter (respondent) v. K. (Appellant) concerned legislation which provides for the participation of a "relevant person" in children's hearing.
The applicant K had separated from his partner JR, with whom he had a child L. Following the separation, K had maintained a relationship with L. In 2004, K applied to the Sheriff's Court to have full parental responsibilities of L. Following allegations by JR that K had abused L, a children's hearing took place in 2006. K was not allowed to attend as he was not deemed to be a "relevant person" under the legislation. In the same year the Sheriff Court made an order allowing K to participate in the proceedings on the ground that he was a "relevant person" in the children's referral. This order was later suspended in March 2009 by the Court of Session.
The UK Supreme Court found that the Sheriff's Order of October 2006 was admissible. In order to circumvent the legislation's incompatibility the ECHR, the Court ordered that the statutory provision on "relevant persons" be read down to include anyone who appeared to have established family life. The Court found that the exclusion of K from the children's hearings violated the fundamental rule of natural justice: the right to be heard. They found that any parent or person whose family life with a child was at issue before a court, must be permitted the proper opportunity to participate in the deliberation process.
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On 21 December 2010 the ECtHR ruled that German courts had failed to balance the interests of competing rights under Article 8 ECHR in Anayo v Germany, which concerned a biological father's access rights.
Mr. Anayo had been in a two-year relationship with Mrs. B, a married woman. After their relationship ended Mrs. B gave birth to twins, whom she raised with her husband. Mr. Anayo was the twins' biological father. Mr. and Mrs. B. refused Mr. Anayo requests for access to the twins.
In September 2006 Mr. Anayo was granted limited access to the twins. This decision was subsequently overruled by an appellate court. As Mr. Anayo had no established relationship with the children, the appellate court considered it irrelevant to examine whether contact between Mr. Anayo and the twins was in the children's best interest.
The ECtHR ruled that this decision breached Mr. Anayo's rights under Article 8 ECHR. They reiterated that "family life" under Article 8 is not confined to marriage-based relationships and may encompass other family ties. Nevertheless they accepted that a biological relationship without more was insufficient. Whilst agreeing that the relationship between the children and Mr. Anayo could not amount to an existing family life, they were not prepared to rule out the possibility that his intended family life with the twins attracted Article 8's protection of family life. The only reason that Mr. Anayo had not established a relationship with the twins was that Mrs. and Mr. B had refused his requests for contact. In any event, the Court was satisfied that the determination of his legal relations with the twins fell under Article 8's protection of private life.
In considering whether this interference was justified, they noted that the appellate court had refused Mr. Anayo access without examining whether this was in the twins' best interest. They accepted that there were significant competing interests between Mr. Anayo, the biological father, and the existing family ties between Mr. and Mrs. B. and their family. Nevertheless they held that the appellate court's complete failure to consider whether contact between Mr. Anayo and the twins would be in the child's best interests did not strike a balance under Article 8.