Legal rights in the children’s hearings system: evolution or revolution?

By placing the children’s hearings system within its historical context, this thesis shows how the children’s hearings system has been able to accommodate an increased focus on the protection and promotion of legal rights in Scots law. By analysing the archived papers from the Kilbrandon Committee and parliamentary debates in relation to the Social Work (Scotland) Act 1968, I argue that legal rights were incorporated into the children’s hearings system at the outset, albeit based on an understanding of legal rights that was more limited than we would have today. The inclusion of legal rights within the children’s hearings system at the outset has enabled the system to evolve in more recent years to respond to a more expansive understanding and application of the legal rights of children and their families without a fundamental alteration to the Kilbrandon principles on which the children’s hearings system is based. However, this evolution to greater protection and promotion of legal rights means that the modern-day children’s hearings system is more legally technical than was constructed by its early architects. While ultimately the technicality does not detract from the principles on which the children’s hearings system was based it does call for more attention and skill from both children’s panel members and children’s reporters in application of the various provisions underpinning the operation of the system to ensure that respect for legal rights is experienced by children and their families involved in the children’s hearings system. The original contribution to knowledge I make in this thesis is the analysis of legal rights within the children’s hearings system from a historical perspective. This research adds to the existing body of knowledge by placing the children’s hearings system in its historical context and demonstrating that although the greater emphasis on legal rights within Scots law has required the children’s hearings system to evolve, the construction of the system at the outset has enabled this evolution to happen whilst retaining the fundamental principles on which it was based.By placing the children’s hearings system within its historical context, this thesis shows how the children’s hearings system has been able to accommodate an increased focus on the protection and promotion of legal rights in Scots law. By analysing the archived papers from the Kilbrandon Committee and parliamentary debates in relation to the Social Work (Scotland) Act 1968, I argue that legal rights were incorporated into the children’s hearings system at the outset, albeit based on an understanding of legal rights that was more limited than we would have today. The inclusion of legal rights within the children’s hearings system at the outset has enabled the system to evolve in more recent years to respond to a more expansive understanding and application of the legal rights of children and their families without a fundamental alteration to the Kilbrandon principles on which the children’s hearings system is based. However, this evolution to greater protection and promotion of legal rights means that the modern-day children’s hearings system is more legally technical than was constructed by its early architects. While ultimately the technicality does not detract from the principles on which the children’s hearings system was based it does call for more attention and skill from both children’s panel members and children’s reporters in application of the various provisions underpinning the operation of the system to ensure that respect for legal rights is experienced by children and their families involved in the children’s hearings system. The original contribution to knowledge I make in this thesis is the analysis of legal rights within the children’s hearings system from a historical perspective. This research adds to the existing body of knowledge by placing the children’s hearings system in its historical context and demonstrating that although the greater emphasis on legal rights within Scots law has required the children’s hearings system to evolve, the construction of the system at the outset has enabled this evolution to happen whilst retaining the fundamental principles on which it was based