Human rights and Civil Legal Aid

6 October 2009

In the case of SK v Julie Paterson [2009] CSIH 76, a mother challenged the absence of state funded legal representation at a children's hearing deciding the amount of contact which she would have with her son.  A devolution issue was raised, challenging the failure of the Scottish Ministers to legislate to provide a scheme whereby state funded legal representation could be made available for a "relevant person" (such as the child's mother) attending a children's hearing.  The sheriff referred the devolution issue to the Inner House of the Court of Session. 

After the reference had been made, but before the hearing in the Inner House, the Scottish Ministers enacted amendments to the Children's Hearings (Legal Representation) (Scotland) Rules 2002.  By doing so they provided for state funded legal representation to be made available in appropriate cases to relevant persons attending a children's hearing.  The amendments proved controversial in the Scottish Parliament, principally  because of concerns about the involvement of lawyers in the children's hearing system.  The Rules were made under the negative resolution procedure and a motion to annul them was tabled. After a debate before the full Parliament, the amendments to the 2002 Rules were approved and remain in force.

When the case came before the Inner House, the judges indicated that the absence of any statutory provision entitling state-funded legal representation to be made available to relevant persons whose civil rights would be determined at a children's hearing, who would be unable, without such representation, to participate effectively during it, amounted to an inbuilt systematic flaw in the legal aid system. 

But the main live issue before the Inner House, given that amendments to the 2002 Rules had been enacted, was whether the Inner House could make a finding that the appellant's human rights had in fact been violated by the absence of availability of state funded legal representation before the Children's hearing.  The Court found that there would have been a violation of Articles 6, 8 and 14 of the Convention at the hearing under appeal if, as a matter of fact, the appellant had been unable to participate effectively.  But that was a matter of fact which fell to be determined by the sheriff, and not the Inner House.  In answering the question referred to them by the sheriff in this way, the Court accepted the arguments of the Lord Advocate and the Reporter.

The case illustrates the limits of the devolution issue reference procedure.  It is a procedure designed to assist the sheriff in determining the actual appeal before him.  For this reason the Inner House declined to answer a general question about human rights compatibility for hearings other than the particular hearing under appeal to the sheriff.  Whether Convention rights have been violated in any case by the absence of legal aid depends on the facts and circumstances of that case, including the importance of what is at stake in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself effectively.  The procedures of the Inner House for determining devolution issues do not readily fit with this type of fact finding exercise, which is one for the sheriff.    

James Wolffe QC and Anna Poole of Axiom Advocates appeared on behalf of the Lord Advocate.

http://www.scotcourts.gov.uk/opinions/2009CSIH76.html