Children's hearings system and European Convention

<>THE architect I M Pei is reputed to have said of his radical glass pyramid design at the Louvre, Paris, “How to respect tradition and to innovate at the same time?  What a difficult challenge!”

The implementation of the Human Rights Act 1998 creates many interesting new challenges for the Children’s Hearings System.  At heart, these arise through the challenge of marrying together two different, indeed on some views apparently conflicting, traditions - the philosophy of the welfarist Children’s Hearings System and the individualist, rights-based culture of the European Convention.  Yet there is far more to this relationship than what may superficially appear to be a culture clash; rather, it generates new possibilities for clarifying the rights of children.

Professor Norrie discusses many of the challenges facing the Children’s Hearings System in his article.  But there are also challenges here for the Courts and for the legal profession.  My purpose in this article is to identify how these challenges arise, and what they are.  To do so it is necessary to look at the Children’s Hearings System in the context of a broader understanding of human rights for children.

My principal contentions are (1) the framework of the Children’s Hearings System is eminently compatible with the most important international texts on human rights for children.  The challenge will be to filter universal human rights principles for children through the lens of the European Convention so as to articulate more clearly the rights of children; (2) the Children’s Hearings System is designed to, and does, deal with situations where the rights of children and parents may overlap or conflict.  The application of human rights principles to the Hearings System must take account of the rights of all participants; (3) Convention rights, and especially the right to representation, need to be applied in a way that avoids throwing the baby out with the bath water.

Children’s human rights: work in progress

The European Convention was drafted over 50 years ago with the explicit objective of creating a framework of enforceable individual rights to hold at bay the threat of resurgent fascism.  It is perhaps therefore not surprising that the Convention hardly refers at all to the position of children and young people.

In contrast, during the last twenty years or so the United Nations has developed a coherent and far-sighted framework for children’s rights.  The foundation text is the United Nations Convention on the Rights of the Child (adopted 1989), which sets a holistic approach to the rights of the child, encompassing the economic, cultural and social as well as civil and political rights.  In particular it requires that the child’s best interests should always be a primary consideration (Article 3) and that the child should have the right to express his/her views and to have these views duly considered. (Article 12)

The second key text in this context is the “Beijing Rules” - the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (adopted November 1985).  These provide a more specific framework for applying human rights principles to the  administration of juvenile justice.  Again, a holistic approach is taken that puts issues of procedure, adjudication, and disposition in the context of welfare aims, a supportive ethos and diversion from formal systems.

While both the UN Convention and the Beijing Rules have been ratified by the UK Government, they are not directly enforceable at an individual level.  In the last few years, however, the European Court of Human Rights has come to treat them as standard reference points in cases concerning children’s rights, such as the cases of T and V v UK (16th December 1999).  This is particularly significant because it is not yet possible to discern a coherent jurisprudence of children’s rights from Strasbourg case law nor even to discern a consistent approach to proceedings about children.  However, the fact that the European Court has established the habit of referring to the UN text is sufficient to allow them to be taken into account by Scottish Courts in deciding how to apply European Convention rights.

This process will not, however, be entirely straightforward.  The UN texts require that proceedings regarding children should be purposive, both child-centred and fair in relation to process and outcome, and should take account of the child’s place within the family and community.  The point here is not the extent to which the Children’s Hearings System complies with these principles, although it is my view that it does so to a very high degree.  The point is that the requirement to grapple with such broad and purposive principles will be a relatively new challenge for the Courts, legal representatives and indeed children’s reporters.

In part, this implies a requirement to keep in mind the System as a whole and its objectives, whilst focusing on the specific issues raised in any given case.  It may well also be necessary to consider how far different approaches will be needed to achieve universal rights for children.  For instance, it is clear that in principle a child who is referred to a Children’s Hearing should enjoy the same access to background reports that is now enjoyed by parents and Children’s Panel members, on the ground of the “equality of arms” principle.  It is equally clear that special measures may need to be adopted to work out how this should be done in practice in a way that takes account of the developmental needs and status of children.

In the middle of this new thinking, there is a real opportunity to aid the articulation of a coherent set of rights for children.  The terms of the Children (Scotland) Act 1995 mark an important foundation in this process.  In the light of the European and UN Conventions, it may also now be appropriate to review existing provisions in relation to: the age of criminal responsibility; the age of transition to the adult criminal justice system; the treatment of child witnesses; and the child’s right to privacy and confidentiality, amongst other issues.  The issue of representation in Children’s Hearings is discussed below.

Children’s rights, parents’ rights

It is daily meat and drink to all those involved in the Children’s Hearings System that many of the situations that bring children into the Hearings System involve complex, overlapping and even conflicting rights and interests.  Bearing in mind that only 21% of referrals made to children’s reporters result in a Children’s Hearing, it is highly likely that such complexities will be present in those cases that do make their way into the formal process.

Conflicts of interests and rights will be obvious where, for instance, there is an allegation of sexual abuse within the immediate or extended family.  But conflicts can also arise on process issues such as the divulging of sensitive information or wishes, and in re-constituted families conflicts may be as much between parents as between the rights of parent and child.

The approach of the Strasbourg Court is to address the application of Convention rights to the position of the applicant before it.  It is arguable that this can allow a somewhat simplistic approach to be taken to situations that are in reality more multi-dimensional.  The result of viewing rights situations that are truly tri-lateral (child, parent and state) as only bi-lateral (child or parent and state) may well be that one party’s rights are overlooked; and that party is likely to be the child.  Hence, in the case of McMichael v UK (1995) 20 EHHR 205, the only Strasbourg ruling to date concerning a Children’s Hearing case, the Court adjudicated on the rights issues raised by the parents of a child referred to a Children’s Hearing.

But the child, the person whom the decision of a Children’s Hearing most fundamentally affects, was not a party to the proceedings.  The Court had no basis or reason for considering the rights of the child and the extent to which they might inter-relate or conflict with the rights of the parent.

It could be argued that the role of the Court - whether in Strasbourg or in Scotland - should only be to determine whether the given individual’s rights have been violated by the action of the state or of a public authority; issues about how to reconcile competing sets of individual rights are for executive or political consideration.  My contention is that, in relation to proceedings which are multi-party in nature and which intrinsically concern issues in which individual rights may compete or conflict, such an approach is inadequate.  The terms of the Convention cannot be interpreted so as to require action in respect of one individual’s rights that will thereby undermine the equally legitimate rights of another individual.

A holistic approach will be necessary that maintains focus on the rights and interests of the child as the primary consideration.  It is because of the need to take account of the interests and wishes of children and parents that Children’s Hearings have adopted an informal, round the table style of proceedings.  While that degree of informality may not be so relevant in a Court context, it will be essential to ensure that the rights of each party - and particularly the child - are understood and taken into account whenever appropriate.

The baby and the bath water

As Professor Norrie and other commentators have identified, the lack of full legal aid for representation at Children’s Hearings will inevitably be challenged.  What issues does this raise and how should they be approached in the light of my earlier comments?

The present provision for representation at Hearings is set out at Rule 11 of the Children’s Hearings (Scotland) Rules 1996, which confirms that any child or “relevant person” (parent/main carer) attending a Hearing may be accompanied by a person whose role is to “assist the person whom he represents in the discussion of the case of the child with the Children’s Hearing”.

The wording is significant.  This is a very different role from that of the pleader in court, but it is all of a piece with the provisions of the Children (Scotland) Act 1995 and other provisions in the 1996 Rules that stress the importance of discussing the child’s case with the child and relevant persons, and the requirement to offer the child every opportunity to express his or her views.

The supportive role of the representative is also of a piece with the importance attached in the Hearings System to seeking personal insight as a contribution to better decision-making, and personal involvement as a means of developing co-operation in the child’s interest.

Further interesting light is shed here by the research into decision-making at Hearings carried out by Professor Christine Hallett and colleagues at Stirling University.  Based on observation of 60 Hearings, they noted that in quantitative terms the child’s contribution was often relatively small.  But in qualitative terms, the impact of those contributions children were able to make was immense, to the extent that a monosyllabic reply could be determinative of the outcome of the Hearing (“Can you tell us if you feel safe now with your Dad?” - “Yes”).

The point here is that direct personal participation by children and parents is not only built into the Children’s Hearings System - it works.  Not least, it works because all those involved, including the vast majority of those solicitors who currently attend Hearings, work hard at making it work.

The terms of both the European Convention and the Beijing Rules do raise serious questions as to whether full legal aid for Children’s Hearings will require to be introduced.  Whatever the answer to these questions, I see no fundamental reason for anxiety within the Hearings System about its own performance.  If a “procedural watchdog” role is required, that will assist Children’s Panel members to lift the already high level of due process compliance higher still.

Where there may be cause for concern is in relation to the impact on the voice of the child.  The child and relevant persons may require legal support to advocate for due process and to take appropriate steps if it is not secured.  But we will be in danger of ditching baby with the bath water if formalisation of Children’s Hearings were to squeeze out the ability of children (and relevant persons) to participate directly, whether through the adoption of legal rhetoric or simply through force of numbers around the Hearing table.  For most children, articulating their fears and wishes clearly enough to explain them to three sympathetic strangers is hard enough.  How many children would find the presence of three or four more strangers in suits helpful at such a juncture?

Whatever changes may or may not occur in relation to legal aid, the challenge for solicitors attending hearings will thus be to represent their clients in the spirit signalled in Rule 11.  This should not in any way conflict with the solicitor’s role as advocate for the client’s interests; it does imply that how that role is carried out is constructively situation-responsive.

Proceedings at a Children’s Hearing are certainly not adversarial.  They are more inquisitorial in character, but with the emphasis firmly on a shared search for a forward-looking disposition rather than adjudication on historical facts.  That character is wholly appropriate to the nature of the situations Hearings deal with, and to the fundamental requirements of the key UN texts.  Incorporation of the European Convention will assist in the promotion of the rights of children and their carers insofar as these fundamental parameters of the System as a whole are recognised and built upon.  Those of us in the Children’s Hearings System welcome constructive challenges and look forward to working constructively with the Courts, the legal profession and other relevant agencies further to promote and secure the rights and interests of children.