Table of contents
Strategic litigation is a way to use the law to improve human rights for children and young people.
What is strategic litigation?
There are times when a case in a court of law can impact more than just the people directly involved in it.
The court’s decision may affect other children and young people’s rights by establishing an important point of law or principle. That means that other cases might use this point of law or principle in the future.
When a case like this comes up the Commissioner may ask the court’s permission to intervene — become involved.
When they do this, the Commissioner doesn’t take sides or represent children directly. Instead, they bring issues about children’s rights to the court’s attention to help the judge make a good decision. Doing this is a way of doing strategic litigation.
What strategic litigation have we taken on?
Since 2017, we have become involved in a number of cases involving the rights of children and young people. Here are some examples.
No Recourse to Public Funds
This case involved children whose parents were not allowed to receive benefits because of their immigration status. After we became involved, the case was resolved, out of court.
Our intervention in the case revolved around the condition of no recourse to public funds, which we highlighted as a breach of children’s human rights in our first legal briefing. This briefing informs and provides human rights defenders with the tools necessary to advocate and challenge on behalf of children and young people.
Deprivation of liberty
In this case we asked the Court of Session in Edinburgh to allow us to intervene in a case involving a child who was being deprived of their liberty in a residential children’s house.
The child had been placed in a children’s care home in Scotland by the High Court of England and Wales without a Scottish legal order being in place.
The child was under constant supervision, in a different country, with very limited access to her family and friends and this was a breach of her human rights. The Commissioner was allowed to intervene in the case as they are concerned there may be other children and young people in a similar situation. The case concluded when the child was returned to England.
We continued to intervene in a number of similar cases, including at the UK Supreme Court, and gave statements from the Commissioner in others. We tried to improve the human rights protections put in place by the Scottish courts when authorising these orders. We were able to influence some changes, including the length of time for which the Orders were authorised. This work is ongoing.
The Court of Session is the highest civil court in Scotland.
What this means
When a judge makes a decision in a civil court it can be appealed in a civil court that has more authority, who can decide the judge’s decision was wrong. But then their decision can also be appealed in a civil court with more authority than that.
The highest civil court is the one with the most authority of all. Once they make a decision, it can only be appealed to the UK Supreme Court, and only in some circumstances.
More in the Rights questions and answers section
Restraint and Seclusion
In 2019, following the publication of our report into restraint and seclusion in Scotland’s schools, the Commissioner worked with the Equality and Human Rights Commission Scotland who supported a Judicial Review against the Scottish Government.
Anti-Social Behaviour Order
We were asked by a judge for the Commissioner’s opinion in a specific case where a local authority wanted to take out an Anti-Social Behaviour Order (ASBO) against a care experienced young person. ASBOs are legal orders which can restrict the places young people can go, and the people they can spend time with. We provided the Court with a statement from the Commissioner which outlined the human rights concerns, and the case settled in favour of the care experienced young person.
Strategic Litigation Toolkit
The toolkit explains the Commissioner’s powers, and sets out how we involve children and young people in strategic litigation and the principles that underpin this work. We also share the set of tools we have developed. The tools help us decide which cases we can get involved in as well as provide reasons for those decisions. It helps prepare children and young people who work with the office on legal cases, and explains to them what they can expect from this work. This is really important as it makes sure our decisions are transparent and makes us accountable for these decisions.
You can download or browse the toolkit below.