Human rights, legal representation and children's hearings

6 October 2010

Prior to 2009, relevant persons before children's hearings (for example parents) were not entitled to state funded legal representation when they appeared at children's hearings.  After a legal challenge (ultimately reported as SK v Paterson [2009] CSIH 76), the Scottish Ministers brought in an amendment to the Children's Hearings (Legal Representation) (Scotland) Rules 2002 (the "2002 Rules").  The amendment to the 2002 Rules was controversial in the Scottish Parliament because of fears that too many lawyers in children's hearings would damage the hearing's ethos.  The amendment was only narrowly passed, on the basis that it was required for compliance with rights under the European Convention on Human Rights.   (There are provisions to further amend the system in the Children's Hearings Bill currently before Parliament). 

The amendments in the 2002 Rules provided that in specified circumstances, not only children before children's hearings, but also relevant persons, might have representation by a lawyer paid for by the state.  The lawyer would be appointed from a list maintained by the local authority.  Directions from the Scottish Ministers indicated that only solicitors with an awareness and understanding of the ethos of the children's hearings, who were on the panels of curators or safeguarders, should be on that list. 

In Lyons v SCRA, the system of legal representation extended to relevant persons in 2009 was challenged as being incompatible with Convention rights under Articles 6, 8 and 14.  Because state funding was limited to lawyers on the list maintained by the local authority, the solicitor who had previously acted for Ms Lyons who was not on the list could not be appointed.  A learning disabled parent argued the restriction of choice was contrary to Article 6, led to her being unable to participate effectively in the children's hearing contrary to Articles 6 and 8, and was discriminatory under Article 14.   A devolution issue was raised and defended by the Lord Advocate.

The case was heard in Glasgow Sheriff court where Sheriff Ross accepted the Lord Advocate's arguments and found that the system was Convention compliant. 

Anna Poole of Axiom Advocates acted for the Lord Advocate.  James Wolffe QC, also from Axiom, and Anna, had also acted in the earlier challenge in SK v Paterson [2009] CSIH 76.