Scottish Human Rights Law Group

 The Convention compatibility of the procedure in children’s hearings in Scotland was considered by the Inner House which found that the hearings did not constitute “criminal proceedings” for the purposes of either Scots law or European Human Rights law, and therefore did not attract the specific guarantees set out in Articles 6(2) and 6(3).   

Nevertheless, the First Division found that the general fair trial guarantee set out in Article 6(1) did apply to these proceedings since the result of a children’s hearing could interfere with an individual’s civil right to liberty as well as with the family life of those before the Hearing. The court considered that, particularly where possible deprivation of liberty, the fairness required a right to legal representation and accordingly for legal aid to be in principle available in appropriate circumstances.   Consequent upon this decision the Scottish Ministers amended the relevant legislation to allow for a right to legal representation and the provision of legal aid before Children’s Hearings.