Lawyers for children in the Children’s Hearing System: An opportunity for change?

January 10th 2024

In this blog our Head of Legal Policy, Katy Nisbet and Rights In Justice Project Manager, Claire Lightowler discuss the need for lawyers for children in the Children’s Hearing System and what can be done to improve children and young people’s experiences of care and justice processes.

A child entering the formal setting of a Children’s Hearing is entering an arena where important decisions are to be made about their lives, and where there is likely to be differences of opinion about what is in their best interests. In such a setting what the child wants, needs and is entitled to can get lost amongst the views and opinions of adults.  A children’s lawyer can play an important role at a children’s hearing by advising children of their rights, listening to what they want and then using their knowledge and skills in the law to achieve this. In doing so, a lawyer for a child can help to address a power imbalance in a setting which is dominated by adults.

As a consequence, legal representation is potentially beneficial for all children in the Children’s Hearing System (CHS).  It is important, therefore, that all children are fully informed of their right to legal representation, are supported to understand what this means, and have an easy route to access legal aid. Legal representation though is of even more importance where children are referred to the CHS on offence grounds, because accepting the offence grounds can have long term consequences for children in later life, potentially appearing on disclosure checks, impacting upon jobs, college places and travel abroad. 

There can also be pressure on children to accept offence grounds, even when they didn’t commit an offence, or where there is no evidence to support it, due to those around the child seeing the Children’s Hearing as a route to accessing support. Having a lawyer in these circumstances can, therefore, be of critical importance. However, data from the Scottish Children’s Reporter Administration (SCRA) reveals that only 25% of children who are referred to the CHS on offence grounds have a lawyer (data shared with authors). 

At present children referred to a Children’s Hearing on offence grounds can instruct a lawyer and apply for legal aid to do so, provided they meet a means and merits test.  However, this is not automatic, so unlike in the criminal justice system, no lawyer is provided as a matter of course.  Further, children often do not have a full understanding of what having a lawyer means or of the consequences of accepting offence grounds. Whilst a letter and a leaflet is sent to children referred on offence grounds, which advises that a lawyer can be instructed, this is not sufficient to ensure that children are able to make an informed decision and receive any support they need to contact a lawyer if they want one.   Moreover, the current situation does not meet our international rights obligations.  

The civil protections under Article 6 of the European Convention on Human Rights [ECHR] apply to a children’s hearing context.  The following factors have been identified to determine whether the assistance of a lawyer is necessary to secure the practical and effective fulfilment of this right, of which the first three apply to the children’s hearing:  

 

  1. Importance of what is at stake for the applicant – including whether a right protected by the convention is at issue.  
  2. Complexity of the relevant law or procedure.  An offence ground still needs to be proved beyond a reasonable doubt and criminal defences are open to the child.  These are often complex to understand. 
  3. Applicants’ capacity to represent him or herself effectively 
  4. Existence of a statutory requirement to have legal representation. 

 

The rights contained in the United Nations Convention on the Rights of the Child (UNCRC), recently incorporated directly into Scots law, also apply here.  A Children’s Hearing for offence grounds can result in a conviction (for the purposes of disclosure), a criminal record and potentially a deprivation of liberty.  Article 40 therefore requires that ‘effective legal representation, free of charge’ be provided for children in these circumstances.  

Article 40 also demands that this be automatic and provided through a duty scheme so that if a decision is made to waive this right, by the child, it can be done voluntarily and under impartial supervision.  Reference to a leaflet at the bottom of the grounds of referral letter is not an adequate State response and breaches both Article 40 of the UNCRC and Article 6 of the ECHR. 

What can be done? 

The Care and Justice (Scotland) Bill, currently under consideration by the Scottish Parliament, aims to improve children and young people’s experiences of care and justice processes. There is much to be commended about the Bill which is one of several vehicles for ensuring that the Scottish Government keeps the promises it made to care experienced children and young people when it accepted all the recommendations of the independent care review. Most notably the Bill would ensure that all 16 and 17 year old children can now be referred to a Children’s Hearing on both welfare and offence grounds. At present only some 16 and 17 year olds can be referred to the Children’s Hearing System (CHS), with this not being based on their need or best interests, but on their status (i.e. whether they are on a compulsory supervision order via a previous Children’s Hearing or not). 

It would be simple to add an amendment at this stage to ensure that all children referred to the Children’s Hearing on offence grounds were automatically provided with a lawyer.  The concern some have about this is the cost to legal aid that this may incur and the capacity of the legal sector to be able to provide specialist children’s lawyers to all those who need them. However, the cost and capacity issues are not additional costs in relation to those who will be new into the system as they are already being incurred through the adult criminal justice system.   These are not new young people.

Any increase in legal representation and legal aid applications brought about by this proposed change would therefore be primarily based on the numbers of children who are currently in the CHS on offence grounds who are not currently automatically entitled to a lawyer, and who currently are not taking up the opportunity to be represented.  There are currently around 2000 children a year who are referred to a Children’s Hearing on offence grounds who do not currently have legal representation, this equates to 38 children a week (data from SCRA). 

As of the 20 Sept 2023 there were 664 solicitors registered with the Scottish Legal Aid Board to carry out work in the children’s hearing system.1  This means on average each solicitor would be required to support an additional 3 children a year based on the figures above, which suggests there is capacity in the system to cope with what is required.  

It would seem that the impact on finances and the capacity of the legal profession to cope are minimal, particularly as set against the impact on the children whose rights are being breached by not having automatic access to a lawyer when they are facing allegations of criminal behaviour.

The amendments required to the Bill are not complex, mainly involving the addition of an amendment to the Legal Aid (Scotland) Act 1986.  Thereafter changes would be required to the SCRA Practice Direction 22 – Legal Aid – and it would make sense to make these changes as part of the wider package of implementation measures associated with the Bill. We hope that consideration of the Care and Justice (Scotland) Bill includes a full examination of these issues and why they matter.