EXECUTIVE SUMMARY
Background to the study
1. The Legal Representation Grant Scheme allows children's hearings to appoint legally qualified safeguarders or curators ad litem to represent children when this is required either to allow the child to effectively participate at the hearing, or because it may be necessary to make a secure supervision requirement (or a review of such a requirement). The Scottish Government Education Information and Analytical Services Division, acting on behalf of the Children's Hearings Team, commissioned the Scottish Centre for Social Research ( ScotCen) to conduct research to review the operation of the Scheme and to inform its future development. The study involved 51 in-depth telephone interviews with professionals including local authority clerks, reporters, legal representatives and panel members and 23 face-to-face interviews with young people in secure units who had experience of attending a hearing with a lawyer or legal representative.
2. This is a summary of the key findings. A report for young people is also available from the Scottish Government website.
Administration of the scheme
3. The Legal Representation Grant Scheme is currently administered separately in each Scottish local authority. The research found variations in many administrative aspects of the scheme, including: how solicitors were recruited to the local 'pool' of legal representatives; the background and qualifications of solicitors recruited to the scheme; how the decision to appoint a solicitor to a case was taken, and how individual solicitors were selected for particular cases.
4. Barriers to solicitors taking on Grant Scheme cases included: the amount of notice given for cases; high existing workloads; long distances to travel to hearings (particularly in rural areas or where the hearing was being held outside the local authority); and a perception that the fees were low.
The role of legal representatives in children's hearings
5. Participants in the study identified four potential roles for legal representatives in children's hearings:
- a legal/procedural role, in ensuring the decision of the panel is legally correct
- an explanatory/advisory role, giving children and young people advice on the process, the likely outcomes, their options and the implications of the hearings' decision
- a f acilitation role, in ensuring children and young people get their views across, and
- a challenging/arguing role, actually making the case for those views to be acted upon.
6. These roles were not, however, given equal weight by all professional participants in the study. Moreover, one view was that the legal representative role is ' muddy'. Among young people, there was a clear perception that legal representatives should have a role in arguing for what the young person wants to happen, regardless of whether they agree that this is what is best for them. However, some young people did not have a definite idea of what their legal representative had been there for, and one opinion was that they did not fulfil any useful role.
Types of cases legal representatives are appointed in
7. Professionals interviewed for the study gave examples of legal representatives being appointed in three broad types of case: those where secure accommodation was being considered; those where tagging was an option; and those where legal representation might help secure 'effective participation' by the child. The latter included cases where the child had no independent adult support, where the child had learning difficulties, and where the child was a repeat offender. However, there was evidence of a lack of certainty over whether and when to appoint under the 'effective participation' criterion. This appeared to be reflected in variation in the extent to which such appointments were made in practice. There was also some uncertainty over whether legal representatives were required when the child or family brought their own lawyer, when secure was only being considered (rather than recommended) and where a secure order was being removed.
8. Young people suggested that they might also find having a legal representative useful in situations where hearings are repeatedly continued, cases where non-secure residential accommodation may be recommended, and where the young person is referred on offence grounds, particularly where they are new to the system. On the other hand, young people also suggested that legal representatives may not be needed if secure accommodation is not being discussed or if the outcome seems pre-determined, while a further view was that they are not useful at all in hearings.
Contact between young people and their legal representatives
9. The level of contact between young people and their legal representatives in advance of hearings varied. Young people described meeting their legal representative for the first time either in advance of the day of the hearing, immediately before the hearing, or having no contact with them at all prior to the hearing. Young people who had no or very minimal contact with their legal representatives before the hearing appeared to be particularly dissatisfied with the experience of having a lawyer. Reasons legal representatives gave for being unable to meet young people in advance centred on fees and notice, with both these barriers exacerbated where the young person resided at some distance to the lawyer's practice.
The impact of legal representatives on young people and hearings
10. The impact of involving lawyers on young people's participation in hearings was discussed in detail. The young people interviewed sometimes preferred their legal representative to speak for them in hearings because they were too shy, embarrassed or nervous to speak for themselves, or because they felt their legal representative could keep calmer or put arguments better than the young person. However, young people also identified reasons to speak for themselves: one opinion was that doing so was easy, but other young people said they did not speak at all when their legal representative was not there. Another view was that having a legal representative simply made no difference either way to young people's ability to get their views across in hearings. Indeed, the main reason young people gave for being dissatisfied with their legal representative was that they had 'just sat there' and had not represented their views adequately.
11. Professionals also described the positive and negative impacts legal representatives could have on the hearing itself. They could improve the atmosphere by helping to keep clients calm, or they could inflame already volatile situations by not understanding their role. They could have a positive impact on communication by ensuring the panel heard the child's views, or they could silence the child and/or inhibit the panel from speaking. Legal representatives could help hearings focus on important legal issues, but they could also get 'bogged down in legal jargon'.
Suggestions for improving the scheme
12. Key suggestions from professionals and young people for improving the Grant Scheme included:
- Ensuring legal representatives take an active role in representing young people
- Providing more information about their role to professionals and families
- Widening the pool of legal representatives and/or having a national pool
- Appointing legal representatives in more cases
- Allowing reporters to appoint legal representatives without recourse Business Meetings
- Allowing young people some say over which legal representative they have
- Increasing or revising the fees
- Requiring legal representatives to meet with children or young people in advance of hearings
- Providing specific training and monitoring for legal representatives.