All children should be able to see their brothers and sisters— to have sibling contact. But in Scotland this often doesn’t happen when children are in care or in adoptive or permanent fostering.
At the moment the Scottish Parliament is considering the Children (Scotland) Bill, which will make it clear in domestic law that children who are looked after have the right to maintain contact with their siblings and place a duty on councils to support them to do so. But sibling contact is already a right implied by laws that extend beyond Scotland.
What are a child’s rights to sibling contact in the UNCRC?
The UN Convention on the Rights of the Child (UNCRC) makes it very clear that the state should make sure that – as far as possible – children can grow up in a family environment.
Sometimes this can’t happen, however. When a child can’t live with their family, their right to family life should still be respected, as should the relationships that are important to them.
Articles of the UNCRC that highlight this include:
- Article 3, which says that courts should prioritise children’s best interests when making decisions about them.
- Article 8, which says that states should respect the right of a child to preserve certain aspects of their identity, including their family relations.
- Article 16, which says that no child should be subjected to arbitrary or unlawful interference with their family.
What are a child’s rights to sibling contact in the European Convention on Human Rights?
At the moment, the UNCRC hasn’t been incorporated into Scots law, which means if a person or organisation doesn’t follow it in Scotland they can’t be challenged in a court.
But there are other human rights instruments that have legal force in our country, and the concept of respect for family life – and the rights associated with this – appears in these as well.
Particularly important is the European Convention on Human Rights (ECHR), which has legal force in the 47 Member States of the Council of Europe.
Article 8 of the ECHR sets out the right to respect for family life, and it’s incorporated into law across the whole UK through the Human Rights Act. It applies to everyone in the UK, including children and young people.
There’s no standard definition of what a family is under international human rights law, but the European Court of Human Rights has confirmed family life can exist between siblings.
Families aren’t just about parents
If we ask children and young people about their families, they won’t just speak about their parents. They’ll talk about their brothers and sisters as well— and maybe their aunties, uncles, cousins and grandparents.
But there’s a special bond between siblings. Relationships between them are important and lifelong, and they can be vital for promoting good mental health and for a person’s sense of identity well into adulthood.
The law – like many adults – makes distinctions between full siblings, half siblings and step siblings or other children who live in their home, but many children don’t see any difference: they are all just their brothers and sisters.
We know from research that failure to support contact with siblings means there’s less chance of achieving a safe, stable and permanent home for that child.
Guidelines on sibling contact for children in alternative care
The United Nations has issued Guidelines for the Alternative Care of Children .
These state that siblings that have existing bonds shouldn’t be separated when in alternative care unless:
- there’s a clear risk of abuse, or
- there’s another justification for separation that’s in the best interests of the child.
In cases where siblings can’t have contact, they should have as much information as possible about the reasons for this, and as much information as possible about where their siblings are.