Human rights, legal representation and children's hearings

25 March 2011

The Axiom news item of 6 October 2010 reported a case (AL v SCRA) in which the Children's Hearings (Legal Representation) (Scotland) Rules 2002 (the "2002 Rules") were found to be compatible with the European Convention on Human Rights. 

A further case was subsequently brought challenging Convention compatibility of the 2002 Rules.  It was argued that the system in the 2002 Rules, which provides for representation by panel solicitors as opposed to a lawyer of choice, resulted in a violation of Convention rights.  The appellant was the same SK as the appellant in SK v Paterson [2009] CSIH 76.  That case had led to a change in the law to provide for legal representation before the children's hearing, in the form of amendments to the 2002 Rules.  But the appellant did not like the system that was adopted in the 2002 Rules.  She wanted to be able to choose her lawyer, rather than having a panel lawyer appointed to her.  She challenged children's hearings conducted with appointed legal representatives present as violating her Convention rights.   Sheriff O'Carroll, sitting at Paisley Sheriff Court, found in a decision of 23 March 2011 that SK's Convention rights had not been violated.

The system in the 2002 Rules will be further amended when the relevant parts of the Children's Hearing (Scotland) Act 2011 and associated secondary legislation come into force.   

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