 Mae ydych chi'n gynnwys yn y ddweud o'r Cymru yn 2017, a chyfodd rwy'n mynd i'n gynnwys yn yysgrifennu i gyd yn ymwyl deallu. Felly mae'r ddweud yn cyfnodol yn gwneud yma. Y ddweud y cilydd ym mwyaf yn y cyfnodol o'r syrfaen i'r cyfrannu. Mae'n ddweud yn cael eu cyfrannu i'r cyfrannu i'r cyfrannu, ac mae'n gilydd i'r ddweud o'r gwybodol yn yr hynny. The committee agreed that it wanted to hear more on this subject, and I'm pleased to welcome to the meeting Morag Driscoll, a family law sub-committee convener in the Law Society of Scotland and Mark Allison, director of Livingston Brown. Thank you both for coming at such short notice. Some of the main issues that we explored last week were the advantages and disadvantages of the 2011 act reforms and how these have affected the role of solicitors. The perception that the introduction of solicitors into the system has made the process more adversarial, and the training available in registration process for solicitors to be involved in the hearing system. I'll start with a general question on the first point about the advantages and disadvantages of the 2011 act reforms and how these have affected the role of the solicitors. What is your view on the benefits and challenges of the changes to solicitors role in the children's hearing system since the 2011 act was implemented? I'll start for the two of us. I also have to say that I've done work as a solicitor in hearings. I was also a children's reporter for four years, so I have seen it from the other side. My colleague will be talking more about current practice in the hearings, but part of the advantage of the act is that it has clarified when solicitors should be present in hearings because they're certainly not required at every hearing. It's a minimum number of hearings, and it also guarantees that the system is compliant with the UNCRC and the ECHR. I don't think that we can underestimate the importance of that. Much of the stuff that came into the act about solicitors was as a result of case law that had found that when parents or children were not represented, their rights, their human rights were not being safeguarded. It is a way that has made our system more compliant without turning it into a courtroom formal adversarial system. My colleague will talk more about current practice for solicitors and the active role that is now being played. Ultimately, the question is what is the role of the solicitor? I think that the important point is that we are there to ensure that whoever we are representing effectively participates. The cases in which concern has been raised are really in relation to a very small minority of cases. We are talking about contentious and adversarial cases, but there is a perception that solicitors are making cases adversarial, whereas it may be the case that, because we are talking about the contentious cases, to look at it in another way is where there is a need for there to have a solicitor involved to represent those people. The people whom we represent are generally parents, children or carers, so it is not just parents, but people who have decided they feel they need a solicitor to be able to participate. We do not appoint ourselves, we do not tout to represent people. It is about people making that choice that they feel they cannot effectively participate without having a solicitor. We are there to ensure that that happens consistent with the ethos, but, as Morach has said, there is already a regulation of that to ensure that that happens. We are also there to ensure that our clients' rights are respected, whether that be the parent, whether that be the child or whether that be another person who we are representing at the hearing. I know that there are going to be a number of questions that are coming from my colleagues, but one of the things—I accept that the figure that was mooted last week was 10% of cases involving solicitors. I suspect that only a smaller percentage of that will be the ones that are contentious and the ones that were brought to their attention last week. There did seem to be this perception that, in some cases, it was a child against the world, and the whole children's hearing system was not meant to be like that. It was meant to be the other way, and that was because of solicitors that were there with parents and others. I have sat through over a thousand hearings and, believe me, they can be very contentious without anybody in the room, apart from me, having any legal qualifications whatsoever. If you look at when legal aid is available for children's hearings work—actually, children's legal aid—it is very limited. Children get automatic legal aid only when they are facing very severe interference with their lives. When they are facing going into secure accommodation, we would never put an adult in a situation where they were deprived of their liberty without having legal representation. Why would it be tolerable for children? When a child has been arrested or detained and has been kept in a police station or other place of safety, they must come to a hearing. If that was done to an adult, would we even contemplate denying them legal representation because it might turn things contentious? I mean, I don't think that the committee at this stage is saying that the legal representation shouldn't be there. If you could let me finish. The second working day hearing after child protection order, those are the only instances where legal aid is given automatically to the child. In every other case where legal aid is available, it has to pass the Scottish legal aid boards merits test, apart from a very small number of cases where it is a means test. It has already been looked at. Is it justifiable to spend public funds on having legal representation? We have to be very careful. You have a right to a representative. It doesn't have to be a lawyer. It can be your anti-genie. It can be an advocacy worker. We have already accepted that somebody going to a hearing, whether it's about themselves or their child, should have somebody there to back them up. The role of the lawyer in the hearing is actually no different. It comes under the same definition. It's to assist the accompanied person to discuss issues arising for discussion. Some of those issues require legal tests to be applied. Then, yes, it can be a legal discussion, but it doesn't mean, my Lord, I put it to you. It's not that sort of thing. Yes, we are required to follow the ethos of the hearings. The legal aid board requires lawyers who want to do this work to register, to have the competencies, to follow the ethos, and they are monitored. If panel members, in my experience, don't tend to be put-overs. They don't tend to be easily intimidated. They tend to be very dedicated to the work that they're doing. Kenneth Norrie once at a conference said, if the solicitor is getting a bit legal, tell him to shut up. I think maybe there's a training issue to give panel members more confidence to be able to say, come down a bit, it's getting legal. But all the stuff, ladies and gentlemen, is already there. You're talking about adversarial. I don't want this to be adversarial today. I'm just passionate about the hearing system. This is about us asking questions about the benefits of the amount of solicitors that seem to be appearing at children's hearings. If it doesn't, I know that a better way to do it than the way it's done at present without the child being seen not to be represented by a solicitor or anybody else is appropriate. Daniel Collin. I'd just like to explore a couple of the words that both of you have been using. The reason we've got concern is that the fundamental underlying ethos of the panels is that it's meant to be a context that is less intimidating, is about bringing out the voices especially of children, but to some extent also parents. You've talked about lawyers' roles about being enabling people to participate and to assist those there, but it strikes me that the concept of representation doesn't always mean that. It means that someone is speaking in place of somebody else. Is there a potential issue here where lawyers' voices are being heard rather than those of parents' children? Is that a problem? Are there things that can be done or should be done in order to change that model, maybe advice that is provided to solicitors? Ultimately, how do we ensure that solicitors don't end up being proxies for the people who are at the panel? Ultimately, the panel is meant to enable their voices to be heard rather than having the voices of a proxy heard. In terms of the role of solicitors, we have to remember largely the people that we are representing are very vulnerable people. Those are people who already have limitations arising from their circumstances about their ability to play that role themselves. As I said, and I made the point earlier and I reiterated it again, often we come into a case because they have chosen that they feel that they can't do that role themselves, that they need the benefit of representation. We are not there as a substitute. If I attend a hearing and I attend many hearings at ground level, I do not spend my time speaking simply for my client and not allowing them to speak. It is about them being able to see what they feel they can see and feeling empowered, but it is about us filling in any gaps or blanks there may be. It also has to be remembered that the work that solicitors do isn't confined to the four walls of the children's hearing room. We do a great deal of work to assist our clients in effectively participating, but to assist them in focusing on what is in the child's best interest before we get to the stage of them attending the hearing, because they get large volumes of documents through that many of them can't properly digest. They have particular issues that may or may not be central or relevant, which they want to raise, so we have to spend a great deal of time enabling them to participate when they get to a hearing that normally is only set down for a short period of time of 45 minutes. It is worth bearing in mind that, when we approach a hearing, the panel members are obviously informed as far as they can be of the circumstances before they arrive, but what they are informed based on is a bundle of papers that largely consists of the procedural history and a social work report. They do not know any detail of what the parent's position is. They do not know where there is a dispute in fact. They do not know where there are legal issues. Therefore, we have a great difficulty, but it is something that we have to do to ensure that those issues where they should be properly made are being raised, but ensuring that we are doing that in a way that does not prejudice the overall ethos. In my view, the role of a solicitor is central. It is not about whether we need solicitors, but the conversation should be about how we ensure that everyone is participating in a collective way that is always welfare-centric. I think that the last point that you made is absolutely right. Is that consistently held that approach by solicitors? Is there a need to ensure that there is consistency? My second point is that you are absolutely right about the vulnerability of those people, but if you have a room full of 20 professionals, does that help those people who are vulnerable who might find it difficult, who might find a courtroom intimidating? Is there an issue that as well intended as that might be, that just the sheer number of people in the room is actually acting against that drive to provide a context for hearing people's voices? In terms of the former of the two issues that you asked, I would hope that that is a widely held view, because that is what the registration criteria for the legal aid board, for example, tells us that everyone must be signing up to that and must be committing to that. Most of that work is legally aided and that tells us something about the circumstances without being pejorative of the people who require the benefit of that representation by and large. I would hope that everyone is signing up to that. That is a question, I think, if there is a concern about that of training, but it is not simply training about solicitors in my view. There seems to be a concern that, if we take solicitors representing parents as the example, there is an assumed conflict between the interests of the child and the one hand in the interests of the parent. I think that that is fundamentally the wrong approach. The 2011 act is a very carefully constructed piece of legislation that is comprehensive, sets out various legal principles, but with the underlying principle of the child's welfare. The child's welfare is not a separate concept. One arrives at the view of what is in a child's best interests when one goes through the proper process with everyone effectively participating, applying the correct legal test and then arriving at the best conclusion that we can, because if one simply takes a subjective view of what is in a child's best interests, I may have a different view, Morag may have a different view, you Mr Convener may have a different view, and that is why the legislation is crafted in the way that it is. I have a concern that there is an approach that, because solicitors are advocating a different position, they are inherently acting contrary to the welfare of a child. That is not the case in my respectful view. One should determine what is in the best interests of a child at the end of the process. That is what I wish to say about the former. I do not know if Morag wants to deal with the second issue. I was just going to deal with the second part of the question about the number of people in the room. The rules of procedure, the statutory instrument, is very helpful on this point. The chairing member, according to rule 6, has a duty to make sure that the number of people of the room at any one time is kept to the minimum. That is something that could be used much more creatively to say how many of these people actually need to be here. Do we need three social workers plus a lawyer for the social worker, which is a trend that is becoming slightly worrying? It is already there. The act and the statutory instruments are something that we should all be slightly smug about in Scotland. I think that they give us quite a good system. In the session of Parliament, we had some quite good sessions on this and took quite a bit of evidence on it. The evidence seems fairly consistent. We spoke to young people who had been through the system, who had experienced being at hearings where lawyers were present, and they felt that they were talked over, that their voice was not heard. 100 per cent of them felt that. There were concerns raised by a number of people who served on those panels who felt that there was a degree of intimidation from lawyers being present. They felt that they did not have the legal experience and that the lawyers and the whole thing ended up the parents fighting over the child, but the child's rights and so on have not been considered adequately. What did you say to that? We have partly a problem in that there is a general distrust of the profession and perhaps a lack of understanding of what lawyers do. A lot of that, and the Celsus report is quite helpful in some respects. Joint training between lawyers, social workers, panel members—all the participants would be helpful. You are now looking at making advocacy for children much more widely available and to a professional standard. Children do get talked over, but that happens in hearings when there is no lawyer present as well. The role of the advocacy worker, I do not think, can be underestimated in keeping the child informed, participating and not feeling like the bone between the dogs. Consistent evidence seems to point to quite a number of the participants having concerns about lawyers being present, because it ends up as in an adversarial situation where the lawyers are defending the rights of the parents and so on, and the child is left swinging in the middle there. How do you avoid that? I attend many hearings and I have to say that that is not what I see at ground level. I wonder how many of the people who have given evidence physically attend the hearings and see what happens at ground level. The vast majority of hearings we already know happen without a lawyer being present, and the vast majority of hearings that I and my colleagues attend. We are the biggest providers of children's legal aid in Scotland. We do not just represent parents, we represent children as well, so I have a significant evidence base on which to comment, and the vast majority of hearings that we attend are not conducted in that way. There may be an issue with training, but I agree with Morag that I think that there is a distrust of the profession and there is perhaps a lack of mutual understanding of all the participants of the different roles that everyone plays. Again, I am not sure that the solution to ensuring that a child is effectively participating in a process is to remove the right of effective participation from someone else. It is about how we make those things work together in a way where one does not inhibit the other. In the Law Society's submission, there is a very clear statement that says that the presence of solicitors does not create an adversarial forum, but evidence seems to indicate that quite a number of people who participate, including the children, feel otherwise. Do you not think that the role of the chairing member of the hearing is pivotal in this? The chairing member is given a considerable responsibility for the running of a hearing. If chairing members are feeling intimidated by people at hearings, then perhaps there is a perception difficulty, but I think that perhaps the training of the panel members could be improved to give them the courage to say to the lawyer, excuse me, Mriscoll, that this is not an adversarial process. Could you back down a bit? Just one last question in your submission. It is the final question there. What is your view on the interaction between children's hearings and the courts and can improvements be made on how they work together? You said that the sub-committee is not in a position to respond. We are not in a position to go out and see how it is working. We do not have the resources to go and look at that, which is why we did not respond to that. That is a matter for research and people that have the skills to look at that. If you are talking about how it works from the point of view of the profession, then you are looking at—we have a good division of responsibility that we do not make hearings decide evidential issues. We do not make hearings do their own appeals. In that, I think, my colleague will be better prepared than I, because I no longer go in to court these days. It is quite clear. We have sheriffs who are very much aware and in support of the hearing system. They do not override hearings. They will send it back. To me, that works fairly well. At the law society, we could not go back and say, yes, because X, Y and Z. That is why we did not answer it, but you are doing it. I certainly think that whether it is something that is not already there or not, I do not know, but there certainly needs to be a proper understanding of the different roles and a proper interrelationship. From a child's point of view, that is all part of the one process, albeit that they only attend the children's hearings. They have a right to attend court if they wish. They can be represented in that process, but it is all part of the one process. There are things that could be done to improve it. For example, I principally practice in the Glasgow jurisdiction. In Glasgow, we have a dedicated, what we call a children's referral court, so it is specific solicitors that deal with this who build up specific experience in this field. There is a specific practice note that has rules. The number one rule set out in it is that the rest of the rules are in accordance with and have been set down in accordance with what is considered to be the child's best interest. There is very much a focus and there can be. I cannot see anything wrong and indeed I can only see benefit from that approach being taken on a wider basis. That is something that we have chosen to do in Glasgow because there is not specific provision for that in terms of the legislation. That is a way in which I can see that it can assist. To have a proper understanding of whether a solicitor is assisting or hampering a children's hearing, one has to have a proper understanding of how a children's hearing works and what happens in practice. As you know, the children's hearing system has been very much part of the deliberations of successive education committees in this Parliament for the best part of 10 years. I think that the challenge that we have as parliamentarians is to know whether the 2011 legislation is fit for purpose and the general opinion, I think, the feedback is yes it is. I would be interested to know if you confirm that view or whether you would like any changes to it or whether we have got the guidance wrong or whether there is nothing wrong with either the legislation or the guidance and we have to do something either through training just as you have mentioned or through other aspects. I think that that is the crucial challenge that we face as parliamentarians to try to improve matters on behalf of those who are seeking assistance. I would be very interested in your views on that. It is a very interesting act. It is very complex. As one of the people who has been annotating it, it is a very intricate and quite subtle piece of legislation. No piece of legislation is ever perfect from the day it has passed and will last within a state of admirable perfection forever. There are always tweaking and adjustments needed. I think that one of the things from the point of view of the child is that we need perhaps to strengthen the guidance for panel chairs on keeping the numbers smaller. Yes, sometimes we have a lot of professionals, but do we need more than one representative from each? We need three social workers and two teachers. Can we ask some people to leave the room for a bit? Can we perhaps look again, the act does not define attendance at a hearing as being in person? That was deliberate. The statutory instrument allowing a child to attend remotely only allows to attend remotely if they have been excused. I think that perhaps it is worth revisiting that. If a child would normally meet the criteria for being excused because of the distressing nature of the grounds or because of fear, if it is the grounds hearing and they can understand the explanation, we make them go. They cannot be excused. Could we not allow them to attend that part of the grounds hearing remotely? Could we not make better use? It is easier to ignore a child in a chair than it is a child on a television screen. You are more aware of the person that is there if you have ever done Skype meetings and things. You are more aware that you watch the faces on the screens because you know the person is not in the room. I think we have got it there, but I think making a child attend a grounds hearing who would normally be excused because they were so frightened of going. Why are we doing that? The kernel is there. Could we not examine that a bit more? I know that the reporters administration is very much supportive of anything that will help a child give a view. I am assisting an advocacy organisation that is actively looking at the child recording what they want the hearing to say that could be played on a screen so everybody really would have to listen. There are things we can do so the child does not have to remember. Mum could do it. The lawyer could help them do it so it could be played at a hearing. We could make more use of the technology that we have. It is there, but we just need to, as you say, focus on what would help. I do not think there is a lot of legislative change that is needed, but guidance, ethos of also accepting that lawyers do care about this system. They do want best outcomes for children. You do not do this work unless you believe in the system. I am sure that that is the case. I do not think that anybody would doubt that for a second. Just coming back to the issue of training, I really want to ask the simple question. What additional training, if any, is required for solicitors getting into this work and children's panels? Is there any provision that is at all voluntary? There is a set of what are called competencies criteria that require to be met, and you have to establish that you meet all of those in each of those. There is a continuing scheme, and I think there is a more extensive scheme being introduced by the Scottish Labour Board about how one satisfies those competencies and review of that on an on-going basis. There is quite a strict and rigid regime. We are focusing on training for solicitors, but I think that the focus should be on multidisciplinary training for everyone. In the way that one might say in some cases that there is ignorance on the part of a particular solicitor about the approach of social worktake or the approach that a child psychologist takes or another professional takes, I think that there is sometimes also an ignorance in almost a hostility towards the approach that a solicitor takes. I have to stress that we are talking about a very small minority of cases whenever we are talking about those concerns, but the way in which we get to the bottom of that might be compulsory multidisciplinary training that involves everyone, in effect, getting a shared understanding of what the respective rules are around children's hearings. I think that that is missing. There is no requirement for that. I, as a solicitor, because I practice in this field contrary to what other evidence may have suggested, I have an understanding of matters relating to the consequences of emotional trauma for children, the consequences of child protection issues for children, the consequences of other psychological issues that may develop because I deal with this work constantly, but those of my colleagues that do not deal with it as frequently may not have the benefit of that and there may be a lack of understanding. Equally, when I am talking about other disciplines requiring to have the same understanding of solicitors, there are very, very good panel members, very, very good social workers, very, very good third-party agency representatives. It is all about achieving consistency, I think. I think that that is where the issue is. We are focusing on the negatives perhaps to the exclusion of the positives, but I think that to ensure that there is more consistency we need training but across the board. I think that the starting point from the perspective of solicitors is an acceptance and appreciation that the role of solicitors is a benefit. Once we have that acceptance, I think that we can take that forward in terms of ensuring that the way we participate guarantees that benefit in the best way possible for that child. You are talking about the competencies and review on those competencies. Can you tell the committee how that is done? How, if there is an issue with perhaps a solicitor, maybe not meeting those competencies? How that would be reviewed? How someone could actually report that? What will be done in that circumstance? There are really three elements. One requires to make an application to the Scottish Legal Aid Board to be put on the scheme in the first place, so they have to be persuaded in the first instance that you meet that. You would only be on the scheme if you meet that test. In terms of ad-hoc issues that might call into question whether you are continuing to fulfil those competencies, there is a scheme of complaints. There is information being disseminated about that. Obviously, complaints should be the last port of calling, but there is that scheme for those more extreme cases where there is a real genuine concern about that. The Scottish Legal Aid Board has now introduced a regime of automatic checks, so every few years they will automatically review files, they will have peer review, they will have a particular person coming in to ensure that you are continuing to meet those competencies. The Scottish Legal Aid Board is at liberty to deregister you at any point if you consider that you are not meeting those competencies. It may be that that has to be more structured, but, as I understand it, they are already taking steps. We are talking by and large because it is the majority of the way in which this work is done. In legal aid cases, there is obviously not the same regime available for non-legal aid cases. Representation by persons does not have to be through legal aid, but most of it is funded that way. That might be more likely to be able to talk about if there is a gap in how that can be filled, but that is perhaps an issue to ensure that it is across the board. You could have a slister there that is not doing it through legal aid, who will not have to conform to those competencies. Is that correct? The exceedingly rare situation where a parent is paying legal fees themselves, chances are that the solicitor who is doing that work is also registered with the Scottish Legal Aid Board because it would be unusual for a solicitor that does other things to suddenly pitch up at a children's hearing because one does not. It is working outside your area. If my colleague was approached by somebody who was a private client and did not qualify for legal aid on means, they would be getting a solicitor who was registered on the scheme anyway. If you wished to approach the law society, we would not want to end up with a double registration scheme where you had to register with the legal aid board and register with the law society and have two competing schemes. That would be unworkable. The issue here is not that you are registered with the law society and the legal aid board, but the point that Gillian is making is that you are registered in some way that makes you capable of dealing with the special training and knowledge to deal with specific types of cases. Surely the solution is not that it is legal aid board or it is law society. Does that theme of training before you are allowed to go in and represent a family at a children's hearing? I think that the reason why the issue perhaps has not received a lot of focus is that, as Morag says, the number of occasions when someone will be privately fee paying and be represented by a solicitor who is not already on the scheme are very few and far between. I have to say that it rarely arises. Interestingly, I can be quite clear with the committee that I as a solicitor who practices almost exclusively in this work do not want just any solicitor who deals with a different type of work coming in and dealing with it. I do not think that a solicitor who deals with it exclusively in criminal work should come in and represent a parent because they will not have an understanding that ethos in the same way I do not think that a criminal justice social worker should turn up at a children's hearing and make recommendations about what is in the best interest of a child. Of course, there has to be regulation. Morag is suggesting that we would have a concern about over-regulation, but I as a solicitor and I do not think those in my profession who actively deal with this type of work on a day-to-day basis. We have no concern or fear about proper regulation. We feel that we have that, but absolutely if there is a more refined way to deal with that we would have no difficulty with that. One small thing about the joint training. The great advantage of having across the board training where all of the different parties train together is that you get to know one another. You no longer fear the lawyer you have sat in training with and seen them struggling to understand what you do and explaining what they do. There is an advantage to the social workers, the teachers, the health visitors and everybody having training together because you get to know each other. You are no longer that label in the chair. You are that person. There was a lot of discussion about this last week where that position was taken, I think, by most people around the table that there would be benefits in that sort of multi-disciplinist training. Tavish. Thank you. Can I just stem further to Julian's point? It is not impossible for a solicitor to attend a children's panel hearing with no number of training you have described. If I, as a parent, decide I want my local solicitor to represent my interests at a children's panel hearing and he or she has no training whatsoever in all the ways you have just described, there is nothing that stops that happening, is there? I appreciate your point. There is nothing that stops a criminal lawyer from doing some convincing. Well, indeed. But you tend not to because you value your insurance, your complaints history and your professional standard. Yeah, but just for the record, there is nothing that actually stops that happening. Do you recognise, presumably, there is a geographic point here, too, because I can take the point about Glasgow and Edinburgh. Mark Allison has obviously got a practice in Glasgow that does this work, but in lots of parts of Scotland there just won't be this kind of expertise. Well, don't talk rural solicitors down. I was one. I represent a rural constituency. I've got lots of constituents who are affected in this area. My mum used to be the reporter to the panel, so I know this stuff. I'm just saying, is there a difference between the kind of practice that Mark Allison is describing and what may happen in different parts of the country? I mean, certainly, I know it's not a complete solution, but firms such as mine do practice the length and breadth of Scotland, so it's not just Glasgow. I was using Glasgow as the example. There is a duty scheme for representation that comes through the children's hearing where someone is identified as requiring a representation but hasn't already got representation. Ironically, most of the referrals we get through that are from more rural constituencies rather than from Glasgow or Edinburgh or anything of that nature. We get a lot from Dumfries, we get a lot from the Highlands and Islands, and we get a lot of work that is referred to us from those areas. I don't think that it's a question of the training of the solicitors that are there, but because we're talking about very small bars of solicitors, there may not be that specialism. Again, I suppose that that comes back to ensuring that there is proper representation and equal representation for everyone, but that may be an issue that can be looked at. I don't think that there's an issue in terms of the solicitors in other geographical locations being less qualifying to do it. I think that the issue is simply that there are fewer of them, unfortunately. I agree with that. You mentioned the number of cases that legal aid is applied for and therefore eligible for in terms of the 10 per cent of hearings that are present. Do you have any kind of number on that? Are we talking 90 per cent of those of that 10 per cent are legal aid cases or less? Do you have any idea of how many it is? I think that you said the majority in your opinion. In our practice, it's probably something in that region—maybe 85 to 90 per cent being legal-aided. Obviously, by the time we get to that funding, as Moran has pointed out, we've already had to address both a means and a merits test to justify that. The other question is, is your experience now that your firm may be representing our child or our parent? Are there other solicitors at the same hearing representing other parties in that hearing? There can be. The predominant people represented by solicitors are obviously the parents. The next group would be the child. There are representatives. For example, in Glasgow, we do direct adoption petitions rather than permanence orders with authority to adopt. That's the practice that the local authority takes. Often, when they refer the prospective adopters on to a particular solicitor, that solicitor will then attend at every single children's hearing for the prospective adopters, sometimes slightly unusually without the prospective adopters even being there. There can be a scheme. I don't think that it's something to be fear, but one of the areas where I feel that the system is perhaps lacking is a prioritisation of kinship placements. The concern that I have from the practice that I do—and that comes back to your point of worship about representation—is that kinship is often only viewed as a solution when we've absolutely excluded rehabilitation. It's a long-term solution, and it's rarely thought of as a short-term solution, although we are inquiring us to whether parents can care for their children appropriately or whether there are issues. I feel that that's missing from the system. The only circumstances in which those relatives are able to participate is when they can show that they have significant involvement or have had significant involvement in recent times. There is a small group of relatives such as grandparents or persons offering to be the alternative carer who aren't probably represented as often as they should be because they have a viable option. The legislation tells us, although it's not as expressly set out as perhaps it should be, that before one gets to long-term foster care, the port of call before that should be kinship. I think that that is one area where I think there's a little bit of a lack of focus. That's helpful in terms of things to go forward with, but just on the point about solicitors being or our solicitor being present at our hearing representing, again, one party. Is your experience now that that can lead to one of the other parties, i.e. the other set of parents or even the social work department, also having a solicitor? In other words, is the number of solicitors going to these hearings that you're describing fairly today growing? The starting point as to who has the right to be represented and the legislation does set out who has the right to be represented. It is relevant persons and the child. I have had a handful of experiences in the Glasgow jurisdiction where the solicitor from the local council has appeared to represent the social worker and I have a concern and I've expressed a concern because there's no automatic right for them to be represented because a social worker, for example, attends a hearing as an information source. They are there to equip the hearing to make a decision whereas parents' involvement is slightly more complex because they have their own rights that may or may not be in conflict with the child's interests. I do have a concern. I think that it is more of an issue and Morag is aware of this being an issue in Edinburgh because of a particular judgment that was issued arising from a finding of contempt in relation to a social worker. There is now very much focus and concern in that jurisdiction, certainly from Edinburgh City Council, about ensuring that their social workers don't end up in that position again. I think that it's an unfortunate consequence if the system is being used for them to be represented because my view is that they don't have a right to be represented at the hearing. I don't want to put words into your mouth, but is the incidence of more than one party being represented legally at these small number of cases growing or not, or do you think that it's quite stable in that sense? It's quite difficult because we're looking at the system as if the 2011 act introduced representation and it didn't. It introduced funding for representation. There was always representation. The issue was that there wasn't funding in every case, so there wasn't consistent representation. I'm perhaps not well placed to comment on it because we used to historically represent clients whether there was funding or not because it was the part of the overall work that we did. However, it probably is the case certainly in Glasgow that there can be a greater level of representation, but I stress that it is in those cases where a view is taken firstly by the parent that they need representation, then by the solicitor that it's justified, and then by the legal aid board in confirming that the test for it is met. One only gets to the stage, in my view, where it's justified to have those number of people there. Tavish, I think that we could quite easily—well, quite easily—we may be able to get figures from the Scottish legal aid board to see if there's been an increase over the last few years. No, I entirely take that point, convener. Final question. You've both made very strong arguments and correct arguments about chairing skills. Again, in your experience, Margaret, I think that more I described that point very well earlier on, do you see examples where chairs, chairs of panels say, right, we've had enough of this legal stuff, stop? Does that happen in practice? I stress that we're only talking about a minority before I give these examples. I have personally attended hearings where I've been told that you're not in the sheriff court, or I was even at a hearing where I was told, where I pointed out the legal test, because the approach was, this is what I think is in the chair's best interests, and I pointed out, well, this is the test and that's who you arrive at that. I was told, well, I don't care about the law, the sheriff can fix that. Those are extreme examples, but the point is, those extreme examples don't just assist from solicitors behaving badly, they do exist in all ways, and that's why I think that the multidisciplinary collective training is really the way forward, because I think that if we label one group as the problem, that's not going to do anything to foster improved relations, but those are just some very rare examples. By and large, the vast majority of panels are absolutely first rate, they do their job well, we're talking about volunteers giving their time, I have the utmost respect for those people. I think that, bearing in mind that the system was initially designed with the co-brand and report for child offenders, by and large, and the care focus wasn't the initial focus, they are being put in an enviable position because they're having to deal with increasingly complex cases in that care sphere, and that's why I say there's a need for a solicitor, but equally it makes it difficult for them, and no doubt they would benefit from training. That's not to say they're not doing the job properly, but who would say no to training that makes it easier for you to do your job? My understanding is that panel members get first class training, as it is. Any panel member I know that's ever spoken up, but I've been through the process, I've commented on just how good the training they do get is. Can I ask him the question of who you represent in a panel when you say that there's a mix? What proportion of the folk that you represent are parents? I would say the majority we represent are parents. There are some dedicated firms that largely only represent children. Is it the vast majority that our solicitors in the main, generally, in the panel system, represent parents? That's a different question. Obviously, from my perspective, in terms of how my firm represents people, the majority of their more are parents, but there's a huge minority, perhaps 25 per cent, that are children. In other firms, the split will be different. In terms of overall across the board who is being represented, I'm not sure that I have access to that information. I would presume that representation may be more frequent for parents rather than children, but in my view that's an argument in favour of ensuring that children know that they have the right to be represented when they feel they need to be represented rather than an argument that parents shouldn't be represented. One of the few concerns that I have about the 2011 act in the way that it introduced funding was that it doesn't introduce automatic funding for children who have the competence to instruct a solicitor. You're generally talking about someone who's 12 or above. If someone takes the view that they have capacity below that, obviously they can instruct a solicitor, but that's a value judgment. I think that this would be one of the tools that could be used to assist in dealing with this vexing issue of how do we ensure a child isn't lost in a hearing because a child can effectively participate not just by being there but also by ensuring that someone's got their say. It's not just about a child's view, but when we're talking about older children, we're talking about children who have the right to participate more fully than just saying what they want. The question was about the percentage of... Yeah, but that's maybe something that we can find out. I mean, my sense from, I mean, I went and attended a hearing recently and was involved in the hearing system in a previous life that having a lawyer speak for you doesn't necessarily mean that you're actively participating actually might mean that you're quite passive in the process and I wonder whether there are skills that youth workers and advocacy workers might have that a solicitor might not have. I think actually at the moment the work that Scottish Government is doing to introduce advocacy standard for advocacy workers is already taking care of this because yes, there are times when a child does need legal representation, but I think most children who are able to work with someone to express a view probably would benefit more from the lay advocacy because lay advocates have time that solicitors do not have. It's not legal knowledge that these children need for most hearings, it's understanding the process, taking time to go through the reports and the recommendations, that process of forming a view which is what we want from children. So my feeling is that the more children have advocacy support which is already in process and is going and to a good standard the better because it doesn't matter if mum is represented by my colleague if the child has a good advocacy worker, they're on a level playing field. I'm not so sure about that, but that's one of the things we want to look at. I wonder there's a point you made about vulnerability that I'll come back to in a moment with your permission, but I wonder now I might be getting this completely wrong. My sense of a solicitor, their job, is to make the best case for their client, is to make the best justification for their client of the circumstances that they're in, when, in fact, one of the strengths of the hearing system in the past was that a parent could even refer their child to the hearing system because they need help and support, and that in that circumstance might legitimately say, you know I've got a problem here, there are things that I've done that I'm uncomfortable with but I need help and I need support. From our discussions last week my sense would be that a solicitor would gently touch in the arms and say, don't say that, is that wrong? No, I think that that is wrong respectfully. I think that it has to be remembered that the stage at which solicitors generally become involved is in cases where there's already becoming and divergence between the care plan and what the parent wants. We often will not be involved in the sense of participating into children's hearing if, for example, the social work have become involved and there are issues which the parent accepts and is able to resolve, and our approach is not to, in effect, take a combative approach to everything quite far from it. One only takes that approach when that is the last resort, in effect. The starting point is to ensure— What is the last resort? Is the last resort the possibility that a child will have compulsory measures of care? No, no. Which the parent wants to resist? What is the last resort then? We're talking about a quasi-judicial panel, so I think that we can't lose sight of the powers and decisions that can be made by those hearings. That includes making a decision that a child is removed from appearance care against the parent's wishes or, indeed, against the child's wishes and also preventing there from being any contact, albeit only for the duration of the CSO, but setting the child's care plan down in a particular way. We're talking about, by and large, the cases where we become involved in relates to scenarios where a care plan of care out with the parent's care is what is being progressed. If we're talking about representing a parent, that is where a parent will feel—I've tried to resolve this, not to the social work or the professional agency's satisfaction. I feel that this has gone wrong or that has gone wrong. That is where I need representation. We're talking again about a minority of cases. I don't feel to come back to the earlier point that you had made that a parent is disinhibited from participating in a hearing because a solicitor is there. As I said, parents are still encouraged to speak, and a good-quality chairperson will say, I want to hear from you directly what you've got to say, but there's a difference between, although you refer to it as participation, there's a difference between having your say and effectively participating. The latter concept is far wider because we're talking about very complex cases with complex circumstances in which a lot of work has to happen even before the parent gets to the door of the children's hearing. Do you think that, at the point at which something very serious is going to be decided, that is deemed by the hearing system of the panel to be in the interest of the child is the point where a solicitor is necessary? Who will then take a view about protecting the interests of their client, even if it's not in the interest of the child? I think that that misses the point of the legislation, respectively. The legislation has the underlying permanent consideration as what's in the best interests of the child, but that's not a tangible concept. Going into a case, there's not one answer as to what's in a child's best interests. The rules and the rigid regime that is set out in the legislation is aimed to guide panel members to arrive at that decision based upon all of the information that they get, based upon everyone's contribution. The professional motivation will be to protect the interests of your client. Your client wants to keep the child with them. The hearing system is likely to say that this is not in the best interest of the child, and your job is to make as good a case as possible for that not to be agreed. I would hope that that decision is made by the children's hearing at the end once my client, and again we're talking about me representing a parent in this case, but once my client has effectively participated, the starting point is not that a child's interests and a parent's interests are in conflict. That is a decision that might arise, but that's something that has to be decided once everyone has been able to participate fully in this process. There may be cases where what I'm instructed to advocate for is something different. I think that it has to be remembered that in dealing with this role, I'm a professional, I am not a mouthpiece for my client, so before I go into that, I give them advice, I digest the information for them, I tell them what the issues are and we try and see whether what they're looking for is feasible. I don't go into a children's hearing saying that my client, for example, has been found to have sexually abused a child, he must have the care of this child. That's an extreme example, but it's not about simply advocating for our client's position at all costs. Yes, that's our primary role, and I think that it has to be remembered that solicitors are in a unique position at a children's hearing because we are the only people who have to both represent a primary duty to our client but also act in accordance with the best interests of the child at all times. No one else has that duality of obligation at a children's hearing. It just feels to me that there's a conflict there and I'm not quite sure how that is resolved. Can I ask you something that you said earlier? You said that all parents in the hearing system are vulnerable. Do you think that that's true? Well, I don't think that I said all parents, but many of the parents which we find in this situation are vulnerable. I'm using vulnerability in the broadest possible sense. Ultimately, if we're talking about care cases, the very concept of that is that there is some perceived deficiency in the parent's ability to care for the child, so there is a vulnerability which requires to be addressed or an issue which requires to be addressed. It may be that a parent who is neglecting their child, you would define that as being a vulnerability. It depends on what the cause of that is. Remember, we have— I understand that. I understand that there are some people who are in circumstances that are totally overwhelmed. They're not able to look after their child. The hearing system is geared for that. However, if there's a presumption in your mind that all parents are vulnerable, all parents are clearly not vulnerable. They're perfectly competent, able, articulate people who are very neglectful of their children and it's not in the interest of the children to be with them. Well, equally, I don't think that all parents are neglectful of their children. We're talking about a scenario of children who have been referred because there's an issue. The focus is very much on care grounds, a lack of parental care or an offence ground. Remember that a child can be referred to children's hearing for all manner of reasons. There are an increasing number of grounds, quite properly particularised, to identify what the issues are set out within the 2011 act. My point is that the people who are meeting the test of representation—we're coming back to the Scottish legal aid boards competence test—are people who largely will be vulnerable. I have to answer four questions if I wish to persuade the legal aid board that my client's case necessitates representation. That's the test. The first is that I have to show that the case is factually complex. The second is that there are legal issues. The third is that there may be an issue with them being able to understand documents and digest those. The fourth is about them being able to put their point across. I have to address the very question that you're highlighting to me in justification for being there in every case. I'm still concerned that there seems to be a presumption that solicitors are a problem going into this hearing, even though I think that you, Mr Convener, had said that that wasn't the view earlier on. I'm concerned that that seems to be the focus. I think that the focus should very much be on accepting that there is a natural tension between parents having rights and children having rights and ensuring how we can respect all of those, but with the child's interests as the priority in a way that effectively protects all of those different interests. Can I ask that the answers are kept very brief because we are coming towards the end of the session? Following on from John Lamont's line of questioning, would you accept that there are instances where the lawyer can be an issue in terms of the ethos of the children's hearing by their presence? Are there occasions where you think that that would be the case? Are you saying that just by the nature of being a solicitor? Yes, I was a solicitor coming along to a hearing. I suppose the point that I was going to develop was that for me it depends on who the solicitors represent. I think that you've made a really, really good case at the start of the solicitor when they represent a child. I've had experience of that as well. If a child is bringing in a solicitor, then that's fair enough, but when it's a parent who's maybe been accused or even convicted and you mentioned an example of quite serious offences or allegations, you've got a situation where a child is hearing a social worker, a teacher, panel members and various other people saying that they're here to protect you. I'm talking about the ethos of the hearing here, and then you've got another adult in the room who might seem to the child to be saying that this is okay in a child's mind. I said last week on the record as well that I don't think that there's any circumstance where parents shouldn't be represented legally. I definitely don't think that, but I think that the question comes back to where. Where should that representation take place? I suppose that I'm going back to my question. Do you think then that there is a circumstance where the ethos of the children's hearing system can be taken away by the presence of a lawyer under such circumstances? I think that you're perhaps conflating two different things. If you have a person who is present at the hearing, whose very presence is causing such distress to a child, such as a parent who has been convicted of some form of maltreatment, whether it's physical, sexual abuse or other, there is provision for that person to be excluded for that part of the hearing. That person and their representative will be told to leave. The child, we call them split hearings, they happen quite a lot, so a child can come in out with the presence of that person, talk to the hearing with or without the help of their representative, hopefully they do have an advocacy worker or another representative. The child can then be excused from the other part of the hearing and the problematic person can come back in and will be told what happened in their absence. We have provision to reduce the number of people in the hearing that don't have a right to be there. We do have provision for excluding a relevant person and a relevant person's representative if it is going to make it impossible for the child to speak. Now, we could make that a little easier because at the moment you can only be excluded if it's going to make it impossible for the child to speak, because of course what we're talking about is removing somebody else's rights temporarily, their right to be there. There is a balance there, but there are things we can do. You don't have to be there with your abusive parent and their representative. I'm finding that intimidating. You can leave the room for that period and you can ask for them to be excluded when you go back in. Yes, and I accept that. I accept the provision as there. When the provision is used, it can work quite well, but I think that having sat through hundreds of hearings as well like yourself, I think that there are many instances where that doesn't happen, and actually, because some things can develop during hearing, especially if it's an early hearing, the things can come out that actually nobody suspected, and then before you know it, maybe the reporter, you've probably been in the situation where you're like, well, you know, but before we know it, it could be too late. So I suppose that what I was just getting to there is I'm not disputing the role of legal advice for parents when it's such serious decisions, but I think I have to agree with the line of questioning that John Lamont was taking. We've got a children's hearing system, which is for the child, and therefore I do think that we need to find another way for parents to be represented legally that it works. It may not always be necessary for legal representation, but there is inadequacy of advocacy services for parents as well across Scotland. Many of the questions that I was going to ask have been addressed by other members. The only remaining one is clearly what forum exists where all the players get together and tease out the issues that you've been discussing today, because you have said that there perhaps could be some improvements for mutual understanding of different roles and so on to have those issues addressed. What forum exists for that? There are different representative bodies for the different participants, so there may not be a forum that exists at this moment. I think that what is required is on-going dialogue as part of the work that is presently being done between these agencies with a view to probably creating a forum to allow that to happen. Do you think that there should be some kind of forum? As I said, and I hope that it was clear, I think that there should be interdisciplinary training in effect so that we all have a proper understanding. That may not solve every problem, but I think that it will go some way to solving some of the concerns that you have today. If that does not resolve things, it will at least shine light on what the problem is after that. However, I think that there is an element of ignorance about the different roles, and it is difficult to unpick that without at least being an attempt to try and resolve it first. Is this something that the children's hearing improvement partnership may be a good place to start? Can I ask whether the Law Society represented on that? No. Okay. So, that is what we have got to be done. Sorry, Richard, what do you want to say? I can. Thank you very much. Ross, the last question. And it actually follows on from a question that my colleague Liz Smith asked when she asked you around about potential improvements that could be made. I saw in your submission, you talked about there still being barriers to participation and that these can be improved upon. At the last bullet point, you talked about a requirement to provide a simpler version of reports to children. It is saying that this would make it easier for children to understand the information that they are being provided with. I have not been in the Parliament previously. I am new to this term, and I acknowledge that there has been discussion. Can you talk me through exactly what is happening just now in relation to those reports? Are there issues around about the language, the presentation, the volume, and what is it that needs to be done to improve it? What can this committee do to help that? When I was a reporter, I would ask for reports for the hearing from the professionals. You get a 36-page social background report from social work, which takes about 18 hours to do poor things. You might get a report from the school, you might get a report from a health visitor, any other mum's drug counselling, whatever. But they are written for the hearing, for the panel members. Copies are sent to the children from the age of 12. I suggested way back years ago that each report writer could be asked to do a very simple, no more than that summary for the child of what they are saying and what their recommendations are. It could be as simple as Billy. We are very worried that your mum is having a hard time looking after you properly, and we think that you need extra help. We are going to suggest that you live with your granny for a bit, or we think that you should stay at home with mum. Just very, very simple. It would not cost anything because the report writers are already doing the report. The teachers would be fab at it. Just something very simple. I also suspect that for many parents who have learning difficulty or a problem with English, that would be the report that they would read, and that way the child would get something for the hearing. We could send it to the younger ones and tell them very quickly and simply what the report was saying. At the moment, I can tell you that the job of going through those reports with an adult client is tough. Going through them with a youngster is really hard. That also protects them in terms of content, because if we are preparing a report for the benefit of a panel, it will have all the information and it works in all. It also has the grounds and issues that led to them becoming before the children's hearing. There may be an issue about protecting children from that information, because those reports are largely prepared on a rolling basis, which means that part of it is a chronology, so every event, negative or otherwise, and often they are negative, because that is the purpose of them to highlight them, goes in that, so that the child is exposed to that in effect. The reports—I know that we were talking about 36 pages, but I have seen social work report reports in complex cases of over 100 pages. How is a 12-year-old child supposed to digest that? Is that something that can be done quite quickly without having to do that? It could be done immediately if you just said that any report submitted should have an age-appropriate short version for the child, unless the child is not able to understand even that. I want to comment there, but thank you very much for that. That is the end of this session. Just before we go, it does seem like you have had a bit of interrogation. The panel does not think that the solicitors by their very presence are particularly bad things. The role of the committee is obviously to look at if there is anything that has to be improved in the children's hearing system, and that is why we are asking the questions that we are. Thank you very much for that, and I will close the public session.