Human Rights and Children’s Rights in the Scottish Children’s Hearings System
This chapter discusses the challenges that one institution, the Scottish Children’s Hearings System, has faced and may face in the future as a result of the incorporation of the European Convention on Human Rights (ECHR) into UK law by the passage of the Human Rights Act 1998. This is viewed in the context of the additional commitment to the UN Convention on Rights of the Child (UNCRC), to which the UK has subscribed since November 1989. The narrative reveals that the Scottish system that has developed over 35 years has had to accommodate changed thinking about children’s rights in relation to other family rights, which are given different prominence under the two conventions. Some issues and tensions remain as Children’s Hearings seek to do justice to children and parents, substantially within a less formal setting than that of a court. The requirement to achieve a balance between the human rights of children and other parties has salience beyond the Scottish case.
The European Convention on Human Rights (ECHR)
The UK Human Rights Act 1998 applies the provisions of the ECHR 1950 to domestic law. The ECHR is part of the extensive progeny of the Universal Declaration of Human Rights, passed in 1948, in the aftermath of the Second World War as a response to the abuses perpetrated by totalitarian governments and to secure the individual freedoms that had been fought for. While children are equally entitled to benefit from almost all of the rights set out in the Declaration and the ECHR, few children and young people have (understandably) taken advantage of the rights and related processes, with the consequence that emphasis has, in practical terms, been placed on the parents’ rights to due process and to protection from interference in family life, rather than the child’s. In many cases the rights of parents and children will converge; parents might well be viewed as the defenders of the child and family against the forms of totalitarianism that these documents were designed to address. Today, while the role of parental rights in defending family life is not to be trivialised, they must in appropriate situations be balanced against the rights of the child. There is now greater recognition that it cannot always be taken on trust that parents will unerringly protect and care for their children. Increasing evidence of parental abuse and neglect in recent years has required some rethinking of the sanctity of the private sphere.
The rights of the child and the need of the child for protection, sometimes from parents, are a central focus of the UNCRC. While this does not have the same status in UK law as the ECHR, the European Court of Human Rights has come to regard it as a common standard to guide the interpretation of child-related law, since all European governments subscribe to the principles of the UNCRC. This mitigates what has been perceived as the parental focus of the ECHR (Lockyer 1999). So, how do these concerns fit in with the principles and philosophy of the Children’s Hearings System?
The Kilbrandon principles
The Kilbrandon Commission, whose report led to the establishment of the Children’s Hearings System, reported in 1964, chronologically between the adoption of the two conventions. The remit of the Committee was:
To consider the provisions of the law of Scotland relating to the treatment of juvenile delinquents and juveniles in need of care or protection or beyond parental control and, in particular, the constitution, powers and procedure of the courts dealing with such juveniles, and to report. (Kilbrandon 1964)
A primary aim was to reduce, and ideally eliminate, juvenile delinquency (para. 12). The Committee considered that, if prevention was to be effective, it must focus on the ongoing needs of the individual child, rather than on a one-off punishment (Lockyer and Stone 1998). This approach created a bridge between the treatment of those who had offended and those requiring care and protection for other reasons. This common approach to both sets of initiating concerns was further supported by an examination of the personal and family situations out of which the concerns arose. The report identified the following as the ‘basic problem’:
In terms of the treatment measures to be applied, the children appearing before the courts, whatever the precise circumstances in which they do so, show a basic similarity of underlying situation. The distinguishing factor is their common need for special measures of education and training, the normal upbringing processes for whatever reason having failed or fallen short. (Kilbrandon 1964, para. 15)
Thus, while there were at that time two court-based processes, focusing separately on offending and welfare issues, Kilbrandon was arguing that the treatment required for both classes of subject was the same. Young offenders and children presenting as in need of care and protection both needed ‘educational’ measures that would require the co-operation of parents, whose own behaviour might well have fallen short of what was expected. Kilbrandon therefore proposed to replace the two court-based processes that dealt separately with cases arising out of offending by the child, and the need for care and protection, with a unified system embracing both sources of concern as grounds for appropriate and similar ‘treatment’.
The Children’s Hearings System that was proposed would require the co-operation of parents to further its ‘educational’ approach. It was recognised that the element of compulsion could involve great inroads into family life and the liberty of the individual, and potential charges of ‘unjustified interference’ in the relationship between parent and child (paras 76, 111). The ‘compulsion’ was, however, focused on the child. Kilbrandon considered, and concluded against, imposition of compulsion or punitive measures on parents, on the basis that these would be both inappropriate and ineffective.
While conjoining the types of proceedings, Kilbrandon introduces the major innovation of institutionally separating the adjudication of proof from the disposal decision. The former was to be decided by the sheriff (a Scottish judge) and the latter – the ‘measures to be applied’ – by a lay panel. Proceedings before the panel would ‘rarely raise legal issues’ (para. 98). Thus the panel did not need to have the formal character or procedure of a court. Questions of justice that did arise could be addressed by an appeal to the sheriff. Parents should have the right to be legally represented before the sheriff (children’s rights are not mentioned) and legal aid should be available for that purpose (para. 116).
The independence of panel members would be secured through their appointment by a sheriff from a list submitted by the education authority. The independence of the ‘Reporter’ to the panel would be safeguarded by allocating to the sheriff authority to appoint and remove. It was recognised that this Reporter should also be demonstrably ‘impartial’, on the model of the public prosecutor (who is independent of the police). It should be noted here that the focus was on the Reporter’s independence and impartiality in relation to the referring authorities (generally, police and social education), rather than the panel. It was envisaged that the Reporter would advise on such few legal issues as arose at the Hearing and would present the panel’s case before the sheriff where there were disputed issues of fact, or appeals (para. 100). So a close association between Reporter and panel was in mind.
The Kilbrandon Committee recognised the need to keep attendance at Children’s Hearings to the minimum required for effective functioning, in order to facilitate a ‘full, free and unhurried discussion’. The three panel members, the Reporter and a clerical assistant would be present, as well as the child and his or her parents and the director of social education or one of his staff (para. 109). Emphasis was placed upon the involvement of both parents and child; although the report says that it might be appropriate in some cases for the child and parents to be seen independently of each other (para. 108). The emphasis throughout was that Hearings should be relatively informal and aim at seeking the co-operation of all parties.
Kilbrandon implementation and the ECHR
The recommendations of the Kilbrandon Committee, with a few exceptions, were largely those given effect by the Social Work Scotland Act 1968, which still forms the basis of the system in place today under the Children (Scotland) Act 1995.
It could be said that Kilbrandon was already taking account of some of the concerns of the ECHR, certainly with regard to parents’ rights, even though the convention was not specifically referred to. The Kilbrandon Report acknowledges that there are justice implications in a potentially open-ended ‘educative’ process, involving some compulsory intervention in family life. These were more complex than affixing a punishment to crime, which could more easily be assessed on some objective scale of proportionality and have a definite point of termination. The report rejects the suggestion of fining parents for children’s offences or requiring them to make compulsory restitution (paras 30–33) since this is not likely to enjoin their cooperation. However, attendance of parents at their child’s Hearing is to be expected and required. There was to be a presumption that in ‘the great majority of cases’ children should ‘remain within the home’ where ‘the most powerful and direct influences lie’ (para. 17).
The ECHR’s perceived focus on parents and family is consistent with the philosophy of the Kilbrandon Report, which speaks of the rights of parents rather than children to appeal decisions (para. 116), identifies the antagonists in any debate about unjustified interference in family life as the parents and the state (para. 111), and refers to the virtually complete lack of rights and responsibilities adhering to children under the age of puberty (para. 67). (Apart from criminal responsibility, of course. A paradox that remains.)
Nevertheless, Kilbrandon inches towards the protective function of the rights of the child in its recognition of the desirability in some cases of the Hearing seeing children and parents apart from each other, despite its perception that the numbers of children in need of care and protection from their parents would not be numerous.
With respect to children’s rights it could be said that the Social Work (Scotland) Act 1968 took them a stage further. It did not unambiguously explicitly state the right of the child to attend the Hearing, although some consider this was implied (Kearney 2000). However, the right of appeal was afforded to both parent and child; and, importantly, the criterion for referral to the panel was not the ‘public interest’ but the child’s need for compulsory measures of care.
In 1975, the potential for a conflict of interest between child and parent was explicitly recognised by insertion into the Act of a power of the Hearing to appoint a person to safeguard the interests of the child in the proceedings, where these might conflict with those of the parent. However, this was not implemented until 1985 and there was no presumption that the provision ought always to be used when such a conflict was identified (Lockyer 1994).
It seems that the interests and rights of children as individuals were gaining a higher profile with the march of time and experience. There was also increasing recourse to the language of rights and the prospect of rights-based challenges. Thus it is interesting to note that Kilbrandon referred to the possibility of seeing the child and parents separately, almost as a practical matter, without any indication that this might raise questions of human rights for either of them. There is a case to be made that the Hearings System at its inception was some way ahead of the ECHR with respect to children’s rights, even though it reflected the parental focus of family rights in common with the European convention.
Human rights challenges to the Children’s Hearings System
The following paragraphs set out some of the human rights challenges that have arisen since the introduction of the Children’s Hearings System, arranged thematically, together with some relevant current debates and lingering questions.
To begin with it should be acknowledged that many of the pressures and trends that have affected the Scottish system during its 35 years have been driven by social changes and political responses more than provoked by issues of rights. Both the increasing number of care and protection referrals and concerns that these have taken precedence over dealing with persistent offending have led to demands for change. The growing complexity of cases and the requirement to measure effectiveness have developed alongside worry about the impact of crime, family breakdown and the proportionality of interventionist measures. There is currently an impetus towards a greater separation of care and protection from dealing with offenders that is linked with these concerns.
What is evident is that there remains an important human rights dimension to how Children’s Hearings go about their business. As we have already seen, Kilbrandon identified and tried to address issues of justice and welfare, many of which had implications for the rights of family members. The challenges to the system that have emerged are in many of the areas that Kilbrandon anticipated.
The following discussion examines more closely some questions that have arisen under these headings, upon which the ECHR has a direct bearing. The most relevant articles of the ECHR are: Article 5, concerned with the right to liberty and security; Article 6, concerned with the right to a fair trial; and Article 8, concerned with the right to respect for family and private life. Some questions have actually given rise to legal challenges and some represent potential challenges that might in future require adjudication.
The adequacy of judicial scrutiny
Article 5 requires that the lawfulness of proceedings for any detention be decided speedily by a ‘court’.
Kilbrandon considered that recourse to the sheriff would satisfy the requirement for judicial scrutiny. Some of the questions that subsequently arose on this issue were taken into account in the provisions of the Children (Scotland) Act 1995, in line with the government’s stated intention to base that law on the two pillars of the ECHR and the UNCRC (Scotland’s Children 1993).
European cases dealing with mental health patients and with the parole of discretionary life prisoners had given rise to questions about whether the place of safety order procedure under the 1968 Act satisfied the requirements of Article 5. In terms of that Act, a Children’s Hearing would meet on the ‘first lawful day’ after the child’s detention in a place of safety to ‘consider the case’ and decide whether further detention was necessary. But the Hearing was not a ‘court’ in respect that: (a) the Hearing had no power to hear evidence or adjudicate on disputed facts or law; and (b) its procedures did not meet the requirement of ‘equality of arms’, in that there is no guarantee of legal representation or entitlement to access reports.
In the run-up to the Children (Scotland) Act 1995, various suggestions were put forward to address this concern (Scottish Office 1993). One option was to make the Children’s Hearing more like a ‘court’. This was rejected as inconsistent with the fundamental character of the Hearing. Instead, Section 60(7) of the 1995 Act was introduced to allow child, parents and identified others to apply to the sheriff to have the new child protection order set aside or varied; thus providing a real and quick recourse to a proper ‘court’.
There remains a question about the relevance of Article 5 to secure accommodation authorisations attached to supervision requirements. The condition may be appealed to the sheriff in terms of Section 51 of the 1995 Act, but it does not benefit from a ‘fast track’ procedure in the same way as an appeal against a warrant does; Section 51(8) says appeals against warrants must be disposed of within three days. Should there be a speedy procedure for appeals against secure authorisations too?
Procedures for more general appeals from the Hearing to the sheriff were also considered vulnerable. First, this was because sheriffs had interpreted their appellate function narrowly, as a mechanism for reviewing the legality of the Hearing’s decision-making process, rather than as a rehearing of the merits with the possibility of a substitution of their decision (Kearney 2000). The second reason was that appeals before the sheriff also suffered from the lack of ‘equality of arms’ because of the inability of parents and child to have access to reports before the court.
The question of the restricted appellate function of the sheriff was addressed by Section 51(c)(iii) of the Children (Scotland) Act 1995, which permitted the sheriff allowing an appeal to ‘substitute for the disposal by the children’s Hearing any requirement which could be imposed by them’ under Section 70 of this Act. This had the potential for blurring Kilbrandon’s distinction between the legal forum that adjudicated on facts and the Hearing that decided on treatment; but it does not appear to have made a great impact in practice (Norrie 1995).
Access to reports
The question of the availability of reports is relevant primarily to Article 6 of the ECHR, which guarantees the entitlement to a fair trial (which may be civil or criminal in character). The question was brought to a head by the case of McMichael v. UK, which came to judgment in 1995. The European Court of Human Rights concluded that the parents’ lack of access to reports within the Children’s Hearing and associated processes undermined the fairness of that civil ‘trial’ (McMichael v. UK 1995).
The subsequent amendment of the Children’s Hearing (Scotland) Rules to make reports available to parents or ‘relevant persons’ concluded the matter as regards parents arguably too generously, but left it dangling as regards the children who were the focus of the proceedings. This lack was the subject of debate in the more recent case of S v. Principal Reporter and the Lord Advocate (para. 38), during which an assurance was given that the deficit would be remedied by introduction of procedures to make reports available to children and young people, subject to some kind of ‘sifting’ to ensure that no inappropriate information was given to them. This procedure has now been put in place.
Article 6 is also relevant to legal representation. The question of the availability of free legal representation was central to S v. Principal Reporter and the Lord Advocate, a case involving an alleged offence by a 15-year-old. Article 6 was invoked because, as indicated above, the right to a fair ‘trial’ includes the determination of civil rights and obligations, such as those relating to interference in family life. However, there was a debate about whether Article 6 applied to this case in its civil or criminal aspect. If the procedure where by the grounds of referral to the Hearing were put to the child and family, and accepted or denied at the Hearing, was classified as the determination of a criminal charge, this would bring in those parts of Article 6 that were specific to criminal charges – in particular Article 6(3), requiring the availability of legal assistance and the opportunity to examine witnesses, and so on. Further, these standards would have to be met within the Hearing itself. It would not be sufficient to rely upon the possibility of recourse to the sheriff. However, the court decided that, while consideration of a criminal offence was clearly involved, S was not ‘charged’ with it at the Hearing, and it was not a criminal process because there was no penal element in the disposals available to the Hearing. Nevertheless, other provisions of Article 6 applied.
It was accepted that the fairness of the proceedings in terms of Article 6.1 could be determined with reference not only to what went on at the Children’s Hearing, but to the court processes to which the participants had access, as Kilbrandon had envisaged (S v. Principal Reporter and the Lord Advocate para. 38). However, the court concluded that the lack of legal representation at the Children’s Hearing adversely affected the ability of the child to influence the outcome of the Hearing and therefore breached Article 6.1. This did not mean that legal representation had to be available in all cases, but it should at least be possible in those cases where it was in the interests of justice to do so. This matter was remedied by the Children’s Hearings (Legal Representation) (Scotland) Rules (dated 2002).
The issues of access to reports and the availability of legal representation were linked in respect that supplying information to children would often be an ‘empty gesture’ if they did not have help to interpret and use it (S v. Principal Reporter and the Lord Advocate, paras 37, 66, 74).
The whole debate about Article 6 is relevant in terms of the development of the Children’s Hearings System and indeed any alternatives to traditional criminal procedures. Article 40.3 of the UNCRC encourages states to develop laws and procedures specific to child offenders, including ‘whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected’.
Taken together with Article 6.3 of the ECHR, this means that extra-judicial procedures must always respect Article 6.1 of the ECHR, even if they focus on welfare rather than punishment. If penal measures are included, then the more formal and stringent requirements of Article 6.3 must also be factored in.
Impartiality of the Reporter
The impartiality of the Reporter has also been called into question. It has been suggested that the Reporter’s dual role in bringing the case to the Hearing and advising the panel is analogous to what would happen if the Procurator Fiscal, having brought the case to a district court, then advised the magistrate what to do. The problem here is that, viewed in the context of the model of ‘equality of arms’, it is not always clear who is fighting whom. The answer seems to depend upon the stage of the process under consideration. Kilbrandon had considered the impartiality question at the stage of the presentation of the case to the panel. Here the battle may be seen to be between the referring authorities (police and ‘social education’) and the family. On this view, the Reporter is an independent presenter of the case and also able to give impartial advice to the Hearing on any legal issues that arise.
However, let us look more closely at the different stages. First, at the stage when the Hearing puts the grounds of referral to the family, the Reporter’s impartiality might be questioned. It is the Reporter who brings the case to the Hearing, since social workers or police have a duty only to investigate and report; it is the Reporter’s judgement that there is a sufficiency of evidence to prove the grounds and also that the child might require compulsory measures of supervision. Norrie (2000) has rightly pointed out that this role of adviser is not conferred by law, but in practice advice is sought and given. It is also exactly what Kilbrandon envisaged (Kilbrandon 1964, para. 100).
Second, at the stage of proof of the grounds before the sheriff, as Norrie agrees, ‘the reporter is certainly the opponent’ (Norrie 2000, p.21). This does not, it seems, disqualify the Reporter from advising the sheriff on whether the child would benefit from having independent representation, or that a safeguarder might be needed to act in the child’s interests, advice that sheriffs apparently recognise as disinterested (Hill et al. 2002, Chapter 6).
At the third stage of Hearing’s disposal decision, Norrie argues that:
the reporter has an entirely disinterested position so far as the outcome is concerned. It is the local authority (through the social work department) who is trying to persuade the hearing to adopt the recommendation that they make and if the child has an ‘opponent’ it is this body. (Norrie 2000, p.21)
It seems doubtful that the professional independence of the Children’s Reporter is sufficient to guarantee his or her impartiality at all stages of the Hearings process. Suffice to say that it is especially important for the lay Hearing chair to be competent in matters of procedure, especially at the stage prior to proof (Lockyer 1999).
Anyone reading the law reports will notice the extent to which allegations of delay have been used in support of claims of breach of convention rights in criminal cases. With regard to children, there has been judicial acknowledgement of the particular need to bring offenders under 16 to trial swiftly (Craig Garry Cook v. HMA 2000). In child welfare cases too there has for some time been recognition of the adverse impact of delay; a principle built in to the Children Act 1989 for England and Wales, but not as explicit in the Scottish legislation. The Children’s Hearings System has acknowledged the need to deal with cases expeditiously through the Blueprint for the Processing of Children’s Hearing Cases. The question of whether other parties are adversely affected was discussed in an Inner House Court of Session case on 26 June 2003 (EC and Mrs MC v. Alan D. Miller, Principal Reporter). This was concerned with serious offences alleged to have been committed against children by their father. For various reasons, the establishment of grounds was subject to considerable delay. The court was subsequently asked to find that the applicant’s human rights under Article 6 had been breached, and that the sheriff’s establishment of the grounds should be rescinded. There were many complex issues raised in this case; as regards delay, Lord Osborne observed:
Having regard to the purpose of such proceedings as these…we have the greatest difficulty in accepting that a reduction of the sheriff’s decision, at the instance of a party who is not the child whose welfare is sought to be promoted in the proceedings, could ever be appropriate where the nature of the complaint was unreasonable delay. If indeed in such proceedings, the human rights of some other individual or individuals, such as the appellants, had been shown to have been breached, it appears to us that any remedy to be granted would require to avoid undermining the primary purpose of the proceedings themselves. (EC and Mrs MC v. Alan D. Miller, Principal Reporter. Opinion of the court delivered by Lord Osborne, para. 97)
He concluded that, while an award of damages might appropriately be pursued in other proceedings, the interests of children would not be served by reduction of the finding.
Human rights and parties to proceedings
One of the major areas of dubiety and possible contention for the Children’s Hearings System relates most closely to Article 8 of the ECHR, which is concerned with respect for family and private life.
Kilbrandon had envisaged the attendance at Hearings of parents (or guardians) and children. But family structures have become much more complex since the 1960s, with a large increase in non-marital relationships, which comes together with the increase in child protection cases. This raises a range of issues that relate both to who should be entitled to be considered parties to the Children’s Hearing proceeding and what rights this entails.
Before addressing the question of whether Article 8 has been breached, courts have to consider whether the question of ‘family life’ is relevant. The European Court of Human Rights has dealt extensively with this issue, and approaches it on the basis of whether de facto family ties exist. In some cases they might exist even where there is no legal relationship between the parties. Thus the Court held that family life might exist in a case involving an uncle and his nephew, who had been taken into care, on the basis of their close ties. It did not come to a conclusion because the case moved to a ‘friendly settlement’ (Boyle v. the UK 1994). On the other hand, it has spoken about the potential for the bond of family life between child and parent to be broken, even where the child was the product of a marital union and parental responsibility existed. However, this would be the case only in exceptional circumstances (Gul v. Switzerland 1996, paras 32–43).
In the Children’s Hearings System, the right of attendance of family members other than the child since the 1995 Act has related to the definition of ‘relevant persons’. The definition in the Act is slippery (Norrie 1995, 36.5); it includes those having parental responsibilities or rights, and anyone who, it appears, ‘ordinarily’ has charge of or control over the child, other than by reason only of his employment. Other persons with something to contribute may be invited to attend at the chairman’s discretion, but this is far short of the standing of a ‘relevant person’, which is a powerful status. ‘Relevant persons’ have a right to attend Hearings, to accept or reject the grounds, to appeal, to call for reviews, and to receive all the information that is presented to the panel members. So let us look at how that applies to some people who may, or may not, be regarded as ‘relevant’ in the more colloquial sense of the word.
European jurisprudence does not insist on the recognition of unmarried fathers, on the basis that no common standard yet exists between member states. The issue was raised in the McMichael case, where the Court recognised legal arrangements seeking to allow identification of ‘meritorious’ fathers from among the spectrum of possible relationships involved. However, given the shifting pattern of family relationships, this is something that may change, as the Court operates on a principle of ‘evolutive interpretation’ in which it allows itself the latitude to develop its interpretations in line with changing circumstances. Many unmarried fathers in Scotland will sometimes of course fall within that part of the definition of ‘relevant persons’ relating to ‘ordinary’ charge or control over the child. As for others, under the 1998 Act the rights and responsibilities of unmarried fathers are largely at the discretion of mothers (4.1). This has been viewed as contrary to UNCRC Article 18, placing common responsibilities on both parents, and ECHR Article 14 against sexual discrimination (Norrie 1997). The Scottish Parliament recently amended the law to extend parental rights and responsibilities to those unmarried fathers who, after 4 May, 2006, register the birth of their child jointly with the mother (Family Law (Scotland) Act 2006). This will go some way towards addressing these concerns.
A few years ago, the Herald contained an article by Ruth Wishart headed, ‘When Two Human Rights Make an Inhuman Wrong’ (Wishart 2001). She described a Children’s Hearing case in which an abusive father insisted on his human right to attend and to deny the ground of referral. Even though the Hearing saw the parties separately, as far as the child victim was concerned, ‘the thought of her father’s proximity was so devastating she threatened suicide’. She was also disturbed at the thought that all the papers relating to the case were sent to Peterhead Prison where her father was now residing. The article refers to the father’s ‘inalienable right’ to be consulted and involved in decisions about his child’s future, and asks where that leaves the rights of the child.
Of course, parental rights are not truly ‘inalienable’. The courts are well accustomed to removing or restricting parental rights. One might argue that, just as the courts are now prepared to award parental responsibilities and rights to allow an unmarried father to attend a Hearing, so they should be willing to entertain applications to restrict them in order to keep an abusive ‘relevant person’ away.
On the other hand, those alleged to have committed offences against children, including allegedly abusive fathers where there has been no conviction, might have a real interest in the proceedings without any right to be involved. If they are not ‘relevant persons’, and the grounds are accepted by the child and mother, there appears to be no forum in which to challenge it. That does not seem right and could constitute a breach of Article 6.
Other ‘relevant persons’
A ‘relevant’ person might be the temporary partner of the principal carer who for a time has the ‘ordinary’ charge or control of the child. This raises the question of what length of contact and degree of attachment is required to obtain this legal standing in relation to a child’s affairs. The Children (Scotland) Act 1995 does provide a mechanism whereby, in cases of doubt, the ‘relevance’ of a person can be discussed at a ‘business meeting’ of panel members prior to a Hearing. It is important to note that ‘relevant person’ is so powerful a position that it should not be conferred lightly.
A particular instance of this is the relatively recent extension of the status of ‘relevant person’ to some foster carers; a determination facilitated by the case of Ewan Cameron in February 2002, in which foster carers were successful in claiming that status. I understand that, on the back of that decision, informal guidance has advised on the length of time before foster carers might generally be considered as ‘relevant persons’.
It may seem fair to regard long-term foster carers as ‘relevant persons’, even though the Fostering of Children (Scotland) Regulations 1996 define ‘fostering’ as the placement of a child with someone who is not a ‘relevant person’. However, if this category is extended too far, it may breach the rights to privacy of the child and natural parents by allowing someone with a relatively short involvement to have access to all the information about the family, and a very strong status in the proceedings. It may well be helpful to invite such people to attend, and perhaps the intimation provision relating to appeals (the issue at stake in this case) could be extended, but to call them ‘relevant persons’ – a dangerously innocuous phrase – runs the risk of breaching Article 8.
There has been a growing recognition of the participatory rights of children within the Scottish system. From the outset it could be argued that Children’s Hearings were ahead of their time in enjoining the participation of children in advance of adopting the UNCRC (Lockyer and Stone 1998). The formal entitlements of children have continued to expand. As already referred to, children now have a right to attend most decision-making fora and a carefully circumscribed right to receive information. They also have a right to have a legal representative present when critical matters, such as their liberty, are at stake. There may still be questions about how we make their participation real and effective.
An issue that relates to the opportunity that children have to express their views is the extent to which these may be given in confidence. There is something of a paradox, in terms of the current rules, that the child’s views cannot be kept confidentially from relevant persons at a Children’s Hearing, but can if the case reaches the sheriff. The Children (Scotland) Act 1995 permits the exclusion of relevant persons and their representatives from parts of the Hearing to allow the child to speak more freely. However, the excluded persons must, on their return, be told the substance of what the child has said (Section 46). Further, all reports to the Hearing, including any written by the child, must be passed on to the ‘relevant persons’. On the other hand, the rules of court allow the child’s confidential views to be put in a sealed envelope, available only to the sheriff (Sheriff Court Child Care and Maintenance Rules 3.5(4) 1997). Sheriff Kearney (2000) points out the problems this can raise in the context of the law of evidence.
This is a classic instance of a clash between the right of children to privacy, and perhaps protection, and the rights of parents that were upheld (without reference it should be said to children’s rights) in the McMichael case. Whether a challenge along the lines of McMichael would be successful depends upon the extent to which the court would be willing to balance the human rights of the parents in terms of Articles 6 and 8 with those of the child.
With respect to the general question of the relationship between the Children’s Hearings System and the ECHR it can be concluded that the interpretation of the Convention and the development of the System have converged. Both were creatures of their time, each started out with greater explicit focus on the rights of parents rather than those of children. The implicit recognition of the rights of children was present to a greater extent from the inception of the Hearings System in the 1960s than was evident in the 1950 Convention, in immediate post-war Europe. These rights have become more explicit as the System has embraced the UNCRC, which has also influenced the application of the ECHR. The Human Rights Act has required UK jurisdictions to give greater formal recognition to human rights, and this has led to changes to the Children’s Hearings System.
This has not, however, been matched by an updating of the actual content of the ECHR alongside the revision of Scottish law, which has gradually given more explicit recognition to the rights of the child. Therefore the capacity of the ECHR to embrace the rights of the child fully is dependent upon the extent to which those interpreting and applying it are willing to promote the ‘evolutive interpretation’ of the Convention in that direction.
Even if this process were proceeding in an acceptable way, there would be considerable merit in revising the ECHR in the light of the UNCRC. The basic concepts about justice, fairness and equality of arms embedded in the ECHR envisage equal entitlements, which overlook the relative disadvantage and the particular needs of children. This is because the extension of human rights to children requires recognition of their special status – some rights are peculiar to children.
As for the actual or threatened changes to the purpose of the Children’s Hearings, these seem to have come about as a reaction to pragmatic considerations and political imperatives. Recalling the debates about whether Article 6 applied to the Hearing in its civil or criminal aspect, one must remember that the decisive factor in saying it was not criminal was the lack of a punitive element. If a punitive element is integrated into the Hearings System, then it must become more like a real court.
One of the most difficult issues identified above is the question of the entitlement of parties to participate in Hearings. This is much more than a matter of procedure: it goes to the heart of who are to be considered ‘family members’ with rights and duties relating to children, and what impact this has on children and their rights to privacy. The status of ‘relevant persons’ is the Scottish form of a universal issue, which goes far beyond the entitlement to participate in judicial or quasi-judicial proceedings. Even though other jurisdictions can avoid the problem of relevant parties by treating young offenders as individuals outwith the context of their families, it re-emerges not only in care and protection proceedings, but in all those contexts where families have to be conceptualised, or ‘constructed’, to determine who may enjoy family rights. As adults appear to exercise greater freedom of choice in constructing familial relations it seems reasonable to give children a greater say as to who are persons ‘relevant’ to them.
This chapter has not sought to differentiate between Hearings by grounds for referral. The finding in the important case of S v. Principal Reporter and the Lord Advocate means that the human rights of parties in the proceedings are essentially the same (even though the standard of proof differs between offences and care and protection grounds).
The relevance of human rights to the issue of separate or conjoined systems seems to be this: human rights are basically about human dignity, which requires that a person be regarded as whole and not as a package of separable ‘issues’. This was a central insight of Kilbrandon, and one that we are today in danger of losing. It seems nonsensical to divide children and young people up into their offending parts and their developmental parts.
There is a lot of talk today about the need for ‘joined-up government’, but there is little point if governments are not directed towards the ‘joined-up child’. All we will have done is to shift the locus of fragmentation. We have come to adopt the saying that the child is not merely an ‘object of concern’ – neither is he or she a separable bundle of concerns. It is all one, and so it should remain.
Boyle v. The UK (1994) A 282-B, Application 16580/90.
Craig Garry Cook v. HMA Sheriff Court, 21 August 2000.
EC and Mrs MC v. Alan D. Miller, Principal Reporter. Inner House, Court of Session, 26 June 2003 (Scottish Courts Website). Opinion of the Court delivered by Lord Osborne.
Gul v. Switzerland. 1996-I, 159.
Hill, M., Lockyer, A., Batchelor, S., Morton, P. and Scott, J. (2002) Safeguarding Children’s Interests in Welfare Proceedings. Scottish Executive CRU and EYPRU Publications, www.scotland.gov.uk/cru and www.scotland.gov.uk/edru.
JS and TK v. MN and Ewan Cameron. Inner House, Court of Session, 8 February 2002 (Scottish Courts website).
Kearney, B. (2000) Children’s Hearings and the Sheriff Court (2nd edn) Edinburgh: Butterworths.
Kilbrandon, Lord (1964) Children and Young Persons. Edinburgh: Scottish Office.
Lockyer, A. (1994) ‘Interests and Advocacy: Identifying the role of Safeguarders in the Scottish Children’s Hearings System.’ Children and Society 8, 1, 55–68.
Lockyer, A. (1999) ‘The impact of the European Convention on Human Rights on the Children’s Hearings System.’ In B. Reid (ed) Facing the Future: Challenges of the 21st Century. Glasgow: Glasgow University, CPT publication.
Lockyer, A. and Stone, F.H. (1998) Juvenile Justice in Scotland: Twenty-five Years of the Welfare Approach. Edinburgh: T & T Clark.
McMichael v. United Kingdom. 24 February 1995, A 307-B; 20 EHRR 20.
Norrie, K. (1995) Children (Scotland) Act 1995. Edinburgh: W. Green/Sweet & Maxwell.
Norrie, K. (1997) Children’s Hearings in Scotland. Edinburgh: W. Green/Sweet & Maxwell.
Norrie, K. (2000) ‘Human Rights Challenges to the Children’s Hearings System.’ Journal of the Law Society of Scotland (LSJ) 45, 4, April.
S v. the Principal Reporter and the Lord Advocate. Scottish Courts website. (Also reported as S v. Miller 2001 SLT 531.
Scotland’s Children: Proposals for Child Care Policy and Law (1993) (White Paper) Cmnd 2286. Edinburgh: HMSO.
Scottish Office (1993) Consultative Proposal on Emergency Protection of Children in Scotland.
Wishart, R. (2001) ‘When Two Human Rights make an Inhuman Wrong.’ Herald, 1 November.