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K v Authority Reporter 2009 WL 3122389
November 5, 2009 | No CommentsK, a disabled person, raised a devolution issue that articles 6, 8 and 14 of the ECHR were breached by the absence of a statutory provision permitting her to receive legal aid for a children’s hearing in respect of her child.
It was held that the lack of a statutory entitlement to legal aid was incompatible with articles 6, 8 and 14 only if the absence of legal representation prevented an individual from participating effectively at the hearing. This absence amounted to a systematic flaw in the application of the legal aid scheme to children’s hearings. The determination of whether K was able to effectively participate at the hearing was a matter of fact to be determined by the Sheriff as part of the appeal proceedings under section 51 of the Children (Scotland) Act 1995. The test for such a determination would be only that K was unable to participate effectively, not that had she had legal representation the outcome of the hearing would have been different.
The Children’s Hearings (Legal Representation) (Scotland) Amendment Rules 2009 which came into force on 4 June 2009 remedy this breach by providing for state funded legal representation to be available to a relevant person due to attend a children’s hearing.
The full report can be viewed here.
Art. 06 Right to a Fair Trial, Art. 08 Right to Private and Family Life, Art. 14 Prohibition of Discrimination, Child & Family Law, Child Disability Law, Legal Aid