Children's hearings redesign: consultation analysis

Main Findings

The principles of a redesigned Children’s Hearings System

Question 1: What principles should underpin a redesigned Children’s Hearings System and why?

Common themes

An inquisitorial approach

A significant proportion of respondents supported a move to a more “inquisitorial” Children’s Hearings System, as opposed to the existing system, which was characterised as “adversarial”, court-like, and overly confrontational. A recurring reason cited in favour of adopting an inquisitorial system was that social work professionals frequently felt undermined during hearings – particularly by legal professionals - raising issues of aggressive or disrespectful behaviors (often akin to “courtroom tactics”), and the lack of skills and knowledge on the part of the chair or other panel members to manage these situations: “the adversarial nature of hearings which are regularly experienced by many social workers and their managers as traumatic, disrespectful and at times personally abusive” [R40, LA/SW Org].

A fair, open, trauma-informed, and judgement-free process

The principles of fairness, openness, and the maintenance of a “judgement-free” and “trauma informed” space were mentioned frequently in response to this question. A non-judgmental approach referred to both within and out with the hearing itself, with “non-judgmental support” also seen as key to the functioning of the system to ensure that support is implemented appropriately, and parents and carers feel able to engage constructively. It was also suggested that the adoption of “trauma informed” as an overarching principle of the hearings system should be seriously considered: “Trauma informed lens adopted within the hearing room, with trauma informed principles adopted (safety both emotional and physical, choice, trust, collaboration and empowerment)” [R47, LA/SW Org].

Ensuring children and their voices are at the heart of the system

Many respondents made the point that the hearings system should “actively seek and listen to the views of the children it supports”, and that children’s voices and views should be taken into account in all decision making, even if the decisions taken were not aligned to their wishes. Some respondents highlighted the importance of enabling all relevant persons who wish to participate in the proceedings the opportunity to do so (including, some suggested, victims).

Consideration of the best interests of the child above all else, at all times

A common theme among the responses to this question was the balance between children’s rights and views and those of parents and families. Many respondents endorsed the notion that the best interests of the child must be paramount, and where a child’s rights might be in conflict with the rights of others (e.g. a parent), their rights must be prioritised above all other considerations. Some highlighted the importance of understanding that “best interests” can mean different things or in different contexts – and suggested that training should communicate this. For example, the best interests of a child may look different when considering the child as an individual rather than as part of a family.

Alignment with the UNCRC and other frameworks

Respondents also referred to the importance of aligning the Children’s Hearings System with the United Nations Convention on the Rights of the Child (UNCRC) and other international frameworks, as well as with domestic legislation and initiatives, including: the Promise, the PANEL principles (participation, accountability, non-discrimination, empowerment, and legality), and Getting It Right for Every Child (GIRFEC). Articles 2 (non-discrimination), 3 (best interest of the child), 6 (right to life, survival, and development), and 12 (right to be heard) of the UNCRC were highlighted as especially important in the context of a redesigned system: “These principles require to be built into the Children’s Hearings System in order for children, as rights holders, to fully engage and ensure that their rights are upheld. In particular upholding the principles contained in Article 12 and Article 3 should be the foundation of the redesigned system. Facilitating a child’s right to be heard helps ensure that decision makers are upholding their rights and acting in their best interests” [R80, Legal Org].

Divergent views

Whether to retain elements of an adversarial or blended approach

Not all respondents endorsed a complete rejection of “adversarial” elements of the Children’s Hearings System. Some raised concerns around a lack of understanding or clear definition of what “inquisitorial” might mean in practice in the context of the hearings system, while others noted the importance of an “adversarial” approach in terms of legal and procedural rights, pointing out that “adversarial does not mean the process should be conflict driven or accusatory” [R96, LA/SW Org]. Some respondents commented that “The two [approaches] are not mutually exclusive” and suggested a blended system: “…adversarial at the stage of determining the facts, and inquisitorial at the stage of making decisions about the child’s future” [R63, Leg Org].

Support for retaining existing principles

Around a quarter of responses endorsed the existing principles of the hearings system in its current form – particularly “the welfare of the child is paramount”, “child’s voice”, “needs not deeds”, and “minimum intervention”:

“Kilbrandon principles, are still relevant, universal and needed more than ever. Therefore these principles should still be the foundation for any system redesign. The welfare principle is key to unlocking an inquisitorial approach particularly to young people involved in conflict with the law” [R53, 3^rd S Org].

Some respondents suggested retaining the Kilbrandon principles as a foundation, while also building on these principles or adding new ones. Others wholly rejected the idea of making changes to the system’s principles, arguing instead that more should be done to promote the existing principles or that attention and resources would be better spent elsewhere in the system. Concerns were also raised that simply changing the system’s underlying principles would not be sufficient to create meaningful, sustainable change for children in the system.

Balancing children’s rights with those of other parties involved

Many respondents highlighted the issue of balancing children’s rights with those of their parents or other parties, with parental rights “overshadowing” the child’s best interests, particularly as a result of the approach taken by parents” legal representatives:

“Too often hearings get “bogged down” in the consideration of parental views, to the detriment of what the child needs. There has been a significant shift away from the child’s needs being the paramount concern, towards parental needs often surpassing these and the balance of parental and children’s rights is not always tilted towards the child. This needs to return to the original intentions of the Act” [R19, LA/SW Org].

Other comments

Beyond the above common themes, additional suggestions for principles to underpin a redesigned Children’s Hearings System included:

• Optimism
• Cultural competence
• Representative of wider society (in terms of the demographic makeup of panels)
• Consistency
• Timeliness
• Respect
• National and local support
• Inter-agency collaboration
• High-quality data practices (in terms of recording, storing, and sharing).

Question 2: What would be the advantages and disadvantages of setting out overarching principles in legislation?

Advantages

The suggested advantages of setting out overarching principles in legislation included:

• Accountability, fairness, and transparency: a formal means of holding relevant bodies to account when it comes to protecting children’s rights; enhancing greater transparency with accessible and clearly defined principles subject to legal, political, and public scrutiny; challenging standards set by principles in cases where they are not met.
• Clarity: having clearly defined guidelines and rules that govern decision making and “clarity of purpose”; ensuring that all involved have a clear understanding of the Children’s Hearings System and its aims; “Clarity of vision and purpose for the hearing system” [R23, PM Indiv].
• Consistency: everyone involved in the system working on the basis of a shared understanding of the key principles; consistency across local areas and regions within Scotland; consistency of decision making; “The ability to link [principles] to decision making” [R23, PM Indiv].
• Setting the tone: carefully considered use of language within the principles sets the right tone for the work of the hearings system and the approach it should take.
• Making the process easier to understand: ensuring “that all those taking part understand the process and can be confident that they are being treated fairly” [R01, U/O Indiv] and that “children and young people are informed and know what to expect” [R67, 3^rd S Org]; would also “support clarity for children, young people and those who work with them” [R73, 3^rd S Org].
• Setting standards and providing a clearly defined framework: creating “uniformity across the system by providing a set of national standards” [R43, LA/SW Org] which could drive culture change; setting a standard to adhere to and “against which to assess practical applications” [R29, Leg Indiv]; ensuring all participants understand what is expected of them in terms of respectful behaviour and discussion; ensuring relevant legislation is read and interpreted with the overarching principles in mind; providing “a greater structure and cohesion to policy and practice” [R56, O/U Org]; alignment with the UNCRC.
• Other advantages: embedding trauma-informed practice in the system; further safeguarding of children’s rights; the establishment of an explicitly inquisitorial CHS.

Disadvantages

The suggested disadvantages of setting out overarching principles in legislation included:

• Potential to cause unnecessary confusion and complexity: challenges in interpreting and applying any new principles; “added complexity in terms [of] challenge from [different] parties, which could delay decision making” [R57, LA/SW Org]; a lack of understanding and resultant lack of adherence; may inadvertently limit the scope or interpretation of the legislation depending on how the principles were drafted; adding an additional level of complexity; potential that there may be ”too many [principles] to get to grips with, learn and understand” [R09, PM Indiv]; “Complexity for practitioners/professionals in the system who may face challenges in interpreting and applying legislated principles in complex or nuanced cases which could introduce additional procedural delays” [R91, Leg Org].
• Potential to distract from the primary focus on children’s welfare: “If additional principles are added, then keeping the welfare of the child as paramount could be made harder” [R15, CH Indiv].
• A lack of flexibility: loss of flexibility to respond to children’s unique and evolving circumstances; loss of creativity and adaptability; “makes some cases which are not “normal” difficult to address” [R12, O/U Indiv]; overly restrictive or prescriptive; “may limit the ability to adapt and respond to the individual needs of the child or young person” [R43, LA/SW Org]; “making it harder to adapt to changing circumstances or new evidence” [R30, LA/SW Org]; “risk of legal interpretation potentially undermining the child-friendly and collaborative nature of the system” [R91, Leg Org].
• Slower adaptation to change as the needs of children, families, and society evolve or as new insights and best practices emerge, perhaps requiring legislative amendments which are often slow compared to updating guidance or policies’; “Overly restrictive principles may be difficult to enforce whilst more vague ones may appear meaningless” [R56, U/O Org].
• Open to legal challenge, therefore creating delay in the system: principles enshrined in law could “potentially be used to delay hearings through appeals” [R42, LA/SW Org] and “may give families a sense of recourse to justice if they feel principles are not being adhered to” [R49, 3^rd S Org]; generally opening up the system to legal challenge.
• Other legal and practical difficulties: lack of cooperation from all parties involved in the hearings process; principles drafted in a way that is “too narrowly expressed or deficient by the omission of key principles” [R62, Leg Indiv]; difficult for principles “to [be] fully realise[d] against competing rights of parents” [R19, LA/SW Org]; could “make the task of statutory construction more, not less, difficult” [R75, Leg Org]; a risk that necessary “adversarial” elements of the system are restricted through legally enshrined principle of an “inquisitorial” approach, to the detriment of the child.

Other comments

Additionally, some respondents said that enshrining overarching principles in legislation would be either insufficient (in the sense that enshrining overarching principles in law would not be enough to make meaningful change within the CHS) or unnecessary. Some were concerned that “Relying solely on additional language will not be enough to move the Children’s Hearings System from an adversarial to inquisitorial environment” [R05, LA/SW Indiv], and that decision makers within the system may feel ”unable or unequipped to implement the principles” [R23, PM Indiv] based on a lack of resources, therefore “allow[Ing] the [principles] to be diluted or compromised to meet capacity” [R23, PM Indiv]. One respondent noted that “Scotland frequently makes ambitious policy that then falls short at implementation stage” [R68, 3^rd S Org]. Several respondents thought that enacting overarching principles in legislation would be unhelpful, and suggested instead that overarching principles may work better as a set of guidelines. Others raised concerns relating to the risk of negative unintended or unforeseeable consequences of setting overarching principles in law and felt that it was not clear what the legal consequences of failing to realise the principles might be in practice.

Before a children’s hearing

Statutory referral criteria

Question 3: What elements of language in the existing referral criteria need to be updated, if any?

• 38 out of 103 (37%) of respondents said “control” should be updated.
• 36 out of 103 (35%) of respondents said “treatment” should be updated.

Common themes

There was agreement about the significance of language. A number of respondents linked these proposals to the principles of hearings redesign overall, the conclusions of the Independent Care Review and work underway nationally and locally to Keep the Promise and of Each and Every Child and Language Leaders.

Reasons in favour of updating elements of language

Many respondents felt that the language of “control” and “treatment” was outdated, “not reflective of modern, rights-based approaches” [R92. 3^rd S Org] and needed to be modernised. Some commented that these words had overly medical connotations, were not consistent with the ethos of the hearing system - “treatment suggests a medicalised approach about what is required to “fix” a child rather than taking a whole family perspective” [R31, LA/SW Org], or that the meaning of these words was unclear. Many respondents felt that the language of the referral criteria should be made more positive, strengths-based, inclusive, trauma-informed, rights-based, and child-friendly, like love, care and help.

Arguments against

Some respondents commented that it would be impossible – and indeed, undesirable – to eliminate all negative language in the context of the CHS:

“…By default, children are in the system because of the negative elements in their lives...The focus should not be on eliminating or encouraging the use of certain phrases or terms, but to ensure that the language used broadly is clear, unambiguous and as natural as possible” [R17, PM Indiv].

The unintended consequence of changes to terminology having the potential to reduce clarity about what the CHS does and could do, and potential scope for appeals and litigation was also flagged: “The new terms – e.g. support – are vague so unlikely to give greater clarity. In any event, and importantly, the existing terminology is supported by a body of case law and guidance which has developed over a number of decades. There is a real risk that this [revision] might cause substantial uncertainty” [R72, Leg Org].

The need for balance

Others highlighted the importance of finding the right balance between adopting inclusive, accessible, and understandable language with the fact that the system’s function is to address serious issues and as a result holds significant legal powers, ensuring that any updated language was “honest as well as sensitive” [R40, LA/SW Org]. Another response noted:

” ...The powers available to the children’s hearing, however, include the restriction of liberty (control) and the potential to impose medical treatment on children and young people and this needs to be reflected in the referral criteria to support and promote children’s rights. The hearing is a legal tribunal making significant decisions that impact the lives of children, young people and their families. The referral criteria therefore need to reflect the range of concerns professionals have for the children they serve and the range of potential outcomes of such a referral being made” [R96, LA/SW Org].

Other comments

Other suggestions for words or phrases to be updated included:

• Replacing “control” with “positive influence”.
• Replacing “treatment” with “guidance”, “support”, “care”, “help” or “assistance”.
• Using the phrase “safety and support” or “guidance and support” instead of “control and treatment”.
• Replacing “protection, guidance, treatment, or control” with “safety, protection, care, or support”.
• Updating the language of “compulsion”, “variation”, “relevant person”, “measure”, “disposal” and “grounds”.
• Rethinking the use of the word “contact”, although existing efforts to do so were seen as an example of complexity of changing terminology.

Some respondents made reference to the conclusions of the Independent Care Review around the language of care, whilst others said they thought that the language of the referral criteria did not need to be updated or that existing language served its purpose. One suggested that the language of “control and treatment” should be used in relation to children who have committed an offence, but not in relation to children “within the hearing system for care & protection grounds”. Others suggested children’s rights should feature more prominently. A small number of respondents stated that ahead of any change, wider consideration of case law and other uses of existing terminology of referral criteria elsewhere in legislation would need to be undertaken.

Question 4: Do you support the proposed referral criteria from the Hearings for Children report?

• 58% of respondents did not answer this question.
• Of those respondents who did answer this question, 77% said “Yes” and 23% said “No”.

Reasons in favour of the proposed criteria

Reasons given in favour of the proposed referral criteria from the Hearings for Children report included:

• “Current language is too legalistic” [R19, LA/SW Org].
• Existing grounds use language similar to that of criminal charges, feel unnecessarily judgemental, and are often impenetrable and complex.
• Current language “”is difficult to comprehend and can be intimidating for children, as well as families, adding to the perception of a system which is adversarial and there to punish rather than provide support” [R58, R Indiv].
• “The proposed language is clearer so should offer families a better understanding of why an order is being put in place” [R17, PM Indiv].
• The proposed language is “more appropriate and better reflects the purpose of our work with families” [R35, LA/SW Org].
• The proposed criteria better align with the Promise, GIRFEC, UNCRC, and trauma-informed practices.
• Could promote understanding, and consistency, of referral thresholds, approaches and practice across Scotland.

Reasons against

Reasons given against the proposed referral criteria from the Hearings for Children report included:

• The referral criteria should remain as they currently are.
• Risk of unintended consequences of change.
• “[T]he terms “guidance” and “support” imply interventions that are not compulsory in nature and may therefore be potentially misleading and not appropriate” [R74, U/O Org].
• “[C]oncerns about a high level of risk being managed through voluntary measures” [R30, LA/SW Org].

Other comments

A small number of respondents highlighted that the inclusion of “support” could be beneficial in encouraging decision making to focus more on what supports have already been attempted/provided or could be to reduce the need for compulsion. There were, however, conflicting risks highlighted that “support” covered a vast landscape of services across social work, health, education and the third sector. This raised concerns that more children could be brought into the hearing system unnecessarily as with the language of support is more vague than “treatment” or “control”:

“We worry already that the lack of capacity within the statutory and third sector services to offer support to children and families means that, sometimes, a referral to a children’s hearing is made as an attempt to secure support, and not because the child needs compulsory intervention in their life” [R73, 3rd S Org].

The change to “only refer if timely and proportionate to do so (with clear rationale why now)” was specifically commented on as being unnecessary by a small number of respondents. This is already part of the overarching principles of the Children’s Hearings System, considered by the referrer and Reporter, and if required strengthening could be achieved by guidance rather than legislation. A concern was also highlighted in respect of how delays to legal processes, such as offences being reported, could impact on being able to make timely referrals and what the implications of this might be in practice.

Question 5: What are the advantages and disadvantages of the proposed draft referral criteria?

Advantages

The most frequently cited advantage of these changes was enhanced understanding and promoting clarity for children and their families, which could support engagement and participation. A slightly smaller number of responses highlighted benefits of alignment with the ethos of the CHS, children’s rights and trauma informed practice.

Consistency with the language used in other discussions, meetings and process was a further advantage, as was modernisation of language. Clearer and more consistent, proportionate and timely referrals, with these changes encouraging greater professional inquisition, curiosity, discretion and evidence of rationale, were highlighted as further advantages.

Disadvantages

The most commonly cited disadvantage related to difficulty understanding, levels of ambiguity and variations in interpretations of these changes, which was not limited to any particular part. Again, concern was expressed that these changes, particularly in the use of the terms “support” and “likely” within the referral criteria, could lead to increased referrals or alternatively children being “missed”. Similarly, the use of the term protection was highlighted in terms of the interface with child protection referrals. More broadly the interface between these changes and the potential implications for other parts of processes, including the drafting and establishment of grounds, exempting a child’s attendance, language used as parts of orders, and consequences for case law and other legislation, were highlighted by a number of respondents. For example: “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” [R54, R Indiv].

Other comments

• Possible scope for different referral criteria for local authorities, police and other referrers.
• Wider practice implications: “The proposed changes to the referral process will require extra time and capacity for social workers to enable them to alter their practice...could have an unintended consequence of delaying referrals... it would need to be carried out alongside efforts to support the children’s services workforce, and to support and retain social workers” [R99, O/U Org].

Question 6: Do you have any other comments about potential changes to referral criteria?

Other comments included:

• The need for balance between clear and proportionate referral criteria that adequately reflects the different situations and experiences that could result in a child being referred to the Reporter.
• The need to avoid unintended consequences to the efficiency and effectiveness of the system, such as through delays.
• Use of resources spent on updating the referral criteria, that could be used elsewhere.
• The need to consider how these changes would particularly affect and be perceived by various different people and organisations including families, courts, babies, criminally exploited children, and victims, including of gender-based violence.
• The need for training and guidance for Children’s Reporters, social workers, and children and families either as well as or instead of some of the proposed changes.
• The need to look further at the issue of re-referrals.
• A desire for further information on how these changes would be implemented in practice and decision making, including further details on the Government commitment to develop updated national referral guidance, timeframes for this, and governance arrangements.
• The connections between referral criteria, grounds, and thresholds, and need for sequencing: “...to consider the language of section 60 before that of section 67 is in many respects to put the proverbial cart before the horse. An alternative approach would be for section 60 to adopt the language of section 62, which enables the court, rather than a local authority, to make a referral to the Reporter where it considers that a section 67 ground “might apply”. If that approach were adopted, all questions of language could be considered in the context of any redrafting of the grounds of referral” [R75, Leg Org].
• Whether these changes fully addressed the conclusions of the Hearings for Children report.

Question 7: Do you support the proposal to change the applicable referral test that compulsory supervision “might be necessary” to it being “likely to be needed”?

• 52% of respondents did not answer this question.
• Of those respondents who did answer this question, 72% said “Yes” and 28% said “No”.

Reasons in favour of changes to the referral test

Increased clarity particularly for children and their families was a key benefit, although this was not universally agreed. Reduced subjectivity and more alignment with, for example, the terminology of child assessment and protection orders was cited by a small number of respondents. Similarly, more openness, detailed justification and discussion was suggested as being encouraged with this change.

Reasons against

Of those who were not supportive of this change, this was mainly owing to question of the necessity and benefit of this change, with a small number of respondents pointing to established case law on the existing terminology which already reflects the suggested change.

Divergent views

Views varied on the likely impact of this proposal, with both the Scottish Children’s Reporters Administration (SCRA) and Children’s Hearings Scotland highlighting the challenge and balance of entry points to the system. Respondents were split on whether this would widen or narrow referral practice. Some deemed this would be interpreted as a raising of the threshold for referral, which could result in delays to referrals being made or deter these from being made at all, which could mean children who needed compulsory measures could not access these. A similar number, however, stated this change could reduce unnecessary referrals, ensuring referrals were made when proportionate and in line with the principles of minimum intervention. These positions were summed up in responses to question 4: “...The change in threshold for referral...is a significant change and the increase in threshold of referral may prevent the referral of some children when compulsory intervention is needed” [R54, R Indiv]. “The proposed referral criteria are an important improvement and will undoubtedly prevent unnecessary hearings, unnecessary criminalisation of children and the negative impact of same” [R91, Leg Org].

However, other respondents saw this as already being reflective of existing practice and that children services already had good understanding of thresholds.

Other comments

Some responses, often from individuals, questioned the impact of this change on roles and responsibilities within the hearing system, namely of the referrer, Reporter, and panel members:

“The purpose of s.60 is to ensure that children who are potentially in need come to the attention of the Principal Reporter. The purpose of s.66 is to require the Principal Reporter to assess any such referrals, and decide whether the criteria in s.66(2) are met…That funnelling process is essential to ensure that decisions are made at the right stage by the right person” [R72, Leg Org].

It was suggested that further legal analysis, research and testing may be required on the implications, both intended and unintended, of such change. Should this change be made multi-agency training, guidance including national referral guidance, and work to strengthen local relationships and partnerships would be needed.

Relevant persons

Question 8: What are the advantages and disadvantages of the current definition of “relevant person”?

Many responses to this question provided technical analysis, particularly from the legal profession, and included powerful examples of the impact on children and those closest to them. The Promise Scotland highlighted that the Hearings for Children report: “…did not hear or discuss any raise specific issues or concerns about the current definition of “relevant person” beyond the need to ensure people important to the child are included and able to participate…when it is in the child’s best interests” [R93, O/U Org].

Advantages

A key advantage was that the term “relevant person” was well understood, clear and precise, which various responses linked to the long-standing nature of the term, extensive litigation, and subsequent case law, meaning this worked well in practice. Where the current definition of relevant persons was positively commented on, this related to protecting the significant rights relevant persons have by virtue of this status, whilst simultaneously protecting the child’s rights: “As a result of various court challenges since the 2011 Act came into force, the current definition of relevant person is now well established in legislation and policy…this has been held to adequately protect the rights of the child who is the subject of the referral proceedings and persons who hold Article 8 rights in respect of them” (R63, Leg Org].

In respect of automatic relevant persons status, a small number of responses highlighted the advantages for upholding parent’s rights. This was deemed to be particularly beneficial for certain parents: fathers without parental rights and responsibilities (but for whom these had not been removed); parents involved in contact or residence disputes; and parents who were interested and concerned for their child’s wellbeing and decisions about their care, but who had otherwise been prevented from being involved in their child’s life. However, not all respondents agreed.

The flexibility to deem people as relevant persons was cited as both an advantage and disadvantage. For some respondents this approach was an advantage and worked well in practice. Benefits included the focus on the current or recent significant involvement in the upbringing of the child, meaning this was only applied to those who should have such status, and the ability for this to be removed in response to the child’s current circumstances and the reality of their situation of coming to a hearing. This approach was deemed to be inclusive and the rights that this status brings appropriately reflective of the role that an individual fulfils in the child’s life: “It includes everyone or anyone who is significantly involved in the child’s upbringing...It also means that for many children the person they have an attachment to, feel safe with and trust is able to assist both the child and the decision making processes” [R15, PM Indiv].

Disadvantages

Almost all the cited disadvantages were in direct contrast to cited advantages. A number of respondents stated the term “relevant person” could be difficult to understand or confusing, particularly for the child, and was an unfeeling, “cold” and overly formal term. The stress, upset, anxiety and trauma for the child, owing to the lack of automatic relevant person status and the subsequent process of deeming an important person to them “relevant”, with no guaranteed outcome, was highlighted in various responses. The suggested implication that this person was “irrelevant”, and experiences of the adult(s) involved was similarly reported.

In respect of automatic relevant person status, a sizeable number of responses cited the inflexibility in the definition and inability to remove such status as a disadvantage. Respondents highlighted particular concerns as to where this status and the associated rights was not in the child’s best interests thereby placing the parents’ rights in conflict with, and arguably above, those of the child. This was cited as having the potential to be particularly detrimental and distressing where the parent had no contact with the child currently or had no or limited involvement in the child’s life thus far; where the parent had caused harm to the child; or in cases of parental domestic abuse. Current options such as non-disclosure or excluding the parent’s attendance from the hearing were suggested by some respondents to be insufficient to prevent infringement on the child’s rights and to bring other issues such as delay, distress and uncertainty of outcome for the child. In addition, the rights invested in relevant persons such as to attend hearings, appeal decisions and ask for reviews, were not always felt to have been exercised to support the upholding of children’s rights, particularly the in relation to the child’s best interests, rights to private and family life, and the minimum intervention approach. Instead it was felt to have prioritised the rights of the adults concerned.

In respect of deemed relevant persons, a disadvantage was that the existing definition was not broad enough. Respondents particularly cited the challenges for foster carers, kinship carers, siblings or those with sibling-type relationships, residential workers and family who lived overseas or abroad, in being deemed relevant persons, early enough to participate, and the need for pre-hearing panels, with some deeming instead these people should have automatic relevant person status.

Divergent views

Differentiation between “automatic” and “deemed” relevant persons.

The appropriateness of differentiating between “automatic” and “deemed” relevant person was a source of variation in views: “Including parents automatically avoids the dangers of too many disputes...and avoids confusing the rights-based issue of attendance with the welfare-based issue of whether attendance will be helpful (a right is something that needs to be given effect to even if unhelpful to the overall process - otherwise it is not a “right”). And including deemed relevant persons both recognises the rights acquired from close involvement in the child’s upbringing and the value that such a person can bring to the system” [R29, Leg Indiv].

“The separation between types of relevant person (automatic and deemed) is unnecessary, confusing and adds a layer of procedural complexity to the system” [R54, R Indiv].

Determination of “deemed” relevant person

In respect of “deemed” relevant persons there were differences of opinion as to whether this was a factual test or whether this test was ambiguous and open to interpretation: “There is inconsistency as to the application of the criteria of those who have or have recently had significant involvement in the upbringing of the child. Case law (MT & AG v Anne Gerry 2014) sets out some questions which if answered in the affirmative, recognise a person as being “deemable”. There needs to be clarity as to what weight is given to each of these when determining status” [R45, Adv Org].

The impact on the child’s participation

By minimising the number of people with rights to attend at hearings, the current approach to relevant persons status was stated by some respondents to enhance children’s rights to participation by making this easier, preventing “too many people being in the room”. Others, however, stated this could limit access to the people who could best support the child before, during and after a hearing and their right to attend with the child: “Staff have told us children found hearings stressful, unsettling and scary... There must be a mechanism to having the important person as identified by the child who are present and involved in their life, who are meaningful with the knowledge and understanding of the child to support them in their own Hearing” [R53, 3^rd S Org].

Other comments

Responses suggested a range of alternative approaches. These included: the changing of terminology to “meaningful person”; rights as a relevant person being proportionate to the role in the child’s life, including the anticipated role in respect of prospective long-term carers; automatic relevant person status being reliant upon parental rights not responsibilities, recognising the importance of this for older children; automatic status being extended to alternative carers; and greater attention to the views of the child.

A small number of respondents cited the need to take account of the outcome of the current Judicial Review in determining any change, alongside full consideration of the potential implications: “Any proposed legislative change that alters the extent to which persons are able to participate in referral proceedings should therefore be carefully considered - as this has the potential to result in legal challenges that are likely to delay the resolution of referral proceedings” [R63, Leg Org].

Question 9: Should the legislation include a definition of “parent” and if so, what should it be?

• 54% of respondents did not answer this question.
• Of those respondents who did answer this question, 36% said “Yes” and 64% said “No”.

Reasons against a legislative definition of “parent”

The most common position was that defining a parent was unnecessary because this was already covered by existing legislation or guidance, well understood and working flexibly in practice, or that practice issues such as proof of parenthood would not be solved by this change. Therefore, respondents suggested efforts to legislate could at best be repetitive of existing definitions and at worst add further complexity to other areas of legislation: “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” [R54, R Indiv].

Others argued that relevant persons and parents not being separately defined was positive, or that it would be too difficult for one definition of “parent” to be inclusive enough to capture the real, complex and often fluid nature of relationships and family types involved.

Reasons in favour

However, not all respondents deemed that there was sufficient existing legal definition: “[Organisation] is of the opinion that greater clarity would be achieved by legislation setting out a clear definition of “parent” that is applicable to the Children’s Hearings System. The Children’s Hearings (Scotland) Act 2011 doesn’t provide a definition, and neither does the Children’s Hearings (Scotland) Act 2011 (Review of Contact Directions and Definition of Relevant Person) Order 2013, which provides that all parents are relevant persons, other than those who have had their parental rights and responsibilities removed by court order” [R40, LA/SW Org].

Therefore, a benefit of providing such a definition was greater clarity. In regard to how this would fit with existing definitions of relevant persons, such as possibly replacing or being in addition to, was not clear to all respondents.

Other comments

Suggestions for this definition included biological parents, those with parental rights and responsibilities, or “recognised parents”. For others this should take account of level of involvement that the parent has in the child’s life or “parenting”, with the rights that individual has in respect of the hearing being related to this, somewhat similar to considerations for “deemed” relevant persons. Other responses stated adoptive parents and legal guardians should similarly be defined, or that: “… another designated category may be helpful for those individuals (e.g. foster carers, temporary kinship carers) whose article 8 rights are not engaged by the process to the same degree as parents, do not require copies of the confidential panel papers or recourse to appeal rights, yet have significant involvement in the child’s life and information that will assist the panel’s decision making” [R84, Leg Org].

The need for fluidity, inclusivity and adaptability were important factors in any definition, as was the need to gather the views of children to make sure the right people were involved in decisions about their lives. It was also noted that this change was not a specific recommendation of the Hearings for Children report.

Question 10: Do you have any views on whether it would be appropriate for a hearing to have the power to remove relevant person status from any relevant person in certain circumstances and if so, please explain?

Reasons in favour

The overwhelming majority of respondents were supportive of the ability to remove relevant person status, in certain circumstances. These included where the rights conferred on relevant persons were detrimental to the child’s rights or wellbeing; the relevant person had harmed or abused the child, including in situations of domestic abuse within the family; or the individual did not currently have an active or significant role in the child’s life.

Various respondents highlighted the adverse effects on children of automatic relevant status and the fact that this status could not be removed. These included: the impact on the child’s wellbeing and safety, including (re)traumatising the child; their rights including the child’s best interests, to privacy and family life and rights to recovery; and the creation of drift and delays, such as through non-responses or attendance from relevant persons or repeatedly appealing decisions or asking for reviews. It is important to note this was not just limited to an individuals’ attendance at hearings but could even come from discussion with the child about the relevant person:

“One such circumstance arises in relation to older children (16- or 17-year-olds) who are estranged from their birth parents and may be living independently from them. This estrangement could be caused by neglect, abuse or other behaviour on the part of the birth parents. They may not have had contact with the child for a significant period of time and may not otherwise be remotely involved in their life...even simply knowing they are receiving detailed information about them could understandably be traumatising for an older child” [R39, CH Org].

The proposed changes were therefore deemed to have the potential to address these issues and promote a more children’s rights-based, trauma-informed approach. The importance of taking children’s views into account in decision making was highlighted by a small number of respondents, although complexity was also highlighted here: “Decision making should to be attuned to the complex dynamics which may influence a child’s views and the attachments and loyalties which can exist even in abusive situations. For example, a Panel should still be able to remove or suspend Relevant Person status (or specific rights) from a Relevant Person who has abused a child, even if the child expresses the opposite view” [R99, O/U Org].

Reasons against

Whilst those who were not supportive of these measures were smaller in number, they raised serious potential concerns and implications: “A children’s hearing should not have the power to remove automatic relevant person status...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” [R54, R Indiv].

Responses from the legal profession often provided detailed legal reasons and considerations. Across responses particular concerns related to:

• The interface with legally enshrined parental rights and responsibilities.
• Significant rights implications for the affected person, which were not limited to children’s hearings but also any parallel legal processes such as permanence or adoption.
• The blurring of distinction between “automatic” and “deemed” relevant persons without recognising that both had very different legal basis.
• Inconsistency with the ethos of the hearing system.
• The scope for (successful) legal challenge.
• Delays in decision making for the child.

The need for safeguards

Given their significant consequences, if this change was made the need for safeguards within such decision making were highlighted by various respondents, including:

• The opportunity for independent review and appeal(s) of decision making, as well as for reconsideration should circumstances change.
• Decisions must be evidence-based and justifiable in the child’s best interests.
• Alignment with existing legislation including upholding rights under ECHR and UNCRC.
• The need for clearly defined criteria/tests to inform decision making, either in guidance or legislation, and high thresholds, with specific factors suggested.
• Practical considerations of when such a decision would be taken, how and by whom.

Other comments

Some respondents highlighted existing options to address difficulties arising from a relevant person inappropriately exercising their rights could instead be extended in scope. Suggestions included options to pause, suspend, opt out of, or limit all or part of relevant person status and the resulting rights. For example, to attend hearings but with the option to make their views known through other ways, receive full papers, make appeals, or request review hearings. Other circumstances, such as where a relevant person dispute grounds but then fails to engage in the proceedings without accepting the grounds, were suggested as warranting further consideration for legislative change. It was noted that this issue was not discussed in detail by the Hearings System Working Group.

Question 11: What are the advantages and disadvantages of an earlier process for deeming other people to be relevant persons?

Advantages

The main advantage related to providing the earliest possible opportunity for the participation of those most important to the child - those with the greatest role in the child’s life - and this would bring benefits for everyone involved. For the child, this should result in better, more informed decision making throughout the referral process, an enhanced investigation by the Reporter, and improved hearings by promoting a more holistic assessment and understanding of the child’s life, through having the most up-to-date and relevant information. One response noted: “We support front loading of cases to ensure the resolution of necessary procedural issues, and the dissemination of important information, at the earliest possible opportunity. As part of that, early determination of relevant person status is highly desirable. The main advantage is securing effective participation (Art 6 and 8, ECHR) and informed decision making (s25 and Art 8; to an extent perhaps s27 insofar as the relevant person may be able to reflect child’s views) from the outset” [R72, Leg Org].

Further benefits were that this would reflect better the child’s views and voice on who mattered most to them, with the resulting impact that the child would know as early as possible who would be involved and support them throughout the hearing process, and crucially, at their hearing. A further resulting benefit was that hearings should be more child-centred, focusing on the best interests of the child and not distracted by who could or should be relevant persons for as long or at the start of a children’s hearing.

For those who could be deemed relevant persons, the key advantage of an earlier process was the ability for those individuals to be prepared, supported, informed, represented and receive paperwork as early as possible, rather than currently this only happening shortly before a hearing. This change would enable those deemed relevant persons to make a more proportionate, fairer contribution and crucially be able to support the child through the process more appropriately. The potential benefits for the participation of foster carers, kinship carers, other current carers, overseas family, siblings, health visitors and education providers were particularly highlighted. One response suggested: “There may be some merit in considering reinstating, in part, the 1995 Act definition of RP [relevant persons] to include, “... any person who appears to be a person who ordinarily... has charge of or control over the child”. This would then automatically include kinship and foster carers as RPs. The benefit would be that the starting point is that all those who have charge or control over the child will be considered a RP, without having to go through the DRP process” [R48, R Ind].

For all parties, reduced drift and delays and the earlier resolution of procedural issues and potential disputes about deemed relevant person status were considered to be a key advantage. For some, a further benefit through both this and improved decision making could be that children were involved with the hearing system for shorter periods of time.

Disadvantages

The main disadvantages cited by respondents were:

• Overcomplicates an already complex process for children and their families.
• Delays to the process of determining who was a relevant person, establishment of grounds and overall decision making.
• Risk of more people becoming involved in the hearings process for longer, which could result in a loss of focus on the child, with existing knowledge of the potential adverse impacts on children of too many participants in a hearing and role of the chair in minimising this cited.
• Increased conflict and disagreement within families, which coupled with more information and views from more people could overwhelm the decision making process.
• The need to minimise the risk of additional burden, workload, and costs for Reporters, panels and local authorities that this change could bring.

Divergent views

Although there was a high level of support for this proposal, this was not unanimous, with some questioning the necessity of this change: “I am unpersuaded that there is a need for a process prior to the pre-process that already exists...the Reporter is able already to involve those who may well be deemed to be a relevant person, and is able to keep them informed of process...To introduce a further pre-pre-process is likely to make the Reporter’s job more difficult and burdensome without much in the way of gain to anyone” [R29, Leg Ind].

Likewise, a number of respondents commented on the existing process of gathering information, views and assessment, formulation and making recommendations which was not limited to just those with relevant status. Instead, local authorities would speak to all those who may be relevant to the child’s life and wellbeing, as encouraged by GIRFEC and existing care planning guidance, with the Reporter also having discretion as detailed above.

Other comments

A number of respondents wanted greater clarity on:

• How this earlier process would work in practice, who would be involved in any new process, make this decision, and on what basis.
• How early this process would be, often citing this as a disadvantage, as if this decision was not fully informed, status could be misapplied with significant consequences. Similar risks were cited that given the fluid nature of relationships and children’s circumstances, if given too early this could change by the time a hearing took place or alternatively after a decision has been made. By that point, other people could have become significant in a child’s life, such as example potential adopters.
• The need for safeguards such as an ongoing review of who was or could be deemed relevant.
• Alignment with the wider recommendations of the Promise. This included the focus on the whole family, Hearings for Children report and within the consultation, such as the role of the chair and the establishment of grounds.

Question 12: What changes could be made to legislation to enable more effective gathering of information prior to a hearing and to support proper opportunities to participate for other people in the child’s life?

A number of respondents either did not answer this question or stated they had no comment to make.

A small number of respondents deemed no changes to be necessary citing that existing legislation, guidance and policy was sufficient in ensuring Reporters could make inquiries; information could be shared with SCRA as part of referrals; and that hearings needed to be satisfied they had sufficient information to make a decision and could include the need to speak to other people if required to achieve this. Similarly, some respondents cited that assessment and care planning by social workers and partners are underpinned by GIRFEC which promotes multi-agency practice and the centrality of the views and voice of children, those who care for them, and who know the child best. The requirement of public authorities to act in compliance with UNCRC, European Convention on Human Rights (ECHR), and equalities legislation was also highlighted. Other respondents were unclear of the perceived issue here and stated that great clarity on this would impact on their response to this question. Other respondents did not think legislation was the answer.

However other respondents felt there were issues which wider information gathering could support: “The balance between gathering information about a child and family and compromising their rights of privacy can be fraught. There would need to be clarity and consistency as to when and to what extent this would be appropriate. A proportionate sharing of information is desirable to support opportunities to participate for those who care about the child” [R45, 3^rd S Org].

Suggested changes

Information being gained from a wider range of people was a key change, with the participation of foster carers, kinship carers, potential adopters, health, education, named persons, overseas family, and siblings particularly highlighted, with some respondents suggesting some of these individuals should have an automatic right of attendance at the child’s hearing. Enhanced duties on the Reporter to contact and gather information from a wider range of people from the point of referral and in determining how to proceed was an option highlighted by some respondents. To help inform this, some respondents deemed referrers and local authorities should be required to provide details in the provision of reports, including contact information for people who had a significant role in the child’s life, and detail the efforts made to trace those who they had been unable to contact.

Others stated the chair of the Panel should have more power to meet the child before a hearing; decide who should participate in a hearing, rather than this being a decision for the Reporter; and how to manage the hearing. Local authorities sharing information about the Children’s Hearings System and why a child had been referred with those in a child’s life was cited as a further area that could be strengthened. The views of children in informing decisions about how information should be gathered and how they would participate was highlighted by various respondents, with one organisation suggesting how legislation could be changed to support this.

However, various respondents stated this was less about legislation and more about ensuring the workforce has the time, resource, workload capacity, support and culture to work alongside families, build relationships, and support them adequately:

“To create a workforce which has the time and energy to explore all sources of information, and thus provide as full a picture as possible, requires practitioners from social work, education, health, police and SCRA to have a manageable workload with sufficient capacity to undertake this” [R56, O/U Org].

Other suggestions for improvement included:

• Development of a standardised, national pro-forma report template, that could be multi-agency, thereby promoting consistency and reducing the volume of reports.
• Enhanced guidance on who to consult, preparation of parties ahead of a hearing, use of pre-hearing panels or discussions, and enhanced information sharing protocols to mandate the sharing of information.
• A statutory right to independent advocacy for children, offered at an earlier stage.
• Ensuring repetitive, irrelevant and outdated information is removed from reports.
• Mandatory provision of reports to the Reporter/hearing from those caring for the child.
• Greater ability to share information to people who have been harmed.
• The appointment of safeguarders at the referral stage.

Question 14: What are the advantages and disadvantages of the creation of an additional class of person whose views and participation are essential to the business of the hearing, but do not require the full rights and obligations of a relevant person?

Some respondents were unclear about what this question meant, requesting further information, or as with previous questions, highlighted existing approaches that were deemed to be sufficient or could be strengthened in practice, as opposed to legislative change.

Advantages

The most commonly cited advantage of this change was that for those individuals who played a significant role in the child’s life but did not fit the existing criteria for relevant persons, they would now have the opportunity to be included or participate during the children’s hearings process, although without the full legal rights and responsibilities this status affords. This could include: potential adopters; those who had short-term caring responsibilities for the child; siblings and those with sibling-like relationships; child trafficking guardians; advocates; support workers; family overseas; or in the case of 16/17 year olds, their partner or spouse. One response stated: “...Some essential people have reduced participation in a child’s life due to separation across borders but remain essential to the child’s wider network and family life. Overseas complications may also mean that a relevant person cannot access the full rights or meet the obligations of a relevant person, despite their closeness to the child” [R32, 3^rd S Org].

Likewise, it was deemed that this change could be beneficial where involvement under existing status is excessive and the relevant person’s actions are not necessarily driven by the child’s best interests such as the use of rights to reviews or appeals.

The ability for this new class of person to provide information at any stage of the process was a further benefit to developing a fuller picture of the child, with some respondents stating there could be instances where no one else could provide this information or a unique insight could be offered, which should help to improve decision making and outcomes for the child.

Other benefits included:

• The enhanced ability of this person/s to be able to support the child throughout the process.
• Greater control for the child.
• Reduced tension between attendees at a hearing which could enhance the participation of all involved.
• Reduced delays owing to hearings being deferred for further information.
• More proportionate involvement reducing the risk of compromise of the child’s and their families’ rights to privacy and safety. However, the possible risks of this change in cases of domestic abuse were highlighted.

Disadvantages

However, not all respondents were supportive of this change: “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” [R54, R Ind].

Disadvantages were often contradictory to the advantages outlined previously. The most commonly cited being that this would further complicate an already complex and difficult to understand area of practice. A number of further disadvantages were highlighted owing to the possible involvement of more people, resulting in potentially:

• Greater conflict and disagreement as to whether this individual should be deemed as such and what level of involvement they should have in the hearing process.
• More people attending hearings when the chair already has a duty to minimise the numbers attending, in light of the impact on children as detailed previously (although one respondent highlighted the serious concerns that this duty could have by adversely affecting infants’ perspectives being understood).
• Reduced focus on the child and their best interests.
• Less focus on those with the full rights and obligations as relevant persons.
• Delays and slower decision making.
• Implications on rights to private life if information is shared more widely.

Other comments

The Promise Scotland highlighted that the Hearings for Children report had not recommended this change, with other respondents highlighting other individuals for whom having rights of attendance and to received paperwork, such as social workers and those caring for the child, would be more advantageous than the changes proposed. A small number of respondents cited that the conclusions of the Supreme Court judgement in ABC v Principal Reporter [2020] UKSC 2 would be relevant.

Participation and attendance

Question 15: Do you agree with the recommendation to remove the child’s obligation to attend their hearing, to be replaced with a presumption that the child will attend?

• 28% of respondents did not answer this question.
• Of those respondents who did answer this question, 80% said “Yes” and 20% said “No”.

Reasons in favour of replacing the child’s obligation to attend their hearing with a presumption

Most respondents supported the proposal, with young people particularly supportive. Despite efforts to improve children’s experiences, various respondents highlighted the potentially detrimental impacts of attendance at a hearing, including to the child’s wellbeing, safety, and mental health. Attending a hearing could be experienced as traumatic before, during and after the hearing, with children missing important events like school or exams to attend. Respondents cited distressing situations including where the child had been removed from their parent’s care, where disclosures were made in front of the child, where they were manipulated by the adults in their lives, or where there was particularly conflict between parties: “Many children feel uncomfortable or scared in that environment and should not be forced. Their views can be gathered in advance e.g. in writing” [R97, YP Org].

A number of respondents stated this approach promoted, and would be more respectful of, the child’s best interests, needs, views and choice: “It supports a child-centred approach, recognising that attendance should be beneficial for the child, not mandatory or burdensome” [R34, LA/SW Org].

The impact on children’s wider rights, for example, to be protected from abuse and recovery from trauma and abuse, and the focus on ensuring trauma-informed practice, were further cited as advantages by some respondents. However, one respondent stated that there did not appear to be any clear evidence that the changes used during COVID led to more child-focused hearings or decision making and instead the converse could be true. A small number of respondents also stated this could reduce delays and procedures such as the need for pre-hearing panels. The distinction with other areas of the UK was highlighted in one response:

“Scotland is the only UK nation that expects young children to sit through legal proceedings, whereas in England and Wales, no child under the age of 7 attends court proceedings and every child is represented by a Children’s Guardian (whose sole purpose is to represent the best interests of the child), a solicitor and a social worker. Scotland needs to consider developing a system that supports both children who wish to attend and participate in their Hearing, and also protecting those who wish to participate, but for whom attendance is unnecessary, re-traumatising, or they do not wish to attend” [R99, O/U Org].

Several respondents stated the decision about attendance should be based on the assessed needs, welfare and best interests of the child. Very young children or children whose development was delayed or who did not have the maturity to capacity to understand the hearing were groups to whom this change could be particularly beneficial. Various respondents highlighted the specific recommendations of the Hearings for Children report that there should be no presumption that babies or infants will attend their hearing, with one respondent highlighting specific research and rights considerations for babies and infants that should be taken into account in the future hearings redesign.

Reasons against

The main disadvantage or risk of this approach was that children could be “tacitly deprived” of their option to attend a hearing or for this to become the default where the adults in the child’s life deemed this to be in the child’s best interests, but without proper consideration of how this could be facilitated or the existing safeguards of requiring a hearing or pre-hearing panel to excuse attendance. As a result, some respondents advised that alternative and flexible means of encouraging attendance should be the focus instead, rather than removing the obligation to attend. Others stated a high threshold for children not attending hearings should be retained. Existing inconsistencies in practice, despite legally enshrined tests for excusal, were highlighted, with the risk that this change could increase inconsistency. It was therefore suggested this was more about culture and practice than legislation and duties. UNCRC was cited by a number of respondents, as was section 3 of the Children (Scotland) Act 2020.

Divergent views

A number of respondents, including some young people, felt no child should be forced to attend their hearing, citing the adverse effects of attendance. In contrast, a slightly smaller number of responses stressed the importance of children attending their own hearing, citing that this was their hearing, that children had the right to attend, their attendance was invaluable to decision making, that attendance could promote perceived legitimacy of the process for the child and that the number of children attending hearings was already low, which this change could reduce further. One response noted: “We see so few children at Hearings now; they are excused on the basis of damage to their mental health but it’s their Hearing and I fear that, in years to come, they will say that nobody listened to them or included them” [R2, PM Ind].

A slightly smaller number stated specifically that some children should be obliged to attend their hearing, namely where a child had committed a serious offence, was attending on conduct or behavioural grounds, or where a child’s right (such as to liberty), was going to be restricted. Others stated that children over 12 (or 14) should be required to attend or where this was the child’s first or last hearing, an emergency hearing, or a change of placement was being considered. However, one respondent cited the risk that this approach could create different “types” of children, which was contrary to the fundamental principles of the hearing system, with this view echoed in responses to other questions.

Other comments

• Even if the child did not attend the hearing, their views and voice were still required to be available to panel members and listened to in decision making, distinguishing between attendance and participation. To do so, flexible, needs-led, and meaningful (not tokenistic) approaches were cited as being required, with similar detail on how this could be achieved set out in question 17.
• Continuing existing safeguards for children who did not attend hearings, such as information about discussions and decisions of the hearing being shared timeously and requiring social workers to provide clear reasons as to why the child was not attending, what efforts had been made to explain to the child the purpose of the hearing and support attendance, and how the child’s views had been sought.
• Creative management of hearings to ensure these were flexible and adaptive to children’s needs.
• Terminology was highlighted by a small number of respondents. Some favoured a “right” to attend, rather than obligation, with one respondent stating that obligation had already been replaced with “duty” under the Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”).

Question 16: Does the hearing need a power to overrule the child’s preference not to attend their hearing in certain circumstances?

• 47% of respondents did not answer this question.
• Of those respondents who did answer this question, 58% said “Yes” and 42% said “No”.

It was apparent in this question that the same respondents quantitative and qualitative responses could either be in contradiction with each other, or at times “yes” responses went on to be qualified that this should only be the case in certain circumstances.

Reasons in favour of the ability to overrule a child’s non-attendance

For those who were supportive of this power, arguments often related to the principles of the Children’s Hearings System, namely the need for the child to be at the centre of the hearing which attendance could support, and the need to see and hear directly from children, particularly older children.

Reasons against

However, for many respondents who did not support these proposals, similar counter arguments were put forward that requiring a child’s attendance could be detrimental to the child’s choices, rights, and wellbeing, which hearings had clear rights to uphold and promote, and was not consistent with the ethos of the hearing system:

“XXX strongly opposes this proposal. We cannot think of a circumstance where this would be necessary…. The system must work to accommodate the child’s needs and wishes for their Hearing, rather than have the option available to use physical force against a child to drag them into a process they do not want to take part in” [R68, Adv Org].

Only in certain circumstances

Some respondents supported these proposals but only in certain circumstances, namely where:

• The child had committed an offence. However, whilst some respondents highlighted this was owing to the significant implications of offence grounds, for others this related more to the Panel having the opportunity to hold the child to account or responsible.
• The grounds related to the child’s conduct or behaviour (such as school non-attendance).
• The child’s liberty was at risk of being deprived or restricted.
• A warrant to secure attendance had been made owing to concerns for the child’s immediate safety.
• Serious welfare/protection concerns.
• Efforts to gain the child’s views or provide legal advice had been exhausted to no avail.
• The child was aged over 12.
• Where a child was going to be removed from their primary caregiver.
• Dependent on the child’s reason for not wanting to attend the hearing, possible impacts on the child, and understanding whose decision this really was.

However, a small number of respondents raised concerns about any differentiating of approach dependent on a child’s reason for involvement with the system. Some respondents stated the threshold for doing so should be high.

Other comments

• Utilising the positive approach under the Coronavirus (Scotland) Act 2020 where the duty to attend was relaxed so there was no need to formally excuse the child, but should the panel members require attendance, it would be deferred for that purpose.
• Practical considerations such as how this decision would be made and how attendance could be enforced.
• The need to retain a range of approaches and alternatives that children can choose from instead of their attendance being required.

Question 17: What steps could be taken to support the child’s participation and protect their rights, if they choose not to attend their hearing?

Children’s rights

The rights of the child particularly under Article 12 of the UNCRC were highlighted by numerous respondents, as was the view that the child’s needs, rights and views should be at the centre of all decision making even if the child was not physically present at a hearing: “…It was felt that attendance is too binary a concept. We must have a sharp focus on participation and the different ways and times children, and young people can be involved in the decision making process” [R104, LA/SW Org].

Advocacy

Access to advocacy was the most commonly cited step that could be taken, with young people particularly highlighting the importance and various points made as to how this could be promoted, including:

• Placing a legal duty on local authorities to ensure a proportionately sufficient level of advocacy service so all children who require this can do so.
• Duty to provide specialist advocacy to groups with particular needs, such as care experienced people and unaccompanied asylum-seeking young people.
• Duty to promote and refer for independent advocacy and non-instructed independent advocacy, with specific legislative change suggested by one respondent.
• Building understanding of the role of the independent advocate.
• Mandatory reminder of the right to advocacy if a child is not attending a hearing.
• Use of an opt-out system of referral for advocacy.
• Allowing advocates with the child’s permission to attend and represent the child’s views on their behalf, including where the child wishes that no one other than panel members being present.

Inclusive means

The next most commonly cited step was the continued and expanded use of inclusive means by which the child could share their views or wishes, with young people highlighting a range of options. These included: views being verbally represented by someone the child trusts; in a written letter, report, postcard, email or text; electronic methods like voice note, audio recording, video or pre-recorded statement; creative use of Have your Say forms; Our Hearings, Our Voice Scrapbook; art, drawing, painting, sculpture, songs, raps or poems; and alternative communication such as sign language or Makaton. A small number of respondents cited that the implementation of section 3 of the Children (Scotland) Act 2020 would support this but that further use of such accessible means would also require physical and human resources.

Roles and responsibilities of adults

Various adults were cited as having roles and responsibilities in these situations, which could potentially be strengthened, although coordination and clarity of who would do so was highlighted as important. The role of the child’s social worker in preparing the child, supporting the child’s understanding of the hearing system and participation, protecting their rights, and gaining and representing the child’s views in their reports, care planning and at hearings was particularly highlighted. This, however, required resources and sufficient social workers being trained to do so. Recent research from Social Work Scotland was highlighted which indicated some social workers felt that they were not always given the same level of trust and respect from hearings as other professions were, which had implications for the (further) marginalisation of the child’s voice and views.

Appointment of a safeguarder was also highlighted by numerous respondents, as was automatic legal representation for children when they were not attending their hearing. Two respondents also mentioned scope for exploring the role of a curator ad litem or independent child’s guardian as an option mirroring practice elsewhere in the UK.

The role of the chair and Reporter and in particular the ability of the child to meet with and speak to them, before or after the hearing, in a less intimidating and emotional environment of their choosing, was highlighted by some respondents.

For all professionals, the ability to prepare children for a hearing, explain their rights, and provide information, was key, as was ensuring children were supported to understand what had been discussed at hearings, the decisions made, and how their views had influenced this, with “You said we did” style summaries and child-friendly decisions suggested. To achieve this, adequate training on interacting with children and how to gain children’s views using age and stage appropriate approaches, as well as having access to aids and tools to support this was cited by a number of respondents.

Other suggestions include a trusted adult being able to attend the hearing on a child’s behalf or support their attendance at all or part of their hearing, with the role of carers cited by a small number of respondents.

Other comments

• Various options which could be better described as management of hearings were cited including the child being able to speak to panel members on their own without the need to gain the agreement of all other participants in the hearing or virtual attendance at all or parts of a hearing.
• The use of pre-hearing panels to discuss how children’s participation would be supported and rights upheld; deferment of hearings or the use of emergency powers to provide time for views to be sought; and enhanced public understanding of the role of the children’s hearing.
• The need for alignment with wider recommendations of the Hearings for Children report; ongoing improvement work; the suggestions of the Collaborative Redesign Project; and existing good practice that could be embedded and rolled out further.

Question 18: Should a child still be obliged to attend hearings held in consequence of offence referrals, or in consequence of the 2011 Act section 67(m) “conduct” ground?

• 45% of respondents did not answer this question.
• Of those respondents who did answer this question, 63% said “Yes” and 37% said “No”.

Reasons in favour of obliging a child to attend a hearing on conduct or offence grounds

The most common response was that a child should have to attend their hearing in these circumstances to:

• Participate in their hearing; share information about what else might be going on in their lives contributing to their behaviours; and receive information about grounds, given the potentially serious and long-term impacts of accepting such grounds, what has been recommended, why and any interventions that have been proposed.
• Understand the impact of their behaviour for themselves and others; understand the seriousness of concerns; take responsibility for, and face the consequences of, their actions.
• Uphold their rights to a fair trial under human rights legislation: “It is important that the child is answerable for their “offence”, there is a victim to consider, and I don’t feel it is adequate for a child who has offended not to be faced with the consequence of their actions. The Hearings room is well versed in trauma management and the reasons behind offending, a compassionate, understanding approach to the “offender” can be taken but there needs to be a consequence” [R2, PM Ind].

One response stated this should be wider than offence referrals and conduct grounds and apply to grounds in relation to the child’s misuse of alcohol or drugs and being beyond the control of the relevant person, where there should be a rebuttable presumption that the child is obliged to attend their hearing.

Reasons against

A smaller but still sizeable number of responses expressed serious concern about this approach, stating that different approaches to children based on their reason for referral fundamentally contradicted and undermined the central principles of the Children’s Hearings System and could stigmatise children: “Trauma informed approaches and children’s rights apply to everyone…Treating a child differently because they have been referred in relation to an offence could be experienced as stigmatising” [R35, LA/SW Org].

In keeping with previous questions, further responses stated that no child should be forced to attend a hearing against their wishes, and decisions about attendance needed to be based on the best interests of the child and that trauma informed practice and upholding rights was necessary for all children, regardless of the grounds for referral. Methods to either encourage a child’s attendance or by which their participation could be facilitated without attendance were again highlighted.

A small number of respondents questioned how this would work in practice. This included what if the child was referred on multiple grounds, if the child was referred for an offence but different grounds were established, how long this obligation would last (for example, would it continue for years if the child became subject to an order?), and what would happen if new grounds were established.

Other comments

Various respondents raised other points in respect of offence grounds and offence referrals including:

• The long-term and serious implications that could come from accepting such grounds, including in terms of disclosure of criminal records and other relevant information.
• The Reporter overseeing the referral to consider using alternatives to offence grounds when a child has come into conflict with the law.
• The need for automatic access to legal advice and a lawyer, operating on an opt out basis.
• That the burden of proof should not be lower in the Children’s Hearings System than court.
• The value of restorative practices.

Voices of very young children

Question 19: Do you agree that particular arrangements should be made to capture and share the voices and experiences of very young children in a redesigned Children’s Hearings System?

• 35% of respondents did not answer this question.
• Of those respondents who did answer this question, 93% said “Yes” and 7% said “No”.

Common themes

Children’s rights

Most respondents highlighted that although very young children may be pre-verbal, non-speaking or developing language, they still have a right to meaningful participation and can still communicate, meaning capturing and sharing their voices and experiences is crucial: “Yes, it is essential that very young children have a voice in their Children’s Hearing. This should be consistent with current national guidelines for unborn babies, babies and infants. The approach should be rights-based, focusing on what these young children need to develop and flourish, and grounded in child development and attachment theory” (R30, LA/SW Org].

Young people deemed certain arrangements to be important, although the overlap between methods cited here, as detailed below, and in previous questions is noted.

Some respondents highlighted the challenges of achieving this for very young children in the hearing system, although a small number of responses deemed current approaches were sufficient: “It is accepted that children’s voices being heard is an essential element of the children’s hearing system. However, it is considered that the current arrangements are sufficient...If those current arrangements do not capture a child’s voice and experience because they are “very young”, it’s likely because they’re unable to articulate a view” [R72, Leg Org].

The roles and responsibilities of adults

The main arrangement that respondents highlighted was the capturing and sharing of child’s voices and experiences by skilled, trained professionals and the child’s caregivers. Those involved in the day-to-day care of the child and with the closest relationships with the child, were highlighted as having a fundamental role. This could include parents, kinship carers, foster carers, deemed relevant persons and siblings.

A range of professionals were also cited as having crucial roles including social workers, health visitors, early years workers, child rights officers, support workers, psychologists, speech and language therapists, and play therapists. A range of methods were cited including observations of the child’s interactions and behaviours; videos of the child playing; art; photographs; talking mats; boardmaker; story boards; and visual timelines. From responses it was clear this was established practice, however the more extensive use of tailored, creative methods; ensuring professionals had the time and expertise required to undertake this work; and that this information was brought together and interpreted, before being shared with, heard, understood and used by panel members to inform decision making were highlighted as areas that could be developed further. However, it was noted that interpretations of information, behaviours and observations could be contested, which could be challenging for all involved, not least panel members.

A number of respondents also cited the important role of independent advocacy, although some respondents noted this was used less frequently for very young children. The role of non-instructed advocacy was disputed by respondents, although supported by some: “We also advocate for the use of non-instructed advocacy to capture the views of babies, very young children, or those with communication difficulties...This protects the rights of the very young and promotes decision making that takes cognisance of all of the rights of the child, not simply “best interests” and provides unique insight into the child’s individual preferences and wishes, where they are observed and/or articulated” [R51, Adv Org].

The practice challenges of delivering such a service were highlighted, however, by a small number of respondents, including in relation to receiving referrals and the lack of knowledge of this option being available.

The role of legal representation and safeguarders was mentioned by a smaller number of responses. A small number of respondents suggested that consideration could be given to a default allocation of a safeguarder or advocate to a very young child, although others were critical of this and highlighted there should be a trusted adult who could fulfil this role, as opposed to bringing additional people or processes into the child’s life.

Other comments

• The use of existing and any developing research and best practice including the Scottish Government voice of the infant best practice guidelines, standards and approaches, and learning from practice in other settings such as court and children’s services should be promoted.
• The importance of professionals and decision makers involved in the hearing system understanding the impact of adverse early childhood experienced including neglect, abuse and trauma; child development; attachment; how a child responds to stability and inconsistent care; and the different impact of time for young children.

The offer of advocacy to the child

Question 20: Should the focus and wording of section 122 of the 2011 Act be reformed to reflect an earlier, more agile and flexible approach to the offer of advocacy to the child?

• 46% of respondents did not answer this question.
• Of those respondents who did answer this question, 88% said “Yes” and 13% said “No”.

Reasons in favour of a more flexible approach

Of the respondents who agreed that the 2011 Act should be reformed to reflect an earlier approach to the offer of advocacy to the child, several mentioned the importance of an advocate having the time to build a strong, trusting relationship with the child. Respondents also said that offering advocacy at an earlier stage would better enable children to express their views and wishes, would ensure a child’s voice is heard throughout the process, and would promote the child’s participation in decision making. It was also suggested that children should have a “right” to advocacy, and that all children in the system should automatically receive independent advocacy, making advocacy provision an opt-out model. Several respondents mentioned that it was important that advocacy services be offered multiple times throughout the hearings process, and advocacy and its benefits should be clearly explained to children. Some respondents agreed that advocacy should be offered at an earlier stage, but did not agree that it was necessary to make this change through legislation.

Other comments

Several respondents also highlighted the issue of resourcing, raising questions about how additional demand on advocacy services would be funded, how the workforce would be recruited and retained: “Irrespective of any legislative change all those involved in the hearing system have a duty to advocate for the best interests of the child and should be supported and expected to exercise that duty. Formal advocacy services should be offered at the earliest opportunity where appropriate. There is no need for legislative change to achieve this. However, legislating for increased access to advocacy services will be ineffective without associated resources to increase capacity and develop the needed skills and knowledge to undertake this complex role” [R96, LA/SW Org].

Some respondents had reservations about expanding the provision of advocacy services, especially in relation to the impact of having too many adults involved in the child’s case:

• “Although an extension to the offer of advocacy is broadly welcomed there is a concern that making this a legal requirement has unintended consequences that this may “drown out” the voices of children if there are too many adults speaking on their behalf. To avoid this, attention to detail is needed to ensure that wording does not imply advocacy is a legal requirement for every child and family, but every effort should be made to reform the wording to reflect that advocacy is offered to all children and families who need it and advocacy services are provided in a way that meets the needs of the family as early as required” [R67, 3^rd S Org].
• “It [advocacy] must not become “yet another adult” in their lives. It MUST be the most appropriate person for each individual child. So a reform to reflect that individuality would be beneficial” [R15, PM Indiv].
• “Panels find advocacy input very useful but we need to rationalise the number of people and frequency that children are being asked their views. Sometimes it could be school, social work, safeguarder and advocacy. Add to that, if there’s an interim order needing a hearing every 22 days and we’re in danger of continually re traumatising children” [R04, PM Indiv].

Additionally, respondents raised concerns around the sharing of children’s personal data and “the lack of regulation of advocacy services”, and how younger children would be supported to make decisions about taking up an offer of advocacy.

Question 21: How should the rights and the views of children and young people of all ages, including very young children, be better represented in the children’s hearings decision making?

The importance of this question and the roles of everyone involved in the Children’s Hearings System in achieving this was clear in responses.

Common themes

One of the core themes in responses was the importance of utilising a range of creative and personalised methods by which children’s views could be gathered and reflected to panel members to make this as easy as possible, including video messages; voice notes; pictures/artwork; letters, stories; feeling cards; play; records of observations of the child for example interacting with others, during “contact”, behaviours, and non-verbal cues; avatars; and talking mats. The role of technology was cited by a number of participants, with it suggested panels should maximise these alternative means of receiving children’s views, potentially by having a list of options by which children could do so: “Multiple approaches to getting this right for children were shared by young people. The key considerations here were that these should be personalised for the child, giving them a choice over how, when and who they do this with. Involving adults who are trusted, skilled, have the time, and provide them with choice of how they share their views were as important to the young people as the methods used. Young people also commented on the differing communication needs of children depending on their age, abilities, and neurodiversity” [R94, YP Org].

Clear, understandable information on children’s views and how these were gathered within reports would help panel members not just in reaching decisions but in understanding the child’s preferred ways of communicating so hearings could be more effectively tailored. A recurrent comment was that professionals involved in gathering and communicating such views needed to have the time to do so which was challenging in the context of overstretched services, training, skills and expertise. Training for everyone involved in hearings in respect of child development, trauma (including domestic abuse), and best practice in enabling child’s participation was particularly highlighted. It was also suggested this could include understanding how the views of children with speech, language and communication needs, with neurodivergent conditions, or with learning disabilities, alongside the views of infants, could best be sought.

Many respondents stated that a key means to achieving these aims was to ensure children’s views and rights were referenced and responded to throughout reports, during hearings and in verbal and written reasons and decisions, including where decisions were contrary to the expressed views of the child and where these involved a balance of the rights of the child. Reviewing the documentation for recording proceedings and decisions to specifically require the recording of the child’s views and how decisions impacted on their rights was cited by various respondents as potentially being beneficial. Caution would however need to be taken to avoid unintended consequences such as decisions and reasons becoming less understandable and to ensure this did not interrupt the flow of hearings. This linked to a broader point about the importance of good management of hearings by chairs and panel members and how hearings were structured and conducted to remove barriers to children being able to communicate their views, which children and young people particularly highlighted. Emphasising and demonstrating the child and their views being central to the hearing was cited as important in setting the tone and the practice of hearings, although how such views were understood, weighted or impacted on decision making was, however, raised by a small number of respondents, including young people. One respondent noted: “…Panel members did not always find the views articulated by social workers to be sufficient, and greater value was placed on other representation viewed to be less “biased” / more “objective”. This has important implications for how the child’s views are meaningfully represented in a hearing. Greater understanding is needed with respect to who is representing the child’s views, how this is done, and how this is valued by panel members” [R41, R Ind].

Preparation and support to children before and after hearings was also highlighted as having a key role.

Access to advocacy was highlighted as a key means of communicating children’s views by a large number of respondents. Young people were particularly supportive that an advocacy worker should be offered as soon as a child is referred, with a range of benefits highlighted including more time to get to know, become comfortable with, and understand the offer of advocacy and advocate; building greater understanding of the child circumstances and wants before a hearing; and reinforcing children’s rights in having their views listened to in decisions. This offer, however, should be ongoing and allow children’s views to change. A small number of responses specifically highlighted challenges with the consistent availability of, the quality of, and resources form advocacy; as well as understanding of the role of advocacy including by children, parents and carers.

Other respondents suggested options for increasing access to advocacy including: additional resourcing; earlier referrals; use of an “opt out” model; a statutory right to independent advocacy; using access to independent advocacy as a marker for monitoring the gathering and sharing of children’s views; and strengthening the legal and policy definition of advocacy. A few respondents commented on the importance of consistent trusted adults who could advocate on the child’s behalf even if not an “advocate” in the sense of independent advocacy, although others articulated the importance of this independent role. “Non/uninstructed advocacy” was again raised by a small number of respondents, although there were differences in opinion as to whether this should be utilised, for example: “XXX members also have strong views that “uninstructed advocacy” is not appropriate, and indeed is against the principle of advocacy. An individual must be able to instruct the person they wish to advocate on their behalf and where an individual e.g. a baby or individual with capacity issues, is not able to do that, then the person with parental responsibilities or guardianship is the one with the authority to instruct or not. To ignore this is to breach a child’s rights and the parental rights of the parent or guardian” [R40, LA/SW Org].

Very detailed information in respect of advocacy was provided in some responses to this question which will be useful in shaping considerations going forward.

Children’s hearings receiving a range of reports from different professionals including health and education, and listening to the views of these professionals, and ensuring their ability to attend hearings, were also highlighted by various respondents as central in ensuring the rights and views of children were represented in decision making. In providing reports, it was suggested that explicit reference to children’s rights and how they were being met within recommendations or actions could be beneficial, supporting the reflection of these in reasons and decisions as detailed above. The role of lawyers and children having consistent access to suitably trained lawyers was mentioned by a small number or respondents, with similar numbers mentioning the challenges in ensuring the centrality of the child when often multiple legal representatives were in attendance. The role of safeguards in providing an independent representative for the lived experience of children was mentioned by a similar small number of participants, although issues with the current understanding of, and “ad hoc” approach to, safeguarder appointments was cited.

Some respondents, however, highlighted the risks of unintended consequences of more people becoming involved or “speaking for child”, including one young person:

“The young person should be offered advocacy but the role of an advocacy worker should be clearly explained to the young person. When I was given advocacy I was overwhelmed with all the different advocacy agencies. I also didn’t know what a safeguarder was” [R85, Ind].

Most respondents felt the above could be achieved largely through practice change, with guidance, standards or training, rather than legislation, with the various specific recommendations of the Hearings for Children report highlighted.

Question 22: Should there be a statutory obligation to support the sharing of information to advocacy workers, and other people who can help children and families to understand their rights?

• 58% of respondents did not answer this question.
• Of those respondents who did answer this question, 58% said “Yes” and 42% said “No”.

Reasons in favour of a statutory obligation

Many respondents said that it was important that an advocacy worker had as much information as possible about the child they are supporting, at the earliest possible stage, in order to effectively represent the child and their views. Some expressed the view that it would be impossible for an advocacy worker to do their job properly if unaware of all the facts of the case in question:

• “An advocacy worker should be aware of all information relating to the child” [R03, U/O Indiv].
• “Yes, if the information is requested on behalf of the child or young person and being utilised to support them to understand the process and their rights within the process” [R43, LA/SW Org].
• “An advocacy worker will represent the views of a child or family member. This can only be done effectively if the worker is able to discuss the full facts of the case with that person and explain to them what is being said, recommended, the possible outcomes and what those outcomes will mean for them” [R45, 3^rd S Org].
• “Understanding rights is critical to accessing rights. For this reason, we suggest that anyone who can help children and families understand their rights, including advocacy workers, should have access to information relevant to the hearing. In many instances, relationship-based practice is essential for positive outcomes and enabling sharing of information with relevant persons may support children and families to engage with this information better” [R49, 3^rd S Org].

One respondent, who supported statutory provision for relevant information to be shared with advocacy workers, reported that “Advocacy providers have told us that they can often be excluded from papers and updates and only receive information second-hand via the young person or at very short notice” [R93, U/O Org], while another said that in their experience, advocacy workers “currently receive no information [relating to] the hearing” [R55, Adv Indiv].

Divergent views

Others were sceptical about the proposal to create a statutory obligation relating to information sharing for a range of reasons. For example, several respondents said that children in the hearings system should be given the opportunity to make decisions about the sharing of their own data and information relating to their case, while others raised concerns that this proposal might conflict with parts of the UNCRC or ECHR:

• “I feel that children and young people may have already had extremely traumatic experiences without making them share and re-live these experiences with someone they don’t know. I feel they will share with someone once they have built a relationship with them, and they begin to feel safe. Feeling safe enough to share something is extremely important, and even as adults we won’t share something with anyone we don’t feel comfortable with” [R09, PM Org].
• “The child should have some say in how much is shared and when. Including a statutory obligation may be more harmful in the circumstances where it the information has to be too widely shared” [R15, PM Indiv].
• “Wherever possible, a child should have the choice over who receives access to their personal information. Such a statutory obligation would be an infringement of the child’s rights to privacy under Article 16 of the UNCRC and Article 8 of the ECHR. Whilst we support the proposal that information about advocacy services should be shared with a child at an earlier stage in the process, sharing of information should only take place upon the child’s decision to use these services. The only exception to this would be in relation to child protection issues, for which there are already established systems in place” [R39, CH Org].

Others were concerned that sharing too much information with an advocacy worker would be counterproductive, unhelpful for the sake of representing the child and their views, or could compromise the advocate’s independence, for example: “Regarding information sharing, whilst independent advocates do not require all of the detailed information held by social services about a child or their family, we do require basic details about the child’s circumstances, any potential risks associated in working with the child or their family, and social work recommendations. Too much information could compromise the independence of the advocacy process, as we operate based on the child’s instructions rather than a “best interests” model. Therefore, we would have concerns if full disclosure of family details became mandatory, as this could undermine the integrity of independent advocacy” [R51, Adv Org].

Other comments

Other comments or concerns raised in response to this question included:

• The suggestion that advocates should automatically be assigned to all children.
• Ensuring families understand the support available to them in relation to attending a hearing.
• The importance of the child consenting to the sharing of their information, or, if the child lacks capacity, the consent of the parent.
• The benefits of advocacy workers highlighting children’s UNCRC rights during the hearings process.
• The potential for conflict between the child’s interests and those of their family, and the need of the notion that an advocacy worker should represent the child only, rather than having a wider representative function in relation to the child’s family.
• The need to balance effective information-sharing with the child’s right to privacy.
• Although this was not a recommendation of the Hearings for Children report, the Promise Scotland saw no harm in this change but welcomed further discussion.

Amplifying children’s voices throughout the process

Question 23: Do you support the creation of a statutory process, undertaken by the Children’s Reporter, to record the capturing of children’s views and participation preferences?

• 40% of respondents did not answer this question.
• Of those respondents who did answer this question, 79% said “Yes” and 21% said “No”.

Reasons in favour of a statutory process

Some young people were particularly supportive of this change. Across responses two themes were most apparent. The most commonly cited factor was that it is essential to gather the child’s views before the hearing so that this could inform decision making and approaches. This approach could increase accountability and consistency by evidencing and ensuring that every effort had been employed to do so and legislative requirements were being met. This approach aligns with the ethos of the Children’s Hearings System and children’s rights. The next key theme was that a clear, formalised process would be beneficial.

Reasons against

However, of those responses who did not support this approach, the main argument was that this approach would overcomplicate the formal process, bringing unnecessary bureaucracy, limit flexibility and risk delay.

The next most common reason was that this should not be the role or responsibility of the Reporter as they would have limited relationship with the child and contact with the child pre-hearing, as well as the questionable appropriateness of such a potential role in scrutinising the practice of other professionals in gathering children’s views. A number of respondents did, however, deem that the Reporter’s existing role is to gather information, with the power to make the necessary inquiries, and record how this was achieved, so arguably this is already part of that role.

Others commented that this would duplicate the existing role of social work in particular and there is already policy and legislation to require that the views of the child are central in any decision making: “Too complicated, yet another professional in the child’s life. Isn’t this the role of Social Work anyway?” [R3, Ind].

Various responses stated this was the responsibility of all agencies rather than one.

A number of respondents deemed this change to be unnecessary as existing approaches are sufficient and any enhancement could be made without legislation, with practice guidance, audit and quality assurance, as well as ensuring children’s views were really listened to, instead suggested.

Other comments

• Various respondents lacked clarity as to whether this suggestion meant the Reporter would now seek the views of children and their participation preferences or ensure that these views have been sought and record how this has been undertaken.
• There was debate over the role of advocacy in practice, including any additional, enhanced or bespoke offer as suggested in the consultation.
• Issues with the value and suitability of the “best interests” test and “appropriate participation” as outlined in the consultation.
• Resourcing concerns, both of any new demand on the Reporter, and professionals having the time and skills to gather and capture children’s views.
• Risk of (further) emotional harm or trauma to the child, through having to tell their story to yet another person.
• Gathering children’s views cannot be a one-off process.
• The need for alignment and consideration of how the recommendation of the Hearings for Children report will holistically be addressed and concerns that this proposal muddled the proposed future roles of the Reporter and the chair.

Before the hearing – provision of papers

Question 24: Should the timeframes for the provision of papers in advance of a children’s hearing to the child and relevant persons as set out in the 2013 Rules of Procedure be altered?

• 38% of respondents did not answer this question.
• Of those respondents who did answer this question, 72% said “Yes” and 28% said “No”.

Reasons in favour of altering timeframes

Where responses called for extension of timescales, the main argument was to provide children and families with enough time to read and understand paperwork, which can be substantial, lengthy and complex.

A further argument was the need for support to be made available to families before a hearing whether from trusted adults, advocates, or legal representatives and at the most basic level to ensure report writers discuss and support children and their families to understand the context of reports and recommendations. Young people in particular highlighted the importance of this but also that this could be affected by the availability of key supports and other demands on the child’s time: “A large number of young people shared their concerns about the over-reliance on sharing information in writing. The importance of being supported by a trusted adult to receive, understand, process and cope with the information contained, was mentioned repeatedly” [R97, YP Org].

A number of respondents highlighted that hearings are often delayed owing to issues with papers, particularly the insufficient time for families to read and discuss paperwork with legal representatives, which this change could address. Legal respondents highlighted some of the particular challenges: “…. We find that clients need time before their hearings: (i) to form a relationship with their legal representative (at least prior to the very first hearing) (ii) for their legal aid application to be processed (iii) have pertinent sections of the papers read aloud to them (iv) consider detailed legal advice and (v) arrive at an informed decision so they confirm their instructions to us. It is not always possible to achieve this within the current timescale” [R84, Leg Org].

Reasons against

For those who were not supportive of timescales being changed, the main argument was that processes should not be further delayed. Various respondents highlighted the emotional impact in advance of attending a hearing, which extending the timeframes for the provision of papers could compound. A further concern was the need for information and views contained within reports to be contemporary and reflect current circumstances, which could change rapidly.

The need for balance

Responses made clear the necessity of balance: “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” [R54, R Ind].

Divergent views on timeframes

Respondents typically either:

• Deemed that current timescales and checks, for example that papers have been read, are appropriate so no change is needed.
• Deemed timescales should be longer with views varying between this being to ensure all papers are received seven days before the hearing; 2 weeks; 3 weeks; or a month or more, with young people particularly viewing current timescales as too short.
• A more flexible approach should be adopted, with reports made available as soon as possible.
• That all timescales should be standardised, so all information is received at once.
• That timescales could be shorter.

Other comments

• The need for whatever timescale was adopted to be in working days.
• Papers must always be shared with families in advance, in a trauma informed, relational and inclusive manner, with the content of reports and recommendations fully explained, with variations in practice apparent in responses. Enshrining the right to meet with the report writer prior to the hearing and to challenge the factual accuracy of the report could support this approach.
• Quality assurance of reports to ensure accessibility and standards, including the relevance of information, that reports are concise, and have evidence-based recommendations.
• Ensuring practitioners have time to develop quality assessments, plans and reports, and engage families throughout this process to understand the information contained; noting that any shortening of timescales would have resource implications.
• Reporters having more authority to require papers to be provided; enforcement of existing requirements; and to determine which information and reports from previous hearings, such as safeguarded reports, are included in future paperwork.
• Enhanced use of technology such as electronic sharing of reports, weblinks or QR codes to see a video clip of the report writer explaining or summarising the information in the report and recommendations.
• Flexibility to provide updated or supplementary information right up until the hearing.
• For urgent or emergency measures, shorter timescales will remain necessary.

Question 25: Should the timeframes for the provision of papers to Children’s Panel members as set out in the 2013 Rules of Procedure be altered?

• 56% of respondents did not answer this question.
• Of those respondents who did answer this question, 60% said “Yes” and 40% said “No”.

Reasons in favour

Many respondents said that more time for panel members to prepare in advance of a hearing was essential for them to be able to make informed decisions, especially for particularly complex or sensitive cases:

• “Providing papers earlier would allow panel members to review them more thoroughly and be better prepared for the hearing” [R34, LA/SW Org].
• “[…] if panel members have sufficient time to read papers prior to the hearing, they will be in a better position to know and understand the details of the case and, consequently, arrive at a workable decision” [R48, R Indiv].
• “Again, some of our staff members have been panel members and they have recounted the large size of papers which they were meant to digest, many felt that there was too much information and questioned how relevant certain information was for them to know. They felt they didn’t have enough time to prepare: this key sentiment was the overriding feedback from staff who were Panel members. One staff member stated it’s the old adage… “If you fail to prepare then prepare to fail”. In this case that means failing children, it is heartbreaking” [R53, 3^rd S Org].
• “Yes, the current short window may not allow panel members enough time to thoroughly review complex and sensitive cases, which could impact decision making. By providing papers earlier, panel members would have more time to prepare, ensuring they are fully informed. This change could enhance the quality of the decision making process, aligning with The Promise’s focus on improving outcomes for children and families through informed, well-considered decisions” [R91, Leg Org].

Several respondents suggested all reports should be provided no later than seven days before the hearing.

Reasons against

By contrast, a sizeable minority of respondents thought that the current timeframe for provision of papers worked well. One respondent said, “We [panel members] have long enough to get to know the case but not so long that we get bogged down in it” [R02, PM Indiv], while another raised concerns that extending the timeframe could lead to delays.

The need for balance

Again, some respondents mentioned the importance of striking a balance between allowing panel members adequate time to prepare and ensuring that the information provided is reliable, relevant, 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” [R54, R Indiv].

Other comments

Other issues raised in response to this question:

• The possibility of adopting a flexible approach towards timescales.
• The issues relating to making highly time-sensitive demands of volunteers and the potential renumeration or payment of panel members.
• The stress experienced by panel members who may have to manage the emotions and frustrations of other attendees at a hearing without having a detailed enough understanding of a case themselves.
• The accessibility, accuracy, and relevance of information contained within reports.