Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Kingarth Lord Clarke Lord Mackay of Drumadoon

[2009] CSIH 76 XA25/09 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in Reference from the Sheriff of North Strathclyde at Paisley of Devolution Issues raised in the Appeal under section 51 of the Children (Scotland) Act 1995 by S K Appellant against JULIE PATERSON, Authority Reporter for East Renfrewshire Respondent in respect of a decision of the Children's Panel for East Renfrewshire made on 6 February 2008 _______

Act: O'Neill, Q.C., Pirie; Drummond Miller for Patrick Campbell & Co, Glasgow

Alt: Dewar, Q.C.; Biggart Baillie LLP

Scottish Ministers, First Intervener: Wolffe, Q.C., Poole; Solicitor to Scottish Ministers

2 October 2009

Introduction

[1] The appellant, S K, was born on 19 May 1974. She is the mother of M M ("the Child"), who was born on 13 November 2006. As the mother of the Child, the appellant is a "relevant person", within the meaning of section 93(2)(b) of the 1995 Act, in respect of any proceedings before a children's hearing involving the Child before a children's hearing. The appellant has the rights to be present and to be represented at any such hearing.

[2] Within a few months of his birth, the Child was referred to the Children's Hearing for East Renfrewshire. Under the provisions of section 51 of the Children (Scotland) Act 1995 ("the 1995 Act") the appellant has appealed to the Sheriff at Paisley against a decision of the children's hearing made on 6 February 2008 in respect of the Child. The respondent in the appeal before the Sheriff, and before this court, is Julie Paterson, Authority Reporter for East Renfrewshire.

[3] During the course of the appeal before the Sheriff two devolution issues have been raised on behalf of the appellant. The Sheriff has referred these two devolution issues for determination by this Court, under and in terms of Paragraph 7 of Schedule 6 to the Scotland Act 1998. The appeal before the Sheriff has been sisted pending the determination of the issues.

[4] When a devolution minute was first lodged in the appeal process on behalf of the appellant, intimation was made to the Lord Advocate, who intervened in the process on behalf of the Scottish Ministers ("the first intervener"). The Lord Advocate has remained a party to the proceedings. Intimation was also made to the Advocate General for Scotland. Following a procedural hearing before the Sheriff on 18 September 2008 the Advocate General elected to play no further part in the proceedings.

[5] The Reference of the devolution issues to this Court was drafted by the appellant and subsequently revised by the respondent and the first intervener. The devolution issues which are the subject of the Reference are in the following terms:

1. Whether or not the absence of any provision permitting the appellant to receive state-funded legal representation before the children's hearing of 6 February 2008 constituted a breach of the appellant's Convention rights under Articles 6, 8 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)?; and

2. Whether the absence of any provision permitting the appellant to receive state-funded legal representation before any children's hearing constitutes a breach of the appellant's Convention rights under Articles 6, 8 and 14 of the ECHR?

[6] The appellant, the respondent and the first intervener were all represented during the hearing before this court. In advance of that hearing all three parties lodged written submissions, which proved to be of considerable assistance to the Court.

Background

[7] The appellant suffers from learning difficulties, with specific weakness in her working memory, poor memory for verbal information, and language, literacy skills and numeracy skills, equivalent to those of children under the age of 10 years. It is contended on the appellant's behalf that her learning difficulties will have a substantial and long-term adverse effect on her ability to carry out normal day to day activities and that she is a "disabled person" for the purposes of the Disability Discrimination Act 1995.

[8] On 20 December 2006 the Sheriff at Paisley made a Child Protection Order ("CPO") in respect of the Child. The CPO had been applied for by East Renfrewshire Council under Section 57(2) of the 1995 Act. The CPO authorised the removal of the Child to a place of safety and allowed the appellant to have supervised contact with the Child for periods of two hours on four occasions per week, as determined at the discretion of the social work department. Since 20 December 2006, the Child has resided with foster carers. Over the same period of time, the appellant's contact with the Child has been subject to regulation, initially by the Sheriff and subsequently by a children's hearing.

[9] On 5 January 2007 a children's hearing granted a place of safety warrant under section 66 of the 1995 Act in respect of the Child. That warrant was granted to the Chief Social Worker of East Renfrewshire Council. On 26 January 2007 and 16 February 2007, the warrant was renewed by a children's hearing.

[10] On 8 March 2007, the Sheriff at Paisley, on an application by the respondent, granted a warrant under section 67 of the 1995 Act, for the further detention of the Child in a place of safety. That warrant was continued by the Sheriff at a number of hearings, on the last occasion to 30 August 2007. The appellant was represented by a solicitor at each of those hearings before the Sheriff.

[11] On 2 August 2007, grounds of referral to the children's hearing in respect of the Child, in terms of section 52(2)(c) of the 1995 Act, were established during a hearing before the Sheriff at Paisley. Those grounds of referral proceeded on, amongst other facts, that the appellant has limited ability, without support, to provide the Child with all aspects of his care and that limitation in her ability would be likely to cause the Child to suffer unnecessarily or to be impaired in his health or development. The appellant was represented by a solicitor during the hearing before the Sheriff on 2 August 2007.

[12] Following the establishment of those grounds of referral, a supervision requirement under section 70 of the 1995 Act was made in respect of the Child, at a children's hearing on 27 August 2007. The supervision requirement required the Child to reside with foster carers. It also provided for supervised contact between the Child and the appellant for ten hours per week during two five hour sessions. The appellant attended the hearing on 27 August 2007 accompanied by two representatives, her father and a lay advocate. She was not represented by a lawyer at that hearing. The appellant did not appeal against the decision of the children's hearing on 27 August 2007.

[13] On 15 October 2007 a children's hearing continued the supervision requirement but varied the arrangements for contact, to provide that the Child would have supervised contact with the appellant during two five hour sessions per week and one period of weekend contact, and would also have contact with his father for a minimum of one afternoon per week. The appellant attended the hearing with two representatives, her father and a lay advocate. She was not represented by a lawyer at that hearing. The appellant did not appeal against the decision of the children's hearing on 15 October 2007.

[14] A further children's hearing was held on 6 February 2008. The appellant attended the hearing with two representatives, her father and a lay advocate. She was not represented by a lawyer at this hearing. At the start of the hearing the members of the children's panel, who constituted the children's hearing, spoke to the appellant in the presence of her father and lay advocate. The respondent was not present. This meeting took place at the request of the lay advocate, made on behalf of the appellant. Based on the discussion during this part of the hearing, the members of the children's panel understood the appellant was happy with the current level of contact.

[15] A letter dated 5 February 2008 from the appellant's solicitor was placed before the children's hearing on 6 February 2008. The letter requested that the hearing be adjourned to allow the appellant to seek state-funded legal representation. The children's hearing refused that application, noting in its reasons for deciding to do so -

"The basis for this was that Miss McCartney [the appellant's solicitor] thought that S's rights under [ECHR] were being breached as she was not entitled to legal aid before the hearing. She has written to the Scottish Government on this matter and is awaiting a response. She wished today's hearing could be continued until a response was received. The panel felt that there could be no time limit set on this and in the Child's best interests a decision had to be made today. SW agreed to request a review immediately should legal aid be granted."

The children's hearing on 6 February 2008 continued the supervision requirement but varied the condition of contact to read "[The Child] is to have supervised contact with his mother, S K, for a minimum of three days per week for 5 hours each."

[16] The appellant appealed the decision of the children's hearing dated 6 February 2008 to the Sheriff at Paisley, under section 51 of the 1995 Act. The appeal proceeds on two grounds. The first related to the revised measures prescribed by the children's hearing in terms of which the appellant would have contact with the Child. The second founded on the decision of the children's hearing to proceed with the hearing in the absence of the appellant having a legal representative, which it was contended breached the appellant's rights under Article 6 and Article 8 of the European Convention of Human Rights ("the Convention"). The respondent is resisting the appeal and has lodged answers.

[17] As we have already indicated, during the course of the appeal, the appellant lodged a devolution minute. In that devolution minute she alleged that the absence of any provision for state-funded legal representation for a relevant person before a children's hearing breached her rights under Article 6 and Article 8 of the European Convention. She subsequently adjusted the devolution minute so that it also referred to Article 14 of the Convention.

[18] The appellant was represented by a solicitor before the children's hearings on 22 December 2006, 5 January 2007, and 16 February 2007. On none of these occasions was the appearance of her solicitor covered by legal aid. The appellant had the benefit of legal advice and assistance prior to the children's hearings on 27 August 2007, 15 October 2007 and 6 February 2008. At the children's hearing on 27 August 2007, 15 October 2007 and 6 February 2008 the appellant appeared with two representatives, her father and a lay advocate but did not have legal representation. The appellant is represented by solicitors and senior counsel, with the benefit of legal aid, in the appeal before the Sheriff against the decision made on 6 February 2008 and she was represented by counsel during the hearing before this Court.

Legislative background

[19] Articles 6, 8 and 14 of the ECHR provide:

"Article 6

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

.....

Article 8

1. Everyone had the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, of for the protection of the rights and freedoms of others.

Article 14

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

[20] Section 51 of the Children's Act 1995 provides:

"51. Appeal against decision of children's hearing or sheriff -

(1) Subject to subsection (15) below, a child or a relevant person (or relevant persons) or both (or all) -

(a) may, within a period of three weeks beginning with the date of any decision of a children's hearing, appeal to the sheriff against that decision; and

(b) where such an appeal is made, shall be heard by the sheriff.

(2) The Principal Reporter shall, in respect of any appeal under subsection (1) above, ensure that all reports and statements available to the hearing, along with the reports of their proceedings and the reasons for the decision, are lodged with the sheriff clerk.

(3) The sheriff may, on appeal under subsection (1) above, hear evidence from, or on behalf of, the parties in relation to the decision; and, without prejudice to that generality the sheriff may -

(a) examine the Principal Reporter;

(b) examine the authors or compilers of any reports or statements; and

(c) call for any further report which he considers may assist him in deciding the appeal.

(4) Where the sheriff decides that an appeal under this section has failed, he shall confirm the decision of the children's hearing.

(5) Where the sheriff is satisfied that the decision of the children's hearing is not justified in all the circumstances of the case he shall allow the appeal, and -

(a) where the appeal is against a warrant to find and keep or, as the case may be, to keep a child in a place of safety, he shall recall the warrant;

(b) where the child is subject to a supervision requirement containing a condition imposed under section 70(9) of this Act, he shall direct that the condition shall cease to have effect; and

(c) in any case, he may, as he thinks fit -

(i) remit the case with reasons for his decision to the children's hearing for reconsideration of their decision; or

(ii) discharge the child from any further hearing or other proceedings in relation to the grounds for the referral of the case; or

(iii) substitute for the disposal by the children's hearing any requirement which could be imposed by them under section 70 of this Act.

......

(11) Subject to subsections (13) and (15) below, an appeal shall lie by way of stated case either on a point of law or in respect of any irregularity in the conduct of the case -

(a) to the sheriff principal from any decision of the sheriff -

(i) on an appeal under subsection (1) of this section;

(ii) on an application made under section 65(7) or (9) of this Act; or

(iii) on an application made under section 85(1) of this Act; and

(b) to the Court of Session from any decision of the sheriff such as is mentioned in sub-paragraphs (i) to (iii) of paragraph (a) above and, with leave of the sheriff principal, from any decision of the sheriff principal on an appeal under that paragraph; and the decision of the Court of Session in the matter shall be final.

(12) An appeal under subsection (11) above may be made at the instance of -

(a) the child or any relevant person, either alone or together; or

(b) the Principal Reporter on behalf of the children's hearing.

(13) An application to the sheriff, or as the case may be the sheriff principal, to state a case for the purposes of an appeal under subsection (11)(a) or (b) above shall be made within a period of twenty-eight days beginning with the date of the decision appealed against.

(14) On deciding an appeal under subsection (11) above the sheriff principal or as the case may be the Court of Session shall remit the case to the sheriff for disposal in accordance with such directions as the court may give.

(15) No appeal shall lie under this section in respect of -

(a) a decision of the sheriff on an application under section 57 of this Act; or

(b) a decision of a children's hearing continuing a child protection order under section 59(4) of this Act."

[21] Prior to 4 June 2009, there was no legislation in force to enable state-funded legal representation to be made available to a relevant person, such as the appellant, at a children's hearing. A relevant person is eligible to apply for legal advice under the state-funded legal advice and assistance scheme before she attends such a children's hearing. A relevant person is also eligible to apply under the civil legal aid scheme for state-funded legal representation at an appeal to the Sheriff under section 51 of the 1995 Act, against a decision of a children's hearing

[22] The Children's Hearings (Legal Representation) (Scotland) Rules 2001 (SSI 2001/478) ("the 2001 Rules") made provision for state-funded legal representation at children's hearings. Rule 3 provides:

"3 - Legal representation for the purposes of assisting children at a Children's Hearing.

(1) A business meeting arranged by the Principal Reporter under section 64(1) of the Act may appoint to any child who is due to appear before the Children's Hearing a legal representative if it appears to that business meeting, notwithstanding that an appointment may be made under section 41(1) of the Act, that -

(a) legal representation is required to allow the child to effectively participate at the Hearing; or

(b) it may be necessary to make a supervision requirement (or a review of such requirement) which includes a requirement for the child to reside in a named residential establishment and the child is likely to meet the criteria specified in section 70(10) of the Act and the Secure Accommodation (Scotland) Regulations 1996.

(2) The Children's Hearing may at any time appoint to any child a legal representative if it appears to that Hearing that either of the circumstances in paragraph (1)(a) or (b) above apply notwithstanding that:

(a) a business meeting or a previous Children's Hearing has considered the appointment of a legal representative for the child who is the subject of the Hearing; or

(b) an appointment has been or may be made under section 41(1) of the Act."

[23] On 2 June 2009 the Scottish Ministers made The Children's Hearings (Legal Representation) (Scotland) Amendment Rules 2009 (S.S.I. 2009/211), which were laid before the Scottish Parliament the following day and came into force on 4 June 2009 ("the 2009 Regulations"). Paragraph 5 provides:

"After Rule 3 (Legal representation for the purpose of assisting children at a Children's Hearing) insert -

3A. - Legal representation for the purpose of assisting a relevant person at a Children's Hearing

(1) A business meeting arranged by the Principal Reporter under section 64(1) of the Act may appoint to a relevant person who is due to attend a Children's Hearing a legal representative, if it appears to that business meeting that-

(a) it may be necessary to make a supervision requirement (or review a supervision requirement) which includes a requirement-

(i) that the child who is the subject of a Children's Hearing reside at any place, where such a requirement would result in the child no longer residing with the relevant person;

(ii) regulating the relevant person's contact with the child; or

(iii) affecting the relevant person's parental rights under section 2 of the Act; and

(b) despite the entitlement of the relevant person to be accompanied by a representative under rule 11 of the 1996 Rules, legal representation is required to enable the relevant person to effectively participate at the Hearing.

(2) The Children's Hearing may at any time appoint to any relevant person a legal representative if it appears to that Hearing that the circumstances in paragraph (1) exist and may do so even where a business meeting or previous Children's Hearing has considered the appointment of a legal representative for that relevant person.

(3) When any appointment of a legal representative is made, the business meeting or the Children's Hearing shall direct the Principal Reporter to advise the local authority of that appointment.

3B - Effective participation

A person's ability to effectively participate in a Children's Hearing may be affected, in particular, by-

(a) the complexity of the case, including the points of law in issue;

(b) the nature of the issues involved;

(c) the ability of the individual, with the assistance of a representative under rule 11 of the 1996 Rules, to consider and challenge any document or information before the Hearing;

(d) the ability of the individual, with the assistance of a representative under rule 11 of the 1996 Rules, to present their views in an effective manner."

[24] We should record that following the hearing before us, steps were taken in the Scottish Parliament with a view to having the 2009 Regulations annulled. On 8 Sepetmber 2009 the Education Lifelong Learning and Culture Committee of the Scottish Parliament considered and carried a motion to annul the 2009 Regulations. On 9 September 2009 the Scotttish Parliament debated and disagreed with a motion that nothing further been under the 2009 Regulations. In light of the latter decision, the 2009 Regulations remain in force.

Submissions on behalf of the appellant

[25] Senior counsel for the appellant invited the court to answer Question 1 in affirmative. He relied on the fact that it was a matter of admission by the respondent, and on behalf of the Scottish Ministers, that Article 6 was engaged as far as the hearing on 6 February 2008 was concerned. The parties were also at one that the appellant's Convention rights under Article 8(1) had been engaged on the basis that "the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention" (see e.g. Kutzner v Germany (2002) 35 EHRR 25, at paras. 65-82). Senior counsel also explained that the parties were agreed that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures which interfere with Article 8 rights, such as the statutory powers of the children's hearing in the present case must, when taken as a whole, be fair and such as to afford due respect to the interests safeguarded by that Article.

[26] Senior counsel for the appellant also submitted that Article 14 was engaged. Article 14 required that the appellant's Convention rights under Articles 6 and 8 must be guaranteed without discrimination and that her right to non-discrimination was violated when the State treated persons in analogous situations differently, without providing any objective and reasonable justification for doing so. Senior counsel explained that the appellant also sought to rely on the provisions of Article 14 in support of the argument that the State is obliged to treat people differently, when their circumstances require special or different treatment. This particular branch of his submissions was founded on the fact that the legal aid legislation in force, as at 6 February 2008, allowed children appearing before a children's hearing the protection afforded by legal representation, but had not allowed such protection to be made available to relevant persons. It was also argued that the failure of the Scottish Ministers to make any distinction (or reasonable adjustments) on the issue of eligibility for legal aid as between adults who are fully capable and those, such as the appellant, who are subject to cognitive impairment or disabilities, constituted discrimination that was incompatible with the appellant's Convention rights under Article 14. That arose because a person with learning difficulties, such as the appellant, would in a markedly more difficult position in presenting their case on their own, than a person without learning disability would be.

[27] Against that background, senior counsel for the appellant's primary submissions was that a structural failure in the legal aid legislation, which did not permit the appellant to apply for state-funded legal representation, had resulted in her Convention rights having been breached, whether or not, the appellant, had as a matter of fact, been able to represent herself during the hearing on 6 February 2008. In summary the absence on 6 February 2008 of any provision in the legal aid legislation, which would have permitted the appellant to apply for and receive state‑funded legal representation before the children's hearing, had constituted a breach of her convention rights under Articles 6, 8 and 14.

[28] Separately, senior counsel for the appellant also argued that notwithstanding the terms of section 51 of the 1995 Act and the statutory provisions under which the Reference had been made, this Court had the power to investigate the facts themselves. Senior counsel submitted that having regard to the information available to the Court about the appellant, which was summarised in the Reference, and set out in greater detail in two reports on the appellant prepared by Dr Fiona Cuthill, Chartered Clinical Psychologist, dated 19 October 2006, and by Maria Venditozzi, Speech and Language Therapist, dated 10 November 2006 (reports which senior counsel produced during the course of his submissions), this Court was in a position to determine that on 6 February 2008 the appellant had been unable to participate effectively during the hearing which took place that day. By reason of the complexity of the procedure and the nature of the proceedings in which the appellant had been involved, such legal representation had been indispensable for the appellant to have access to the hearing.

[29] In developing these submissions, senior counsel for the appellant relied on (a) the appellant's learning disabilities, (b) the importance of the subject matter at stake before the children's hearing, namely the appellant's relationship with her son, was central to her enjoyment of family life, (c) the highly emotive nature of that subject matter (cf. P, C and S v United Kingdom, (2002) 35 EHRR 31, at para. 95), (d) the complexity of the factual and legal issues involved in what had been before the children's hearing, (e) the fact that it could not be assumed that either of the lay representatives, who had accompanied the appellant on 6 February 2009, had been able to provide all the skilled assistance that may have been required if the appellant's position was going to be presented effectively (cf. S v Miller 2001 SC 977, per Lord President Rodger at page 997D); (f) the fact that the appellant had insufficient funds to pay for legal representation, (g) the fact that the failure to provide any state‑funded legal representation constituted a breach of the principle of equality of arms (see Moser v Austria [2006] ECHR 799, paras.60, 67 and 72), and (h) the potentially long term consequences of the decisions taken by the children's hearing on 6 February 2008, and at any earlier hearings that may also have been conducted in accordance with a procedure that failed to comply with the appellant's Convention rights.

[30] Senior counsel for the appellant also argued that insofar as the decision taken at the children's hearing on 6 February 2008, had amounted to an interference with the appellant's rights under Article 8(1), it was for the State to justify that interference. That followed from the provisions of Article 8(2). The State had to prove the facts necessary to justify the interference and to rebut the allegation of unfairness which arose out of the appellant's learning difficulties and the absence of any statutory provision of state-funded legal representation (see Kutzner v Germany (2002) 35 EHRR 25, paras 65 - 82). Senior counsel argued that the State, in the person of the respondent and the Scottish Ministers, had failed to discharge that onus in the appeal proceedings before the Sheriff.

[31] In support of his submissions in relation to Question 1, senior counsel for the appellant relied in particular on P, C and S v United Kingdom (2002) 35 EHRR 31. Under reference to the Judgment of the European Court of Human Rights, he recognised that there is no automatic right under the Convention for legal aid or legal representation for an individual who becomes involved in proceedings which determine their civil rights (para. 88). Nevertheless the engagement of Article 6 involved two inter-related aspects. Because Article 6(1) embodies the right of access to a court, failure by the State to provide an individual with a lawyer may breach this provision, where such assistance was indispensable for the individual to have effective access to that court, for example by reason of the complexity of the court's procedures or the type of case in which the individual was involved (para. 89). Furthermore the key principle governing the application of Article 6 was fairness. Even in cases where an individual has appeared in court without the assistance of a lawyer and had managed to conduct their case in the face of all the difficulties, a question may still arise as to whether the proceeding had been fair. For those reasons, the seriousness of what is at stake in proceedings will be of relevance in assessing the adequacy and fairness of the procedures (para. 91). P, C and S v United Kingdom was an example of a case in which the E.Ct.H.R had concluded that the assistance of a lawyer during the hearing of applications, which had crucial consequences for relationship between parents and their child, had been an indispensable requirement (para. 100).

[32] Senior counsel for the appellant also invited the Court to answer Question 2 in the affirmative, notwithstanding the recent change in the law effected by the 2009 Regulations. He submitted that question was directed to all the children's hearings relating to the Child, in which the appellant had previously been involved, before apart from that on 6 February 2008..

[33] In summary the appellant invited the Court to answer both questions in the affirmative. It was also submitted that if it was thought appropriate grant a declarator relating to the appellant's Convention rights under Article 6, 8 and 14, any such declarator could be in the following terms:

"The absence of any provision whereby the appellant could apply for state-funded legal representation before the children's hearings of 6 February 2008, and before those other Children's Hearings concerning her son, was incompatible with her rights under Articles 6, 8 and 14 of the Convention."

Submissions on behalf of Scottish Ministers

[34] Senior counsel for the Lord Advocate explained that after the Reference had been made to this Court the Scottish Ministers had decided to amend The Children's Hearings (Legal Representation) (Scotland) Rules 2002 so that state-funded legal representation could, in appropriate circumstances, be made available to a relevant person appearing at a children's hearing, if the relevant person would not, without legal representation, be able to participate effectively in the hearing.

[35] Senior counsel for the Lord Advocate explained that the Scottish Ministers recognised that what is at stake in family law cases, such as proceedings before children's hearings, is very important to the children and parents involved and that the emotional nature of the subject matter involved can be significant. Nevertheless, even in family law cases the Convention did not require that parties be accorded an absolute right to legal aid.

[36] Senior counsel pointed out that relevant persons may be quite capable of participating effectively during a hearing without legal representation. The composition of the hearing and its procedures were designed to secure the active participation of all those interested in the outcome (including the child and relevant persons). A relevant person can be accompanied by a representative (who need not be a lawyer). The issues which a children's hearing has to decide can be straightforward and require no legal input. Nevertheless it was acknowledged by the Scottish Ministers that the possibility of a case arising in which a relevant person, without legal representation, could not participate effectively during a hearing, cannot be excluded. However, such a case would only be incompatible with the Convention rights of a relevant person without such legal representation, if (a) the decision of the hearing would determine the civil rights of the relevant person; and (b) without legal representation, the relevant person was, in fact, unable to participate effectively in the hearing.

[37] In these circumstances, the Lord Advocate proposed that the questions in the Reference should be answered as follows:

(1) The absence of any provision whereby state-funded legal representation could have been made available to the appellant for the purposes of attending the children's hearing of 6 February 2008 if she was unable, without such representation, to participate effectively at the hearing, was incompatible with Articles 6, 8 (in its procedural aspect) and 14 of the Convention.

(2) The absence of any provision whereby state-funded legal representation could be made available to the appellant for the purposes of attending a children's hearing which determines her civil rights where, without such representation, she would be unable to participate effectively at the hearing, would be incompatible with Articles 6, 8 (in its procedural aspect) and 14 of the Convention.

[38] As far as Question 1 was concerned, senior counsel for the Lord Advocate argued that a finding that appellant had been unable to participate effectively during the hearing on 6 February 2008, would be a necessary pre-requisite to a determination that her Convention rights had been infringed. The Scottish Ministers did not concede that the absence on 6 February 2008 of any statutory provision extending the legal aid scheme to cover legal representation for the appellant at a children's hearing amounted by itself to a breach of her Convention rights. Article 6 did not require that state-funded legal aid be available whenever civil rights are involved. States were entitled to take a discriminatory approach to making legal aid available. All that was conceded was that the absence of any provision enabling a relevant person to apply for state-funded legal representation could have led to such a breach of her Convention rights, but only if the appellant had been unable to represent herself and participate effectively during the hearing on 6 February 2008.

[39] In these circumstances, there could only be a finding of a breach of the appellant's Convention rights on 6 February 2008, if, as a matter of fact, the appellant had been unable to participate effectively during the hearing that took place that day.

[40] Senior counsel for the Lord Advocate contended that a similar analysis fell to applied to all the other children's hearings relating to the Child which the appellant had previously attended. Whether the appellant had been unable to participate effectively during a particular hearing was a question of fact, which was not before the Court. In these circumstances, it was not appropriate to answer Question 1 in the affirmative, as the appellant sought, or to grant declarator in the terms she proposed.

[41] As far as Question 2 was concerned, senior counsel for the Lord Advocate submitted that as drafted it was intended to relate to the future. That was clear from the terms of Paragraph 5 of the Reference. The Scottish Ministers were content that it should be answered as they proposed.

[42] Senior Counsel for the Lord Advocate submitted that the answers proposed on behalf of the Scottish Ministers could be justified by reference to the decision of the Inner House in S v Miller (supra). In S v Miller the Court had held that the structure of the children's hearing system complied with the requirements of Article 6 in its application to civil proceedings in all respects, apart from the provision of legal aid. In answering one of the questions before it, the Court held that the system did not comply with Article 6 "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" (see para 3 of the Supplementary Opinion of the Court at page 1059). It was submitted that the proviso, namely that without legal representation the child would be unable to represent himself properly and satisfactorily at the hearing, was of the essence of the Court's conclusion in that case and was consistent with the relevant Strasbourg case law.

[43] In these circumstances, the Scottish Ministers did not resist the questions in this Reference being answered in the similar manner to that adopted in S v Miller. The Court in S v Miller had dealt with the matter under reference to Article 6 alone. However, in the present case, the issues under the procedural aspect of Article 8, duplicated those arising under Article 6. In these circumstances, it was recognised that the Court might take the view that it should deal with both Articles in its answer to the questions.

[44] Senior counsel suggested that as far as Article 14 was concerned different issues might arise. However, he explained that as far as the provision of state-funded legal representation was concerned, the Scottish Ministers no longer sought to draw any distinction in principle between a child and a relevant person where (a) the child or relevant person's civil rights are determined by a children's hearing and (b) the child or relevant person cannot participate effectively in the hearing without legal representation. In these circumstances the Lord Advocate did not resist reference being made to Article 14 if the two questions were to be answered as she proposed.

[45] Senior counsel for the Lord Advocate went on to submit that if one accepted that there are cases in which there may have been (or would be) a breach of the Convention rights of a relevant person by reason of their being unable to participate effectively during a children's hearing, it would be necessary to identify a test to determine whether such a breach had arisen or was liable to arise. That test would fall to be applied to what had occurred, or was expected to occur, during a particular hearing. In considering whether or not, in any particular case, a relevant person had been, (or would be), unable to participate effectively in the hearing, it was necessary to have regard to all the circumstances of the particular case. These circumstances could include, among other factors, the personal circumstances of the relevant person; the nature of the issues under consideration during the hearing, the entitlement of a relevant person appearing at a children's hearing to be accompanied by a representative; whether the relevant person was in fact accompanied; and any legal advice and assistance available to the relevant person in advance of the hearing and the assistance provided during the hearing. It would be also appropriate bear in mind that relevant persons may be quite capable of participating effectively in the proceedings at a children's hearing without legal representation, that the composition of the hearing and its procedures are designed to secure the active participation of all those interested in the outcome (including the child and relevant persons) and that the issues which children's hearings have to decide are often straightforward and require no specific legal input.

[46] Senior counsel for the Lord Advocate submitted that unfairness at one hearing could not affect a decision taken at a subsequent hearing (see M v Caldwell 2001 SLT (Sh.Ct.) 106 at para[10]). M v Caldwell also illustrated that where a relevant person had been legally represented throughout a children's hearing, the fact that the lawyer involved had acted gratuitously in the absence of any state-funded legal aid system did not result in the hearing being unfair and in breach of the relevant person's Convention rights (see also Dempsey v Ireland ECHR 6 April 2000).

Submissions on behalf of the respondent

[47] The submissions on behalf of the respondent were along similar lines to those advanced on behalf of the Lord Advocate, which senior counsel for the respondent adopted in their entirety. The respondent proposed that the questions be answered as follows:

(1) The absence of any provision whereby state-funded legal representation could have been made available to the appellant for the purposes of attending the children's hearing of 6 February 2008 if she was unable, without such representation, to participate effectively at the hearing, was incompatible with Articles 6 and 8 (in its procedural aspect) of the Convention.

(2) The absence of any provision whereby state-funded legal representation could be made available to the appellant for the purposes of attending a children's hearing which determines her civil rights where, without such representation, she would be unable to participate effectively at the hearing, was incompatible with Articles 6 and 8 (in its procedural aspect) of the Convention.

[48] Senior counsel for the respondent explained that the respondent was broadly in agreement with the Lord Advocate as regards the answers that she proposed, albeit that the respondent did not consider that the inclusion of a reference to Article 14 was necessary or appropriate. It was stressed that the Respondent agreed with the Lord Advocate that the proviso as to whether without legal representation the child would be unable to represent himself properly at the hearing was of the essence of the Court's conclusion in S v Miller and is in accordance with the relevant Strasbourg jurisprudence (e.g. P, C and S v United Kingdom (2002) 35 EHRR 31). That being so, it was submitted that it would not be appropriate for this Court to answer the questions referred by the Sheriff without the inclusion of equivalent provisos relating to relevant persons such as the appellant.

[49] Senior Counsel for the respondent argued that if following the making of the 2009 Regulations by the Scottish Ministers, a finding still required to be made as to whether or not the appellant had been able to participate effectively at the Hearing of 6 February 2008, the appropriate fact finder would be the Sheriff in the context of the current appeal and/or the further appeal that had been taken by the appellant against the decision taken by the children's hearing at a review hearing on 9 March 2009, and not by this Court in the context of the Reference (see HM Advocate v Touati 2001 SLT 1195).

[50] It was stressed that the Reference had not been made to this Court to allow it determine whether or not the appellant had been able to represent herself effectively during the hearing on 6 February 2008. This Court did not have all the relevant papers before it, in particular the papers that had been before the children's hearing. The Sheriff, on the other hand, had statutory power to call for evidence. The decision as to whether the appellant had been able to participate effectively during the hearing on 6 February 2008 should be left to the Sheriff.

[51] In any event, having regard to (a) the information relating to the appellant that was before this Court; (b) the issues that had been before the children's hearing on 6 February 2008, namely to regulate the level of contact between the appellant and the Child and to deal with the letter the children's hearing had received from the appellant's lawyer, requesting that the hearing be adjourned indefinitely to allow representations to be made to the Scottish Ministers about legal aid; and (c) the fact that the appellant had been accompanied at the hearing on 6 February 2008 by her father and a lay advocate, it could not be said that she had been unable to represent herself effectively. Question 1 only related to that hearing. All that had been decided at that hearing was the regulation of contact. The respondent did not accept that the appellant had been unable to participate effectively during that hearing. On the contrary, if the matter was to be contested before the Sheriff, the respondent's stance would be that, accompanied as she was, the appellant had been able participate effectively during the hearing on 6 February 2008. That was the respondent's position on that hearing and could well be her position in relation to future hearings. On the other hand, her position might change if the subject matter at a particular hearing was legally complex. Senior counsel for the respondent stressed that Question 2 was looking to the future.

[52] In conclusion it was submitted that this Court should answer the two questions referred in the manner proposed by the respondent, and remit the appeal to the Sheriff with a direction that he proceed as accords. It would then be for the Sheriff to decide how the appeal should be dealt with, along with a further appeal that the appellant had taken arising out of the review hearing on 9 March 2009. On the case being returned to the Sheriff, the Respondent might raise a preliminary issue as to whether the appeal against the decision of 6 February was now academic, in view of the passage of time and the enactment of the 2009 Regulations. If the Sheriff determined that the appeal was not academic, the ensuing appeal hearing might involve the Sheriff determining whether or not the Appellant had been able to participate effectively in the hearings on 6 February 2008 and/or 9 March 2009.

Discussion

[53] As senior counsel for the appellant made clear at the outset of his submissions, matters have moved on significantly since the Reference was made to this Court. Following the making of those Regulations on 2 June 2009, the positions adopted by both the Scottish Ministers and the respondent changed markedly from those they had set out in the Reference. In particular the contention that having regard to (a) the deliberate informality of proceedings before children's hearings (which is intended to facilitate active participation by those involved); (b) the fact that the grounds of referral, if in dispute, will have been established before the sheriff; and (c) the availability of an appeal under section 51 of the 1995 Act to the sheriff, the absence of any state-funded legal representation for relevant persons appearing before a children's hearing has not, nor could it ever, involve any breach of the Convention rights of a relevant person, such as the appellant, is no longer insisted upon.

[54] Having said that, it is important to make clear that the hearing before this Court, has not involved the Court scrutinising of the provisions of the 2009 Regulations. Indeed the Court did not receive any submissions on the detail of those provisions. For those reasons, this Opinion should not be read as amounting to the expression of any concluded opinion that the 2009 Regulations have corrected any incompatibility between statutory provisions relating to the children's hearing scheme that were in force on 6 February 2008 (the date of the children's hearing with which these proceedings are concerned) and Articles 6, 8 and 14 of the Convention.

[55] Before we turn to deal with how we propose to answer Question 1, we should indicate that we have decided not to answer Question 2. That is because Question 2 is drafted in terms which do not relate to the hearing on 6 February 2008. As drafted it could relate to hearings that have occurred since 6 February 2008 and to hearings that may take place in the future. This Reference arises out of an appeal taken against the decisions made during the children's hearing on 6 February 2008. We have reached the conclusion that it would not appropriate for us to answer a question unconnected with that particular hearing. Answering Question 2 could have no bearing on the outcome of the section 51 appeal relating to the hearing on 6 February 2008 which is currently before the Sheriff. Moreover, the provisions of the 2009 Regulations will apply to any hearings relating to the Child after 4 June 2009.

[56] Turning to Question 1, all parties made clear during their submissions that they wished the question to be answered in the terms in which it is framed. No suggestion was made that the terms of the question might be amended. We stress that in view of the passage in the Opinion of Lord President Rodger in S v Miller (para [6]), in which he discussed how questions in a reference to this Court require to constitute devolution issues in terms of para 1 of the schedule 6 to the Scotland Act 1998. In the present case, Question 1 focuses on whether the appellant's Convention rights had been breached. The question could have addressed a wider issue related to the failure of the Scottish Ministers to take any steps prior to 2 June 2009 to correct the absence of any statutory provision allowing state-funded legal representation to be made available to a relevant person appearing before a children's hearing. That failure admitted the possibility of a children's hearing taking place and determining the civil rights of a relevant person, when the relevant person in question was unable, without such representation, to participate effectively during the hearing. If the question for answer by this Court had focused on whether such failure on the part of the Scottish Ministers to act had been compatible with Articles 6 and 8(1) of the Convention, there can be no doubt the question would have constituted a devolution issue that fell to be answered in the negative. It is appropriate to make that clear because, during the discussion before us, there was little dispute that the absence of any such statutory provision on 6 February 2008 amounted to an inbuilt systematic flaw in the legal aid scheme as it applied to the children's hearing system on that date.

[57] As was made clear in S v Miller compulsory measures of care, following upon the referral of a child to a children's hearing, inevitably encroach on the relationships between the child and his or her parent or parents. For that reason the civil rights and obligations of both the child and the parents are liable to be affected whenever a children's hearing resolves on compulsory measures of care and makes or varies a supervision requirement. That is how Article 6 comes to be engaged in respect of a children's hearing. In terms of Article 6(1) the parents of a child before such a hearing are entitled to a fair hearing.

[58] In S v Miller the Court was addressing the non-availability of state-funded legal representation for a child appearing before a children's hearing. In the process of doing so it took into account the terms of Rule 11 of the Children's Hearings (Scotland) Rules 1986 (which allow a qualified lawyer to attend a children's hearing as a child's representative). It recognised the informal approach taken to the conduct of children's hearings and the role of the chairman in explaining the purpose of the hearing to all those present. However, the Court was persuaded that on account of the complexity and importance of factual and legal issues that may arise, and the consequences for children that can flow from decisions taken at children's hearings, S's right in terms of Article 6 required that he should have the right to apply for legal aid in the form of legal representation before the children's hearing. It stressed that it would not be in every case that legal representation of the child would appropriate or necessary. The child would only be entitled to it where it was required in the interests of justice.

[59] Question 3(a) before the Court in S v Miller raised the issue as to whether a hearing before a children's hearing constituted proceedings for the determination of the civil rights and obligations of the rights of the child who had been referred. That question was answered "(i)t can be and, in this case, it is." The Court then proceeded to hold that the children's hearing system did not comply with Article 6 in its application to civil proceedings "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."

[60] We recognise that in proceedings before a children's hearing, the rights and obligations of a child's parent are different from those of the child who is the subject of the referral. However, the rights of a parent during any hearing where that parent's civil rights are determined include the protection of a fair hearing afforded by Article 6. In these circumstances, we agree that the absence of any statutory provision entitling state-funded legal representation to be made available to relevant persons whose civil rights would be determined at a children's hearing, but who would be unable, without such representation, to participate effectively during it, amounted to an inbuilt systematic flaw in the legal aid scheme as it applied to the children's hearing system.

[61] Turning to the precise terms of Question 1, we are satisfied on the basis of the information before us that Articles 6, 8 and 14 are all engaged. Having regard to the information relating to the appellant that is before us, in particular the contents of the reports prepared by Dr Fiona Cuthill and Maria Venditozzie, we are persuaded that the answer to Question 1 should include reference to the appellant's rights under Article 14, as well as those under Articles 6 and 8

[62] However, the central issue in Question 1 as framed, namely whether the appellant's Convention rights were infringed on 6 February 2008, is a narrower issue from the one we have discussed in the last five paragraphs. It was not disputed that the subject matter of the hearing on 6 February 2008 was such that it involved a determination of her civil rights. However, the appellant's rights under Articles 6, 8 and 14 will only have been infringed during the hearing on 6 February 2008 if the appellant was, during that hearing, unable to participate effectively during the proceedings. In our opinion, the issue of whether or not the appellant was able to participate effectively during the hearing is a question of fact, which falls to determined by the Sheriff in the context of the appeal under section 51 of the 1995 Act that is before him. The provisions of section 51 require that the Sheriff have placed before him all the reports and statements that were before the children's hearing on 6 February 2008, together with all reports of the children's hearing itself and the reasons for its decision. The Sheriff is also entitled to hear evidence from, or on behalf of, the appellant and the respondent and to examine the authors or compilers of any reports or statements and call for any further reports he deems to be necessary to be necessary. The Sheriff's powers under section 51 entitle him to investigate the issue of whether the appellant had been able to participate effectively during the hearing on 6 February 2008. If he decided that she had not been, he could remit the case back to the children's hearing for reconsideration of its decision. Were that to happen, the provisions of the 2009 Regulations would apply to the further hearing.

[63] This Court does not have before it all the reports, statements and other papers, which section 51 requires be placed before the Sheriff. Nor does its procedures for determining Devolution Issues readily fit with the fact finding exercise which would be involved in addressing whether or not the appellant was able to participate effectively during the children's hearing on 6 February 2008. In these circumstances we are very firmly of the view that these issues should be addressed by the Sheriff, rather than by this Court, to which, in any event, the appellant and the respondent have a statutory ground of appeal against the decision ultimately reached by the Sheriff in the appeal under section 51 of the 1995 Act, which is before him.

[64] For these reasons, we have reached the conclusion that we should answer Question 1 in the terms that senior counsel for the Lord Advocate suggested. It follows from that conclusion that we are not prepared to make a declarator along the lines suggested by senior counsel for the appellant.

[65] During his submissions, senior counsel for the Lord Advocate also raised the issue of whether it was necessary to identify a test to be applied in determining whether there had been (or was liable to be) a breach of a parent's Convention rights by reason if their inability to participate effectively during a children's hearing. In our opinion guidance on this particular issue is to be found in Marangos v Cyprus
[2008] ECHR 1604 in Para 35 of the Judgment of the E.Ct.H.R:

"The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant's capacity to represent him or herself effectively."

In our opinion, that broad approach falls to be applied to the particular facts and circumstances of the case in which an individual's Convention rights under Article 6(1) are engaged, including the personal characteristics and capabilities of the individual concerned. Those facts and circumstances will include, but are not limited to, the importance and potentially long term consequences of decisions taken at children's hearings, the stress that may be experienced by parties involved in proceedings relating to family life, the complexity of the factual and legal issues involved, the ability of the individual to understand those issues and the contents of any reports or other documents relevant to those issues, and the availability of any representatives prepared to assist the individual during the hearing. In the particular circumstances of the present case, we would anticipate that the Sheriff would begin by considering the terms of the two reports to which we have referred.

[66] When looking at the fairness of a children's hearing that has already taken place, which is the exercise the Sheriff will require to undertake, his role it to determine whether it appears that the individual concerned may not have been able to represent himself or herself effectively. Whilst it will be for the appellant to establish on the balance of probabilities that her Convention rights have been breached, that does not require her to establish that had she been represented by a lawyer the outcome of the children's hearing would have been different. All she requires to establish is that she was unable to participate effectively in the hearing that took place on 6 February 2008.

In conclusion, therefore, we answer Question 1 as follows:

"The absence of any provision whereby state-funded legal representation could have been made available to the appellant for the purposes of attending the children's hearing of 6 February 2008 if she was unable, without such representation, to participate effectively at the hearing, was incompatible with Articles 6, 8 (in its procedural aspect) and 14 of the Convention".