Advocacy in the children's hearings system - national practice model: guidance

The Legal and Policy Context

About Scotland’s Children’s Hearings System

A Children’s Hearing^[19] is a legal meeting arranged to consider and make decisions about a child or young person who may be having problems in their life^[20]. Scotland’s Children’s Hearings System was introduced by the Social Work (Scotland) Act 1968 and is now governed by the Children’s Hearings (Scotland) Act 2011, following extensive modernisation of the system in 2013^[21].

Existing organisational and operational structures

The Children’s Hearings System is administered through a range of agencies.

The Hearings System in Scotland is founded on humanitarian principles, emphasising welfare, protection and positive growth for children and young people. The Hearings System is founded on a commitment to children’s needs and rights which we believe can only exist in the context of a wider commitment to human rights.

The Hearings System relies on a number of highly interdependent roles – the Panel Members, the social workers, the legal representatives, Reporters and Safeguarders and a wide range of other professionals. We know that when these individuals work well together – the decisions they make and the future outcomes for children and young people are the best they can be. Child-centred, timely decisions, comprehensively implemented, supported by professionals, agencies, families and our communities give children and young people the opportunities that they need to overcome the difficulties and adversity that they may have already encountered in their lives.

The Hearings System is there to meet the needs of children and young people as part of a fair, transparent and lawful process. Decisions have to be made by ensuring a balance is struck between the rights of the child/young person and their family. These rights and obligations are sometimes perceived as competing and irreconcilable.

However, all agencies and professionals involved in the Hearings System, in undertaking their responsibilities, will have, at the centre of their approach a demonstrable and overarching concern for the welfare of children and young people as well as a recognition and respect for the legal decision making role of the Hearing. Put simply, the welfare of the child or young person is paramount.

Panel Members and Reporters have a statutory responsibility to observe this paramountcy, other than in exceptional circumstances. They also have an overarching objective to ensure that the environment within which the discussions take place is as fair, supportive and conducive to participation by the child/young person as far as is possible and will manage the proceedings in order to secure this.

At the core of the system’s operation is two Non-Departmental Public Bodies, the Scottish Children’s Reporter Administration (SCRA) and Children’s Hearings Scotland (CHS). SCRA was formed under the Local Government (Scotland) Act 1994 and continued under the 2011 Act^[22]. It became fully operational on 1 April 1996. CHS was formed under the 2011 Act and became fully operational in June 2013.

The structure of the hearings system is based around Reporters employed by SCRA who refer young people to hearings, specially-selected and trained volunteer panel members who make decisions at hearings and are supported by Children’s Hearings Scotland, and Local Authorities who implement hearings’ decisions.

The grounds or legal reasons for bringing a child or young person to a hearing are set out in Section 67(2) of the Children’s Hearings (Scotland) Act 2011^[23].

Better Hearings (CHIP)

Since the reforms of the 2011 Act, the Scottish Government, CHS, SCRA and other partner bodies have sought to make continuous improvements to the Children's Hearings System. Most recently, they have collaborated under the banner of the Children’s Hearings Improvement Partnership (CHIP) ^[24]. The discussion has focused around working towards a concept of ‘Better Hearings’ where there is greater personalisation to reflect and meet the needs and expectations of children and young people coming into contact with the system.

CHIP has developed ‘Standards for Better Hearings’ from areas of consensus – drawing on evidence and experiences from children, young people and practitioners. The standards are written from the perspective of what children and young people should expect from their experience before, during and after their Hearings^[25]. The role of advocacy is mentioned throughout the standards, most notably in what to expect before a hearing.

Current policy and legislative requirements

The protection of the rights of the child

As the Children’s Hearings System has developed, the fundamental principles on which it is based have been maintained. These principles^[26] are:

• The welfare of the child is the paramount consideration.
• The state should not interfere in a child’s life any more than is necessary.
• The views of the child will be considered, with due regard for age and maturity.

However, processes have changed in light of case law and international conventions, including the specific rights for children contained in the United Nations Convention on the Rights of the Child (UNCRC) and the general human rights contained in the European Convention on Human Rights (ECHR) ^[27].

Human rights

Human rights are the basic rights and freedoms to which we are all entitled in order that we can live with dignity, equality and fairness, and can develop and reach our potential. Everyone, including children, has these rights, no matter their circumstances.

Under international law, states and governments are obliged to respect, protect and fulfil human rights. This legal responsibility applies to all levels of government and all kinds of public services including CHS, Local Authorities and SCRA, who are the duty bearers in this human rights framework^[28].

Universal Declaration of Human Rights

The Universal Declaration of Human Rights was adopted by the United Nations General Assembly in 1948 to provide common human rights standards for all peoples and nations in a post-war world. It was signed up to by all member countries of the United Nations and provides the foundation for international human rights law. In addition, there are nine core international human rights instruments or treaties, one of which is the UNCRC.

United Nations Convention on the Rights of the Child

The UN Convention on the Rights of the Child (UNCRC) ^[29] is the internationally mandated, cross-government children’s rights framework. The UNCRC was ratified by the UK in 1991. Although not fully incorporated into Scots law, the UNCRC underpins much of the relevant legislation.

Part 1 of the Children and Young People (Scotland) Act 2014^[30] places new children’s rights duties on Scottish Ministers and public authorities, and The Children’s Hearings (Scotland) Act 2011, together with secondary legislation and other statutes including the Children (Scotland) Act 1995, and the Age of Legal Capacity (Scotland) Act 1991, aim to be consistent with the UNCRC.

The different articles within the UNCRC are interdependent and the mutually-reinforcing nature of human rights means that civil, political, economic, social and cultural rights all have equal status and are indivisible. However, four of the articles are sometimes thought of as being special. These are the “general principles” of the UNCRC that are not only rights in themselves but also underpin, and help us understand, every other right in the Convention:

• For rights to be applied without discrimination (Article 2)
• For the best interests of the child to be a primary consideration (Article 3)
• The right to life, survival and development (Article 6)
• The right to express a view and to have that view taken into account (Article 12)

United Nations Convention on the Rights of Persons with Disabilities

The UN Convention on the Rights of Persons with Disabilities (CRPD) was ratified by the UK in 2009 and represents a major development in achieving equality for disabled people. The CRPD sets out what human rights mean in the context of disability^[31]. It builds on the Charter of the United Nations, the United Nations Universal Declaration of Rights, International Covenants on Human Rights and a number of other international laws. It specifically covers the right to respect and dignity (Preamble), equality of opportunity and accessibility (Article 3 & 9) and children’s rights (Article 7).

Additionally, the Convention sets a number of requirements to be developed by nation states, such as legislative measures to ensure the rights of persons with disabilities are upheld. It places a duty on nation states to ensure programmes, research, information and training embrace the values of the CRPD.

European Convention on Human Rights

The European Convention on Human Rights (ECHR) was the first regional agreement for the protection of human rights and was ratified by the UK in 1951.

The ECHR has been incorporated into UK domestic law through the Human Rights Act 1998 (HRA). Since the HRA came into force on 2 October 2000, all public authorities have been required to ensure that their actions are compatible with Convention rights. Under the HRA, alleged breaches of Convention rights can be taken to domestic courts or tribunals (including Children's Hearings) in the first instance. This provides the opportunity for easier access to courts to enforce rights and for speedier resolution of disputes^[32].

Key articles of the ECHR which may be relevant to the hearings system^[33] are:

• Article 6: right to a fair trial
• Article 8: right to respect for private and family life
• Article 3: prohibition of torture
• Article 5: right to liberty and security
• Article 7: no punishment without law
• Article 14: prohibition of discrimination
• The First Protocol Article 2: right to education

Advocacy

In 2010, the Scottish Government commissioned a scoping study into advocacy support for children and young people. The report ‘Advocacy makes you feel brave’^[34] found advocacy to be a core service in ensuring that children and young people's rights are upheld. However, the report found that it was difficult to identify whether existing provision met the needs of children and young people: access very much depended on where children lived rather than on need; there was inconsistency in provision across age groups; and there were significant gaps, including for those attending Children's Hearings.

The report also highlighted that there was a general commitment to independence in the provision, commissioning and funding of advocacy. However, independence was regarded as a complex issue. It was seen to be important that a service was independent to preserve advocacy workers' objectivity. Independent Advocacy – Guide to Commissioners^[35] uses the definition of independence set out in the Mental Health (Care and Treatment) (Scotland) Act 2003. This states that in order to be independent, advocacy cannot be provided by the local Health Board or Local Authority, a member of their staff, or any other person involved in providing care, treatment or other services to the person requiring advocacy.

Advocacy and the Children’s Hearings System

Advocacy, within the context of the Children’s Hearings (Scotland) Act 2011, (‘the 2011 Act’) is defined as “services of support and representation for the purposes of assisting a child in relation to the child’s involvement in a Children’s Hearing,” Section 122 of the Children’s Hearings (Scotland) Act 2011 sets out a requirement for the chairing member of a children's hearing to inform the child or young person of the availability of advocacy. The Scottish Government has delayed bringing this part of the act into force in order to better understand current advocacy provision and the need for it in the lives of care experienced young people.

Who Cares? Scotland, the largest national provider of advocacy for children and young people in Scotland, offer advocacy across most of Scotland’s Local Authorities^[36]. In 2015-2016, Who Cares? Scotland workers attended just 539 Children’s Hearings, out of a total of roughly 36,000 hearings that took place. This equates to only 1.5% uptake. It seems to be the case that the vast majority of children and young people encountering the Children’s Hearings System have no knowledge of, or access to, independent advocacy.

Wider policy context

Independent Care Review

In October 2016, the Scottish Government launched a review of care in Scotland^[37]. The Review is independent of Government and holistic in its approach, looking at legislation, policy, practice, experience, culture and ethos. The First Minister has stated that the Review will be "driven by those who have experience of care." The voices of care experienced children, families and care leavers, young and old, were at the heart of this Review. It is their experience that guided and shaped the Review, helping to bring clarity and focus to what matters most within a complex and challenging task.

The Independent Care Review was set into 4 stages: Orientation, Discovery, Journey and Destination. The ‘Discovery stage’ defined the vision and purpose of the Care Review, before moving on to further exploration of the system in the Journey and Destination stages.

The Independent Care Review published on 5 February 2020 its findings, set out in five Reports^[38]:

• “The Promise” reflects what over 5,500 care experienced children and adults, families and the paid and unpaid workforce told the Care Review in the hope that Scotland is listening. It will tell Scotland what it must do to make sure its most vulnerable children feel loved and have the childhood they deserve.
• “The Plan” explains how this change must happen.
• “The Money” and “Follow the Money” explain how Scotland can invest better in its children and families.
• “The Rules” demonstrates the current legislative framework and how it must change to achieve “The Promise”.
• You will also see a “Thank You” to the army of thousand who have contributed to the Care Review.

The vision and blueprint for transformational change that are set out in “The Promise” are so vital. At their heart are five foundations of care. The first is voice: children must be heard and listened to in all decisions about their care. The second is family: whenever possible, families should be supported to stay together with their children. The third foundation is care: when living with their own families is not possible, children must stay with their brothers and sisters when it is safe for them to do so, and they must belong to a stable, loving home. The fourth foundation is people: those in the workforce and wider community who look after children must be well supported so that they, in turn, can provide compassionate care and decision making. The fifth is scaffolding: the system of help, decision making, support and, crucially, accountability that surrounds all of that must be more supportive and responsive.

The report also makes an important but challenging point about risk. Of course, we must always consider the immediate risk of harm to a child when decisions are made about their care. However, we must also consider the risk that is created when we remove a child from their family or overburden their childhood with bureaucracy. The risk then is that we compound their trauma and make it harder for them to enjoy stable, loving, long-term relationships. Protecting family relationships and, above all, allowing children to enjoy the kind of childhood that others take for granted is often the best way of protecting them from harm.

The Scottish Government is determined to get on with implementing the conclusions at pace. That will involve practical change at every level but, more fundamentally, it will require a transformation in the culture of care.

Action will be taken straight away to implement “The Plan” section of the report. There are two key immediate elements to that. The first is the establishment of a team to quickly turn the report into a detailed delivery plan. Although the report recognises that full implementation of its vision will take time, the process of change must and will start immediately.

The second is the creation of an independent oversight body. Both groups will include people with experience of care. In fact, half the members of the oversight body – including the chair, who will be from outside the Scottish Government – will have experience of care. Those groups will ensure that we keep up the momentum that has been established by the review.

Getting it right for every child

Getting it right for every child (GIRFEC)^[39] is Scotland’s approach to improving outcomes and wellbeing for all children and young people. It builds on, and is reflected in, a wide range of policies and strategies. It involves working across organisational boundaries and putting children and their families at the heart of decision making. A key element of GIRFEC was the introduction of eight wellbeing indicators to help make sure everyone – children, young people, parents, and the services that support them – has a common understanding of what wellbeing means. The eight wellbeing indicators are commonly referred to by their initial letters – SHANARRI – which stands for:

• Safe
• Healthy
• Achieving
• Nurtured
• Active
• Respected
• Responsible
• Included

The implementation of GIRFEC offers a significant amount of learning in relation to making practice child-centred and listening to children’s voices.

GIRFEC’s National Practice Model (NPM)^[40] is an evidence based approach to practice used in recording, assessment, planning and review for children who need help either in a single or a multi-agency context. It has been developed from theory and research and provides the foundation for every practitioner in all sectors.

Common Core

The Common Core describes the skills, knowledge, understanding, and values that everyone should have if they work with children, young people and their families.

The skills, knowledge and understanding are described as “essential characteristics” and are set out in two contexts: relationships with children, young people and families and relationships between workers. They are also explicitly cross-referenced to the guiding principles of the UNCRC and the values are drawn from the ‘Getting it right for every child’ approach aimed at improving the wellbeing of all children. They are considered from the perspective of children, young people and their families, and are the minimum expectations they will have of anyone who works with them^[41].