Jul 03 2009

Albie Sachs, childrens’ representation, and fundamental rights

Albie Sachs, Justice of the South African Constitutional Court, is one of the great judges (and in one of the great courts) of our time. On 24 June he was in Edinburgh, first speaking to the first joint meeting of the four UK and Ireland Human Rights Commissions (I wasn’t there) and then at a meeting organised by the Scottish Commissioner for Children and Young Persons (I was). The topic at the second talk was how the landmark decision in the case of S v M, 2007 ZACC 18, in which the South African Constitutional Court held that the rights of children had to be taken into account in criminal proceedings against their mother (in their own right and not merely as an aspect of the mother’s rights), came to be made, and its resonance for Scotland. Jackie Kemp’s already written a good account of the event as a whole, and I intend here to pick up some miscellaneous issues rather than duplicate that.

First, a quotation from Jackie Kemp:

“Judges are the storytellers of the 21st century,” says 74-year-old Sachs, who told an international audience of human rights lawyers in Edinburgh that the first mindset that needed to be changed in the now historic case was his own.

At first sight, he had intended to throw out an appeal on behalf of Mrs M, who was facing four years in jail for up to 40 counts of credit card fraud that she had committed while under a suspended sentence for similar offences. “I remember drafting an extremely dismissive response. I said: ‘This doesn’t raise a constitutional question. She simply wants to avoid going to jail. She doesn’t make out a case, and her prospects of success are zero.’ ”

It was a female colleague, another of the 11 green-robed judges in South Africa’s constitutional court, who insisted that the case be heard. She argued that the human rights of the accused woman’s children were not being looked at separately.

In fact, it wasn’t an ‘audience of human rights lawyers'; the SCCYP hadn’t thought to ask any1, although one or two such as Maggie Scott QC and myself heard about the meeting by chance and came along. But at least four or five Senators of the College of Justice were there.

Leave to appeal

There are in Scotland still some situations in which a court or tribunal decision can be appealed of right. Increasingly, however, the assumption is that leave to appeal should be required: typically, from the body giving the adverse decision and, if that refuses leave, from the court to which the appeal would be made. The question is: how does the court decide when to grant or refuse leave? This is often very opaque. In the Court of Session, the traditional approach has been that leave is granted if the appeal seems (a) to have reasonable prospects and (b) to raise an issue of reasonable importance to the appellant2; and because the decision to grant or refuse leave is an appellate decision it seems to be taken as a consensus3 . Another common approach, frequently seen in asylum cases, is to wrap up the application for leave to appeal with the appeal itself, so saving court time. This open-ended and discretionary approach is under attack; thus, as described here previously, the new provisions as to leave to appeal from the Upper Tribunal, which appear designed to cut out all but exceptional cases (it is still doubtful whether these provisions will be applied to asylum cases; see consultation paper, question 6) and which may after the Civil Court Review be applied more widely. In any event, reasons for granting or refusing leave (as opposed to the decision on the substantive appeal) are rarely given at any length.

Albie Sachs gave a fascinating description of a rather different mindset. His court also requires leave to appeal. But the manner in which it decides this is very different. In effect, if any one  judge feels strongly that a case deserves full consideration, leave will be given. No majority, no consensus, is required. Thus cases, of which S v M is only one example, are heard in which initially only one judge in eleven felt there was a good point; yet the appeal was ultimately allowed by seven to three. We heard that this was not unique. This seems a better way to pick up cases which raise important points, but which initially only appeal to a minority; and these are the cases which move the law along.

Representation of children in civil matters: a fundamental right of the child

This talk was strangely well-timed for me. But for the failure of the Scottish Legal Aid Board to decide on a legal aid application in time, I had been going to argue in the Court of Session that morning, against Home Office opposition, that two children, with their grandmother/carer, should be allowed to be heard in an appeal against the deportation of their mother and themselves: S v M was on my list of authorities. That is an ongoing case so I do not propose to discuss it here4. But the fact is that, in Scotland, it is apparently still controversial whether children of nine and eleven who have lived in this country since they were babies should be entitled to be heard on a case which involves them being sent to a strange country because their mother has committed a crime5.

Section 16 of the Children (Scotland) Act 1995 provides “Where under or by virtue of this Part of this Act, a children’s hearing decide, or a court determines, any matter with respect to a child the welfare of that child throughout his childhood shall be their or its paramount consideration“. This is, on its face, a principle confined to a very limited range of cases; those decided under Part II of that Act. Thus in the case mentioned in the last paragraph the Home Office Note of Argument states “The ambit of that consideration is a statutory one, within the four corners of the 1995 Act“. This does not appear to reflect the UN Convention on the Rights of the Child, Article 12, which states

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

In Cunningham v Shields, 2002 CSIH 342, the Court referred to the 1995 Act and said “this piece of legislation conflates in a rather unsatisfactory manner the provisions of Article 12 of the United Nations Convention“.

Further, if children can be refused the right to be heard on their own deportation, it is hard to see how this could be consistent with Article 24 of the Charter of Fundamental Rights of the European Union: “In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration“.

Rachael Kelsey of Sheehan Kelsey Oswald rightly said in a readable paper describing the practicalities of representing children, “In Scotland we’ve seen huge changes in the last 10 years, particularly in relation to the involvement of children in legal proceedings, their representation and how account is taken of their views.” But this is less true of public law than it is of family law in its narrow sense.

Child’s representative or curator ad litem?

A point which may seem technical, but which is I think one of  principle, is that the right to representation should be a right to representatives who will say what children, old enough to know what they want, actually do want; not what a third party such as a curator ad litem thinks they ought to want. Adults have this right; why not children who pass the statutory test of sufficient understanding6? Law Society guidelines on the representation of children make clear that solicitors for a child, however young, take their instructions from the child; a curator ad litem, on the other hand, decides their instructions for themselves according to their own views of the child’s best interests7.

There is a good example of the difference in last year’s child abduction case of NJC v NPC, 2008 CSIH 348. In that case, children aged 15 and 11 had been represented in the Outer House; they said what they wanted, as did their parents. Lord Turnbull heard them fully. On appeal, their father, some would say idiotically, brought about the sacking of their legal team, apparently under the false impression the court would permit him to represent the children. So the children had no representatives of their own. The Court, quite rightly, appointed a curator ad litem. As the decision notes, ultimately, “The curator ad litem was unable to support the views which has been expressed by the children themselves.” This is not a criticism of either the curator or her legal team; they did their job and they did it very well. But their job was not to represent the children, who were reduced to writing letters to the judges; sitting glowering in the public benches; and occasionally asking somebody what was happening. Obviously I have no complaint about the result; but it isn’t obvious that this is how justice should be seen to be done.

  1. Indeed, I was not wholly clear that they had thought through the general human rights implications, stretching far beyond the rights of children of prisoners on which SCCYP reported last year. [back]
  2. Campbell v Dunoon and Cowal HA, 1992 SLT 1126 shows this. [back]
  3. Even in Western Heritable v Husband, 1983 SC (HL) 60, where two of the three judges in the Extra Division afterwards told me informally they had disagreed with the decision taken purportedly by a court of three to refuse me leave to appeal to the House of Lords, I do not remember ever seeing a split decision on leave. [back]
  4. As background law in family deportation cases, see in particular Beoku Betts v Home Secretary 2008 UKHL 39; Chikwamba v Home Secretary 2008 UKHL 40; EM (Lebanon) v Home Secretary 2008 3 WLR 931; and VW v Home Secretary 2008 EWCA Civ 5. [back]
  5. And yes, I am aware that the general rule is that it is pars judicis for the court to allow anyone with title and interest in the result of a civil process to appear and be represented: Lord Blantyre v LA, (1876) 13 SLR 213; Muir v Glasgow Corporation, 1917 2 SLT 106; Harris v Harris 1988 SLT 101; Norwich Union v Svenska Handelsbaken, 2000 SCLR 1034; and many other authorities. But the problem seems to be, does ‘anyone’ include children? [back]
  6. Age of Legal Capacity (Scotland) Act 1991, section 2 (4A) as inserted by Children (Scotland) Act 1995 section 53: “A person under the age of sixteen years shall have legal capacity to instruct a solicitor, in connection with any civil matter, where that person has a general understanding of what it means to do so; and without prejudice to the generality of this subsection a person twelve years of age or more shall be presumed to be of sufficient age and maturity to have such understanding.”  [back]
  7. I think with all respect Paterson and Ritchie, Law, Practice and Conduct for Solicitors, paragraph 3.08, confuse this distinction, which Kelsey makes clear. [back]
  8. Here, incidentally, is the latest press coverage of that case: father got credit for Scots prison time and thus a French sentence of only fifteen months for the abduction. [back]
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