Scottish Government

7 WHAT IMPACT ARE LEGAL REPRESENTATIVES HAVING ON YOUNG PEOPLE AND ON HEARINGS?

Introduction

7.1 The most important issue in terms of the success of the Legal Representation Grant Scheme is what impact it is having - first, on the children and young people who are being represented and second, on the hearing process itself. As discussed in Chapter One, prior to the schemes' introduction there was much debate about whether lawyers would have a positive or negative influence on the Hearings System as a whole and, in particular, what their influence would be on young people's participation in hearings. Those opposed to the involvement of lawyers in hearings suggested lawyers would limit the direct participation of young people in discussions about their future and that they would alter the character of hearings, making them more formal and adversarial. Those in favour of legal representation for young people in hearings felt that, on the contrary, legal representatives would help young people be heard and would also have benefits in terms of safeguarding their legal and procedural rights.

7.2 This chapter explores which, if any, of these hopes and fears about the scheme are borne out by the experience of young people and professionals of its impact in practice. It starts by looking at the specific issue of legal representatives' impact on children and young people's participation in hearings. Next, it explores the effects of having legal representation on young people's experience of hearings more generally. These include both their experience of the hearing process, and their views on the impact on outcomes of hearings. Finally, the chapter considers the effect of introducing legal representation on hearings themselves - on legal procedures and processes, communication and atmosphere within hearings.

Impacts on children and young people's participation in hearings

7.3 As discussed above, one of the key concerns about the introduction of lawyers to the Hearings System was what impact it would have on young people's participation in hearings. Previous studies have noted that some young people find it very difficult to speak in hearings. Griffiths et al (2000) identified four key barriers:

• difficulties understanding technicalities and procedures
• difficulties with adults 'talking over them'
• feelings of fear and anxiety at hearings; and
• difficulties relating to some (though by no means all) panel members, because of a perception that they use 'posh' or difficult language.

7.4 So does the presence of legal representatives in hearings help or hinder the process of young people making their views known? The comments of both young people and professionals interviewed for this study suggest that legal representatives can have a positive, negative or mixed impact on both direct ¹⁴ and indirect ¹⁵ participation in hearings by young people. As similar themes were discussed by young people and professionals, their views are presented together here, with any notable differences highlighted.

Indirect participation (having someone speak for you)

7.5 Young people described various benefits from having a legal representative speak for them in hearings.

• First, they found it helpful when they were too shy, embarrassed or lost for words to speak for themselves. It was suggested that having a lawyer was like having a ' second mouth' who could speak when the young person was nervous or did not want to speak for themselves.
• Second, it was suggested that lawyers can 'keep calm' where the young person might start shouting if they were putting their views forward alone. Adult professionals echoed this point, suggesting that legal representatives sometimes played a role in mediating between the child and other adults in the hearing - for example, by challenging other adults where the child finds it difficult to do so, or struggles to do so without becoming aggressive.
• Third, sometimes young people felt their lawyer ' puts it better' than they would, while a related opinion was that having a lawyer speak for them avoided ' messing up' the young person's chances.

Direct participation (speaking for yourself)

7.6 Young people also recognised that there could sometimes be good reasons for them to speak for themselves - including the idea that it was less confusing for panel members to hear things ' straight from the horse's mouth' and that it was worth speaking up as it could make a difference to the panel's decision. Young people gave examples of how their legal representatives helped them speak up directly, including offering support or reassurance, providing a ' bit of back up' and giving the young person ideas of what to say:

When he was speaking to panel members, he was saying stuff … like he was putting words in my head that I could say.

(Young person 12)

7.7 It was also suggested that seeing their lawyer challenge the panel could give the young person confidence to challenge what was being discussed too.

7.8 Comments from professionals also recognised the role legal representatives could play in encouraging and supporting children to participate in hearings directly. For example, a reporter echoed the young person cited above with respect to the confidence young people can gain from hearing their legal representative speak for them:

I actually had a hearing today with the legal rep and what I noticed was that (…) the legal rep had their opportunity to speak and spoke up and when they did that the young person jumped on the back of what the legal rep was saying. So I think, you know, having that one person speaking up for you actually enabled the child to speak for themselves.

(Reporter 8)

7.9 It was suggested that in some cases the presence of legal representatives can help focus the young person's contribution on those issues that are most relevant to the hearings' decision.

Does having a legal representative make any difference?

7.10 Not all young people felt that having a legal representative made any difference to their ability to get their views across in hearings. This was either because young people thought their legal representatives had been unhelpful in this respect, failing to speak up for them, or because they felt confident enough to speak for themselves without any additional adult support. Professionals also suggested that where children could speak for themselves, legal representation made no difference to their participation. It was noted that it is part of the panel's job to ensure that children's views are heard, so the presence of legal representatives should not have any impact on their participation in hearings.

7.11 However, while some young people felt speaking in hearings was 'easy', others said that they did not speak in hearings at all when their legal representative was not there to put their views for them. For example, one young woman said she just wanted to get her hearings ' over and done with', so if her legal representative was not there she would just say it 'doesnae matter' in response to the panels questions. In situations like this, a young person suggested that the panel would just listen to the social worker who does not always want the same things as the young person. There was also a perception that no one other than legal representatives are willing or able to say the things that young people want them to say in hearings. For example, one young person contrasted legal representatives with social workers and other adults, saying:

They [the legal representative] are just there ... to say what you want, whereas your social worker and that are there to say what they want.

(Young person 21)

Silencing young people?

7.12 Finally, young people also mentioned some instances where their lawyers had advised them not to speak in hearings, saying ' dinnae incriminate yourself' or to ' keep [your] mouth shut'. Panel members also described cases where they felt lawyers had silenced the young person. However, the young people who made these comments had privately appointed lawyers, rather than legal representatives appointed through the Grant Scheme, while it was unclear which type of lawyers panel members comments related to.

Impacts on children and young people's experience of the hearing process

7.13 In addition to helping young people make their views known in hearings, both young people and professionals identified a range of other impacts that legal representatives could have on young people's experience of the hearing process. These are summarised briefly here, since in part they overlap with discussion of the role of legal representatives already presented in Chapter Four.

7.14 First, legal representatives were seen by both young people and professionals as playing a valuable role in protecting children and young people's legal rights within the Hearings System, by engaging in the kind of legal scrutiny of proceedings described in Chapter Four.

7.15 Second, legal representatives were viewed by young people and professionals as providing young people with independent adult support in hearings. For young people, this related to feeling they had someone 'on my side', while professionals also suggested that having an independent person to represent them could help young people feel ' it's not the world against them' (Reporter 13). As discussed in Chapter Four, young people were divided over whether anyone else could provide this kind of support in a hearing.

7.16 Third, legal representatives could help young people better understand the hearing process by explaining things to them during the hearing, setting out their legal rights and options and being someone to ask questions of. Young people also described legal representatives playing a role in preparing them for 'negative' outcomes (from the young person's perspective) - for example, explaining that it is likely they will be secured. This appeared to be seen in a positive light by young people - suggesting that having a legal representative forewarn them of the panels' likely decision might help young people accept the outcome more easily.

7.17 One view among professionals was that this explanatory role was absolutely essential for young people:

I mean, quite often panels who've been to all the training, they'll ask for guidance again as to 'what is the secure criteria?' (…) And if they're looking for guidance, (…) then it would really be very difficult I think for a child and a parent to be expected to understand that without the benefit of legal advice.

(Reporter 3)

7.18 Having someone in this role acted as a safeguard against, for example, children accepting the grounds purely to get the hearing over with or saying they understood out of ' bravado'. However, an alternative opinion among professionals was that the social worker or the panel would be available to explain things to the child if the legal representative was not there, so it was unclear that having a legal representative really improves the child's understanding in hearings.

7.19 The main reason young people gave for feeling dissatisfied with the performance of their legal representatives was a perception that they had not represented their views properly in the hearing - as one young person put it, they felt their legal representative 'just sits down and does nothing'. They described feeling that they had 'quiet lawyers' who did not argue for them and appeared to just agree with the panel. Even young people who generally had good relationships with their legal representatives complained about specific occasions where they felt they had not spoken enough in the hearing or commented on the fact that the main thing they would not want from a legal representative would be for them to just sit and agree with everything the panel says.

7.20 These comments were echoed in the experience of some panel members and reporters, who described instances where they felt the legal representative had made no contribution at all to the hearing. One reporter view was that this type of conduct was 'worse than useless', since if the child was capable of handling the hearing on their own they would not require a legal representative.

7.21 Other complaints from young people included:

• feeling their legal representative had not listened to them - an indicator of which was that the legal representative had not put the young person's position forward in the panel, seeming instead just to go along with the panel's recommendations , and
• feeling that their legal representative did not care about them and appeared just to be attending for the money.

Impacts on the outcome

7.22 As well as affecting young people's experience of the process of taking part in a hearing, there was a clear view among the young people interviewed that having a legal representative present to speak on their behalf could in some cases actually change the outcome of the hearing (mainly framed in terms of preventing or overturning a secure accommodation order). For example, one young person felt that her legal representative had 'changed the panel around' every time they had attended. However, even where a young person felt that their legal representative had not changed the outcome of the panel, their presence could still have a positive impact on the young person's experience of the hearing process in terms of the 'peace of mind' they found from hearing someone put their arguments across. As one young person put it:

Obviously I didn't want to go to secure; nobody wants to go to secure. But I was sort of accepting that I probably was going anyway, but I thought 'well, if you can do your best to try and get me out of it, that would be good. But if you cannae, ken, I can understand'.

(Young person 14)

Impacts on the hearing process - legal procedures, communication and atmosphere

7.23 In addition to discussing the effects of having legal representatives on young people's participation in and experience of hearings, professional participants in particular also discussed the impact of legal representatives' involvement on hearings themselves. Professionals identified impacts in four areas:

• on legal procedures and processes within hearings
• on communication in hearings
• on the atmosphere of hearings, and
• on the length of hearings.

Legal procedures

7.24 Reporters and legal representatives commented that by safeguarding the legal rights of young people lawyers can also help hearings ensure that legal procedures are correctly followed. One reporter view was that having a legally qualified person present can have benefits in terms of ensuring there is more 'analytical analysis' of whether the criteria for secure accommodation have been met, rather than the decision being an 'emotional response' to the child's situation. A related comment from a reporter was that the presence of a lawyer could prevent people from avoiding distressing issues that may need to be discussed to ensure the decision is legally correct. It was suggested that ensuring all these issues are addressed in full strengthened the panel's decision and cut down on appeals.

7.25 However, one panel member opinion was that hearings operated in a professional and correct manner regardless of whether a lawyer was present or not. Further, while professionals gave various examples where contributions from legal representatives had a positive impact on the hearing process, panel members and reporters also cited various instances where they felt lawyers had made inappropriate contributions to hearings. These included treating the hearing ' like a court room', getting ' bogged down in … legal jargon' and giving inappropriate advice or asking reporters questions they would expect lawyers already to know the answer to. This type of behaviour was attributed to not knowing enough about the Hearings System. Although one belief was that this behaviour was particularly prevalent among privately appointed lawyers, another was that legal representatives appointed under the Grant Scheme also sometimes brought a 'court mentality' to hearings. A related panel member concern was that the introduction of legal representatives could be the start of a ' slippery slope' towards a more legalised or court-like system. Thus while legal representatives could have a positive impact in terms of ensuring legal procedures are followed within hearings, there was also a suggestion that they might bring with them a legal style which was not viewed as appropriate to the distinctive setting of hearings.

Communication

7.26 Legal representatives' impact on communication within hearings related both to their role in facilitating (or inhibiting) the child's participation (discussed above), and to their communication with other adults in the hearing. It was suggested that their role in facilitating the child's participation could have positive impacts for the hearing as well as the child, in helping ensure that panel members hear the child's views. For example, a panel member described a case where the child had told his legal representative in advance that he did not do one of the things mentioned in the grounds for referral, but in the hearing itself he had gone along with the grounds to get it over with. The lawyer had stopped the hearing and advised his client to be honest and to say if he did not do it. It was also suggested that legal representatives could sometimes get information from children that they might not tell their social worker, because legal representatives are seen as more independent, and that they can convey helpful information that might be misrepresented by parents. A related suggestion was that legal representatives can help ensure children and young people hear the panel's views by advising them to listen to what is being said even if they do not agree with it.

7.27 However, as discussed above, some panel members expressed more negative attitudes to the impact of lawyers on young people's participation. Moreover, as well as potentially inhibiting young people from contributing to hearings, it was also suggested that they might inhibit the panel from speaking, or at least make them more nervous about doing so. For example, reporters described some panel members being 'more jumpy', 'intimidated' or ' uptight' when legal representatives attended, while a panel member felt their presence could 'make you very conscious of not saying anything that could be construed the wrong way' (Panel Member 12). However, another reporter opinion was that although panel members in their area had been anxious initially after the scheme was introduced, this had now mostly diminished.

7.28 A related panel member view was that some lawyers enjoyed ' point scoring' in hearings and did not value the panel members' knowledge and experience. However, interestingly, comments from young people suggest that they may sometimes view such tensions between lawyers and other adults in hearings in a positive light. For example, one young person spoke positively of how he thought ' the panel are afraid of the lawyers, 'cos my lawyer just sits there with his big book and he goes 'That's wrong. That's wrong. That's wrong'' (Young person 22). One belief among professionals was that, again, this type of confrontational behaviour was more common among privately appointed lawyers - an idea backed up by the fact that such comments from young people tended to relate to private lawyers. However, there were examples where panel members felt Grant Scheme lawyers had behaved in a similar way. In any case, this finding highlights the fact that behaviour that may make other professionals uncomfortable may be valued by young people in situations where they may feel no one else is on 'their side'.

Atmosphere

7.29 Panel members and reporters cited various examples where they felt the presence of legal representatives had affected the atmosphere of a hearing, both in positive and in more problematic or ambiguous ways. First, it was suggested that they could improve the atmosphere by helping to keep their clients calm. For example, a reporter described a situation where the child had been interrupting the hearing continually and becoming very agitated, but his legal representative had been able to reassure him that he had the situation in hand and would explain everything to him again at the end of the hearing. Second, it was suggested that legal representatives sometimes bring a 'formality' or 'seriousness' to the proceedings. Although the Hearings System is designed to be less 'formal' than a court setting, this added gravity was not always seen as negative - for example, a reporter suggested that it is not 'necessarily a bad thing when something as important as … a restriction on liberty is being discussed' (Reporter 10). Third, it was suggested that in some cases the presence of a lawyer could inflame an already volatile situation. For example, a panel member described a situation where he felt the lawyer had not understood their role and the family had become angry as a result. It was also suggested that if the young person takes a 'defensive' position (i.e. not wanting to go into secure or denying the grounds), the situation can become more contentious simply because the legal representative has to put forward the child's views of non-acceptance.

Length of hearings

7.30 Another possible impact on the hearing process relates to the length of hearings. One perception was that the involvement of legal representatives could result in longer hearings, either because the legal representative was late or because they were asking to speak to child at the time the hearing was due to start. The opposite was also argued, however - because hearings were more 'focused' when legal representatives attended, it was suggested that they could in fact be quicker.

Key points

• Reasons young people sometimes preferred their legal representative speaking for them included:
  • That they were too shy, embarrassed or nervous to speak for themselves
  • That the legal representative could keep calmer than the young person
  • That the legal representative put it better and avoided 'messing up' the young person's chances.
• However, young people also identified reasons to speak for themselves. One opinion was that doing so was easy, while other young people said they did not speak at all when their legal representative was not there.
• Legal representatives could help young people to speak directly by offering support and giving them ideas of what to say.
• Some young people and professionals, however, felt that having a legal representative made no difference to their ability to get their views across in hearings.
• Young people and professionals also gave examples where legal representatives had advised young people not to speak, although it was unclear whether any of these cases related to legal representatives appointed under the Grant Scheme.
• Legal representatives also had an impact on young people's experience of hearings more generally in terms of:
  • Protecting their legal rights
  • Providing independent adult support, and
  • Helping them understand the hearing process.
• Young people also felt that in some cases their legal representative had influenced the outcome of the hearing, although there was evidence that their presence could have a positive impact in terms of the young person's 'peace of mind' regardless of the outcome.
• Reasons young people gave for feeling dissatisfied with their legal representatives centred on a perception they had 'just sat there' and had not represented their views adequately in the hearing.
• The involvement of legal representatives could also affect the hearing process itself in four areas:
  • Legal procedures and processes
  • Communication
  • Atmosphere, and
  • Length.
• Legal representatives could help hearings ensure that the legal procedures are correctly followed and help focus analysis on important legal issues.
• However, there were also examples of legal representatives making inappropriate contributions to hearings and getting 'bogged down in legal jargon'.
• Legal representatives could help ensure the panel heard the child's views.
• However, they could also have a negative impact on communication by inhibiting the panel or making them nervous.
• Tensions between panel members or social workers and lawyers could be viewed differently by young people and professionals - there were examples where young people appeared happy when their lawyer challenged other professionals with whom the young person did not agree.
• Legal representatives could improve the atmosphere of hearings by helping to keep their clients calm and bringing an appropriate level of gravity to the proceedings. Alternatively, where they did not understand their role they could inflame already volatile situations.
• There was no consensus on what, if any, impact involving legal representatives had on the length of hearings.