Adoption: better choices for our children

9. Role of Children' s Hearing in Permanence Cases

Summary

9.1 The Group considered problems with the current involvement of the children's hearing ¹ system in permanence cases, in particular the relationship with local authority planning and the timing of the hearing's formal involvement.

9.2 The Group's major recommendations are:

• there should be a formal requirement to inform the hearing system of permanence planning by the local authority at an earlier stage (9.12)
• if a child has been looked after away from home for a year the hearing should consider asking local authorities about permanence planning at the next review of the child's case (9.15)
• the provisions on providing advice from the hearing to the court are reviewed in regard to who has responsibility for each step, and to allow the court to ask for updated advice from the hearing (9.21)
• there should be nationally developed and quality assured joint training and guidance materials for key agencies, the hearing, social work departments, safeguarders and others (9.25)
• each hearing should, if possible, contain one member from a previous hearing throughout the progress through the system of a permanence case (9.29)

Current law

9.3 The hearing has no power to make legal decisions about the legal status of children. Its interventions, through compulsory measures of supervision, are designed to improve the current and prospective welfare of the child, and the hearing must consider the child's welfare throughout its life in making its decisions. Supervision requirements need to be reviewed at least every year. ² The hearing does not have a formal role in long-term planning for a child, although good practice is that at an early stage the local authority should provide information about its long-term plans for the child, and that the hearing should inquire about such planning.

9.4 Since the 1995 Act, the hearing does have a formal role after a decision to apply for a freeing order, adoption order, or Parental Responsibilities Order ( PRO) for a child on a supervision requirement. The local authority must inform the principal reporter of a decision to apply for one of these orders, or to place the child for adoption. The principal reporter will then arrange for a hearing to meet to review the supervision requirement and prepare advice for the court. The court must consider the advice of the hearing before coming to a decision. ³

Problems with the current situation

9.5 The Group has heard evidence of dissatisfaction with the current involvement of the hearing in permanence proceedings. The formal need to involve the hearing is late in the process, after a decision has been made to apply for an order. The involvement of the hearing in long-term planning prior to this point relies on good practice, and may be patchy. The system has the potential to engender a lack of trust between its various components. For example, there might be a suspicion that some local authorities do not expose to the hearing (and birth parents) their plans to place a child for adoption until the freeing order has actually been applied for and the adoption seems inevitable. Similarly, the hearing can be suspected of being reluctant to make difficult decisions about reducing or terminating contact even after moves have started towards freeing or adoption. Despite the anecdotal nature of many of these criticisms, it is undeniable that the current system could lead to many of these undesirable situations, and it should therefore be improved.

9.6 Other problems identified with the current system include:

• training of hearing members in the issues around permanence;
• continuity of members of individual hearings and consistency of decision making;
• the role of safeguarders in permanence cases; and
• clarity and timeliness of communication between the court and the hearing over advice.

Options for change

9.7 The Group considered a number of possible options for changing the current system. ⁴ The most radical of these was to remove the hearing system's current role in permanence, and leave these matters solely with the Sheriff Court. Other possibilities included:

• increased specialist training on permanence and contact issues for all hearing members.
• developing a core of 'specialist' hearing members so that one of them would form part of any hearing dealing with a child for whom a local authority had made a decision to seek permanence. There could be peripatetic specialists.
• rules providing for definite continuity of hearing members for any hearing dealing with a child for whom a local authority has made a decision to seek permanence.

Views from consultation

9.8 The consultation with young people explored their experiences of the hearing system as well as their experiences at court. ⁵ Of 78 young people who had attended a children's hearing, 51 thought that they had been listened to and their views taken into account. They expressed views about the importance of being put at their ease by hearing members and the difficulty that some young people find in front of hearings, either because of the presence of birth parents and other carers, or because of their experiences with adults.

They took my opinion into consideration when I expressed my concern about the level of contact with my Mum. She wanted it increased and I did not. The panel [hearing] listened to me and kept the contact the same. (Young woman, 13 years)

I did not speak at the hearing because you always get different panel members and I do not like talking about my family to strangers. (Girl, 11 years)

…I found it hard with my birth and adoptive parents because no matter what I said it was always going to hurt one of them. (Girl, 12 years)

… for most of the folk that go to the children's panels [hearing], a lot of their heads are messed up, and nobody can make them understand… a lot of the time, I did not trust adults, all the trust went away, I thought, 'No, you are messing me about too much… (Young woman, 17 years)

One interesting comment was on times when hearings come to conclusions that young people did not want at the time, but later realise were in their best interests:

… sometimes they did not listen to me, but ... I wanted things that was not best for me. …Now I realise and think, they did want the best for me …I was wanting to go and stay with my Mum. But my Mum was really messed up with drugs... (but) I hated them for it. (Young woman, 17 years)

9.9 Of 22 young people who had attended court, 13 thought that they had been listened to, a lower proportion than those attending a hearing but from a significantly smaller sample. Again the approach and sincerity of the court officials had been vital in their experience of having their voices heard and engendering a security that what they were saying was valued.

Recommendations for change

Improving the role of the hearing system in permanence cases

9.10 The Group considered various options for improving the current involvement of children's hearings in permanence cases. The Group did not support the removal of the hearing's formal role in permanence decisions. The position before the 1995 Act was found to be unworkable, as, in the absence of a formal role, difficulties developed with adoption being mentioned in hearings, which constrained unrealistically discussions in hearings that were considering children unlikely to return home. The Group therefore concluded that removing any formal role would be a retrograde step and lead to a worse system. In addition, the Group considered that the children's hearing system is the specialist forum to consider the best interests of children, and should have a role in permanence decisions. Consultation with young people showed that they generally felt hearings listened to their views. The hearings system should therefore continue to have a role in considering permanence plans for children. However, the criticisms of the current system showed that the status quo was not a desirable option either. The Group recommends that the hearing system should continue to be involved in permanence planning and decision making for children, and this role should be improved.

9.11 The Group considered that the current requirement to involve the hearing formally in cases was too late in this process. For the hearing to have full confidence in the plan and for the local authority to benefit from the hearing's advice, the permanence plan for a child should be exposed at an earlier stage. To ensure consistency of practice, there should be a formal trigger for this process.

9.12 The Group recommends there should be a formal requirement to inform the hearing system of permanence planning by the local authority at an earlier stage. This should ideally be when a looked after child review has decided to proceed towards permanence, and should, at the latest, be immediately after adoption or permanence panel has made its recommendation. The Group recognised that local authorities must be given time to make decisions formally, and that informing a hearing prematurely might not be helpful. However, sharing the local authority's planning with the hearing as early as possible avoids problems later.

9.13 The Group saw a number of advantages to earlier discussion of permanence planning:

• the process could be made more open and transparent for birth parents and also for hearing members.
• twin-tracking or concurrent planning could be encouraged, in line with the recommendation of Phase I of the review. ⁶
• the potential consequences of not complying with any work in progress would be clear to birth parents.

The overall effect should be that when the advice to the sheriff is sought, the hearing is better informed about the social work department's plans, and is able to make a better informed recommendation to the court.

9.14 Procedurally, the requirement could be similar to the current requirement for a local authority to inform the principal reporter when a decision is taken to place a child for adoption. ⁷ The hearing is being informed of the planning and may offer its views but it should be emphasised that the hearing is not being asked to approve or agree the local authority plans, nor does the hearing have a veto on a particular permanence plan within the authority, although the local authority would be expected to take the hearing's views into account.

9.15 The Group also believed that the hearing should actively seek information about permanence planning for children. The Group recommends that, if a child has been looked after away from home for a year, the hearing should consider asking the local authority about permanence planning at the next review of the child's case.

9.16 It became clear in the Group's discussions and at the conference held by the Group in November 2004, that these recommendations represented current best practice across Scotland. Implementation would put this best practice on a formal and more consistent basis rather than introduce a new hurdle or barrier to permanence proceedings. The Group believes that this best practice has the potential to reduce the total time taken on permanence cases by increasing the hearing's knowledge of local authority planning and transparency for birth parents, and reducing the risk that there might be a disagreement, requiring time to resolve later in the process. For the children concerned this time could be critical.

Role of the adoption/permanence panel and the court

9.17 The Group considered whether there was scope for combining the roles of the hearing with that of the local authority permanence or adoption panel. At the moment the same case is considered by the panel, the hearing and the court. The Group recommends that the roles of both the local authority adoption or permanence panel and the children's hearing in permanence cases should be preserved as they are valuable and distinctive. The panel was an important part of rigorous local authority decision making and the hearing provided a further level of independent scrutiny of local authority internal decisions through a community based forum for children's issues. In matters as important as removing children permanently from their families, it was vital to have a robust system that examined each decision closely and openly, both to provide justice for birth parents and confidence to the wider public.

Communication between the adoption/permanence panel and the hearing

9.18 The Group's work indicated that hearings considering advice to a sheriff are not routinely made aware of the preparatory work carried out by the local authority in the looked after children review, and, particularly, the discussion and conclusions of the adoption panel. Indeed, it seemed that at least some hearing members were unaware of the panel and its function.

9.19 The Group recommends that reports from the adoption/permanence panel to the hearing in considering permanence cases should be improved and standardised. It has devised a form to be used in presenting the proceedings of the panel to the hearing. ⁸ The Group believes that better information about the discussion at the panel will reassure hearings about the consideration that has been given to a decision for permanence.

Advice from the hearing to the court

9.20 The Group considered a number of issues around the provision of advice from the hearing to the court. These recommendations also apply to advice from hearings in applications for the new Permanence Order. ⁹

9.21 Under the current provisions the local authorities inform the principal reporter when a decision is made to pursue adoption or freeing and the reporter then convenes a hearing to provide advice to the court. ¹⁰ The court does not call for advice from the hearing nor are there any explicit provisions allowing the court to ask for further or updated advice. The Group recommends that the provisions on providing advice from the hearing to the court should be reviewed in regard to who has responsibility for each step, and to allow the court to ask for updated advice from the hearing.

9.22 There have been difficulties over the need under the statute for the hearing both to review the supervision requirement and provide advice to the court. ¹¹ The separate nature of the two tasks could lead to confusion for the birth family and the hearing. This might be resolved by having two separate hearings, or a two part hearing. On the other hand the legislation made clear that the review hearing was one process with two purposes: to review the supervision requirement and provide advice to the sheriff. The Group recommends that the review and advice hearing should remain one process but that better information for all parties involved would address the concerns that have been expressed.

9.23 The Group recommends that there should be a standardised form for the hearing to provide advice to the court. This should record clearly the hearing's recommendation and the date of that advice. ¹²

National training

9.24 Permanence cases raise particularly difficult and specialised issues for decision makers. There was widespread acknowledgement that the training currently given to hearing members in this field needed to be improved. Hearing members do not need to become experts in the all aspects of permanence - any more than they do in other subjects with which they deal - but the training should aim to equip hearing members to ask the right questions that ensure the process is transparent and key agencies are scrutinised effectively. Hearing members also need to be clear about their own role in the process.

9.25 The Group recommends that there should be nationally developed and quality assured joint training and guidance material for key agencies: the hearing, social work departments, safeguarders and others. Joint training would enable social workers to identify what information hearing members need to make an independent and informed decision on behalf of the child in permanence matters. This reinforces the principle of 'integrated' or 'collaborative' training, not simply joint training. Hearing member attendance at the training should be compulsory and it therefore needs to be nationally implemented every two to three years.

Specialist hearing members and professional advisers

9.26 The Group considered whether there should be specialist hearing members or expert advisers to hearings in permanence cases. The Group did not support either of these suggestions.

9.27 The Group concluded that the role of hearing members was not to become specialists in particular fields but to be properly informed and trained to scrutinize the agencies' plans for the child. Specialism could lead to all permanence cases being approached in the same way, rather than the independent, community based scrutiny intended from the hearing system. There would also be practical issues in organising specialist hearing members either locally or across Scotland.

9.28 Similarly, the Group believed that proper training for hearing members and proper explanation of their plans and reasons by local authorities was preferable to expert advisers. Social workers should be able to explain the process and the issues to parents and children; they should therefore be able to make appropriate explanations to hearing members.

Continuity of hearing members

9.29 Where permanence away from home is the plan for a child, the case is likely to have some history within the hearing system. In these circumstances it is desirable to have some continuity in hearing members. This point also came out of the consultation with young people. The Group recommends that each hearing should, if possible, contain one member from a previous hearing throughout the progress through the system of a permanence case. This is consistent with the Scottish Executive's document Best Practice for Panel Members agreed by all partners and agencies, which recognises that continuity can be appropriate. However, there are practical issues with providing continuity of hearing members and the Group recognises that it might not always be possible.

Review of the children's hearing system

9.30 The Group is aware of the review of the hearing system being carried out by the Scottish Executive. The Group's emerging conclusions have also been fed into the consultation process on the hearing review.

9.31 The Group's recommendations are consistent with the outcome of the consultation on the first phase of the hearings review. The first phase has shown general support for the current children centred system with hearing members recruited from local authorities. The consultation also showed strong support for the current system of general hearing members, and less support for specialist hearings or hearing members.

9.32 The Group recommends that its recommendations on the role of hearings in permanence cases should be taken into account in the review of the hearing system.

Prohibition on publication of proceedings at children's hearings

9.33 The Group discussed the current prohibition on publication of proceedings at children's hearings. ¹³ The section is intended to prevent publicity about children's cases within the hearing system, but it has given rise to long-running discussions as to whether it also prohibits the publication of photographs of children who are subject to supervision requirements and for whom permanent carers or adopters are sought. ¹³ Adoption agencies in Scotland can be at a disadvantage when trying to seek adopters for children as agencies in England and Wales can use photographs. If websites are introduced to find permanent carers, this problem will increase.

9.34 Consultation responses indicated that clarification would be welcomed, along with some provision allowing the use of photographs, with or without parental consent.

9.35 The Group recommends that legislation should allow publication of details about children by local authorities and adoption agencies in planning for permanence. The Group believed that parental consent should not be required to use photographs for such purposes.

Recommendations of Chapter 9 - role of the children's hearing system in permanence cases

62. The hearing system should continue to be involved in permanence planning and decision making for children, and this role should be improved. (9.10)

63. There should be a formal requirement to inform the hearing system of permanence planning by the local authority at an earlier stage. (9.12)

64. If a child has been looked after away from home for a year, the hearing should consider asking the local authority about permanence planning at the next review of the child's case. (9.15)

65. The roles of both the local authority adoption or permanence panel and the children's hearing in permanence cases should be preserved as they are valuable and distinctive. (9.17)

66. Reports from the adoption/permanence panel to the hearing in considering permanence cases should be improved and standardised. (9.19)

67. The provisions on providing advice from the hearing to the court should be reviewed in regard to who has responsibility for each step, and to allow the court to ask for updated advice from the hearing. (9.21)

68. The review and advice hearing should remain one process but that better information for all parties involved would address the concerns that have been expressed. (9.22)

69. There should be a standardised form for the hearing to provide advice to the court. (9.23)

70. There should be nationally developed and quality assured joint training and guidance materials for key agencies, the hearing, social work departments, safeguarders and others. (9.25)

71. Each hearing should, if possible, contain one member from a previous hearing throughout the progress through the system of a permanence case. (9.29)

72. These recommendations on the role of hearings in permanence cases should be taken into account in the review of the hearing system. (9.32)

73. Legislation should allow publication of details about children by local authorities and adoption agencies in planning for permanence. (9.35)