Reporter warns of Euro risk
Alan Miller, the principal reporter with the Scottish Children's Reporter Administration, told a seminar in Edinburgh on Wednesday that two brushes with the Convention had left the children's hearings system in Scotland "indelibly marked and the worse for the experience".
The parents of a young boy who had been placed on supervision with foster parents successfully argued before European judges in the Strasbourg court in 1995 that their rights had been violated because they did not have access to papers made available to the children's panel which took the decision about their son.
The result of this McMichael case was a change in the rules last October to enforce full parental access to all papers submitted to children's hearings, although information on the whereabouts of a child can be omitted to prevent a risk of serious harm.
A more indirect problem had arisen for children's hearings as a result of the child protection orders introduced following the Orkney child abuse case. Mr Miller maintained these were intended to "Strasbourg proof" the system.
But the effect had been to complicate the emergency protection of children, with the possibility of endless challenges to the protection orders which are more likely to be exercised by the parent rather than the child.
Mr Miller said the European Convention may be a good vehicle for protecting the rights of autonomous adults. "Where it is seriously deficient is in relation to those not in a position to take action to secure their own rights, and in relation to conflicts of rights, interests, and needs within the family. As a result the children's hearings system is now less well equipped to secure the rights of children to liberty, a fair hearing and to personal privacy."
Although the European convention had contributed towards the promotion of children's rights, notably the ban on corporal punishment in state-funded schools, Mr Miller questioned whether the convention was capable of defending the rights of children as well as those of adults. Nobody spoke for the McMichaels' son in Strasbourg, he said. "The rights of Scottish children have suffered as a result," Mr Miller said.