Children's hearings training resource manual: volume 2

8 European Convention on Human Rights

Protection of Rights

The European Convention on Human Rights was drawn up in 1950 and ratified by the United Kingdom in 1951. Its historical context is the Second World War and the lowering of the 'Iron Curtain' across Eastern Europe. Forty European countries are party to the Convention and required to give effect to the rights which it sets out.

From 1966 British citizens had the right to apply to the European Commission on Human Rights if they felt their rights under the Convention had been infringed by the state. The Commission, if they found applications fell within their scope and had merit, could refer the case to the European Court of Human Rights for judgment. This could be a very lengthy process. Although the Commission has been abolished, the right to apply to the Court remains in force.

The Scotland Act 1998

In terms of the Scotland Act 1998, rights conferred by the European Convention on Human Rights have been binding on the Scottish Parliament and the Scottish Executive since 20 May 1999 when the Scottish Parliament came into being. Scottish legislation must be compatible with Convention rights.

The Human Rights Act 1998

Since 2 October 2000, when the Human Rights Act came into force, all 'public authorities' (which includes children's hearings, local authorities and the Scottish Children's Reporter Administration) are required to ensure that their actions are compatible with Convention rights. The fundamental difference to the previous position is that cases relating to alleged breaches of Convention rights can now be taken to domestic courts or tribunals in the first instance, and can be enforced by them. This provides the opportunity for easier access to courts to enforce rights and to speedier resolution of disputes. (See S v Principal Reporter and Lord Advocate below).

Key articles affecting the hearings system

Unlike the United Nations Convention on the Rights of the Child, the European Convention on Human Rights was not drawn up with the rights of children as one of its explicit objectives. Not all the articles are relevant to the hearings system.

Key articles which are or may be relevant to the hearings system are:

Article 6: right to a fair trial

This Article deals with the concept of a hearing which is fair to all parties. Trials or hearings must take place within a reasonable time and be heard by an independent and impartial tribunal established by law. There is a presumption of innocence until proved guilty by law. Parties are entitled to be informed in a language they understand, where applicable to have the free assistance of an interpreter, and to have adequate time and facilities for the preparation of a defence. This process must include free legal assistance where the interests of justice so require.

In 1995 the European Court of Human Rights decided that the United Kingdom government was in breach of Article 6 because the mother of a child subject to compulsory supervision in the hearings system was deprived of her right to participate in the decision-making process ( McMichael v UK). The reason for this was that, at that time, the parents had no right to see papers which panel members considered in reaching decisions, although the chairing member of the hearing had a duty to disclose the substance of the information contained in the reports.

The judges in the McMichael case also considered that this might adversely affect the parents' ability to seek advice in order to appeal hearings' decisions. This matter was rectified in October 1996 when parents were given the right to receive the same papers that went to panel members. At that time, the right of children to receive papers was not tested.

Article 8: right to respect for private and family life

This Article provides that everyone has the right to respect for his private and family life and that there should be no interference with this right except what is proportionate in accordance with the law and necessary. Grounds for intervention need to be clearly stated, with clear justification. The father in the McMichael case argued that his rights had been breached because, as an unmarried father, he was deprived of the automatic right to be consulted in the care proceedings relating to this child. Neither the European Court nor Commission supported this view, although they have done so in later cases not connected with the hearings system.

Other potentially relevant articles:

Article 3: prohibition of torture

No-one shall be subjected to torture or to inhuman or degrading treatment or punishment. There have been considerable variations in the past as to interpretations by courts as to what is or is not 'reasonable chastisement' of children and courts may be called upon in the future for a clearer definition.

Article 5: right to liberty and security and Article 7: no punishment without law

There are potential implications in a number of respects. It is possible for police officers to detain 'unruly' children in cells if no suitable alternative accommodation is available in local authority premises. This might be perceived to be a breach of the child's rights but it is a power used only in exceptional circumstances.

Where children have been brought before the adult courts charged with serious offences, the courts are requiring that the time scales for bringing the case to trial should be as short as possible consistent with the interests of justice.

Hearings may specify in a compulsory supervision order or an interim orderthat a child ' shall be liable to be placed and kept in secure accommodation'. This authorisation permits the head of the establishment, in agreement with the chief social work officer of the local authority, to keep the child in a secure place for a long as they consider necessary, subject to review provisions.

Article 14: prohibition of discrimination

This article states that the rights and freedoms set out in the 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. These prohibitions are similar to the principles and themes in the legislation which take account of provisions in the United Nations Convention on the Rights of the Child. For hearings, there may be issues about appropriate interpreters being available where a child or parents from a minority ethnic group appear at a hearing and English is not their first language. There are also considerations about placement of children in foster care or when a permanence order with authority to adopt, or an adoption petition, is sought.

Convention protocols

As of January 2010, fifteen protocols to the Convention have been opened for signature. These can be divided into two main groups: those amending the framework of the convention system, and those expanding the rights that can be protected. The former require unanimous ratification by member states before coming into force, while the latter require a certain number of states to sign before coming into force.

Protocol 1: Article 2: right to education

This Article states that no person should be denied the right to education. There are potential implications for local authorities in relation to the exclusion of children from school, without alternative arrangements for ongoing education being provided which respect the parents' religious and philosophical convictions. It does not, however, guarantee any particular level of education of any particular quality.

S v Principal Reporter and Lord Advocate

The first major ECHR challenge to the hearings system in the domestic courts related to a case involving a fifteen year old boy charged with assault following an incident in which the boy's father was so seriously injured that he died some months later. The boy appeared before a children's hearing but did not accept the grounds and a legal challenge was mounted on his behalf alleging that his human rights had been breached in a number of ways.

The issues in the case were considered in February 2001 by the highest civil court, the First Division of the Court of Session, headed by Scotland's senior judge, the Lord President. Crucial issues of principle were clarified by the Opinions of the three judges who concluded that:

• the children's hearings system falls within Article 6 of the ECHR (right to a fair trial)
• children's hearings are independent tribunals in terms of Article 6(1)
• when dealing with offence grounds, a hearing is not determining a criminal charge and, accordingly, it is not a criminal process to which Article 6(2) and (3) safeguards have to apply
• it is a process determining civil rights and, in so doing, some of the general protections of Article 6 have to be considered and implemented
• the availability of legal assistance is desirable in certain circumstances where it is in the interests of justice. This might apply particularly with regard to the discussion of complex reports and where secure accommodation is being considered
• the Scottish Children's Reporter Administration's proposal to make papers available to children - outlined to the Court - was recognised as a significant development in line with Convention compliance but failure to implement such a scheme properly might lead to a breach of Article 6.

Note: with effect from June 2009, the Children's Hearings (Legal Representation) (Scotland) Rules 2002 were amended to enable panel members to appoint legal representatives for relevant persons if specified criteria were met. There are currently new provisions for the child to access legal assistance at certain children's hearings. For more information, refer to Volume 1 section 12.