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The Earl of Lindsay moved Amendments Nos. 129 to 132:

Page 33, line 29, leave out from ("Reporter") to ("may") in line 30.
Page 33, line 30, leave out (";and") and insert (";(b)").
Page 33, line 32, leave out ("and") and insert ("; and (c)").
Page 33, line 32, leave out ("the sheriff") and insert ("he").

The noble Earl said: I beg to move Amendments Nos. 129 to 132 en bloc.

On Question, amendments agreed to.

Lord Macaulay of Bragar moved Amendment No. 133:

Page 34, line 3, leave out from ("case") to end of line 6.

The noble Lord said: This is an amendment to delete the power of the courts to substitute their own verdict for the disposal by a children's hearing. We have had an amendment moved by the noble Earl, Lord Lindsay, that the sheriff is entitled to hear additional evidence. No doubt Clause 53 is a reflection of the fact that the sheriff can reconsider the case in the light of additional evidence.

The reason for the amendment, as I have mentioned previously, is that the Bill seems to override the principle of the children's hearing system. If the sheriff has taken a view, having heard additional evidence, it might be more appropriate and within the spirit of the scheme if the sheriff were to make his findings of fact, report back to the children's hearing on what his findings are, and leave it to the children's hearing to dispose of the case rather than adopting what is included in the Bill.

That is the problem the amendment is intended to confront. I shall listen with interest to what the Minister has to say. I beg to move.

Baroness Faithfull: I speak with diffidence because I have not worked with the panel system. I have, however, visited three panels, one in Edinburgh and two in Glasgow. May I seek information from my noble and learned friend on this question? As I understand it, the panel system is the welfare system, whereas the sheriffs are the judicial system. If a case is referred to the sheriff, surely it is his business to see whether the law has been rightly carried out or whether there has been something

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left out from a legal point of view. The sheriff is not dealing with the welfare side. I have had representations made to me by chairmen of panels in Scotland who say that when a case goes to the sheriff he takes the judicial view but not the welfare view and that if a welfare view is to be considered it should be referred back to the panel.

I understand that any sheriff could deal with a matter, not really understanding or knowing the child care side. In England and Wales, we have the judicial studies board. Judges in England are instructed—if I can put it that way—or attend courses on child welfare. Is it not right that the case should be referred to the sheriff only on the judicial side but should be referred back to the panel if there is a welfare concept to be dealt with? I ask for further information.

The Earl of Mar and Kellie: I also ask how the sheriff would manage to come up with a different, or what presumably must be a better, decision without conducting a full hearing. I do not see how that could happen because I do not believe the sheriff court would have time effectively to reconvene a hearing in the sheriff court.

Lord Fraser of Carmyllie: Behind this relatively small amendment rests a very important point, one that I take very seriously. The amendment would remove the new power of a sheriff to substitute his own decision for that of a hearing. One of the main strengths of the children's hearings system is its informality. It is part of the welfare model, if that is the terminology you wish to use. But it does leave hearings' decisions open to the challenge that while a person's rights are being determined, and are determined, by it, it is not a judicial body following judicial procedure. This is a consideration that we are bound to take very seriously because of our obligations under the European Convention on Human Rights. We therefore see the need to provide for a wide range of disposals on appeal. Far from being an attempt in any way to weaken the children's hearings system in Scotland, our clear view is that this is a necessary provision to safeguard the position of the hearings system should challenge be laid to it in Strasbourg.

I understand that there may be those who have offered legal opinion to the opposite effect. If I am requested to, I can indicate in some detail why I consider that legal advice to be wrong. But I hope that what I have said is for present purposes sufficient. It is no part of my intention in bringing forward these proposals to attempt to destroy the children's panel system. On the contrary, I want to ensure that it is safeguarded, but we have to look very carefully at what arrangements we have in place in the light of the developing jurisprudence of the European Court in Strasbourg. It is with that in mind that this change is proposed.

I understand very clearly the kind of concern that the noble Earl has that the sheriff might find it difficult to get himself sufficiently advised in all cases to substitute a decision of his own. Nevertheless, if we are to safeguard the position and make sure that the judicial aspects of it are properly covered, this change should be made.

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5.30 p.m.

Baroness Faithfull: Before the noble and learned Lord sits down, for information perhaps I may ask whether, if the case remains with the sheriffs, they simply make a legal decision or bring in people, relatives and others, as are brought in in the panel? Does he see a wide circle of people dealing with this case, as does the panel?

Lord Fraser of Carmyllie: I would envisage that if he were to substitute a decision of his own for that of the panel, he would do so after taking a clear and careful view of what was available and appropriate. It is important to recognise that he is a judicial figure and, if necessary, could substitute his own decision. How frequently that would be done, I do not know. In many respects I hope it is a substitution that occurs very seldom indeed, but we must at least leave that option open to the sheriff.

Lord Macaulay of Bragar: This provision raises a matter of some importance in the administration of justice in Scotland in relation to children. As I said initially, it seems to override the function of the children's hearing which has been expressed in the past. In answer to the noble Baroness, Lady Faithfull, the whole idea behind the Kilbrandon proposals, which set up the children's hearings, was that the children who were brought before them would be dealt with by a lay body. That is the essential commonsense feature of the children's hearing. That is what makes it so attractive to people in that the children and their parents can come before the panel and be dealt with in the light of admitted facts. The only judicial role up until now has been that the facts presented by the reporter against the child has been the reason why he or she was before the panel. These were then sent to the sheriff for a judicial decision on what facts he found proved and then he had certain powers. If he found the facts not proved, then that was the end of the case.

What seems to be happening here is that we are getting a two-track system of justice for children. I am not trying to excuse them in any way. People who do wrong obviously must be dealt with within the judicial system, but that is not the only thing the children's panel actually deals with.

It was said by the noble and learned lord, Lord Hope, in a case in 1991 that:

"The genius of the reform"—

referring to the Kilbrandon proposals which brought about the children's hearing—

"was that the responsibility for the consideration of measures to be applied was to lie with what was essentially a lay body, while disputed questions of fact as to the allegations made were to be resolved by the sheriff sitting in chambers as a court of law".

What is happening now appears to be that the sheriff can not only hear the appeal, but he can hear evidence and then make a decision which overrides it. As I read this clause, the children's panel will never hear about it again; it will not know what the sheriff has decided and it will have no jurisdiction to challenge it.

I have seen the legal opinion referred to by the noble and learned Lord. Unfortunately, it arrived on my desk

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by fax at about lunchtime so I have not had time to "digest" it, if I may use that word. If the Minister has indicated that he is quite happy to contradict the opinion which was given by the counsel consulted, it would certainly be of some value to those interested in this particular aspect of the administration of justice in Scotland if he were either to place a paper in the Library saying why he disagrees with the opinion or to write to me. Subject to that, I shall, of course, seek to withdraw the amendment.

Lord Fraser of Carmyllie: Before the noble Lord withdraws the amendment, it may be appropriate if I respond on this matter as it may mean that we need not return to it at a later stage.

Perhaps I may make this point first. It ought to be recalled that Lord Kilbrandon always envisaged that there would be a right of appeal to the sheriff against the decision of a hearing on the merits of a case. I repeat that we have given very careful consideration to this matter in the light of the requirements of the European convention. It is well established case law of the European Court of Human Rights that a procedure which does not comply in all respects with Article 6(1) of the convention can be regarded as consistent with the convention, provided that there is provision for subsequent full control over that procedure by an independent judicial body.

The sheriff court is considered to be a tribunal within the meaning of Article 6(1) for these purposes, and the new provision in the Bill is intended to provide the judicial control over decisions on civil rights required in terms of the convention—that is, in respect of decisions by children's hearings. We do, of course, consider children's hearings to be independent and impartial tribunals. However, procedures in children's hearings are not intended to comply with the requirements of Article 6(1) in all respects. For instance, there is not a legal chairman.

Our aim is to ensure a fair and, as the noble Lord has already indicated, a relatively informal tribunal, in which the views of the child can be heard and where decisions about his future can be taken in an informal atmosphere.

Perhaps I may comment briefly on the opinion which I understand is in the noble Lord's hands. It seems to me that it is to be questioned in a number of respects. First, while it notes the Commission's decision in the McMichael case, it does not take account of the Commission's view that a children's hearing could not be regarded as a tribunal for the purposes of Article 6(1); nor does it take account of the fact that the court decision in the McMichael case was given in February 1995. The status of children's hearings under Article 6, irrespective of the McMichael decision, is not given any proper consideration in the light of Article 6 requirements on the nature of a tribunal for the purposes of the article and the type of proceedings required before such a tribunal.

Finally, we consider that that opinion needs to be questioned as no account is taken of the well established jurisprudence of the court with regard to the acceptability of a procedure which does not comply with

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Article 6, where the proceedings viewed as a whole provide for subsequent determination of civil rights by the court which exercised full jurisdictional control over the prior procedure.

That may be somewhat technical for those who are not immediately familiar with Article 6, but it is important that no-one should be under any misapprehension about this. We are not trying in any way to do anything difficult or damaging to the children's hearing system, but we have to be very careful about how it is to be safeguarded in the context of our international obligations.

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