European human rights laws could kill off Scotland’s ‘unique’ children’s panels

The former head of Scotland’s children’s hearing system believes human rights laws will kill off the nation’s unique form of delivering justice for children.

Veteran social worker Douglas Bulloch made the warning in a “parting shot” written as he retired as chairman of the Scottish Children’s Reporter Administration.

His paper, seen by the Sunday Herald, catalogues a series of threats facing the system of children’s panels set up to deal with the country’s most troubled and troubling youngsters. By far the biggest challenge, he said, was the European Convention on Human Rights (ECHR).

He writes: “I have no doubt that it would be possible to completely protect the hearings system from all potential ECHR challenges.

“In my view, we would then have lost all that is most valuable in our distinctive Scottish approach, most critically the engagement between the lay tribunal of volunteers and the child and the family.”

Above all, Bulloch fears that the ECHR, by guaranteeing a “fair tribunal”, will bring increasing numbers of lawyers before children’s panels for children, panel members and parents. Until recent court challenges, the only lawyer appearing before a children’s hearing was the reporter – a legal ­official who acted, in theory, in the interests of the child.

Lawyers come at a cost, both financial and ideological. The new army of solicitors would have to be paid, and they would also inject the adversarial culture of the courtroom into the collegiate, consensual and child-centred panel hearing.

Bulloch said: “A fully ECHR-compliant system would be an adversarial and representative system with, potentially, all the major shareholders – panel members, children’s reporters, child, family and carers – being represented by lawyers.

“At that point the costs of the system would have escalated far beyond current expenditure, and the child-centered [system] that is known and respected would have been lost.”

Officials are fearful of the cost of possible legal action under ECHR. Last year, in a landmark case, a woman with learning difficulties convinced the Court of Session that she should have been given legal aid to hire a lawyer to represent her in a children’s hearing that took away her baby.

The decision opened the way for hundreds of parents to sue the Scottish Government and prompted a change in the rules. Legal insiders say parents left unrepresented could each receive some £3,000, about as much as prisoners got in pay-outs for having to slop-out in jail.

The SCRA has already adjusted its practices after it was sued by a child who did not get legal aid.

Human rights lawyers believe that the current system could pose real dangers of injustice as panels have the power to lock up in secure units children without legal representation.

John Scott, a solicitor-advocate who specialises in human rights, said: “ECHR could be adapted to the ­hearings system. There will be cases when ECHR means different rules will have to apply, but there will be some when they won’t.”

Another solicitor working in the hearings system added: “When a child who might be placed in secure accomodation cannot speak for themselves, then a lawyer should be present who can, if necessary, robustly take issue with the position that the social work department adopt.”

A spokesman for the Scottish Government said officials were “fully aware of the challenge that ECHR presents to the system”, adding: “We will ensure that it maintains its child-centred ethos and at the same time make sure that it complies with ECHR.”

Bulloch, a former head of social work at East Ayrshire Council, worked with the children’s hearing system for 35 years.

He spent nearly a decade-and-a-half on the board of the SCRA, completing two four-year terms as the organisation’s chairman.

Loss of free services may be the cost of protecting our children

Stephen Naysmith, Social Affairs Correspondent

A return to means testing and the withdrawal of free services from those who can pay may be the price ­Scotland pays for adequately protecting its ­children, according to the country’s leading social work chief.

Michelle Miller, who took over last week as president of the Association of Directors of Social Work, has called for an immediate radical rethink of ­traditional ways of providing services, as she looked ahead to a “bleak ­financial landscape for social services”.

Miller, also Edinburgh’s chief social work officer, said cherished policies such as free bus passes for pensioners, guaranteed free nursery places for three-year-olds and plans for free prescriptions should be revisited given the impossibility of maintaining social work provision at current levels.

“We introduced universal provision of early years care, and ended up with some people getting pre-school places when they don’t need them because they could pay for them,” she told the Sunday Herald. “If they did pay, that would create greater capacity so that the children who are most vulnerable can get what they need.

“When we are worried we are in a situation where we can’t pay for everything, why would we choose to give people things for free that they can pay for themselves? But that is ­contentious, because it takes you into the realm of things like means testing.”

It is current Scottish Government policy to abolish prescription charges by 2011, but Miller questions whether that is a sensible move. “We currently have a situation where the vast majority have to pay. Why would we change that in the current climate? ”

Talking about deaths of children at the hands of their carers, such as ­Brandon Muir in Dundee or Baby Peter in London, she said social services were spread too thinly. “Child deaths will always be a worry and the current climate and circumstances make that more of a worry,” she said.

For each child death, countless other abused and neglected children are ignored and never make the ­headlines, or even become “child protection” cases, she said.

She also criticised the ring-fencing of health and education from cuts. “It is unrealistic to think that the public ­funding deficit can be halved, while at the same time protecting our two biggest spenders: education and health. The inevitable impact of that … on social work … on people, is unimaginable. It is not traditional delivery mechanisms that we need to protect, but the services that people need.”

Miller said the alternative meant “asking very difficult questions, the ones that have so far have only really been whispered … like can we afford free personal care for everyone irrespective of whether they need it, to be free?”.

She said the answer to the state’s funding problems might include helping fewer people, or helping the same numbers but reducing quality and standards of services.

For children it might mean ­finding better ways of reaching the most vulnerable earlier. “We shouldn’t wait until the level of need becomes ­critical. Social workers often don’t know about children until alarm bells are already ringing,” she added. “We need to get better at identifying these children. Schools, and health visitors who see children before they reach school could be better trained in early detection. Teachers know how children come to school – whether they are dirty or unhappy, for example.”