Legal aid in children's hearing referrals

I am delighted to have been given the opportunity to address you on the subject of legal aid in children’s hearing referral cases. I have been privileged to have been involved in numerous such cases over the last few years including a number of lengthy, complex and challenging proofs. I have appeared in different roles namely as solicitor, as curator ad litem and I have also been instructed by the Scottish Children’s Reporter’s Administration to undertake the preparation and conduct of particularly difficult cases.

I would like first to consider the importance of children’s hearing cases within the Scottish justice system. Abuse of children and children who offend should be a concern for the whole of our society, because (a) I believe it is the duty of society to protect those who are unable to protect themselves, and (b) the effects of abuse and offending can be far reaching and long lasting and will undoubtedly impinge on society as a whole.

Interestingly recent research has shown that the majority of children alleged to have committed offences have previously been referred on care and protection grounds. It has occurred to me that the two categories are often inextricably linked. E.g. if your parents are heroin addicts who spend all their money on drugs and you are deprived of food and clothes then it won’t be surprising that you steal these commodities.

Children are the most vulnerable group in our society and it is right that funding is available to investigate allegations of abuse, present the evidence to a court and obtain a judicial determination.

We all know that when a child is suspected of being abused whether it be sexually, emotionally or physically or any combination of these, a “cast” comes into play.

Depending on the circumstances of the case police officers, social workers, health visitors, school teachers, home support and day care workers, therapists, psychiatrists, psychologists and varied medical practitioners may all have a role to play.

Usually by the time we become involved, grounds of referral have been drafted and a children’s panel hearing has been arranged to ascertain whether the grounds of referral are accepted or denied. Legal aid is not available to represent your client at the panel, whether it be the child or relevant person, although advice and assistance is available for advice given in relation to the hearing.

In my view this is entirely unsatisfactory and undoubtedly leads to injustice. There is no requirement that any of the three panel members should be legally qualified nor that the reporter should be legally qualified, yet the chairman is charged with explaining statutory grounds of referral and statements of facts and ascertaining parties’ positions in relation thereto.

If I can illustrate the potential for injustice with a simple example: I recall a situation where it was alleged that boy A had assaulted boy B and the chairman asked whether that had happened. Boy A agreed that it had and the chair was in the process of noting an acceptance when I explained that he had been acting in self defence and accordingly it was "not accepted".

Similar difficulty could arise with a defence of reasonable chastisement. Indeed last week I was involved in a case where the mother had accepted the grounds of referral at the panel and the case had only been referred to the sheriff on the basis that the child was too young to understand. On examination of the grounds at the sheriff court it became clear that she had not understood what she had accepted at the panel, and as a result and following discussion with the reporter the grounds were drastically amended to reflect that her husband from whom she was estranged had wilfully exposed the child in a manner likely to cause him unnecessary suffering. The outcome for the child and as a result his family will now be completely different.

The Inner House of the Court of Session recognised the problem in the case of Kennedy v R reported at 1992 SCLR, in which I acted for the mother, when they decided that parties who had accepted grounds at the panel should not be bound by their stance at the proof stage. (Of course the case only arrived at the sheriff court by default, namely through the child’s lack of understanding.) The court also ruled on the definition of family. The grounds were eventually found not established.

Another difficulty arises when a client wishes to appeal against the decision of a children’s hearing, as it can be very difficult to ascertain from him exactly what has occurred, or indeed it may be that had a solicitor been present a material ground of appeal would have been identified.

It is a tribute to the professionalism of my colleagues that so many attend to represent their clients at panel hearings for no financial gain, but appalling that they are placed in such a position.

At present, cases are referred to the sheriff for proof where one or more of the parties does not accept the grounds, or where the child is too young to understand, not capable of understanding or has not understood the explanation tendered by the chair.

The Scottish Executive Consultation paper “Getting it right for every child “appears to seek to reduce judicial involvement by suggesting that cases in which the relevant persons have accepted the grounds of referral and have been referred on the basis that the child lacks understanding should no longer be referred. This would be a retrograde backward step and the effect would be that the more vulnerable one is, the less rights one has.

Once instructed in a proof, speed is of the essence, as a proof diet will have been fixed within 28 days of the children’s hearing taking place. By the time your client has received the papers assigning the diet and contacted you, the diet will be very much closer. That is why it makes very good sense for the sheriff to consider the legal aid application. In Glasgow Sheriff Court applications are considered on the day they are submitted and preparation can therefore begin immediately.

Since the introduction of the Vulnerable Witnesses Act 2004 one of your first thoughts must be “have I any child witnesses in this case?”, because if that is the situation there are a number of steps to be taken. Essentially any child under the age of 16 is automatically a vulnerable witness and is entitled to special measures to allow him to give his best evidence in court. If you intend calling the child to give evidence you must lodge a child witness notice in court outlining which of the special measures you consider is most appropriate or whether no special measure is required. There are no time limits prescribed in the Act for lodging the notice.

The responsibility involved is a heavy one. Precognition and discussion with these witnesses with regard to special measures should in my view not be undertaken other than by a qualified practitioner. If I may I would like to draw your attention to the Code of Conduct for Scottish Solicitors, paragraph 13 which states:

"When carrying out precognition of witnesses whether personally, through directly employed staff or through external precognition agents, the nominated solicitor or instructing solicitor is responsible for the manner in which contact is made with the witnesses and the manner in which the witnesses are actually precognosced. In particular, it is the duty of the solicitor to ensure that any matters associated with the witness of which he is aware which would affect the taking of the precognition or the mode of contact, such as age, disability or other vulnerable status, are taken into account by him and communicated to any precognition agent."

It seems to me that unless you precognosce the witness personally it is unlikely that you will have sufficient knowledge to be able to pass it on to anyone.

The child, apart from being precognosced, should be made aware of the different ways in which he/she may give his/her evidence, and the views of the child’s parent should also be sought unless there is an allegation against the parent.

The Scottish Executive have produced a guidance pack on each of the special measures and a CD ROM (which I commend to you), which it is recommended you watch along with the child to assist the chid in deciding upon the preferred special measure. The special measures available at present are:

• Use of a live TV link
• Use of screens
• Use of a supporter in conjunction with either of the above
• Evidence on commission will become available but is not available at the present time.

However I should alert you to the fact that you are expected to do more than sit in the comfort of your office watching the video and discussing the preferred method of giving evidence. In a letter dated 2 August 2005 from the Scottish Executive to practitioners we were told, and I quote: "it is important to note, in the case of child witnesses in particular, that an actual court familiarisation visit is still the best way to assess a child’s understanding and any particular individual anxieties they may have about being a witness".

The witness service which is available to assist Crown and defence witnesses does not extend to witnesses in children’s hearing referrals, but even if it did, given the terms of the Code of Conduct and terms of the Act I would be slow to abdicate my responsibility given that I am responsible for drafting the child witness notice or vulnerable witness application and specifying the special measure which I consider to be the most appropriate. The provisions relating to adult vulnerable witnesses are, in my view, more complex, but do not come into force until April 2006.

You do not require to seek sanction from the Legal Aid Board to use a special measure; once the court has granted the use of a particular measure SCS becomes responsible for the cost. (The mailshot dated 30 March 2005 from SLAB regarding sanction for special measures no longer applies following concern that measures might become subject to funding considerations as opposed to what was most appropriate for the witness.)

However, if you feel that you require to obtain an expert opinion, e.g. from a psychiatrist to assist in deciding which is the most appropriate special measure or to support your application to the sheriff, you will require to seek sanction from the Legal Aid Board. One would hope that the Board would deal with such applications within 24 hours to avoid delaying proceedings and thus causing further anxiety to child witnesses.

I do not intend to give the impression that I am critical of the Act. I am not. The aim of the Act is laudable and its effect should be that every witness is given the opportunity to give his best evidence. However, the point I seek to make is that it will involve court practitioners in substantially more work in cases in which vulnerable witnesses have been identified.

Vast sums of money have been spent by the Executive in pursuit of ensuring that vulnerable witnesses’ best evidence is received into proceedings; they have to appreciate that we, the persons actually charged with putting the scheme into practice, have to be properly remunerated for the additional work and responsibility placed upon us by virtue of this legislation.

The reason I make mention of remuneration is that although at present we are, in theory, paid on a time and line basis, when one looks at what has happened to summary cases and what is proposed in solemn cases in terms of fixed fees, I might be forgiven for thinking that this method of costcutting might be next applied to children’s legal aid.

The Children (Scotland) Act 1995 has the welfare of the child throughout his childhood as its paramount concern, whereas the aim of SLAB is to achieve "effective financial management of the legal aid fund". Therein lies a conflict. Any attempt to implement such a regime in children’s hearing referral cases should be fought with vigour! Hourly rates far in excess of those paid to court practitioners are paid out to other personnel involved in these cases, e.g. psychologists and psychiatrists. I do not seek to suggest that they are overpaid - simply that we are underpaid.

We are professionals. Like most of you here I have just written cheques to the value of £4,500 (equivalent to 85 hours' preparation at legal aid rates) to allow me to practise as a solicitor. We ensure that appropriate expert witnesses and other relevant evidence is brought before the court, and develop an understanding of the particular subject matter sufficient to use our skills to ensure a thorough examination of the evidence – all to assist the sheriff in coming to a finding. We are entitled to at least as much remuneration as those we cite to give evidence, and yet time and time again sanction is granted for hourly rates which are substantially in excess of what we are theoretically paid.

In July 2004 there was cause for celebration - or so we thought. After a 12 year period during which there was no increase in fees but a complete overhaul of the legislation affecting children’s cases, the Scottish Executive finally increased fees by 21%. Joy was unconfined. During this period the retail price index which measures the cost of living increased by 33%. Therefore the effect of the increase was to reduce the erosion from 33% to about 12%!

The quid pro quo was that we were subjected to further rules and regulations in the form of peer review and quality assurance. Up until that time there had been provision to apply to the sheriff in children’s hearing referral proofs for an increase in fees up to a maximum of 50% if certain criteria outlined in regulation 5(4) of the Civil Legal Aid Fees Regulations 1989 were met. This was abolished with the introduction of the percentage increase.

Following representations made by the Law Society of Scotland it was agreed that the uplift would remain, but the Executive stated that cases would have to come to SLAB for them to determine complexity. Subsequently, in a letter dated 30 June 2004 SLAB stated, and I quote: "the Board will be able to grant uplifts in certain children’s legal aid cases. This will be introduced as soon as practicable after 1st July 2004". It went on to state it would be retrospective.

It won’t surprise you to learn that 18 months on, no progress has been made whatsoever. First, I have to say that it strikes me as astonishing that the Scottish Executive should consider that SLAB, a public body, has more expertise and knowledge than the sheriff who has heard the case and is a member of an independent judiciary, to come to a view on whether an increase in fees should be granted. I can only conclude that it is quite simply a cost cutting exercise.

Secondly, what has in effect happened is that in cases to which the criteria for increases under regulation 5(4) formerly applied we have actually had our fees reduced by up to 30%, resulting in at worst a negative 11% decrease in fees over the period 1992-2004!!!

If you feel that a case may be appropriate for counsel to undertake, the guidelines for sanction of employment of counsel in children’s applications can be found attached to the mailshot dated 17 July 2003.

I wondered if the Board’s employees had fared equally badly. I attempted to undertake a comparison of increases received by employees of the Board and those received by solicitors at the coalface in private practice over the period 1992-2004. In light of the Freedom of Information Act which applies to SLAB I requested information about a number of employees’ salaries, pension rights etc and bonuses over this period.

The criteria applied to achieve these bonuses is not disclosed - perhaps Mr Montgomery can enlighten us. The Board seemed to think that to supply pay and benefits data in respect of their employees was a breach of data protection. I have to say I found that somewhat surprising given that they seemed to have no difficulty in disclosing the sums paid annually to solicitors and counsel, whom they are happy to name. SLAB refused the request, stating that it would cost approximately £1,400 to obtain this information and accordingly the request was refused.

SLAB appear suspiciously reluctant to disclose how taxpayers’ money has been spent on their own official wages. Accordingly what I have done is look at the salaries of the chief executive and chairman over the period 1992-2004. It makes for an interesting comparison with our 21%. In 1994 the chairman received £20,000; in 2003, £25,769; in 2004, £29,698.

I should make it clear this is for two days a week. A period of 10 years rather than solicitors’ 12 years and an increase of 48.5%. Last year alone the increase was about 16%. That is in addition to pension rights and holidays. As we all know, if solicitors in private practice don’t work we don’t get paid.

In 1994 the chief executive received £47,479; in 2003, £80,000; in 2004, £87,000. An increase of over 83% in a 10, not 12 year period - four times the increase for solicitors - plus the gold card civil service pension, the costs of purchasing which on the open market, if any pension provider was foolish enough to make it available, would be colossal. No wonder the Board were coy about giving out this information!

Staff bonuses are available for “high performance”. I wonder what the criteria are for such higher performance? Perhaps they would be a useful tool in dealing with the thorny uplift scenario! It is difficult to understand why those providing the services to the public, which is after all what it is or should be all about, have suffered a massive decrease in their hourly rates whilst the cost of practising has increased substantially. On the other hand those administering the scheme have apparently not shared in our pain!

The work we do is crucial to the future of children in Scotland. The outcome following proof or by negotiation of grounds of referral will be a turning point in the lives of many children and their families.

If grounds are established it will probably mean intervention by the state to a greater or lesser degree, depending on the decision of the children’s hearing. At one end of the spectrum a child may continue to reside with his family with statutory input from social work department, whereas at the other end you might have a child removed from his family with no prospect of reunion.

Justice demands that in a civilised country those who on one side of the scales are liable to have their right to family life disrupted by state intervention, must on the other side of the scales have a right to legal representation paid for by the state. We are highly trained professionals whose skill, expertise and responsibility is critical to the enquiry into and outcome of cases involving Scotland’s most vulnerable children - we should be recognised accordingly.

Are the Scottish Executive and the Scottish Legal Aid Board genuinely interested in Scotland’s children or are they simply interested in the bottom line? Scotland’s children deserve justice. There is no such commodity as justice on the cheap.