Scottish Court of Session Decisions

[1] On 30 March we issued opinions returning answers to the questions which the Sheriff had referred to the court. In answering Question 3(b), we reserved our opinion as to whether or not the children's hearing system complied with the requirements of Article 6 when Legal Aid in the form of legal representation could not be made available to the child, even where he was unable to represent himself properly and satisfactorily. We reserved our opinion on that matter because, on the basis of the submissions which had been made to us by counsel, we were contemplating making a declaration of incompatibility under Section 4(2) of the Human Rights Act 1998 in respect of Section 29 of the Legal Aid (Scotland) Act 1986. That being so, we thought it proper to give notice to the Advocate General in terms of Section 5(1) of the Human Rights Act and Rule of Court 82.3. We also indicated that, after the Advocate General had had an opportunity to consider the position, the case should be put out By Order so that the court could consider whether to make a declaration of incompatibility.

[2] In the event the Advocate General indicated that she did not intend to enter the process. The By Order hearing was held on 15 June when Lord Macfadyen was unable to sit. Counsel for all the parties indicated that they were now agreed that the Scottish Ministers had power under the existing legislation to make regulations to provide for representation before a children's hearing. That power had not been exercised, but it did exist. We observe that the matter had been explored by Mr. Iain Jamieson C.B. in an article "S v Miller: Should a Declaration of Incompatibility Be Made?" 2001 S.L.T. (News) 137 published contemporaneously with the report of our decision. Lord Macfadyen having been informed of what had been said at the By Order hearing, we are content to proceed on the basis that there is no question of our requiring to make a declaration of incompatibility in this case.

[3] We can therefore set out Question 3(b) and our answer in the light of the submissions at the By Order hearing:

In the event that question 3(a) is answered in the affirmative, does the structure of the children's hearing system comply with the requirements of Article 6 in its application to civil proceedings? On all the other matters except Legal Aid, it does so comply. It does not comply when Legal Aid, in a form which allows legal representation, cannot be made available to the child, where the child is unable to represent himself properly and satisfactorily at the hearing.