April 2025. We submitted evidence to the Equalities, Human Rights and Civil Justice Committee, highlighting how availability of legal advice and assistance can affect children’s right to justice and effective remedy.

1. What are the current barriers to accessing civil legal assistance? Can you give examples from your own experience, or refer to any research in this area?

The primary barrier children face in accessing justice through the Courts is financial. Legal advice and assistance is an essential part of ensuring that children’s right to access to justice is realised, but the current practice of assessing children’s eligibility for legal aid is on the income of any person with an obligation of aliment in respect of the child.

In private law cases involving a dispute involving contact and residence, children should have the right to participate directly in actions which they are the subject of. This was discussed at length during the passage of the Children (Scotland) Act 2020 and although the provisions introduced in that Act (but not yet in force[1]) will support children to express their views to the Court[2], they are not a substitute for direct participation as a party, should a child wish to do this. The form their participation takes should be the choice of the child and not constrained by financial barriers.

The Advice and Assistance (Scotland) Amendment Regulations 2010[3] mean that access to legal aid can potentially be denied on the basis of parental resources they do not have access to. Our view is that this may be incompatible with the UNCRC.

There is a process through which the Legal Aid board will consider if this is “unjust or inequitable”, including for resources to be discounted for various reasons, for example:

• if a parent has a contrary interest or
• is estranged from their parent (and is unaware of their current address)
• if the child does not wish it to be disclosed

However, in all these examples the Scottish Legal Aid Board require evidence to support this consideration.[4]

The current situation equates to a presumption against the child being eligible for legal aid and places considerable burden upon them to demonstrate why they should be provided it. This is a significant barrier.

In other civil proceedings, for example a child with their own tenancy raising an action against their landlord, the child[5], could face a more significant barrier. The same would be the case where proceedings were brought by a child under the UN Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.

Where parents do not have a contrary interest and are not estranged, but are simply unwilling to support the child or uninterested, the 2010 regulations effectively removes decision making from a child. No regard is taken for the capacity of the child (and in Scots law, children aged 12 and over are presumed to have the capacity to instruct a solicitor[6]).

That this situation exists was recognised by the extension to children 12 and above of the ability to make a reference to the First Tier Health and Education Tribunal (then the ASN Tribunal). In that instance, the Education (Scotland) Act 2016[7] gave children aged 12-15 (but not 16 and 17 year olds) access to both legal advice and assistance and advocacy support, funded by Scottish Government[8]. 

We note that not all children referred to a Children’s Hearing are automatically eligible for legal aid, which results in a similar barrier to justice and effective remedy, however we recognise that this is outwith the scope of this inquiry.

UNCRC position

In their 2023 Concluding Observations on the UK’s progress implementing the UNCRC, the UN Committee on the Rights of the Child recommended that children have access to “Legal support and representation in addition to remedies, including by removing barriers faced by children in disadvantaged situations and expanding the types of support provided under the legal aid budget.”

The UN Committee are currently preparing a new General Comment on children’s right to access to justice and to an effective remedy. General Comments are authoritative guidance on interpreting the Convention, issued by the UN Committee following extensive international consultation. The UN Committee have recently published their draft of the new General Comment (Draft GC27) ahead of the final stage of consultation[9], with the intention of adopting a final draft in January 2026. In its introduction, Draft GC27 states:

“…in order for children’s rights to have meaning, it is essential for access to justice and an effective remedy to be available to redress violations of the full range of economic, social, cultural, civil and political rights as set forth in the Convention and its Optional Protocols.”[10]

Although not finalised, Draft GC27 provides a strong indication of the UN Committee’s position. They clearly identify the significance of financial cost as a major barrier to children accessing justice and the importance of ensuring the “availability of free legal aid and free paralegal and social support to all children without discrimination”. They also state that any eligibility criteria should be limited.[11]

Do you have any suggestions for shorter-term improvements (not involving changes to the Legal Aid (Scotland) Act 1986) which could be made to the current system for civil legal assistance?

The main barriers to children’s access to justice and effective remedy discussed above can be addressed without primary legislation. The 2010 restrictions on access to legal aid were introduced via The Advice and Assistance (Scotland) Amendment Regulations 2010. These must be reviewed to ensure that they are compliant with the UNCRC, as is required following incorporation of the UNCRC into Scots law. Whilst the need for review is urgent, our suggestion would be that any work on this be timed to take account of the finalised UNCRC General Comment 27 when it becomes available.

[1] We responded to this Committee’s Inquiry on Non-implementation of Acts of the Scottish Parliament. https://www.cypcs.org.uk/resources/non-implementation-of-acts-of-the-scottish-parliament/

[2] In line with Article 12 of the UNCRC

[3] https://www.legislation.gov.uk/ssi/2010/462/contents/made

[4] https://www.slab.org.uk/guidance/financial-eligibility-of-children-for-advice-and-assistance-non-criminal-matters/

[5] or indeed an adult, given the extended definition of child in the 2010 regulations

[6] Age of Legal Capacity (Scotland) Act 1991.

[7] Education (Scotland) Act 2016 Schedule 1. However note that our concerns, before and since, that aspects of these provisions are likely to be incompatible with the UNCRC, including the exclusion of 16 and 17 year olds and the potential for a child to refused permission on the basis of an assessment of impact on wellbeing.

[8] My Rights My Say.  https://myrightsmysay.scot/

[9] https://www.ohchr.org/en/calls-for-input/2025/call-submissions-draft-general-comment-no-27-childrens-right-access-justice

[10] Ibid para 5

[11] Ibid para 31-32