The author believes that the form of words with which those attending children's panel hearings are often advised of their right of appeal is misleading and can create difficulties for their solicitor

The conclusion of children's panel hearings is often met by the chairperson using words along the lines of “You have the right to appeal. If you disagree with the decision, then you have 21 days to appeal. The appeal should be in writing to the sheriff.” And just afterwards, the hearing closes for another day.

In brief, the key appeal provisions are to be found in s 154 of the Children’s Hearings (Scotland) Act 2011. It is not intended in this article either to rehearse the statutory provisions or to visit the case law. Rather, the focus is to consider the issues for a solicitor that arise out of the suggestion that one can appeal on the basis of mere disagreement.

Put briefly, and as a matter of law, the foundation of any appeal is whether the decision can be said to be “justified” (2011 Act, s 156(1)). Section 154 provides the appropriate timescale (and there is of course a shorter timescale in certain other circumstances which will not be explored in this article). Therefore, mere disagreement does not at all reflect the statutory test.

To suggest, therefore, that a client has the right to appeal on that basis can present the solicitor with a rather challenging situation in the context of the solicitor-client relationship, and in our wider duties to the court and to public resources.

In the event that the client disagrees with the decision (and in fairness, this is far from unusual), it logically follows that a client is likely to (though admittedly not always will) ask you to prepare and lodge an appeal at the local sheriff court. That in itself creates something of a dilemma. As agents, we cannot simply proceed on the basis of an appeal to the sheriff if our clients disagree with the decision, or indeed an aspect or aspects of it. This therefore creates something of a challenge where an evidently unhappy client wishes to appeal, but also a sense of conflict because as agents, we similarly owe a number of duties to the court.

Clash of duties

Consider this scenario: you have a longstanding relationship with a client and consider that you must do what is in their best interests – given that we are duty bound in any event to do so. They are disappointed with the panel decision and ask you to appeal. Yet, there appears to be no obvious ground of appeal, if any at all. The Law Society of Scotland of course obliges us to manage client expectations. It is difficult to do this if the suggestion is given to them by the panel that the client can appeal if they simply disagree with the decision. It also creates an issue in terms of our duties to public funds if the appeal is to proceed on a legal aid basis. We most naturally cannot expect to be in receipt of public funds if there is no legal basis to an appeal. I am sure most appeals are conducted with the benefit of public funds.

In fairness, one might also take the view that even if the panel members more accurately described the appeal grounds, clients would still want to appeal if they disagreed with it. But that is simply beside the point, and in any case an argument to be tried and tested for another day. The reason that I state this is because I am genuinely of the view that panel members must be fully aware not only of the significance of using this wording, but also the obvious importance of accurately stating the statutory test and the variety of cases that clarify how and in what way the test is to be applied.

In fairness to them, I naturally and wholeheartedly appreciate that panel members give up their valuable time and are not normally legally qualified. I do not wish to give the impression that I am being over critical or somehow disrespectful. Against that background, however, it is most important that panel members are trained and (if so required) updated in this regard.

The Author
Alan W Robertson is a senior associate at MBS Solicitors and specialises in the area of child and family law. e:  
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