The terminology of the Convention, with its demands for a “fair trial”, “adversarial proceedings”, “equality of arms” and all the rest ill fits the philosophy upon which the children’s hearing system is based. But it would be error to assume that the system will have to change radically before it can be said to be consistent with the ECHR. The Convention is more concerned with the essence of the law rather than its terminology, and the question is whether the essence of the children’s hearing system is in any way inconsistent with the fundamental rights protected by the ECHR.
Once the Human Rights Act 1998 is fully in force, it will become possible to attack the system itself and not just, as before, its application. How robust the system is in face of these attacks (which will be inevitable) will indicate how well-placed our pride in the system actually was. For the starting point has to be to accept, as the Government accepted when it introduced the Human Rights Act 1998, that everyone is entitled to have protected those rights guaranteed under the ECHR. If the children’s hearing system infringes these rights, for example by not ensuring a “fair trial”, then it is wholly right and proper that the system be changed, for Scotland’s children deserve to be treated fairly.
Right to family life (article 8)
The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and measures hindering such enjoyment amount to an interference with the right protected by article 8 (Johansen v Norway (1997) 23 EHRR 33 at para 52). But interference with the right is not an infringement of the article unless the interference is without justification. So the issue under article 8 is whether the interference that a supervision requirement (or, earlier, a warrant or a child protection order) necessarily constitutes is justified by being “necessary in a democratic society” (article 6(2)). The ECHR has time and again emphasised that the concept of “necessity in a democratic society” carries with it at least two notions: a legitimate aim in taking the measures, and proportionality between the aim sought to be achieved, and the means adopted for its achievement.
There is little doubt that the protection of a child from harm or the furthering of a child’s welfare is a legitimate aim for state intervention in the child’s life. The real issue is whether the means adopted are proportionate to the aim sought to be achieved. In assessing proportionality the ECHR has often held that permanent deprivation from the child and parent of each other’s company is such a significant interference with the right to respect for family life that it can only be justified in exceptional circumstances, when motivated by an overriding requirement pertaining to the child’s best interests (Johansen v Norway at para 78).
Temporary care is less significant an interference and so can be justified in less exceptional circumstances. However, because of the risk that temporary care might become effectively permanent care, measures of implementation of temporary care must be consistent with the ultimate aim of reuniting parent with child. (Johansen, ibid.). Total prohibition of contact between parent and child will normally be considered to be inconsistent with eventual reunion and so will constitute a breach of article 8 unless in exceptional circumstances. In Andersson v Sweden (1992) 14 EHRR 615 the Swedish authorities prohibited all contact between a child in public care and his mother, because the two plotted together for the “escape” of the child. But they went too far in forbidding even telephone contact for over 18 months. That was disproportionate to the legitimate aim.
The effect of the Human Rights Act 1998 will be to focus minds rather more clearly than before on the justification for compulsory state intervention and decisions will have to be made which reflect that new focus. So for example s.16(3) of the Children (Scotland) Act 1995 provides that children’s hearings and sheriffs must not interfere with family life unless they consider it would be better for the child to do so than not to do so. Section 3 of the Human Rights Act 1998 will require hearings and sheriffs to interpret the no order principle to mean that a child can be subjected to compulsory measures of supervision only when such intervention is proportionate to the aim sought to be achieved, and that measures, such as restrictions on contact, which are inconsistent with eventual reunion of the family are better for the child only if the circumstances are exceptional.
Right to a fair trial: article 6
Article 6(1) guarantees to everyone a right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. This applies to a determination of civil rights and obligations and to a determination of any criminal charge, which is wide enough to cover all children’s hearings, whatever the ground of referral. When the grounds of referral are that the child has committed a criminal offence the hearing is, for the purposes of the ECHR, a criminal procedure (so bringing in various subsidiary rights, such as the right to defend oneself, listed in art 6(2) and (3)). While it is obvious that the child who appears before a children’s hearing has a right to a fair trial, it should not be forgotten that, since parents have a civil right to determine where their children are to live and the hearing has the power to interfere with the exercise of that right, the parent too has a right to a fair trial before the hearing. So again there needs to be a shift in focus away from regarding the child’s welfare as paramount and towards balancing that concept with the parents’ rights.
The right to a fair trial encompasses a number of different elements.
An independent tribunal
In order to establish whether a tribunal can be considered as “independent” regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressure and the question of whether the body presents an appearance of independence. As to the question of “impartiality” there are two aspects to this requirement. First the tribunal must be subjectively free of personal prejudice or bias. Secondly it must also be impartial from an objective viewpoint, that is it must offer sufficient guarantees to exclude any legitimate doubt in this respect (Findlay v UK (1997) 24 EHRR 221 at para 73). Appointment of tribunal members by the executive is not necessarily problematic (Sramek v Austria (1984) 7 EHRR 351) so long as there is sufficient protection against removal.
Panel members are appointed by the First Minister, but may be removed by him only with consent of the Lord President (Tribunals and Inquiries Act 1992, s. 7). In Starrs v Ruxton 2000 SLT 42 temporary sheriffs were held to be not independent because of their potential motivation for advancement and their dependency on the executive for reappointment. Neither consideration applies to panel members and it is likely that hearings will be able to withstand challenges to their independence.
However, implicit in the concept of “tribunal” is a power to make binding decisions (Bentham v Netherlands (1985) 8 EHRR 1). While most decisions a children’s hearing makes are binding, there is one that is merely permissive - the authorisation granted under s.70(9) of the Children (Scotland) Act 1995 to place the child in secure accommodation. Whether or not the child will actually be placed there depends upon the decision of the chief social work officer in conjunction with the manager of the unit. There is no tribunal which makes this decision at which the child can plead his or her case and from whose decision there is a right of appeal. The child’s civil right of liberty is, therefore, being determined in the absence of an independent tribunal. The placing of a child in secure accommodation is, it would seem, an infringement of article 6.
Equality of Arms
One of the most important aspects of a fair trial is the notion of equality of arms and the right to adversarial proceedings. The right to an adversarial trial means the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party (Ruiz-Mateos v Spain (1993) 16 EHRR 505 at para 63). It was breach of this principle that had to be conceded in McMichael v UK (1995) 20 EHRR 205, and which led to a change in the law in respect of making available to parents the papers that are available to the children’s hearing. However, since both the parents and the child are equally entitled to a fair hearing and to equality of arms, the failure to extend the right to receive reports to the child him or herself is probably an infringement of article 6.
Legal representation and Legal Aid
Article 6(3)(c) requires that a person accused of a criminal offence be afforded the right to defend him or herself, personally or with legal assistance, and that legal aid be provided whenever the interests of justice require. Legal representation is also implicit in the concept of a fair trial protected by article 6(1) and so applicable in civil cases as well as criminal cases (Airey v Ireland (1979) 2 EHRR 305). Whether the state is obliged to provide legal aid is dependent on the complexity of the case and the severity of the penalty at stake (Benham v UK (1996) 22 EHRR 293). The justification for legal representation is two-fold: (i) it is essential for “equality of arms” purposes and (ii) it allows the lawyer to act as “watchdog of procedural regularity” (Ensslin v FRG (1978) 14 DR 64 at para 114). Whether the ground of referral is that the child has committed a criminal offence or not, is that child in a position of equality with his or her opponent in arguing his or her case before the hearing? If not, then legal representation is indicated. Is there any person independent of the process by which the child was brought to a hearing who can act as a “procedural watchdog”? If not, then legal representation is indicated. The failure to provide paid legal representation at hearings may well amount to a breach of article 6.
Any challenge to the system on this basis is, given the resources implications, likely to be vigorously defended. What arguments might be used to defend the present position?
- First, legal aid is available on appeal, and the ECHR accepts that informality of procedure at tribunals can be cured if the appeal process is consistent with the Convention and the appeal court has full control over the outcome (Le Compte, Van Leuven & De Meyere v Belgium (1981) 4 EHRR 1 and De Cubber v Belgium (1984) 7 EHRR 236). This argument, however, does not work if the original tribunal has draconian powers (for in such cases individuals are entitled to a first instance tribunal that fully meets the requirements of article 6: Findlay v UK (1997) 24 EHRR 221). And in any case it will not work when the Human Rights Act 1998 comes into force, for under that Act all “public authorities” must act consistently with the ECHR, and s.6 defines “public authorities” to include all courts and tribunals and not just those at the appeal stage.
- Secondly, it might be argued that the children’s hearing does not deal with complex points of law, but with the discretionary assessment of what is in the child’s best interests. This argument is partly true but not decisive since complex legal issues do sometimes arise, and often unexpectedly - such as to the meaning of a ground of referral, whether the child’s response amounts to an acceptance thereof, and as to which of the various warrants are appropriate in a particular circumstance.
- Thirdly, some might argue that the nature of the hearing is such that the lawyer can fulfil little helpful role. The hearing has to decide what is in the best interests of the child; the lawyer’s role would be to represent the client’s wishes, not his or her welfare. This argument, too, is bad since the whole point of the hearing is to allow the child to take an effective part in it in order that his or her welfare can be properly identified - and the legal representative can certainly contribute to that process.
The role of the Reporter
It is sometimes argued that the reporter has a conflict of interest in the system, being at the same time the person who brings a case to a hearing - and defends the hearing’s decision if it is appealed - and the person who advises the hearing on legal and procedural matters. It should be noted that nowhere in the legislation is the reporter given any role in advising the hearing, but there is little doubt that this is what happens in practice. But the ambiguity of the reporter’s role goes further. When insisting on an “equality of arms” the European Court has in mind the family’s opponent While the reporter is certainly the opponent at the sheriff court, when the grounds of referral are denied or when the hearing’s decision is being appealed, at the hearing itself the reporter has an entirely disinterested position as 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. The reporter is entirely independent of the local authority and is, therefore, in a position freely to advise the hearing at dispositive hearings. More vulnerable is the reporter’s role at grounds for referral hearings. It may be that the way forward would be for grounds of referral to be accepted or established in every case before the sheriff, the local authority acting as the body that must prove the grounds if denied, this freeing up the reporter for the role of independent procedural watchdog.
The children’s hearing system has changed in the past and it will doubtless change in future in response to human rights challenges. But the changes will not be significant, and they will be beneficial, if they are limited to allowing children access to reports, giving the hearing the right to decide upon rather than to authorise secure accommodation, and extending legal aid to appearances before the hearing. Rather more fundamental will be changes, if necessary, to the role of the reporter. Destructive of the system would be changes to its essentially lay personnel, its welfarist philosophy, and its treating of care and protection cases in the same forum as offence cases. But there is nothing in the existing human rights jurisprudence which suggests that we need to fear the destruction of the system.
Kenneth Norrie, University of Strathclyde