Viewpoints: Lawyers at panels

I read with interest Stephen Bermingham’s article “Hearings for the child” (Journal, May 2022, 26). I found his observations under the heading “Role of the legal representative” of particular interest.

At the onset, I was pleased to note that Mr Bermingham felt that the “vast majority” of legal representatives who attend at hearings are “excellent” and add “real value”. A few further points in the same paragraph were pleasing and encouraging. However, a number of comments thereafter caused me to be both perplexed and at some points, concerned.

First, I do not entirely follow what is meant by “combative approaches”, and moreover, why such approaches would seem more appropriate in court. In essence, it is a matter for the solicitor to make a professional judgment about the correct and appropriate approach. Mr Bermingham appears to have assumed (I state this respectfully) that solicitors adopt an aggressive, hostile stance in court. This is simply not correct and again is a matter for the solicitor’s professional judgment. The solicitor is also at the helm of his or her client. Perhaps in addition, and importantly, it should be acknowledged that we have an adversarial system and the panel is very much part of it.

Regarding his disapproval of cross-examination, the same observations apply. I also respectfully disagree with Mr Bermingham where he states that if a legal representative has concerns or disagreement about a professional opinion, these should be dealt with outside the children’s hearing. I do not follow the logic of this argument. If the solicitor fails to state to the panel that they or their client have concerns or disagreement about a professional report, then in my view they would not be able to carry out client instructions effectively. That in itself could have serious repercussions for the solicitor. I accept that solicitors can and do approach professionals outside of the panel, but that should not preclude them from raising any points arising out of professional reports. Otherwise, it would be difficult to imagine how the panel could properly know what is in dispute and what is not. It is also very difficult to approach any professional just before a hearing that is taking place on a virtual basis, for example.

I entirely take on board the need not to increase stress levels. I agree that is important. However, panel hearings can be very stressful for everyone involved, especially where for example a child is to be removed from a family.

Finally, I was very concerned at the insinuation that solicitors may think panel members are less skilled because they are volunteers and not paid professionals. I do not understand why any solicitor would treat a panel member any differently from any other professional such as a sheriff. It really makes no sense. I have never come across this before, as it is accepted that panel members are unpaid volunteers who come from a variety of backgrounds and Mr Bermingham’s observations allude to that.

All of these points are intended to be raised in a respectful manner. I would be very happy to prepare a seminar for Children’s Hearings Scotland if that might assist in clearing up matters and also identifying the various duties and responsibilities that are incumbent on solicitors (and they are numerous!).

Alan W Robertson, senior litigation lawyer, MBS Solicitors