Justice Champions of Change
For many years, the siblings of children who are removed from their homes by social services in Scotland have had no rights to attend or contribute to those children’s court hearings. This has often resulted in siblings being separated permanently from one another, with no means of staying in contact and maintaining their relationship.
Last August, however, the Scottish Parliament passed the new Children (Scotland) Act 2020, which for the first time gives brothers and sisters of children who may be taken into care the right to be notified of and attend hearings; to provide and receive reports related to hearings; and to review the results of court orders. The Act also requires courts to consider relationships with siblings when making decisions over family matters, and it requires local authorities to support siblings to remain in contact with one another when they are not able to live together.
Clan Childlaw, which was set up in 2008 to provide specialized legal representation and information to children and young people in Scotland, played a central role in influencing the development of the new law. The organization used strategic litigation and advocacy to raise the profile of the problem of sibling separation and, crucially, to bring it to the attention of the UK Supreme Court.
In the latest of our Justice Champions of Change interviews, Jennifer Davidson and Alisa Jimenez talked to Alison Reid, the organization’s Chief Executive and principal solicitor, about why she set up Clan Childlaw and how its work has influenced the justice for children policy environment in Scotland.
Jennifer: Can you tell me about your background?
Alison: After qualifying as a lawyer I worked in private practice doing litigation, suing people and doing court work. And I didn’t like it, so I started to look at other things I could do with the skills I had. Then I got a job as a ‘Reporter’ at the Children’s Hearings System, working in the state system in Scotland.
Alisa: What did that involve?
Alison: In Scotland there’s a separate system for helping children that need state intervention, for example because they need care or because they have offended, which is called the Children’s Hearings System. It’s a kind of tribunal system that’s intended to be less confrontational than a court system and to take children’s specific needs into account. The idea is to base responses to children on their needs and not their deeds. There’s a body of trained volunteers that make decisions as to what’s best for the children. And as a ‘Reporter’ in the system, you decide which children ought to come into the system and receive state help, and you also have a role in checking that the system is working OK.
Jennifer: And how well does it work?
Alison: In theory it’s a fabulous system, but in practice it still has areas that need to improve. It was clear to me that the law was OK in terms of making sure that children’s views were taken into account, but that in practice this wasn’t happening. Children would be referred to the system but when they got there, rather than asking the child what they thought, the attitude was, ‘We’ll just do whatever we need to do.’
Jennifer: Can you give me any examples?
Alison: Yes, it starts with the seemingly little things, like lawyers showing up to a meeting in a suit rather than being dressed more casually. The system decreed that children whose liberty might be taken away from them must have a lawyer. So there was a mechanism in place for them to get a lawyer, but the solicitors who came in were wearing suits and carrying a file. The children were used to social workers, teachers and youth workers, who are much more casual and informal. Culturally the solicitors were dramatically different to the kind of people the children were used to. And this formality makes it far less likely that the child will engage, and so less likely that the solicitor can be effective on their behalf.
Another example of it not working as intended was when a 14-year-old young woman came to the Children’s Hearing System with her baby. Everyone was worried about making the best decisions for the baby, but no one was taking account of what the mother (the 14-year-old) was saying or what she wanted. Suddenly in that hearing she became a mother — she was no longer regarded as a child with rights to be taken into account, despite her age. And the case was moving towards the child being taken away from her. The social worker was supposed to be representing the baby and the 14-year-old mother, but after the case was concluded, the social worker went away with the baby and the foster caretaker, and the 14-year-old was left in the waiting room with me. We’d just lost the case and the young woman had lost her baby. And now she’d also lost the social worker who was her main support. She’d lost everything. She told me she didn’t have any money for the bus back to her housing unit. It was tragic.
Jennifer: And episodes like this influenced you to set up Clan Childlaw?
Alison: Yes, I started to think more about why or how a child would ever get help from the legal system. And my first question was: how would a child ever know they had a legal problem in the first place? And where would they go to get help? I pictured children having to go into these very formal city center law firms to try to get support, and thought about how different those were to the environments children are used to, like schools or youth clubs or their homes. And I knew that just wasn’t going to happen.
At that stage there was some research in England around youth access to legal representation, which found that children want to meet at a place where they feel comfortable, and that they want face-to-face advice from either a lawyer who specializes in working with children or a youth worker who knows about the law. Services needed to be child-centered and they needed to be accessible.
So I set about logically thinking of what I needed to do to address these deficits. I decided to set up a legal service for children that was provided by lawyers who specialized in representing them. The service would be child-friendly and would place great emphasis on making children feel comfortable in their dealings with the law. And as well as representation, we would provide free information about children’s rights to family members and adults who worked with children.
Jennifer: And how did you do that?
To establish such a service, I first had to set up a charity, then I had to create a law firm and made a contract between the charity and the law firm. I worked closely with Fiona Jones, an ally who really understood and helped to drive forward what I was trying to do. And we approached the Scottish Government, presented our business plan, and they agreed to support us by giving us a modest amount of funding. We had our launch at the Scottish Parliament in May 2008. This was a unique approach in the way that it centered the child and young person’s needs and took into account the way they navigate systems.
Alisa: What are your main areas of work?
Alison: Our main focus is providing lawyers for children and young people, to ensure their rights are realized when legal decisions that affect them are made. We also train other professionals and key workers about children’s rights and the law. And we conduct policy advocacy to help make the law work better for children.
Jennifer: Can you give us a picture of how a young person finds you and how you start working with them?
Alison: We get referrals from a wide range of sources, mostly not from young people themselves but through advocacy workers or schools or parents or other non-governmental organizations. We also work with children who are leaving care — those who have reached the age when they are no longer a part of the Children’s Hearings System. Somebody who’s supporting them with their accommodation will contact us, and we’ll try to work out how the child wants to meet with us, where they want to meet with us. We try to be as accommodating as we possibly can. Our solicitors go to schools, to children’s residential units, to McDonald’s or to cafes. We give them a choice of places where they can meet us.
Alisa: And what sort of issues do you work on with them?
Alison: Quite often, they’re not happy about where they’re living. Maybe they’re living with their dad, for example, but want to see their mom more or their siblings, and we help with that. And we help with the transition from the Children’s Hearings System (of children who have aged out of the system). At this point they’re a bit older, but their outcomes are really poor, even in terms of simply having nowhere to live.
We also use our legal skills to do advocacy that helps more than just the child we are helping at a particular time. Ever since the charity started, for example, it was clear that siblings of children who were in contact with the Children’s Hearings System didn’t really have rights. But a few years ago a 13-year-old boy approached us for help who wasn’t able to see his seven-year-old brother. And we said ‘that’s not right!’; and through strategic litigation we were able to take the case all the way up through the court system to the Supreme Court. At the same time, we helped form the Stand Up for Siblings Coalition, which conducted policy advocacy at a wider level. We lost the court case but the Supreme Court for the first time in UK legal history recognized the importance of siblings, and by then the process was underway to take better account of siblings’ rights, which eventually resulted in the 2020 Children (Scotland) Act.
Jennifer: Do any children have to pay for your services?
Alison: No, nobody pays us directly and it’s free to any young person. We do try to take any money we can get from the Scottish Legal Aid Board, which is state funding, but that doesn’t pay for everything. It might pay for the hour that you’re in court and it might mean that you could meet for ten minutes beforehand, but it certainly doesn’t facilitate the many trips to meet young people or the constant texting or telling them which bus to get on. We get some money from the training that we do, and apart from that we’re grant funded.
Jennifer: Have you seen a change in how people have understood these services to be not just nice to have, but something that is essential?
Alison: There’s definitely movement in that direction. They’re reviewing the care system in Scotland, and they’ve acknowledged that we need to have specialist child lawyers or specialist lawyers that work with children. That’s a big move towards acknowledging that there’s an issue here, and that children are different to adults and need different support.
This is an exciting development. There are also really good advocacy services for children and young people that give views on behalf of children in different forums, including at Children’s Hearings, and I am supportive of that. When it works best is when you have the connection between the two, and they work well together — when an advocacy worker recognizes when there is a legal issue, and we can work with the advocacy worker, who has maybe got a more developed relationship with the child. We still need lawyers for children and the legal expertise of qualified lawyers as well if you want children to receive justice.
Jennifer: Can you tell us about how the pandemic has affected the work you’ve been doing?
Alison: It’s been really hard. The service pretty much stopped for the first few weeks but then picked up quite quickly. We’ve recruited another solicitor and we’re at full capacity again. But the solicitors haven’t been able to work to their full capacity. They’ve been able to see some young people, but not many. The rules allow us to see young people in person if it is essential. Otherwise, we use video link or a telephone call which is not nearly as good. Also, because the work is quite stressful, not being in the same place as colleagues to get support during a difficult court hearing or meeting has been very difficult. I just really want us to be able to go out and see young people again.
Jennifer: Do you have any thoughts about how all the work that you’ve been doing in Scotland feeds into the wider global movement for children and for justice?
Alison: We’ve now set up a UK-wide child law network, which is linking us to the equivalent organizations in England, Wales and Northern Ireland. And we’re working towards trying to develop resources and training on what it means to be a lawyer for children and what you need to think about, because I think the next step is to give the work some kind of footing. It doesn’t look like anyone’s thought about what it means to be a lawyer for children, whatever the topic is, so we’re trying to address that.
Champions of Change is an initiative started by the Pathfinders to highlight advocates who have made an impact in their communities and have helped to create peaceful, just and inclusive societies (SDG16+). It provides an opportunity to feature individuals, businesses, and organizations doing extraordinary things to empower and inspire members of their communities.
To read more justice Champions of Change interviews, visit: https://www.justice.sdg16.plus/champions-of-change