Legal representation in the Scottish Children’s Hearing System

In 1968 the Kilbrandon report detailed a system of panels for dealing with ‘juvenile delinquency’ which became the foundation for the Scottish Children’s Hearings System (CHS) in Scotland. The CHS makes decisions and recommendations about children where professionals feel compulsory measures of supervision may be necessary for the child’s wellbeing. Compulsory measures of supervision may be a helpful response to many serious issues in a child’s life, including failure to attend school, parental abuse or neglect, or criminal behaviour. As a result, almost all criminal and care and protection cases for children in Scotland up to the age of 18 are heard by the CHS. The CHS has wide-ranging powers, including the ability to dismiss charges or allegations, remove children from their parents, and mandate compulsory measures of supervision. Each hearing is presided over by a panel of three lay people who have undergone relevant training, this panel makes decisions based on the principle of the best interests of the child. Despite being a tribunal making legally enforceable decisions it has, until recently, been relatively uncommon for legal representation to be present in a hearing except in a minority of cases where there was a requirement that the child is represented by a lawyer (eg when secure care is being considered). Parents and relevant others have always been able to bring legal representation to a hearing, but following recent successful legal challenges regarding the right to representation, financial aid has been made available to parents and relevant other’s wishing to appoint a lawyer. This has led to an increase in legal representation in children’s hearings. Objective: This research was commissioned by the Scottish Legal Aid Board to examine the role of legal representatives in the children’s hearings process. In particular, in relation to the ethos of the hearings, the performance of lawyers/solicitors, monitoring and feedback mechanisms, and training needs of lawyers/solicitors to participate effectively in the hearings. Methods: A mixed methods approach was utilised, in order to gather a wide range of information. This included surveys made available to all solicitors, social workers, reporters and panel members involved in CHS, focus groups with samples from these same populations, interviews with children, and representatives from outside of the formal CHS system. Results: The introduction of financial aid and corresponding increase in the legal presence in the CHS has produced mixed results. While respondents were careful not to over-generalise regarding the performance of lawyers/solicitors, there were concerns regarding: the introduction of an adversarial style; a change in emphasis away from the best interests of the child and towards the rights of the parent(s); the introduction of delay into proceedings; a lack of understanding of child development, communication and attachment; and disruption of social workers’ relationships with the family. Conclusion: Legal representation in lay-tribunals such as the CHS can present challenges. Training of solicitors in child development and other topics, the introduction of a compulsory scheme of pre-registration training, and ongoing inter-agency training to facilitate all parties’ understandings of different roles could be helpful