Court rules mothers' rights breached

Published on Saturday 10 October 2009 19:59

JUDGES have paved the way for hundreds of mentally handicapped parents whose children were taken into care to sue the Scottish Government.

The Court of Session, in a landmark decision, has ruled that failure by the authorities to provide legal aid for adults with learning difficulties taking part in children's hearings amounts to a breach of human rights.

Its judgment was made as part of a lengthy legal battle by an East Renfrewshire mother with the reading, writing and counting abilities of a primary-school child to win back her three-year-old son, who had been fostered against her will.

The Scottish Government believes that there have been around 250 cases a year of parents with learning difficulties being denied representation in such hearings.

Legal experts estimate that payouts could be up to 3,000, similar to the amount paid to prisoners whose human rights were judged to have been breached by the infamous "slopping out" practice.

Last night Zaqyia Riaz, of Glasgow solicitors Patrick Campbell and Co, the firm representing the mother and more than a dozen more parents in similar circumstances, said: "We believe the Scottish Government may now face similar claims to those it got over the issue of slopping out."

Around 11 million in compensation payouts have been made to Scottish prisoners whose human rights were breached because they had to wash out their jail chamber pots every morning.

The Court of Session ruling will come as a huge embarrassment to Scotland's unique system of children's hearings with one insider predicting "chaos".

Scottish authorities routinely remove babies from handicapped mothers, usually because they fear they will not be looked after properly. For some years disability groups have argued that many of those stripped of their parental rights are perfectly capable of caring for their children, provided they get the right support.

Patrick Campbell has already lodged one claim for compensation with others waiting in the wings. The 35-year-old mother, who cannot be named for legal reasons, had argued that her human rights were infringed when she couldn't get a state-funded lawyer to help her understand complicated children's hearings on her son's future.

The Court of Session has now agreed her rights were infringed if she can show, at another court, that she didn't have the ability to follow proceedings. She is said to have a reading age of six.

Crucially, the court, the highest in Scotland, accepted the principle that any adult who is so handicapped they couldn't follow proceedings in a children's hearing would have their rights breached if they were denied legal representation.

Lawyers said the decision would smooth the path for many other parents to seek compensation for the hurt they have suffered because they were unable to have a fair say in the fate of their children.

Riaz added: "Children's hearings will no doubt have some initial difficulties adapting to the role of lawyers representing parents. But, if used properly, this should mean that better decisions are taken for all parties earlier in the proceedings."

Sam Cairns, chief executive of Equal Says, a group that supports disabled adults, said: "We have come across terrible unfairness to parents unable to make their views clear."