Children's hearings redesign

1. A child is 'a child' regardless of the reason/s on which they have been referred to the children's hearings system. Therefore, all children's needs should be considered in the same way, with the same processes, regardless of the ground of referral.
2. All human beings (children and adults) have legal rights which must be protected and promoted by the children's hearings system.
3. The child's welfare is the paramount consideration in determining their needs.
4. The child must have an opportunity to participate fully in the proceedings, should they wish, and their views must be taken into account by the decision-makers when making their decisions.
5. The child's closest family members (by reason of law or fact) must have an opportunity to participate fully in the proceedings.
6. The establishment of the reason for intervention by the children's hearings system should be done separately to determination of what that intervention is.
7. Substantive decisions based on the child's best interests should be made by lay people as part of a forum that has continual involvement in the child's life for as long as such involvement is necessary.

The principles would be known to all involved in the system.
The principles would be justiciable.

The principles would be justiciable.
The principles would need to be reviewed through a parliamentary process in the event that change was needed.
The principles would take time to enshrine in legislation by virtue of the need to go through the parliamentary process.

I support the change in language from 'control' or 'treatment' to 'guidance' or 'support'. This modernises our legal language and should not cause any significant difficulties with the use of existing case law. However, the addition of the phrases "(Clearly specify which is needed)" and "(with clear rationale why necessary)" are wholly unnecessary to include within legislation and may complicate the referral process. If the referrer considers that the child is in need of safety, protection, care, guidance or support and that compulsory intervention may be needed then they should make the referral without having to worry about which of these is met: that is the role of the Children's Reporter. The words "or young person" in part a) are also inconsistent with established law whereby "child" has a specific legal meaning. The inclusion of c) is unnecessary and can be included within professional guidance. The change in threshold for referral from the current "might be necessary" to "likely to be needed" is a significant change and the increase in threshold of referral may prevent the referral of some children when compulsory intervention is needed. It is the role of the children's reporter, not the local authority, to determine if a compulsory supervision order is needed.

The change to 'control' and 'treatment' modernises the language of when compulsory intervention in family life may be required.

As outlined above, most of the other changes are wholly unnecessary. At best, the changes overly-complicate what should be straightforward criteria for professionals to follow and at worst they may prevent referrals being made for children who require a referral to be made.

As noted above, the change in threshold for referral from the current "might be necessary" to "likely to be needed" is a significant change and the increase in threshold of referral may prevent the referral of some children when compulsory intervention is needed. It is the role of the children's reporter to determine if a compulsory supervision order is needed.

1. The parameters of the current definition, as developed through both legislation and case law, are now wide enough to encompass those individuals who have legal rights to be involved in decision-making about the child and who are closely involved in the child's upbringing to the extent that they can assist the hearing to determine what is in the child's best interests; but while ensuring that it is not wide enough to encompass individuals who would not be entitled to the child's most private information.

2. Deemed relevant person status can be removed in advance of decision-making, if the person no longer has a significant involvement in the child's upbringing.

1. The term "relevant person" is difficult to explain to children and their families.

2. The separation between types of relevant person (automatic and deemed) is unnecessary, confusing and adds a layer of procedural complexity to the system.

3. A children's reporter is unable to deem an individual to be a relevant person during the course of an investigation.

There is already a well established definition of "parent" within Scots child law (via the Law Reform (Parent and Child) (Scotland) Act 1986, Adoption and Children (Scotland) Act 2007 and Human Fertilisation and Embryology Act 2008) and therefore there is no need to provide one specifically for the children's hearings system. This would either be repetitive and unnecessary or confusing if a different definition were chosen specifically for the children's hearings system.

A children's hearing should not have the power to remove automatic relevant person status. Such a power would likely give rise to considerable legal rights based issues and therefore be vulnerable to successful legal challenge. The European Court of Human Rights has made clear on numerous occasions, dating back to the 1980s, that the mutual enjoyment of the parent-child relationship is a fundamental aspect of "family life" for the purposes of Article 8 of the European Convention on Human Rights. Within the children's hearings system, the Supreme Court has made it clear that parents should have the right to participate in children's hearings about their children (Principal Reporter v K), which gave rise to the current legislation in this regard. Any backward step, therefore, is regressive.

The children's hearing already has the power to remove deemed relevant person status within the current legislation to take account of changes related to who is involved in the child's upbringing in fact, and this remains an entirely appropriate power for the children's hearing to have.

1. This would provide those individuals with an entitlement to information, to provide information to the children's reporter and to be involved in the investigation process.
2. Ensuring that those most closely involved in the child's upbringing are part of the reporter's investigation leads to a better quality investigation and therefore a better quality decision for the child.

1. An overly cumbersome process would create delay and further confusion for a child and family already navigating a new part of the legal system.

The children's reporter could be provided with the ability to recognise an individual "as if" they are a deemed relevant person while their investigation is ongoing. An appeal provision could be included for an individual who does not agree with the reporter's determination in this regard; something that is likely only to be needed in a very small number of highly contentious cases. This would enable the reporter to involve those who meet the criteria of deemed relevant person status in their investigation but without introducing another complex process. The rights of any individuals who do, or do not, wish to be recognised by the reporter as if they are a deemed relevant person can be protected with the right to appeal.

It is difficult to see any advantages to such a proposal.

Introducing yet another class of person to the children's hearings system would be both unwise and unnecessary. Already, alongside the child, the system has "relevant persons", "deemed relevant persons" and "persons to be afforded an opportunity to participate" and therefore adding another class of person with yet another set of rights and obligations in respect of participation is wholly unnecessary and is only likely to lead to technicality and confusion in operation. People whose views and participation are essential to the business of the hearing can attend at the discretion of the panel members under the existing legislation.

The child's right to attend their hearing must remain.
The children's hearing should be given the ability to defer the hearing and to require the attendance of the child at the next hearing if there is a reason for doing so.

As explained elsewhere in this section, the same rules should apply to all children regardless of the ground on which they are referred to the children's hearing. Therefore, in some circumstances where the children's hearing consider it necessary to speak directly to the child, the child should be obligated to attend the hearing. Particular attention should be given to how this child is then supported to attend the hearing.

This has to be about choice and variety of methods of participation. This necessarily requires resources - both physical resources, such as audio/video recording or remote attendance, and human resources to enable practitioners to work alongside the child to secure their full and effective participation.
Where the child chooses not to attend their hearing, they must be offered different alternative methods of participation regardless of their age. This could include writing/audio or video recording their views or appointing someone to attend the hearing in their place such as an independent advocate or legal representative. The child must then be informed of the discussion and decision by the hearing and this should be done in person either by their chosen representative or by a person nominated by the hearing.

The children's hearings system does not distinguish between children on the basis of the ground on which they are referred. This has been and should remain a central principle to the children's hearings system since children whose behaviour is of concern are children in need of care and protection. Therefore, whatever position is taken in respect of a child's attendance at their hearing should apply regardless of the ground on which they are originally referred. It is also foreseeable that different rules in this respect will lead to problems in practice. For example, how long would such an obligation persist - would it apply to review hearings several years later? What if new grounds are subsequently brought forward that are not based on the child's behaviour? What if the child is referred on multiple grounds?

This is a skilled and time-consuming speciality. Therefore specific, nominated, practitioners need to be given the time and space to gather the child's views and report these to the hearing. This necessarily requires additional resources. An advocacy speciality could be developed more widely as one option.

The offer of advocacy being made by the chairing member in accordance with s122 is far too late in the process. Should a child wish, an advocate can have a key role in preparing the child for the hearing. Making the offer earlier can also help to avoid deferred hearings.

This is an extremely wide-ranging question that requires a multi-faceted answer encompassing all the issues raised through the consultation. It is everyone's responsibility within the hearings system to protect and promote the rights and views of children and young people when discharging their respective roles within the children's hearings system.
Advocacy is one method but this requires to be resourced effectively to ensure that a genuine and accessible offer is made to children early in the process. Other professionals may have a role such as a social worker or teacher if they are the child's trusted adult.

It should be a matter for the individual child whether they wish to share their information with the people they choose to help them to participate in the children's hearing. A statutory obligation risks conflict not only with the child's wishes but also with relevant data protection legislation, as has been seen in relation to previous provisions in relation to the named person.

I support the creation of a statutory process as a matter of principle. However, the right to participation exists independently from the right of the child to have their best interests as a primary (or paramount) consideration and therefore there must be no application of "a best interests" test in respect of this participation process.
If the children's reporter is the lead for this process, then there must be commitment to take the process beyond letter-writing to the child as is done currently since we know that this is not an effective way to communicate with children (especially young children).

There is a very delicate balance to be reached in relation to the timescales for the provision of papers. This balance is between the child, relevant persons and panel members having sufficient time to read and digest the information while ensuring that the information remains current and up to date.
The crucial point in relation to the child and relevant persons is that nothing in the report submitted to the children's hearing should be a surprise to them: receiving the report should not be the first time that they are accessing the information. There should be an ongoing dialogue between the practitioner and the child/family that informs the information within the report. In circumstances where a relationship is not yet strong enough to allow that ongoing dialogue then providing for longer timescales in which the report is to be submitted to the hearing is not going to address that. This can only be addressed through ongoing relational practice by the practitioner.
I consider it a very important aspect of the children's hearings system that the papers are received by children, relevant persons and panel members within the same timescales. This is an important 'equality of arms' principle. Therefore, if changes are made to one group then they should be made to them all.
Rather than a focus on changing the timescale at this time, I would suggest that the focus be on ensuring that the current timescales are met, that practitioners have sufficient time and space to produce high quality, accurate information and that practitioners who are submitting reports are engaging with families well ahead of time so that the content of the report does not come as a surprise.

There is a very delicate balance to be reached in relation to the timescales for the provision of papers. This balance is between the child, relevant persons and panel members having sufficient time to read and digest the information while ensuring that the information remains current and up to date.
I consider it a very important aspect of the children's hearings system that the papers are received by children, relevant persons and panel members within the same timescales. This is an important 'equality of arms' principle. Therefore, if changes are made to one group then they should be made to them all.
Rather than a focus on changing the timescale at this time, I would suggest that the focus be on ensuring that the current timescales are met and that practitioners have sufficient time and space to produce high quality, accurate information for the children's hearing that analyses the available, relevant, information without providing unnecessary detail.

The crucial point is the capability of the system to offer this understanding. The current scheme of stating grounds is capable of promoting the understanding of children and their families. Clearly there is evidence where children and their families have not felt they had that understanding but those issues can be addressed through practice and reforms to the process of accepting/establishing grounds proposed elsewhere in the consultation rather than re-writing the grounds themselves.

What are now the s67 grounds have a long history within the children's hearings system, with many being traced back to the Social Work (Scotland) Act 1968. This has meant we have a significant body of case law developed to help us to interpret what is now s67 of the 2011 Act. Changing the grounds risks losing that comprehensive body of case law and the scholarship that surrounds it and so should not be undertaken lightly.
The current grounds can be drafted more sensitively by children's reporters with special attention paid to the language used. This would be a more appropriate route to explore in the first instance before changing the grounds, and therefore the children's hearings system, irrevocably.

In legal terms, a children's hearing is a very significant interference in a child and their family's life. Therefore, there requires to be clear justification for this significant interference - it must be demonstrated clearly why such intervention is necessary. It follows that grounds cannot be drafted "positively"; if the matters arising in a child's life were all positive then they would not have been referred to a children's hearing. This being said, it is possible for grounds to be drafted sensitively by children's reporters with attention paid to the most appropriate s67 ground in the circumstances and to the language used when demonstrating the existence of that ground. These are matters of practice that can be controlled by the Principal Reporter in their Practice Direction under the current legislation. Thereafter, proper pre-hearing preparation for the child and relevant persons, relational practice by practitioners working with the child and family and the removal of "grounds hearings" as proposed elsewhere in the consultation, will contribute overall to a better understanding of the issues raised by the grounds on the part of the child and relevant persons and a better start to children's hearing decision-making.

Changing the wording in the legislation does not in itself lead to practice whereby children and families are helped to understand the reasons why the child has been referred to a children's hearing. Therefore, work on the practice still requires to take place (as it does now) to ensure that children and relevant persons are supported to understand what the issues are and why the children's hearing is taking place.

The offer of a post-referral discussion is entirely consistent with the reporter's obligations under the UNCRC (Incorporation) (Scotland) Act 2024. It does not require to be introduced on a statutory basis.

The child and their family should have the option to be accompanied at the meeting.

The post-referral discussion should be offered in all circumstances where an investigation is being undertaken in order for the child and their family's views to inform that investigation. Where no further action is being taken immediately on receipt of the referral (e.g. due to lack of evidence) then it need not be offered. Only when the investigation is completed will the reporter know that their decision is not to arrange a children's hearing and therefore at the point the post referral discussion is being offered to the family it will not be known if the decision is not to arrange a children's hearing and thus it cannot be excluded on this basis.

- specialism of decision-maker
- not tied by the availability of court time
- may be more viable in rural areas where specialist sheriffs are likely to be more challenging to schedule

- cost, on the assumption that the legal members would be paid and would require support from an organisation in relation to their recruitment, training and support. Given finite public resources this should not be the priority area for investment within the children's hearings system.
- conflation of the establishment of facts with the decision on outcome by children and families, as a result of attending the same hearing centre etc. and therefore compromise the future inquisitorial experience of the children's hearings system.
- the removal of trained personnel from other parts of the children's hearings system to fulfil this function e.g. children's reporters, panel members and legal representatives.

There is much of positive note about the legal member proposal. However, there is also much more detail required in order to provide a fully informed view about the proposal. On the face of it, the legal member would have the potential to provide consistency and specialisation in the way envisaged by the Hearings for Children report.

An appeal mechanism would be essential from the decision of the legal member, and having the first instance appeal to the Sheriff Court would be sensible. It is foreseeable that there would be more appeals from the decision of the legal member than we have currently from the Sheriff's decision to establish grounds.

It should be fully explored whether this could be undertaken by the children's reporter. The Child, Youth and Community Tribunal in Guernsey operate this type of model whereby the Convener arranges a meeting with the child and family to discuss their response to the grounds. The Convener then takes forward the next step in the procedure accordingly, i.e. arranges a hearing or refers the matter to court. There would be a need for safeguards around this, given the reporter's position in human rights terms but this is not an insurmountable issue.

Interim orders should only be made by a legally constituted court or tribunal.

- more specialism of decision-maker
- proceedings would not be reliant on the availability of sheriff court time
- no unnecessary grounds hearings

- additional cost of recruiting, training, monitoring and supporting legal members
- additional cost of paying legal members
- removing some experienced professionals from other parts of the system
- availability of sufficient numbers of legal members in rural areas

This would be a useful discretion to retain for the very small number of situations where an independent decision-maker considers it appropriate to consider the evidence and whether it amounts to a s67 ground sufficient to justify the intervention of a children's hearing.

The appointment of a safeguarder should continue to be considered for very young children.

As a time period, this is a reasonable period. However, good case management is still needed in the weeks leading up to this.

There is a significant risk that providing for a defined review period will lead to an unnecessary court hearing, which rehears information already available to the court on the reasons for the delay. Good case management should mitigate the need for such a formal review.

The appointment of a safeguarder is already provided for at the point of consideration of the grounds and this should remain.

Safeguarders can be extremely helpful to the establishment of grounds, ensuring that the child's views and/or interests are properly reflected to the decision-maker.

Establishing the s67 grounds and determining the outcome as a result (should the grounds be established) are two separate functions and so a safeguarder may be needed for one but not the other.

Ensuring that all the information that the reporter requires in order to make a decision is provided within the initial referral would allow for timeous decision making and preparation of grounds. As a matter of practice there should be nothing to prevent the children's reporter providing advice and guidance to professionals in advance of a referral being made and before the birth of the child. The children's reporter can have these discussions, and attend relevant meetings for this purpose, without compromising their independent decision-making function.

This is a matter of practice and would therefore be best answered by those practitioners who undertake this work on a regular basis.

It is a central principle of Scots law that a person become a person in law from the moment of their live birth. Enacting legislation which places obligations on professionals to refer "a child" before the moment they are a person in law risks significant unintended consequences in other areas of Scots law, for example within abortion law. Similarly legislation requiring a children's reporter to investigate and make decisions in respect of "a child" before they are born and thus a legal person. The concerns which have been raised in relation to pre-birth planning are more than capable of being addressed through existing legislation and refinements to professional practice and guidance.

Such a power would be entirely consistent with the independent office of Principal Reporter. Direction from the Principal Reporter could be given such that the power be used sparingly, but it would offer an additional avenue where, for example, a current CSO is not being implemented and the local authority has not requested a review. The right of the child or relevant person to require a review has a significant limitation in that they much wait three months and even then reliance should not be placed on the child and/or family to ask for a review in such circumstances.

Where a genuine need for a Review arises within the three month period this could be requested by the local authority or, as above, the children's reporter should such a new power be introduced or new grounds arise. The existing three month period offers an important safeguard against abuse of this right of Review by requiring a succession of unnecessary Reviews, which may be distressing for the child and other family members. This is a particularly important safeguard in the context of domestic abuse where the perpetrator may seek to continue their controlling behaviour by exercising their right to require a Review.

Aspects of the system related to the quality of practice and implementation of hearing decisions should be prioritised.

This service can be provided by the children's reporter. It might be difficult in practice to ensure that there is no discussion of the child's circumstances without the other panel members present.

A children's hearing is a legal tribunal and therefore there is an element of formality albeit that can be mitigated with some steps in practice.

Significant interference with a child's liberty should only be necessary, proportionate and in accordance with the law,. Therefore having a high degree of specificity for significant interferences is beneficial for all concerned.

Further detail is required in order to determine the concept of 'maximum authorised intervention'.

Such a timescale is necessary so that the child and relevant persons understand the decision and why it has been made. Even with the best explained decision during the hearing it is likely that some of the detail will be missed in such an emotionally charged atmosphere. This timescale also supports timely appeals.

The more urgent the implementation of the decision, or the shorter the appeal timeframe, should lead to quicker notification.

While there is some merit in single panel member decision-making for procedural decisions to be taken in advance of an upcoming children's hearing, for example deeming/undeeming in non-contentious situations or excusing a child or relevant person from attending a hearing/providing for remote attendance, this should not extend to advice hearings or CPO Reviews. These are significant decisions that are not of the same procedural nature as deeming/undeeming or excusing attendance and should be made following a full exploration by a children's hearing.

A single panel member decision forum should only be utilised for procedural decisions that require to be made in advance of a children's hearing.

The existing routes of appeal would offer a sufficient safeguard.

The "robust and clearly stated set of powers" already exists in the Children's Hearings (Sc) Act 2011 and does not need to be replaced. The issue arising is how these are translated into practice.

As above, there is a high degree of flexibility already available to the chairing member and children's hearings and so it is difficult to identify a situation that is not already covered by these provisions. How these are translated into practice to promote an inquisitorial ethos are matters of training and ongoing support for panel members.

A comprehensive record of the discussions and decisions made by the hearing would exist.

It could inhibit contributions from those present.
Significant data protection considerations arise.
The investment in technology required would move finance that could be utilised elsewhere in the system.

The purpose of decisions and reasons is to explain first the decision that the children's hearing has made and second the reasons for that decision. These should be explained in plain english but explanations beyond this are best done in other ways, for example through face to face dialogue with a trusted adult, rather than in another written document.

Such a provision introduces delay to children's hearings proceedings. FGDM and restorative justice services can still take place without the need for delay to a children's hearing. Should a compulsory supervision order require to be reviewed following on from one of these processes then a Review hearing can be requested.

My view is that these are separate processes, which although may be complementary, should remain separate from the consideration of whether compulsory intervention by the State is needed in the child's life.

There would be less need for review, when the situation is settled (in the interim) and there is no need to make changes.

Less regular reviews may lead to a greater level of intervention in the child's life than can be justified.
Less scope for changes in what can be a fast moving situation to be reviewed.

ICSOs typically provide for a high degree of intervention in a child's life and are issued before the legal basis for that intervention has been established (i.e. before grounds have been established.) Therefore, these decisions should not be taken lightly and given the potential significance of the decision being made this should continue to be undertaken by a children's hearing.

While I support the concept of 'an exit plan' in principle it is not necessary that this be contained in legislation. This should be agreed as part of the child's plan and regularly discussed with the child and family by the implementation authority.

The theme of my response overall is that there are few areas where legislative change is needed within the system to meet the overarching aims of the Promise. Many of the issues highlighted are about practice and the manner in which the current legislation is being implemented or not implemented. Therefore, the strong focus of work must be on ensuring that the system is properly resourced and the legislation that we have currently is being implemented to its fullest extent and as required by the UNCRC (Incorporation)(Scotland) Act 2024. The way that people practice within the hearings system is about the values and behaviours they use and that is not something that can be legislated for; rather it is a matter of training and ongoing support and coaching across all of the personnel who are required to work together to make a successful children's hearings system.

The timescales strike a balance between recognising the significance of a decision to place a child in secure accommodation, allowing time for meaningful therapeutic work to take place with the child and ensuring that the order is not reviewed too regularly when that is not required.