Human Rights and Children’s Rights in the Scottish Children’s Hearing System

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)

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.

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.

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 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’.

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).

Legal representation

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 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.

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.

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.

Unmarried fathers

Abusive parents

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 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.

The child

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.

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.

Conclusions

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).

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.

References

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.