Children's hearings redesign

CWA provides expert counselling and practical support, refuge accommodation, advocacy etc., to women, children and young people experiencing domestic abuse since our inception in 1981. As such, we believe an analysis of Domestic Abuse which aligns with that ScotGov should underpin a redesigned children's hearing system as the Children’s Hearing system plays in its approach to protecting the wellbeing and upholding the rights of children and young people.

Domestic abuse perpetrated by parent or carer against a child and their non-offending parent is consistently the second and third highest ground of referral to the Scottish Children’s Reporter Administration (SCRA) under s. 67(2)(f) of the Children’s Hearings (Scotland) Act 2011 on care and protection grounds. However, responses from the Children’s Hearing System are neither domestic abuse-competent nor suitably trauma-informed when a child is referred to the Reporter and Hearing proceedings commence. These responses must protect the child at risk and the non-abusing parent and focus the attention of the intervention on the perpetrator’s behaviour.

Legislation relating to Children's hearings should have clearly defined minimum standards if understanding and training around domestic abuse and trauma for all those involved in the process. Many women we support have expressed clear issues with the children's hearings response to domestic abuse, particularly in relation to contact decisions which leads us to question the awareness and understanding of domestic abuse of panel members. We have been made aware that special protective measures for survivors of domestic abuse within the Hearings system, such as the ability to give video evidence, or separate waiting rooms are rarely used in practice. this fails to consider the safety implications when requiring a woman who has experienced domestic abuse in the presence of her abuser.

Discussion papers produced by the Scottish Government commented that “There would have to be a way to connect the grounds of referral with the supporting concerns. That would necessarily use language with a negative connotation, for example, “That the child has not been and/or is unlikely to be cared for in such an environment because… “ followed by statements of fact, containing sufficient specification. If a new ground of referral were to state- simply and clearly- the standard to which the family should be adhering and gives them and their lead professional/team around the child a goal to work towards, then that may improve both experiences and understanding.” (Our emphasis in bold)

The consultation paper, in section 5.1 Statutory Referral Criteria, notes that “In Chapter 3, the Hearings for Children report recommended that “Changes to the
statutory referral criteria and to updating and modernising the language of
‘protection, guidance, treatment or control’ in section 60(2) of the 2011 Act must be
considered.” The report goes on to state that “referral processes should be
underpinned by the key principles of rights-based proportionality, consistency, and
timeliness”.

Firstly, in relation to young perpetrators of GBV, their victims may find it highly inappropriate, demeaning and offensive that their abuser is being considered for “guidance” and “treatment”. It is not clear how “treatment” is currently addressed or dispensed by the Hearing System, and suggests a medical intervention or some mental health approach. At any rate, the proposed Hearings for Children report suggests language around “safety, protection, care, guidance or support” but none of these adequately addresses responses toward young people referred for abusing their partner, and apart from “safety” does not evidence consideration of the victim and their rights.

Secondly, we would strenuously object to any rewording of the 2011 Act ground relating to domestic abuse (section 67(2) (f)- “… the child has, or is likely to have, a close connection with a person who has carried out domestic abuse…”) that would lessen the impact of this behaviour by directing the focus of that ground away from the conduct and actions of the abuser and suggest the complicity of the non-abusing parent. We believe that domestic abuse should not be situated as a “family”-based problem, but solely a consequence of an abuser’s behaviour. It is harmful to suggest that the non-abusing parent is not adhering to some “standard” set by the Hearing and/or “professionals” and so should be working toward a “goal” of achieving this.

Situations where young men referred to the Reporter and then a Hearing because of criminal offending such as domestic abuse, stalking, rape and sexual abuse committed against a partner in their own relationships, or offending against a third party, should be adequately covered under the ground 67(2) (j)-“ (j)the child has committed an offence”. This ground must not be watered down in any way.

We are particularly concerned as the current definition means that a biological parent qualifies as a relevant person, regardless of the level of their involvement in the child’s life. This is a significant issue in relation to referrals due to domestic abuse perpetrated by an abusive parent, who, especially in the case of post-separation abuse, may not currently have any involvement in the child’s life, or may have involvement which is fundamentally detrimental to the wellbeing and safety of the child, siblings and non-abusive parent.

We are well aware through our experiences of supporting women through these processes of disruption caused to the process by abusers, and, in particular, abusers ability to manipulate the process. This is not conducive to the participation of children and their mothers. CWA are acutely aware that abusers will use societies structures that are put in place to protect people i.e. Police, Social Work, Children's Hearings etc., to inflict further abuse and distress and this becomes particularly prevalent when children are involved. CWA would support a Hearing having the power to remove relevant person status in domestic abuse situations like these and more broadly where the involvement of an individual in Hearings proceedings may not be compatible with the rights of the child or others.

We have commented above on the ability, and determination, of abusers to use Hearing proceedings as a means of continuing coercive and controlling abuse and negative involvement in children’s lives through securing contact with children and their mothers.

Therefore, we caution that creating an additional class of person with certain rights to provide their views at an early stage, and to participate appropriately as the case proceeds, would allow perpetrators the ability to further disrupt and influence proceedings through involvement of their parents or relatives. If the abuser themselves were to be excluded from proceedings, it is entirely possible that these additional persons, and their legal representative, could serve as a vehicle for the abuser to continue to channel the abuse into the proceedings, inappropriately challenging and diminishing allegations of domestic abuse.

While supporting flexibility in this matter, in relation to offence grounds, (“67(2) (j)the child has committed an offence” and “67(2) (m) the child's conduct has had, or is likely to have, a serious adverse effect on the health, safety or development of the child or another person” particularly where this involves the perpetration of GBV, we note and support the Scottish Government’s comments that completely removing the obligation to attend would have concerning rights implications.

Mechanisms of good practice used in courts and children’s services (e.g., Women’s Aid Children’s Support Workers, specialist children’s rights officers) to gather children’s views may be instructive. Where the child has a specialist support worker, they may be supported by them to participate. All avenues should be explored, including video and audio recording of children’s views.

All professionals involved in the Children’s Hearings system need a minimum level of understanding of child development, the impacts of trauma (and specifically domestic abuse), and best practice for enabling children’s participation.

As far as possible, consistency of professionals working with children should be ensured, to enable building of trusting relationships. In the PowerUP, PowerDOWN model child survivors of the child contact system made very clear that the single most important action needed to support their input was a trusted advocate.

Children’s participation should be conducted in environments that feel safe and comfortable to the child. Professionals should allow children enough time and space to fully convey their views, without rushing them or seeing the gathering of their views as a tick-box exercise. In situations of domestic abuse or GBV, it is worth considering that children may be less comfortable speaking with male professionals.

We are not sure what information exactly is proposed to be shared. Where domestic abuse is an issue, there would be safety and confidentiality concerns in relation to free and wide sharing of information: the child and mother’s whereabouts; the nature of the abuse; safety planning; and criminal intervention by the police that could impact on criminal proceedings. This information could be disclosed or find its way, inadvertently or otherwise, to the perpetrator.

We would also not want to create a situation where advocacy workers’ notes and records could be accessed by perpetrators and/or their legal representative, or where this information became automatically disclosable as a consequence of this extended sharing

The consultation paper suggests that “there may be value in creating a statutory process, undertaken by the Children’s Reporter which:-
• Records what has been done up to the point of referral to gather the child’s
views, including confirming that they have been offered advocacy.
• Applies a “best interests” test regarding appropriate participation prior to a
hearing being arranged. This would account for the child’s views on how they
wish to attend/participate, their age and stage of development, and the nature
of the matters due to be considered by the hearing.
• Makes any necessary further arrangements to gather the child’s views and
support their ongoing participation. This would include additional offers of
advocacy and bespoke and enhanced forms of participation depending on the
age and stage of the child, or any other needs they may have.”

While the above sounds positive in principle, the “best interests” test could be a barrier to the appropriate participation of children. It could prevent those who do actively want to participate. It could also inappropriately facilitate the avoidance of participation for those who have committed an offence, particularly one related to GBV, who should rightly be attending to have the consequences of their actions discussed with them.

The wording of this should be cognisant of these potential consequences.

In relation to referrals on grounds relating to domestic abuse perpetrated by a parent, and forced marriage, there are clear and obvious safety implications of the Reporter having a conversation with the family as a whole.

It is not clear how appropriate this would be for young people coming before the Hearing on offences ground relating to VAWG.

We do not see the advantages of this change, and the process described in Question 30 above could act as a new “fact finding hearing”, presided over by the Reporter.

In relation to proceedings to determine statements of grounds:
• It effectively represents a duplication of court processes outside the court.
• There are no obvious cost savings, as training the legal members and setting up a completely separate process will require new rules of procedure, and effectively only result in the current costs and work being shifted elsewhere to another process.
• It is not clear how “complex” cases would be dealt with, whether the “legal member” would be able to refer to a sheriff, and how the procedural rules for this would interact with Rules of Court.
• The legal member cannot replace the sheriff. It is not clear how the legal member would be given powers to protect parties such as women experiencing domestic abuse and have perpetrators removed from the hearing room and premises during proceedings to determine statements of grounds. Currently, if abusers behave threateningly and inappropriately during court-related grounds hearings, the sheriff has the power and means to seek the intervention of police within the court premises, and have the abuser removed and/or arrested and taken to the cells.
• We have no confidence that “legally qualified members” would be competent to deal with children’s and mothers’ experiences of domestic abuse, given the lack of that competence in the legal services that survivors routinely receive.

This person is not a “consistent specialist sheriff”. Excluding sheriffs from having experience of such matters would reduce their exposure to cases involving domestic abuse and the learning they could glean from such cases, which could be useful in other civil and criminal proceedings.

The process described in Question 30 above could act as a new “fact finding hearing”, presided over by the Reporter.

We understand that the Children’s Hearing, in reviewing a CSO, has the option to introduce new measures of care which potentially carry more restriction on the freedoms of a child, or may even add directions (particularly concerning where this relates to contact with an abusive parent).

A CSO may also need to be varied due to additional child welfare concerns, and a review hearing arranged where the relevant person, child, or other person who has a statutory right to do so, requires it. This review can currently only take place after three months of the CSO having been made, continued or varied.

There are advantages and disadvantages to reducing the time period:-
• On the one hand, given the safety problems that continually arise in relation to inappropriate contact decisions in domestic abuse related cases, and in those involving forced marriage, any review at the request of a child, relevant
person or other entitled person because of safety or other issues, could be positive in allowing a review to happen soon as possible, without waiting for further harm to be caused through having to endure the three month waiting period.
• On the other hand, reducing the time period could increase perpetrator abuse of the process. We have heard a multitude of accounts from survivors of abusers regularly and repeatedly challenging and seeking a review of contact direction. In these cases, removal of the three-month period will allow them to manipulate and disrupt the process more often.

When and if any revised period is put in place, this must be accompanied by legislative change that allows the Hearing to refuse repeated vexatious review applications.

We would also support the right of victims of minor offenders of domestic abuse and other VAWG to seek a review where the offending young person is not adhering to the conditions of a CSO and is continuing the harmful behaviour.

The consultation paper suggests “Examples of where ‘procedural’ decisions could be taken, and where there is no requirement for the referred child to be in attendance including:
• Pre-hearing panels covering:
o Deem or un-deem a relevant person, subject to the existing routes of appeal.
o Excusal of child or relevant person from attending.
o Attendance by electronic means.
• Advice hearings.
• Review of a Child Protection Order.”

Deeming or un-deeming a relevant person, particularly a perpetrator of domestic abuse, would undoubtedly come under even more scrutiny and challenge when such decisions were not taken by the full Panel. We would be concerned about the delays and consequences of adopting such practice.

The only benefit we envisage is that any abusive behaviour on the part of an abuser would be recorded and would be evidence in reports to the police as mentioned above.

In addition, we know that these hearings are extraordinarily stressful for survivors. The trauma involved might make confident recall of the Hearing difficult to impossible, and access to a recording might be welcome for those survivors.

This depends on the identity of the other family members.

Siblings, for instance, may have different views and wishes around having contact with an abuser (coercive control may be a factor in such matters). This should not result in a blanket decision to award or deny contact for all children involved being made by the Hearing. Needs of children will also vary depending on age.

For the non-abusing relevant person, it will be crucially important that the Hearing take the impact of domestic abuse on her and her relationship with her children into account when considering contact determinations and when issuing reasons.

We oppose the use of both FGDM in civil cases involving domestic abuse and restorative justice of any form either in civil or criminal cases. These are wholly inappropriate processes for dealing with this issue, may actually facilitate the continuation of the abuse are not safe reliably safe for women and children. Similarly, restorative justice is not appropriate in cases where a young person, usually a young woman, has experienced abuse in her own intimate relationship at the hands of a young abuser who has come before the Hearing because of this.

Greater protection for victims of crime, especially young victims of VAWG.