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Effective participation?

15 March 10

A reply to Professor Norrie questions the efficacy and human rights compatibility of the regulations covering legal representation to relevant persons in the children's hearing system

by Karen McGill, Lindsey Reynolds

The purpose of the Children’s Hearings (Legal Representation) Amendment Rules 2009, as Professor Norrie points out in his article “Hearing and speaking” (Journal, January, 16), is to ensure that each participant’s point of view is expressed effectively and taken into account. However the rules came into force on 4 June 2009 without prior consultation and are viewed by some as a hasty solution to the challenges raised in K v Authority Reporter 2009 SLT 1019. The writers are not convinced that the new scheme achieves the goal of effective participation, or that it complies with article 6 of the European Convention on Human Rights.

Article 6

Professor Norrie concludes that the interim scheme of legal representatives for relevant persons will “consist with” article 6. However the Inner House in K v Authority Reporter reached no such conclusion, stating at para 54: “it is important to make clear that the hearing before this court, has not involved the court scrutinising the provisions of the 2009 Regulations… this opinion should not be read as amounting to the expression of any concluded opinion that the 2009 Regulations have corrected any incompatibility between statutory provisions relating to the children’s hearing scheme that were in force on 6 February 2008… and articles 6, 8 and 14 of the Convention”.

The European Court of Human Rights has held that the concepts of equality of arms and the sense of a fair balance between parties, apply to civil as well as to criminal proceedings (Dombo Beheer BV v Netherlands (1993) 18 EHRR 213). Whilst it is acknowledged that children’s hearings are intended to be inquisitorial, when the effect of a decision may be permanently to separate a parent and child, proceedings can become adversarial in nature. When such a grave decision regarding the private and family life of the child and relevant person is taken, it is submitted that effective participation and representation is essential.

Ineffective participation

Effective participation cannot be achieved by rules which fail to take into account the distinct roles of solicitor and of curator ad litem which are recognised by other courts and tribunals. The assessment of capacity determines whether someone is capable of instructing representation or, if they are not, whether an appointment of a curator ad litem ought to be made. This principle does not underpin the criteria for appointment under the new rule 3B, whilst rule 3A does not distinguish the role of the solicitor representing a relevant person with capacity from the specialist role of the curator ad litem.

The duty of the curator ad litem is to exercise judgment independently in order to protect and safeguard the interests of the person incapable of doing so themselves (Macphail, Sheriff Court Practice, para 4.24). The duty is fundamentally distinct from the duty of a solicitor to advise a client and act upon instructions. The solicitor cannot act as a representative to a person without capacity to instruct.

Effective representation of a person who does have capacity is also hard to envisage under the regulations. The appointed representative receives a flat rate of £200 preparation and attendance at a new hearing and £80 for subsequent review hearings. The representative is appointed at a business meeting or by the hearing, and is required to receive the relevant reports not later than three days before the hearing. They are unlikely to have sufficient time or funding to prepare. They will often meet the client for the first time on the day of the hearing. In complex cases, which ought to receive the scrutiny of expert psychiatric, psychological or social work reports, there is no funding available for the representative to instruct these reports. For those appointed to relevant persons lacking capacity, independent enquiry may be crucial. Under these conditions, a legal representative is prevented from offering effective representation.

The relevant person has no free choice of solicitor. Legal aid under the advice and assistance scheme is available for advice but not for attendance at a hearing. This could result in a situation whereby a new face is appointed to represent the person at the hearing, as opposed to the solicitor who may have previously advised the person and built up knowledge of the case over time. Crucially the advising solicitor may also have developed a working relationship with a very vulnerable client.

This two tier system of representation creates a further lack of clarity as to which solicitor would be in a position to take forward an appeal to the sheriff. The appointed legal representative may not be in a position to access funding for an appeal, but it would be open to the relevant person to approach that representative with a view to applying for legal aid and instructing an appeal. The relevant person may however prefer to instruct the advising solicitor to appeal, but that solicitor, whilst having more involvement in the background to the case, would be prejudiced by not having attended the hearing. Neither option is open to a person without capacity to instruct, who is effectively deprived of the right to appeal by the current regulations.

Appointment of representatives

The system of appointment of the representative is an extension of the scheme which was already in operation for children. Under rule 5 of the Children’s Hearings (Legal Representation) (Scotland) Rules 2002, where the hearing appoints a legal representative the local authority makes arrangements for them to attend a hearing. The requirements for appointment are that a representative must have a current practising certificate and must already be appointed to the panel of safeguarders or curators ad litem to children. These criteria continue to apply regardless of whether the legal representative is appointed to a child or to a relevant person.

Accordingly, solicitors who practise exclusively in the field of mental health, most of whom are on the list of safeguarders under the Adults with Incapacity (Scotland) Act 2000 and are appointed as curators ad litem to patients before the mental health tribunal and to litigants lacking capacity in sheriff court proceedings, are not eligible to apply for appointment to the list, despite having relevant expertise. This calls into question the openness, legitimacy and effectiveness of the list.

There are concerns about a system whereby rather than holding an open, public recruitment process, an existing list has been inappropriately retained. The 2009 Regulations fail to amend rule 5 to take account of the very different needs of an adult relevant person to those of a child. By retaining the existing list, the scheme appoints representatives who come from a background, training and perhaps philosophy of representing the interests of the child, but often have little or no experience of working with parents with complex needs due to mental ill health or learning disability.

Where the business meeting or children’s hearing appoints a legal representative, under rule 5 it is the local authority and not the hearing which then nominates the individual representative. Whilst the local authority is reimbursed by the Scottish Government, the local authority will exercise control over the available funding and will presumably monitor and scrutinise the accounts submitted by the representative. Analogously, curators ad litem to patients appearing before the mental health tribunal, in a similarly inquisitorial process, are funded by the independent tribunal, and expressly not by the local authority or health board which has an interest in the detention and treatment of the patient. Whilst the writers have no reason to question the professionalism of individual solicitors appointed, representatives must also be impartial from an objective viewpoint.

Case for revision

Solicitors have, for many years, been plugging the gap identified in K v Authority Reporter, by offering pro bono representation to some relevant persons. A hearing must balance the rights of all those appearing before it whilst ensuring that child centred decisions are made.

The role of the solicitor at a hearing has historically been regarded as a backward step in striking that balance. The Children’s Hearings (Legal Representation) Amendment Rules 2009 are a much welcomed acknowledgment that in some cases state funded representation is essential if a fair hearing is to be achieved. The best interests of the child at a children’s hearing can only be fairly determined if effective representation of vulnerable relevant persons is achieved. The rules, as they stand, do not respect the rights of a relevant person without capacity to instruct a legal representative, and the representation offered to those with such capacity is wholly inadequate and ineffective.

  • Karen McGill is a partner and Lindsey Reynolds an associate at the Mental Health Legal Representation Project at LSA, Glasgow

Children’s Hearings Bill: good in parts

The writers are encouraged to note that the Children’s Hearings (Scotland) Bill was introduced on 23 February 2010. If enacted, it may authorise ministers to make regulations to resolve some of the issues outlined in this article. Paragraph 440 of the accompanying policy memorandum concurs with Professor Norrie’s view that the current scheme complies with the ECHR requirements. However the memorandum acknowledges that the scheme has significant limitations, in particular the fact that the local authority is currently responsible for finding and funding legal representation.

The bill proposes to amend the Legal Aid (Scotland) Act 1986. Children’s legal aid for court proceedings would continue to be available, with the responsibility for applying the merits and means test transferring from the sheriff to the Scottish Legal Aid Board.

The bill would allow further regulations to be made to extend or restrict the availability of children’s legal aid to relevant persons before the children’s hearing. If such regulations are then made, there would be a statutory duty upon SLAB to be satisfied that the relevant person will only be able to effectively participate in the proceedings if he or she is legally represented, taking into account the assistance which may be afforded by an accompanying person. The policy memorandum and explanatory notes suggest that the Government does propose to extend existing regulations to enable a relevant person to instruct a solicitor; however this would be achieved via extension of ABWOR regulations.

The bill is an important acknowledgment of the difficulties with the current scheme. However if enacted in its present form it still leaves uncertainty as to the availability of legal aid to relevant persons with capacity to instruct a solicitor, as this would require further regulations. The interpretation of the criteria to be applied in assessing eligibility in practice remains unclear. The bill in its current format entirely fails to address the needs of relevant persons without capacity to instruct a solicitor. Meeting the aim of achieving effective representation for vulnerable relevant persons must be a priority for the Scottish Parliament as it considers the new bill, and whilst the new scheme is being developed, vulnerable relevant persons continue to be denied effective participation.

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