15 Rights to appeal
A looked after child or his or her parents may appeal against a decision of a children's hearing to a sheriff within three weeks of the date of the hearing. The child or a relevant person may also appeal against the decision of a sheriff to the sheriff principal, and thereafter to the Court of Session, by way of stated case either on a point of law, or in respect of any irregularity in the conduct of the case. 1 An appeal against a sheriff's decision to a higher court therefore cannot reopen discussion on the facts of the case but is confined to dispute about how the sheriff has interpreted, or applied, the law. 2 There is no right of appeal to a higher court against a sheriff's decision to make a child protection order or a children's hearing's decision to continue a child protection order. A person with parental rights or other relevant person may make an application to have a child protection order varied or set aside before the children's hearing on the second working day after implementation of the order or within two working days of a hearing's decision to continue a child protection order. 3
ECHR Article 8 rights to respect for privacy and family life imposes obligations to ensure effective involvement and representation of parents in administrative as well as judicial decision-making about children. 4
Legal aid and representation
Free legal representation for those who cannot afford it, where that is necessary for satisfactory presentation of a party's case, is a pre-requisite of fairness in the determination of civil rights or obligations or criminal charges, as guaranteed by the European Convention. 5 Children and young people, their parent(s) and any relevant person are entitled to legal aid including representation by a solicitor and, where appropriate, counsel in connection with proceedings before a sheriff in respect of a child protection order or a child assessment order, or an exclusion order, an appeal to the sheriff against the decision of a children's hearing or a proof hearing before a sheriff in respect of grounds for referral or a review of a finding that grounds are established on the basis of new evidence, and an appeal to the sheriff principal or Court of Session. 6
A child or relevant person is entitled to legal advice before having to attend a children's hearing, either free or at a reduced cost under the subsidised legal advice and assistance scheme. 7 This advice is designed to inform the child and family about their rights at a hearing and to give them advice about how to respond to the grounds for referral. Legal advice and assistance is free only to persons with a disposable income of less than £197 a week or a person directly or indirectly in receipt of income support or other state benefits and a disposable capital of less than £1,370. 8
Free legal advice for persons eligible under the advice and assistance scheme is limited to a ceiling cost of £80, or £150 where the solicitor providing advice is satisfied that the matter is likely to be resolved only by preparing for proceedings in a civil court for which legal aid is available, it is likely, on the information provided to him, that the applicant will qualify on financial grounds for civil legal aid; and it is reasonable in the circumstances of the case. 9 This is more likely to be the case where the child or parents are denying grounds of referral.
In 2003-2004 the number of grants of advice and assistance for all matters under the Children (Scotland) Act 1995 increased by 9% in comparison with the previous financial year and the number of grants of legal aid made by the courts increased by 18%. Expenditure increased by 8% to £600,000 but the average cost per case remained the same at £101 per case. 10 Nevertheless overall expenditure on children's cases fell by 19% to £2.7 million, reversing an upward trend since 1997. Payments to advocates decreased by 38%, compared with the previous year. The average case cost fell by 27% to £1,069. 11 The £3.3 million expended on advice and assistance and legal aid for children is slightly over 2% of the total annual expenditure of £146 million on publicly funded civil and criminal legal assistance.
Legal aid is not usually available for representation of children or families at children's hearings other than in prescribed circumstances. Children's hearings' procedures are intended to facilitate children's involvement and where children are able to contribute effectively legal representation may not be necessary. Nevertheless evaluative research indicates that children's and families' participation in children's hearings is limited, children's contributions to hearings are often brief and family members find hearings stressful and intimidating. 12 The Court of Session has ruled that the blanket exclusion of legal aid for a child to be legally represented at a children's hearing amounted to a breach of ECHR Article 6(1). The Court stated that appointment of a safeguarder as an alternative to legal representation was inadequate, because the child has no right to have a safeguarder appointed and the function of a safeguarder is '… to safeguard the "interests" of the child and not to vindicate his rights'. 13 The Court dismissed the contention that routine involvement of lawyers would erode the welfare centred non adversarial ethos of the hearings, noting that lawyers currently attend hearings as representatives for children or relevant persons under existing rules, either pro bono or for those children and families who can afford to pay for representation. 14 The Court of Session did not envisage that every child appearing before a hearing would always be entitled to free legal representation, but that it should be available in circumstances where it is required in the interests of justice so that a child may present their case effectively. 15
A children's hearing may now appoint a legal representative for a child if it appears that legal representation is required to allow the child to effectively participate at the hearing, or it seems likely that the hearing may consider authorising the child's placement in secure accommodation. 16 The national review of the children's hearings system proposes a new duty on the Scottish Children's Reporter Administration to ensure the provision of legal representation for children, where this is necessary, under current criteria, to protect their rights. The Executive proposes that the reporter be required to identify cases where a legal representative may be appropriate and to initiate the appointment. 17
Legal commentators have pointed to the influence of assumptions about the negative effect upon children of direct participation in legal proceedings. 18 These operate to limit children's expression of views other than through third parties such as curators and reporting officers, whose primary task is to assist the court rather than represent the child's views and wishes. Children's access to legal aid and representation is limited, with most civil applications related to personal injury claims and family actions in which parents are acting on children's behalf. 19