Children's hearings redesign: consultation analysis

Grounds for referral and associated processes

Grounds of referral: concept and language

Question 26: Do you consider the current scheme of stating the grounds of referral sufficiently promotes the understanding of children and families as to why they are in the Children’s Hearings System?

• 53% of respondents did not answer this question.
• Of those respondents who did answer this question, 19% said “Yes” and 81% said “No”.

Issues with current approaches

A significant proportion of respondents cited that current language was confusing, outdated or overly legalistic, which was not conducive to supporting the understanding of children and families as to why they are in the Children’s Hearings System, nor their participation: “Grounds are very legal based in their language. It is not child friendly or accessible for many families” [R6, LA/SW Ind].

Some responses stated that the terminology of grounds for referral and statements of fact often focused on the concerns or negative parts of a child’s life, in contrast to wider developments in trauma informed practice and language in the Children’s Hearings System.

Linked to this was that current arrangements provoke trauma, defensiveness and set an adversarial tone for hearings from the outset. This could prolong legal processes as grounds are denied, even though they could have been accepted if they had been better understood.

A small number of respondents deemed that change was unnecessary as panel members and chairs adequately explain grounds for referral, although not all respondents agreed with this. Other respondents stated change was undesirable as grounds and supporting statements have stood the test of time, including having undergone judicial analysis.

The need for balance

A number of respondents stated that there would always need to be a balance between promoting understanding and respecting the legal status of the hearing. The stating of grounds is “the principle legal basis for decision making by the Children’s Hearings System”, as detailed in the consultation, and the current approach is necessary to justify state interference thereby respecting rights of the child and their family. This purpose means some degree of legal language and formality would be unavoidable:

“The justification for state intervention into the lives of families must be clearly stated in unambiguous legal terms which are capable of rebuttal from a legal perspective” [R45, Adv Org].

Other respondents cited that disagreement, and strong emotions were unavoidable given that the focus of the hearing was that concerns for the child were to such a degree that state intervention may be necessary: “To put it bluntly, a spade does not cease to be a spade merely because one refers to it as a digging implement” [R75, L Org].

Other comments

Other points included:

• More accessible, rights-based, child-centred language was suggested by some as an alternative approach.
• Practice developments such as a cover letter explaining the process and responsibilities would be useful.
• Children and their families need more consistent information and support to better understand the grounds, the detail behind these and process as part of preparation.
• The long-term implications of accepting grounds, particularly offence grounds, that were not understood was particularly cited.

Question 27: Do you agree that there should be changes to the current approach to grounds of referral?

• 37% of respondents did not answer this question.
• Of those respondents who did answer this question, 86% said “Yes” and 14% said “No”.

Reasons in favour of changes to the approach to grounds of referral

Issues with existing approaches to grounds referrals were highlighted. These included that current approaches were not always productive, effective or efficient, resulting in additional process for families, delays, numerous hearings, and interim measures whilst grounds were established. A significant proportion of respondents suggested that the language and drafting of grounds should be changed, including many responses from young people who cited negative experiences of this.

Suggestions for change

Suggestions for change included that grounds were expressed in a “clearer”, “accessible”, “rights-based”, “trauma-informed”, “softer” way, this was “less adversarial”, “less accusatory” and “more balanced”: “…This should seek to acknowledge the harm caused, and the concerns relating to the child, but also capture that this may not be intentional. There is an important balance to be struck here as it must also be recognised where the parents are responsible, and where they have neglected their child’s rights and not fulfilled their parental responsibilities, but this should be done in a less adversarial way” [R56, O/U Org].

The process of grounds for referral was commented on in fewer responses. Although a small number of respondents highlighted the importance of those who were affected or involved having the opportunity to participate, alternative suggestions included:

• Grounds being able to be accepted by children and their families without the need for attendance at court as far as possible.
• Grounds going direct to the Sheriff for proof.
• Grounds being established ahead of the first hearing.
• Children and parents being asked separately whether they accept grounds.
• Reduction in the number of grounds.

For many respondents however this again was more an issue of practice and the need for families to gain better support to understand the process, with some stating significant change was not required.

Other comments

• The statement of facts is often the part families had greater issue with than the grounds per se.
• The conflation of the purpose and responsibilities in respect of grounds: “I fear that too much weight is being attached to the grounds of referral. The grounds are the gateway into the hearing system, the legal justification for state intervention. But they are no more than that and they are not the best place to map the Reporter’s concerns about the child with the outcomes sought…. The Reporter, drawing up grounds, expresses concerns; the hearing, taking account of the grounds and much more besides, responds to these concerns” [R29, Leg Ind].

Question 28: Do you agree with the proposal to set grounds positively as a range of wellbeing-orientated entitlements, before clarifying how the child’s experience or conduct falls short of expectations - to the point that compulsory care is needed?

• 43% of respondents did not answer this question.
• Of those respondents who did answer this question, 73% said “Yes” and 27% said “No”.

This was a further question where quantitative and qualitative responses could contradict each other or where yes/no responses were heavily caveated. In addition, a number of respondents who did not answer the first part of the question did provide views in the narrative. Young people were particularly supportive of this change, although some legal respondents expressed particular concerns.

Reasons in favour of changes to grounds

A high number of responses identified that there would be benefits in modernising and making more accessible and child-friendly the language of grounds, moving to a less accusatory and reductive approach, that adopted a more needs-focused, strengths-based, positive (or at least balanced), rights-based approach. Some of these respondents agreed that the proposed approach could achieve this and that this could bring further benefits of supporting the engagement of families, although other respondents disagreed and cited that a greater, often complex, range of reasons contribute to engagement challenges. However, not everyone who agreed these benefits were needed agreed that this could be achieved through the proposed changes.

A sizeable number of respondents agreed that the alignment of grounds to the wellbeing indicators would be clearer and could more appropriately articulate the child’s experiences, the impact on their needs of their circumstances, and what was expected for the child within a more consistent and well-known framework. Some respondents argued children, their families and other professionals would be more familiar with the statutory wellbeing indicators given their use within assessments, decision making frameworks, child’s plans and review processes such as child protection and those for looked after children, affording a more joined up approach.

Reasons against

However, a similar number of respondents to those who were supportive of these changes, provided a counter view that the proposed changes would make grounds more ambiguous, the wellbeing indicators are what we want for every child and are not specific or precise enough to adequately reflect the serious reasons and specific concerns that have led to the child coming to the attention of the hearing system.

Respondents raised a high level of concern that these changes could result in increased confusion for children, their families and other professionals, and present a false representation of either the concerns or seriousness of referral to the Children’s Reporter, which could result in greater disengagement.

Other concerns included:

• The potentially insufficient coverage of some of the existing grounds by the wellbeing indicators, and that through having to include a threshold for all grounds by linking to the wellbeing indicators, some of the existing grounds where impact does not require to be proven would be significantly weakened. Domestic abuse was cited as an example
• Potential for inconsistent decision making owing to the greater scope for interpretation within such grounds, which could result in the unlawful interference in family life, and subsequently increased legal challenge and appeals, in the context of a loss of existing case law
• Lack of understanding within these proposals in the distinction between the purpose of the wellbeing indicators and the purpose of the statement of grounds, and the establishment of grounds and other stages of the children’s hearings process: “Grounds, on the other hand, need to be specific and set clear thresholds for intervention. SHANARRI was never designed to do that. The proposals show a misunderstanding of the purpose of the statement of grounds and the role of the children’s hearing” [R69, CH Org].

Other comments

A small number of respondents questioned if children, families and professionals really understood GIRFEC as well as was being suggested. It was stated that children and their families would still need support to understand grounds and participate in associated processes, highlighting that the implications such as accepting grounds that were not understood could be significant, with changes to language cited by some respondents as not enough on its own.

A small number argued that rather than wellbeing-orientated entitlements, children’s rights and UNCRC alignment should be the focus: “…We strongly oppose rewriting the grounds of referral to match the SHANARRI indicators. We see no compelling argument in favour. GIRFEC, (and SHANARRI) was designed as a policy framework not a legal one. Given the judgement of the UK Supreme Court in the Christian Institute case, there may be a risk of another legal challenge, creating unnecessary and unjustified delay…. If grounds are to be changed then they should be rights-based, not wellbeing-based” [R74, O/U Org].

As with other questions, a number of responses deemed further information, consideration and understanding of how this could work in practice was needed.

Question 29: If a new scheme of grounds based on unmet expectations around wellbeing indicators were to be introduced, are any safeguards needed (statutory or operational)?

• 65% of respondents did not answer this question.
• Of those respondents who did answer this question, 89% said “Yes” and 11% said “No”.

Common and divergent views

A small number of respondents either advised existing safeguards were sufficient or that with so much uncertainty and lack of detail about this proposed change, it was almost impossible to say at this stage and more detail or consideration would be required. A similar number of respondents stated that statutory safeguards could promote accountability, consistency of thresholds and universal application, particularly in the context of resource challenges, with others stating efforts should be made to mitigate the loss of existing case law.

Suggested safeguards

The most commonly cited safeguard was the need for language to be clear and specific to ensure this adequately captured the child’s rights, (unmet) needs and requirement for statutory intervention with some stating terms should be defined in legislation: “…It’s crucial that any well-being-based grounds still meet the legal threshold for a compulsory order. This means the language must remain clear enough to establish grounds for legal action when necessary...Clear statutory guidance is needed to ensure that grounds are well understood, not just by families but also by legal professionals, and that they do not slow down proceedings” [R34, LA/SW Org].

The need for all concerns to be able to be captured by any change to the scheme of grounds was a further identified safeguard, with some respondents expressing concern as to whether the proposed approach could do so, with areas suggested as requiring further consideration gender-based violence and other behaviours that could cause harm to others.

Support for children to understand grounds, including the implications of accepting grounds, was highlighted by a small number of participants, particularly where there were language, developmental, neurodiversity, or cultural needs. Existing supports such as advocacy, safeguarders, speech and language therapists, and legal advice/representation were highlighted.

A sizeable number of respondents stated guidance, and training for Reporters, social workers, and legal professionals would be necessary. Ensuring all involved in the process were domestic abuse competent and could apply a culturally competent lens were further safeguards highlighted by individual respondents:

“…New and existing safeguards should acknowledge that language and cultural differences may be barriers to understanding or a source of bias... Using a culturally competent lens may also minimise the risk that new “well-being expectations” grounds of referral might fail to capture specificity” [R32, 3^rd Org].

In addition, it was suggested that given that the wellbeing indicators could be more open to interpretation, review processes and “checks and balances” to promote a consistent approach to drafting, amending and establishing grounds could be a further safeguard.

Children’s views within the Reporter investigation and decision making – a post-referral discussion

Question 30: Do you support the introduction of the offer of a post-referral discussion between the Children’s Reporter and the child and family?

• 37% of respondents did not answer this question.
• Of those respondents who did answer this question, 75% said “Yes” and 25% said “No”.

Who else, if anyone should attend a post-referral discussion?

Overall, respondents were supportive of the idea of a post-referral discussion, but there was little agreement as to how or with whom the discussion should be conducted. Some respondents supported the idea of a post-referral discussion between the Reporter, the child, and their family, with young people particularly supportive: “A Reporter is well qualified to have the discussion and to make the child and family feel comfortable and informed before the hearing” [R08, PM Indiv].

However, the range of answers reflected some confusion among respondents about which “referral” referred to in the question – as one respondent commented: “…There are two referrals at issue which need to be clearly separated: the referral of the child to the Reporter for investigation, and the referral of the child BY the Reporter to the hearing” [R29, Leg Indiv].

There was also disagreement among respondents about whether or not legislative change was needed to make improvements in this area.

Reasons in favour

Those who agreed with the introduction of a post-referral discussion cited several reasons in favour of this proposal:

• It could reduce the stress experienced by the child and their family and enhance their understanding of the process.
• It would give families the opportunity to make their voices heard earlier in the process.
• It could help to engage children and families in the process and make them feel more involved.
• It would improve communication between formal bodies (such as the hearings system) and children and families.

Many respondents suggested that an advocacy worker or a social worker should attend a post-referral discussion. It was also repeatedly suggested that a post-referral discussion should be optional, and that the child should be able to decide whether they want this discussion to happen and who should attend. Some respondents supported the idea of a post-referral discussion, but did not agree that the Reporter was the appropriate person to host this discussion, suggesting that a social worker or an advocacy worker may be better suited to this role instead.

Reasons against

A significant proportion of respondents did not support the proposal: some agreed with the principle but disagreed that statutory change was necessary in order to implement the proposal, while others disagreed with the idea of a post-referral discussion entirely. Those who disagreed with the proposal gave a range of reasons for doing so, including:

• It would add an unnecessary stage to an already lengthy and complex process for children and families.
• It would require significant additional resources.
• It could cause confusion in terms of the roles and remit of different figures within the hearings system.
• The Reporter may be unequipped to deal with the strong emotions that could be present in such a meeting or feel pressured or intimidated by family members.
• It could blur the boundaries between the investigation and decision making functions of the hearings system.
• It could compromise the Reporter’s independence by introducing an opportunity for bias, whether positive or negative.
• It could put pressure on a child to “tell their story” again to another adult.
• It could slow down the process and cause delays.

Establishing grounds of referral

Question 31: What would be the advantages and disadvantages of passing the fact-finding function from Sheriffs to a new cohort of legal members within the redesigned Children’s Hearings System?

Some respondents deemed the passing of the fact-finding function from Sheriffs to a new cohort of legal members to be unnecessary, stating that existing arrangements should be retained, while others said that there was not enough detail in the proposal to be able to give a fully informed answer. In some cases, different respondents saw the same possible consequence of implementing the proposal as either an advantage or a disadvantage. It was also noted that that the concept of fact-finding hearings or legal members did not come up in the work of the Hearings System Working Group. Respondents working in or associated with the legal sector were particularly critical of this proposal and raised multiple concerns.

Advantages

Cited advantages included:

• Legal members might be better trained and have more specialist experience, knowledge, and understanding of the hearings system and associated issues compared to a Sheriff.
• It would ensure better continuity and consistency (in terms of decision making and in terms of legal members” participation throughout the duration of a hearing).
• It could reduce adverse impact on children and families by avoiding the intimidating environment of a court setting.
• It could reduce uncertainty for children and families in advance of a hearing.
• It would streamline, speed up, or simplify the overall process.
• It would circumvent existing problems relating to Sheriffs’ availability and capacity.
• It could lead to savings in resources, both in terms of time and overall cost.
• There would be legal and procedural advantages, particularly in terms of the separation between the legal establishment of grounds and decision making by panel members.

Disadvantages

By contrast, the following disadvantages were highlighted:

• It would add unnecessary complexity without addressing any of the more fundamental issues with the current hearings system.
• It could blur the lines between the establishment of facts and other decisions made in relation to the child’s best interests, jeopardising the intended inquisitorial nature system.
• Legal members may not be suitably qualified or have the necessary skills and expertise in comparison to a Sheriff.
• It would create additional unnecessary paperwork and bureaucracy.
• The proposal does not align with the Hearings for Children report’s recommendations.
• It could lead to issues of consistency.
• If the legal member is technically part of SCRA or the CHS, it could compromise levels of independence, impartiality, and accountability.
• It risks eroding the parties’ right to a fair hearing and ability to properly test evidence in court, potential loss of judicial oversight.
• Less formality may have the negative effect of people not taking the process as seriously.
• The loss of years of experience and expertise on the part of Sheriffs, with no guarantee that a legal member would fulfil the role more effectively.
• Resourcing issues could be more expensive (especially in relation to the recruitment and training of legal members), and there are no obvious cost savings.
• It could create more confusion for children, families, and professionals in relation to the different roles and status of figures within the hearings system.
• It is unclear where a legal member’s authority would derive from, and whether legal members would be “judicial office holders”.
• It is unclear whether a legal member would be able to refer complex cases to a Sheriff, and what the procedural rules for this might be.

Question 32: Do you consider that this proposal fulfils the intention of the recommendation from the Hearings for Children report that there should be a consistent specialist Sheriff throughout the process?

• 57% of respondents did not answer this question.
• Of those respondents who did answer this question, 41% said “Yes” and 59% said “No”.

Reasons cited in disagreement

Most respondents did not agree that the proposal to pass the fact-finding function from Sheriffs to a new cohort of legal members fulfilled the recommendations of the Hearings for Children report. Several mentioned that they would prefer to see specialist Sheriffs instead, as suggested in the report. Having a consistent legal figure (whether this be a specialist Sheriff or a specialist legal member) throughout the process was also frequently mentioned as an important consideration:

• “We do not consider this proposal to fulfil the recommendation as set out. There is a lack of clarity on the expertise of the legal officer who will not be trained or as qualified as a Sheriff” [R67, 3^rd S Org].
• “Changes which improve expertise (e.g. via training or specialism) within the existing system are welcomed. However, we do not consider this recommendation bears any relation to the recommendation in the Hearings for Children report for specialist Sheriffs. We are concerned that this is an example of a change that may be driven by the challenging economics of implementing the recommendations of the Hearings for Children report. This proposal is, in our view, the worst of both worlds. To the extent there is a perception of a potential advantage by way of expedition (and we are not clear that would follow), this would inevitably come at the cost of fairness and robustness of fact finding. Continuity of decision maker, for the purpose of fact finding, can and is already be achieved at Sheriff court level via allocation of Sheriff and case management” [R72, Leg Org].
• “The proposal of a Legal Member and Fact Finding Hearings was not a suggestion or idea that emerged from the Collaborative Redesign Process undertaken throughout the lifespan of the Hearings System Working Group. At no point did the Group hear of any concerns about the decision making of the Sheriff or about the quality of decisions the Sheriff was making. Instead, the point was consistently made [by] children, families and members of the workforce that the people making life changing decisions about children should be consistent wherever possible. The recommendation in “Hearings for Children” was that the Sheriff should be consistent (recommendation 5.2.2) - not that there should be a new decision maker” [R93, O/U Org].

Some thought that the proposal partially fulfilled the recommendation from the Hearings for Children report, but still had some reservations – especially concerning legal members’ independence and judicial authority in comparison to a Sheriff. A significant number of respondents commented that they felt they could not agree with the proposal about introducing legal members, on the basis that it did not contain enough detail or clarity.

Other comments

Other concerns raised included:

• How the needs of infants and babies would be taken into consideration.
• That the creation of a “legal member” role could add unnecessary confusion and complexity into the system.
• That removing Sheriffs from this part of the hearings system process: “would reduce their exposure to cases involving domestic abuse and the learning they could glean from such cases, which could be useful in other civil and criminal proceedings” [R33, U/O Indiv].

Question 33: Do you have any views on the proposed retention of the appeal arrangements within a redesigned Children’s Hearings System?

• 64% of respondents did not answer this question.
• Of those respondents who did answer this question, 84% said “Yes” and 16% said “No”.

Reasons in favour of the retention of appeal arrangements

Many respondents said they strongly supported the retention of appeal rights as important safeguards and in recognition of Article 6 of the ECHR. Some said that retaining the right of appeal was particularly important when significant legislative changes are made. The role and importance of legal precedent in providing additional clarity and definition was also highlighted:

• “The appeal arrangements will continue to be important in relation to the level of legal scrutiny over decision making and to ensure children and carers continue to have that protection” [R61, LA/SW Org].
• “In any tribunal system there needs to be an appeal to an independent body and in the case of a children’s hearing, this is the Sheriff. We believe that appeals should be heard by the Sheriff if grounds cannot be agreed with the legal member” [R96, LA/SW Org].
• “This is generally a positive aspect and would ensure that children, families, and relevant persons maintain their right to challenge decisions, which is crucial for protecting rights under UNCRC and The Promise. There may be concerns about whether the process remains accessible and understandable for families. Streamlining and making the appeal process more user-friendly, without compromising judicial oversight, could improve fairness and engagement within the system” [R91, Leg Org].

Reasons against

However, concerns were raised about whether the proposed changes could unhelpfully lead to an increase in appeals to the Sheriff or to the Court of Session, creating significant additional demand on the system and its resources. Some pointed out that while in theory, the proposal should place a lesser burden on the courts, they were concerned that in practice, an appeal power may be abused or tested – meaning that the rationale and grounds for an appeal would need to be tightly drafted to minimise appeals:

• “If there are questions regarding the independence of the legal member and the appropriate level of scrutiny being applied to the process of establishing ground, this could result in an increased number of appeals. Therefore, it is possible that this new process would not avoid the delays of the Sheriff courts [as] the number of appeals increases” [R35, LA/SW Org].
• “An appeal mechanism would be essential from the decision of the legal member, and having the first instance appeal to the Sheriff Court would be sensible. It is foreseeable that there would be more appeals from the decision of the legal member than we have currently from the Sheriff’s decision to establish grounds” [R54, R Indiv].

Other concerns and suggestions raised in response to this question included:

• Whether the proposed changes may add unnecessary complication and bureaucracy to an already complex and confusing system for children and families: “The added bureaucracy of children and families” lives being moved in discussion from the Reporter to a Legal Member to the Sheriff and then to a Chair is overwhelmingly complex and confusing” [R93, U/O Org].
• Whether it would be appropriate for a Sheriff to make decisions about appeals if they have not been involved throughout the process.
• The importance of using clear and accessible language so that children and families can ask questions about legal representation and other legal issues.
• That the timeframe for children and families to appeal a decision is not long enough for them to fully understand the decision and to consider whether to appeal.
• If the proposed changes go ahead, whether it might be appropriate for another legal member to hear appeals instead of a Sheriff.
• The need for more clarity and detail was particularly highlighted by legal/law related respondents.

Question 34: Other than a legal member or Sheriff is there another person or body who could:

• present statement of grounds to the child and family and receive responses?
• make interim orders?

15 respondents agreed that someone other than a legal member or Sheriff could present the statement of grounds to the child and family and receive responses. Just eight respondents indicated that they thought someone other than a legal member or Sheriff should be able to make interim orders.

Reasons against another person or body fulfilling these roles

Most respondents who answered this question said that they did not think that the task of presenting the statement of grounds and receiving responses, or making interim orders, should or could be done by anyone other than a legal member or Sheriff, citing the difficulty of the role, the need to retain strong safeguards in the context of serious interventions in a child’s life, and the skills and experience necessary to be able to fulfil this function:

• “I can’t think of anyone else suited to this complex role” [R19, LA/SW Org].
• “The Sheriff is the tried, tested and trusted expert at present and the status quo should remain in this area” [R25, CH Indiv].
• “The significance of interim orders on the child and their family must be carried by a Sheriff or other legal member to retain safeguards. Interventions in the life of a child or family must be authorised at the highest level to safeguard rights and ensure due process” [R49, 3^rd S Org].
• “I don’t think [that another person could fulfil these functions] - to ensure objectivity, independence and the level of scrutiny required. Any other professional involved would not have the required independence and adding yet another party into the process would not be in the best interests of the child or family” [R61, LA/SW Org].

Other suggestions

A number of respondents suggested that the statement of grounds could be presented by the Reporter, while others suggested that panel members, or someone close to the child (such as a teacher, social worker, or other professional), could potentially fulfil this function:

• “Given the Reporter’s prominent role in the creation of grounds of referral, and their knowledge and understanding of the circumstances of the child and family, there is a possibility that the Reporter might be able to present grounds of referral and receive responses. This might facilitate grounds to be presented in a more child and family-friendly manner by the Reporter and may also speed up the procedure. This is not without risks, however, particularly in relation to the perception of fairness and free acceptance (or denial) by children and parents, due to the role that the Reporter has in establishing grounds at court if they are denied. It would be important to ensure that children and families have easy and fast access to legal representation” [R99, U/O Org].
• “Maybe a panel member, (a chairing member), could present the statement of grounds to the family prior to the hearing date, and this would give them an understanding of what to expect at their hearing. This would mean that the grounds could either be accepted at this time or sent to the Sheriff. Depending on the seriousness of the grounds, a decision could be made at this time whether an urgent panel was needed to make an interim order, or if this could wait until a Sheriff had made their decision” [R09, PM Org].

However, it was acknowledged that this would require additional specialist training and the introduction of legal and procedural safeguards.

Other comments

Respondents also raised concerns or offered ideas relating to:

• The importance of interpersonal and communication skills in presenting the statement of grounds to the child and family.
• Making the process of presenting the statement of grounds and receiving a response more accessible both for children and for other relevant persons.
• Whether the question takes account of the relevant recommendation of the Hearings for Children report.
• The importance of retaining the separation between issues of disputed fact and decisions made in the best interests of the child.

Fact finding hearings

Question 35: What would be the advantages and disadvantages to replacing grounds hearings with a fact finding hearing where the process would be undertaken by a single “legal member”?

Respondents listed a range of potential advantages and disadvantages in response to this question; several respondents, however, said they could not see any advantages to the proposal. Some said they did not fully understand the question, or that they did not have enough information about the proposed “legal member” role to be able to answer properly, while others simply answered by referring to a previous response or set of responses. Some respondents did not agree with the idea of introducing a “legal member” and used this space to reiterate their reasons for rejecting the proposed introduction of the role altogether. Those in the legal sector highlighted particular concerns with this suggestion.

Advantages

Suggested advantages of replacing grounds hearings with a fact-finding hearing where the process would be undertaken by a single “legal member”:

• Avoidance of a court-like and intimidating environment for children and families, allowing for the development of child-friendly approaches and potentially alleviating anxiety and reducing the risk of re-traumatisation.
• Consistency of decision making and consistency for families in terms of who they engage with throughout the process.
• Would create a faster, more streamlined, and more efficient process.
• Proceedings would not be reliant on the availability of Sheriff court time.
• Could reduce the number of hearings for children and families.

Disadvantages

Suggested disadvantages of replacing grounds hearings with a fact-finding hearing where the process would be undertaken by a single “legal member”:

• Additional cost of recruiting, training, monitoring, and supporting legal members; paying legal members; potential impact on other agencies.
• It is unclear what would happen in cases in which the facts are disputed.
• It would be a serious and emotionally taxing responsibility for one legal member to take on, which may have a negative impact on their wellbeing and stress levels and, therefore, on how long someone would likely remain in the role.
• Could result in the loss of a necessary sense of formality signified by the existing formal setting of the rounds hearing.
• Loss of valuable experience and skills of professionals within the system (e.g., Sheriffs).
• It would not be appropriate for just one person to undertake this function: concerns relating to independence, bias, lack of judicial oversight and authority, and the child’s right to a fair hearing.
• Increased inefficiency by adding unnecessary layer of complexity to the system, complex legal bureaucracy and slow the process down and cause delays.
• The proposal does not align with the recommendations of the Hearings for Children report.

Question 36: Is it proportionate and necessary for there to be a fact finding hearing in every case?

• 63% of respondents did not answer this question.
• Of those respondents who did answer this question, 39% said “Yes” and 61% said “No”.

Babies, infants, very young children and the grounds of referral

Question 37: In order to safeguard the interests of very young children, should the legal member or Sheriff have discretion to convene a fact finding hearing, even if all relevant persons accept the statement of grounds?

• 51% of respondents did not answer this question.
• Of those respondents who did answer this question, 61% said “Yes” and 39 % said “No”.

Some respondents, especially young people, said they did not understand the proposal, while other said there was insufficient detail given to be able to answer in a fully informed way.

Reasons in favour the legal member or Sheriff having discretion to convene a fact-finding hearing

Many respondents supported the proposal that a legal member or Sheriff should have the power to convene a fact-finding hearing on a discretionary basis, even if all relevant persons accept the statement of grounds, in order to safeguard the interests of very young children. Some pointed out that the new evidence or information may arise even when grounds have been universally accepted and thought that a find-finding hearing could be an effective way to ensure that the best interests of the child are prioritised. Many respondents also highlighted the importance of the element of discretion in relation to this proposal:

• “This discretion would help ensure that if a very young child’s individual needs and circumstances required the additional safeguard of a fact finding hearing being convened this is an option. This is likely to not be required in many of the cases however it is important to have this as an option” [R43, LA/SW Org].
• “We support the power of the Sheriff to convene a fact finding hearing at their discretion, to safeguard the interests of very young children. As per our previous answers, more detail must be provided on who the legal members might be, what their powers and training are, and how they operate in conjunction with a Sheriff” [R49, 3^rd S Org].
• “Yes, a fact finding Hearing could be of use in ascertaining the views of a very young child, as is their right under UNCRC. There may be non-verbal evidence which this process can highlight – such as observations and documentations of behaviours from professionals and interactions with key persons and recent developments which have been recorded” [R56, U/O Org].
• “Yes, in such cases, acceptance of grounds may not fully reflect the complexities of the child’s situation or potential risks. This discretion would ensure a thorough examination of the facts, prioritising the child’s safety and wellbeing, aligning with The Promise and UNCRC principles” [R91, Leg Org].
• “Sometimes parents will agree to things they don’t fully understand or because they feel they have to or it will be seen as being obstructive and might result in their children being removed from their care. It is critical to consider the power differential here and more so when a child through age or disability is unable to fully articulate their views. Allowing for discretion should ensure that the rights of those most vulnerable children are fully upheld by the option of an objective perspective on the grounds” [R61, LA/SW Org].

Other comments

Though the majority of respondents who answered this question supported the proposal, a number of further considerations were raised, including the importance of going beyond an age-based approach to consider children with profound speech, language, and communication challenges, developmental delays, or learning disabilities:

• “Providing the legal member or Sheriff with this level of discretion may provide an extra layer of protection to the interests of very young children. However, if parents have accepted grounds, a fact finding hearing would involve another possibly difficult process for parents” [R66, LA/SW Org].
• “However, given babies and young children’s rapid developmental timescales, we emphasise the need to ensure this process is undertaken swiftly to avoid delay to an infant reaching a settled resolution” [R68, 3^rd S Org].
• “This proposal suggests that the Sheriff (or legal member) should have discretion to convene a fact finding hearing, even if all relevant persons accept the statement of grounds. It is unclear how often this may occur, but if there is an increase in the hearings there may an impact on court programming and SCTS resources. This could result in delays to other court business and impact on waiting periods” [R70, Leg Org].

Reasons against

Those who disagreed with the proposal gave a variety of reasons for doing so, including:

• Convening a fact-finding hearing would introduce additional layers of complexity and bureaucracy, leading to delay within the system which would be particularly harmful for young children and babies in relation to their development and wellbeing.
• It is unlikely that convening a fact-finding hearing would improve decision making.
• It is simply not necessary to convene a fact-finding hearing if the statement of grounds has been accepted; doing so would not provide any obvious benefit for very young children.

Question 38: Do you have any other views about how the youngest children should be supported in this part of the process to establish grounds of referral?

Respondents suggested a range of ideas as to how young children could be supported. The importance of supporting very young children and infants to share their views in a way that is appropriate for the child’s age and stage was mentioned frequently. Many respondents also advocated the appointment of a safeguarder and/or an independent advocate for very young children. It was also suggested that supporting young children in the process of establishment of grounds could be done:

• Through a speech, language, and communication assessment.
• By having an advocate or “familiar person” gather the child’s views and observe their behaviours.
• Using words and pictures as and other creative, child-centred methods as a tool to understand children’s views.
• By hearing “testimony from a child development specialist who can interpret the child’s non-verbal cues and developmental needs” [R91, Leg Org].
• Through multi-agency assessments to provide a fuller picture of the child’s overall wellbeing.

Reasons against

Some respondents answered that there was no reason to alter current arrangements, while others said that it was not necessary to attempt to solicit the “views” of babies or infants: “The youngest children do not need to [participate], instead they ne[e]d decision makers to ensure they are safe, and their needs are being met” [R99, U/O Org].

Other comments

Other issues raised in response to this question included:

• The importance of trauma awareness and training for professionals, especially panel members, and the need for legal representatives to understand the needs of babies and infants in relation to developmental milestones and timescales.
• The need to take account of an infant’s full lived experience and hear from a range of practitioners involved in an infant’s life during the fact finding process.
• How grounds are recorded and how a child might be able to access this record for future reference.
• How to ensure that appropriate persons with the best understanding of a baby or infant, particularly health visitors, can provide evidence.
• The emotional stress often caused to infants and families by the grounds process.

Statutory time limits for establishing grounds of referral

Question 39: A period of three months has been suggested as a time limit for triggering a review where an application to determine grounds of referral has not been dealt with. Please give us your views.

Reasons in favour

Many respondents said they agreed with the suggested three-month limit:

• “Given that children’s circumstances can change very rapidly, and perhaps especially if their situation is unstable, this seems a sensible suggestion” [R29, Leg Indiv].
• “We would support this. Some of our members have waited 18 months before matters were at a Grounds Hearing. These impacted their relationship with their children, especially if children are in care, but the constant reviewing of the ICSO takes a toll on families - at times, there needs to be appeals. It is a very resource-intensive system that does not deliver outcomes. […] 3 monthly reviews could alleviate some of the problems in complex cases” [R46, Adv Org].
• “I think this is reasonable - it’s unfair to expect a family to wait any longer than this and the reasons for the delay need to be understood and addressed” [R61, LA/SW Org]
• “This seems reasonable as it would balance efficiency with fairness and prevent unnecessary delays whilst ensuring enough time for the necessary investigations and discussions. This timeframe would protect the child’s rights and avoid prolonged uncertainty. Some flexibility may be required in complex cases to allow for thorough fact finding” [R91, Leg Org].

Divergent views

Some respondents said that three months seemed too long, especially for small children and babies; others said that three months might be too short, given the amount of work to be done. Several respondents called for a degree of flexibility and variability depending on the complexity of the individual case in question. Some respondents wholly disagreed with the idea of introducing a time limit or deadline: “having a hard deadline of the kind proposed might result in cases which are not completed in that period being re-raised from new […] [resulting] in a less efficient process [which] could not be said to meet the goal of being child-centred” [R63, Leg Org].

Other comments

Other issues raised in response to this question included:

• The need to address structural and systemic delays within the court system, with the detrimental impact of delays in establishing grounds for children and their families highlighted.
• Better and more proactive case management.
• Whether the proposed three-month review would also have the power to progress the case and to make decisions.
• The lack of detail in the consultation about the review, and what could happen as a result of the review.
• Particular concerns were raised by legal/law related responses that warrant further consideration.

Question 40: Do you support a defined time period for triggering a review of the progress of the case? If you support defining a time period, but not the suggested three months, should another time period be considered?

• 54% of respondents did not answer this question.
• Of those respondents who did answer this question, 89% said “Yes” and 11% said “No”.

Divergent views

Many respondents reported that they were in favour of the proposed three-month period and commented that this time period seemed reasonable and appropriate. Others, however, said that three months was too long or too short. One respondent said that in their experience, the action points agreed based on the decision of a hearing are often not carried out within the timescale set, and therefore suggested that in cases like these, “…[there should] be a quicker mechanism based on necessity to bring the case back to the hearing and not have to wait for a full three months to do this” [R48, R Indiv]. Young people who responded to this proposal had mixed views.

Some respondents supported the introduction of a timeframe, but did not necessarily agree that three months was the most appropriate length, and some thought that three months should be set as an upper limit only, rather than a general timeframe. Apart from the proposed three months, the other most frequently suggested timeframes were:

• six months (for more complex situations).
• between three and six months depending on the circumstances.
• two months.
• six weeks.
• one month.

It was also suggested that the time limit should be flexible and dependent on the case in terms of urgency, complexity, or unavoidable day (such as illness), with the option to defer a review for an additional month in these circumstances.

Reasons against

Several respondents did not agree with the proposal to set a defined time period for triggering a review of the progress of a case:

• “Whilst avoiding delay is an important, and well-understood, principle, there are already existing safeguards in place by means of Sheriffs” case management powers and duties. A time limit of 3 months is arbitrary. The cases where that is unlikely to be capable to being met are those with particular legal or factual complexity (e.g. cases of non-accidental injury, sexual offences, or other serious criminal offending). The investigation and pre-proof procedure in those cases will be much more complex and time-consuming. To the extent they involve “avoidable” delay, that will often be attributable to resource issues in terms of court availability, legal aid funding, and availability of Solicitors/Counsel (all of which are tied to the limitations of available funding)” [R72, Leg Org].
• “We acknowledge the aim to make the process of establishing grounds more efficient. However, we consider that having a hard deadline of the kind proposed might result in cases which are not completed in that period being re-raised from new. That would result in a less efficient process and could not be said to meet the goal of being child-centred” [R63, Leg Org].

Other comments

Further issues raised in response to this question included:

• Whether the review would have the ability to address the obstacles or problems that are causing difficulties.
• The significance of three months in the life of a child compared to that of an adult.
• That introducing a statutory time period within which grounds must be established would underline Scotland’s commitment to the UNCRC “giving establishing of “grounds” a similar status an importance to criminal proceedings for adults” [R40, LA/SW Org].
• The risk that providing for a defined review period could lead to unnecessary court hearings.
• The importance of timely decision making as part of a rights-based process.
• Questioned whether this addressed the concerns raised in the Hearings for Children report.

Potential involvement of safeguarded in grounds establishment proceedings

Question 41: Do you agree that there should be earlier consideration of the appointment of a safeguarder in a redesigned system?

• 58% of respondents did not answer this question.
• Of those respondents who did answer this question, 56% said “Yes” and 44% said “No”.

Responses to this question ranged from strongly in favour of considering the appointment of a safeguarder at an earlier stage in the process to strongly opposing this proposal. Several respondents argued that the existing system already allows for the appointment of a safeguarder at an earlier stage in the process, and therefore that the system did not need to be changed in order to encourage this.

Reasons in favour of the earlier consideration of a safeguarder

Those who were in favour of appointing a safeguarder at an earlier stage gave a variety of reasons for their answer. Some said it was extremely important that a safeguarder be appointed as early as possible because when a safeguarder is requested later in the process, proceedings are often delayed or deferred, which can be frustrating and upsetting for children and families. Others said that establishing a relationship between the safeguarder and the child earlier in the process, especially in complex circumstances, could prevent delays further down the line. One respondent suggested that safeguarders should be appointed immediately at the beginning of the hearings process, while another suggested that safeguarders should be appointed automatically for any child under school age.

Several respondents thought that appointing a safeguarder earlier in the process would ensure that the best interests and the rights of children would be considered throughout:

• “Safeguarders focus being the best interests of the child can substantially alter the perspectives so that the child remains at the centre of thoughts & proceedings. In many situations the voice of the child can be easily lost. The safeguarder brings an important perspective and the voice of the child so their interests are fully and professionally safeguarded. Safeguarders can negotiate changes in position through their skills at presenting the child’s perspective. Their independent status carries considerable weight and so the element of all parties trusting them is increased. Often their involvement can expedite establishment of grounds and, clarify information for decision makers” [R15, CH Indiv].
• “Yes, introducing a safeguarder earlier could help ensure that the child’s best interests are protected from the outset, particularly in complex or high-risk cases. This approach would align with The Promise and UNCRC principles, ensuring that the child’s voice and needs are central to decision making. Early appointment could also improve the quality of information available to the hearing, leading to more informed decisions and preventing delays or unnecessary intervention” [R91, Leg Org].

Reasons against

Respondents who disagreed with the proposal to appoint a safeguarder at an earlier stage did so largely because they thought that it could cause further delay or duplication of work, or was not always necessary or helpful, while some voiced criticism of the safeguarders scheme, training and expertise:

• “In my experience the safeguarder system is very flawed. Safeguarders vary widely in quality. I’m unclear how some (i.e. a lawyer) would meet the criteria of being a safeguarder. I would have thought a social work qualification was a minimum requirement” [R28, U/O Indiv].
• “A note of caution like the system as a whole there are inconsistencies when it comes to Safeguarders. There is a need for highly skilled and qualified Safeguarders. There can also be a conflict for example when a Safeguarder report is given more weight than the views of those working directly and supporting children and families on a regular basis and who knew them best. This balance needs to be addressed and when a Safeguarder is appointed there must be clarity about what is being asked of them and what the focus of their enquiry and contents of the report should be” [R53, 3^rd S Org].
• “Families are often very wary of sharing information with people they don’t know, and/or, they don’t like letting “outsiders” into their home. Social Workers may already be visiting the family, and any other professionals they see as appropriate, i.e. family support workers, Family Functioning Therapy, Homestart, etc. To introduce another person at this time may not be appropriate and may not get any more information than has already been gathered. A Safeguarder is not always necessary in every case” [R09, PM Org].
• “At the early referral and investigation and grounds stage of the hearing system, children have not yet been agreed as in possible need of compulsory measures of care. There are also already a lot of individuals involved in a child’s life, particularly where there is existing involvement of social work and other agencies in developing a child’s plan, as is the case in the majority of referrals. [We] question what the purpose and value of introducing yet another individual would be, and what sense this would make to families. It also provides another individual with details of a child’s life where this may not be required, again opening the possibility of challenge around sharing of personal information without identified need” [R40, LA/SW Org].

Other comments

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

• That the early appointment of a safeguarder would be especially useful in order to promote the child’s best interests where there is conflict or contention in a case.
• That the inclusion of an independent viewpoint “free from resource constraints” could be beneficial.
• The risks associated with assuming that a safeguarder is needed before the Panel have heard the grounds decision.
• The need to define the safeguarder role and remit clearly and carefully.
• Whether the appointment of a safeguarder would add confusion and unnecessary complication at an early stage of the hearings process.

Question 42: Should the proposed legal member have discretion to appoint a safeguarder to assist them with establishing the grounds of referral?

• 53% 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 such discretion

Several of those who agreed that the proposed legal member should be able to appoint a safeguarder to assist with the establishment of grounds said that a safeguarder could help to represent the child’s best interests during this early stage in the hearings process. Young people who responded to this question were also supportive of this proposal. It was also suggested that having a safeguarder involved at this point in the process could be beneficial in terms of information-gathering:

• “If the legal member is making determinations on the establishment of facts then the Safeguarder can directly input into this and represent the child’s best interests. It would therefore be important that (just as a hearing & Sheriff can currently) the decision maker can also at the earliest stage. Initial view of the information presented would inform the legal member about where & what further information they require, a safeguarder may be best placed to provide that or expedite getting it AND… safeguard the child through the processes” [R15, CH Indiv].
• “Yes, this would ensure there would be an independent perspective focused on the child’s best interests, particularly in complex cases. A safeguarder could offer valuable insights and help gather relevant information, supporting a more thorough and balanced process. This approach aligns with The Promise and UNCRC by ensuring the child’s voice and wellbeing are central to the decision making process” [R91, Leg Org].

Reasons against

Some respondents used this question to reiterate their opposition to the proposal to introduce the role of legal member – several said that panel members could already assist with the establishment of grounds. Others were concerned that introducing a safeguarder at this stage in the process would cause unnecessary drift and delay and confusion about roles and remits of figures within the hearings system:

• “A safeguarder does not and in the view of [organisation] members should not have a role in determining grounds. This introduces a conflict of interest … and is likely to be extremely confusing for children and their families” [R40, LA/SW Org].
• “As above, this has the potential to overly and disproportionately complicate things at the wrong stages of the process. All this would add would be another view, alongside a number of others. The Safeguarder will be no better equipped than those already submitting evidence and the child and family’s views are represented by themselves, advocates and solicitors” [R61, LA/SW Org].
• “As mentioned, this could result in delays in the process of establishing grounds. If the introduction of a legal member aims to avoid the delays of the court process, delays caused by appointing safeguarders could mean this is not achieved. It is important that a safeguarder’s- assessment is not given more weight than the input of other professionals. Often social workers have carried out in-depth assessments over a significant period of time, offering various supports to the child and family and understanding their views and experiences” [R61, LA/SW Org].

Question 43: Do you support the suggestion that a safeguarder’s early appointment to a child (before grounds have been established) should be presumed to end once grounds have been established?

• 63% of respondents did not answer this question.
• Of those respondents who did answer this question, 39% said “Yes” and 61% said “No”.

Disagreement with the suggestion that a safeguarder’s appointment should be removed after the establishment of grounds.

Many respondents thought it likely that there would be benefits to a safeguarder, once appointed, remaining part of the process beyond the establishment of grounds, until a long-term decision about the child’s future is made. However, support for this idea was not unconditional: several respondents said that although they could see some benefit to a safeguarder remaining involved beyond the establishment of grounds, they were concerned that there was insufficient clarity in relation to the actual role and remit of the safeguarder at different points in the process. It was also suggested that the question of whether to retain a safeguarder beyond the establishment of grounds should be considered on a case-by-case basis and then reconsidered throughout the process – allowing a degree of flexibility and consideration of the child’s evolving needs.

Support for ending a safeguarder’s appointment after the establishment of grounds

Those who agreed that the appointment of a safeguarder should be presumed to end once grounds have been established gave a variety of reasons for doing so:

• “If it is decided that a safeguarder can be appointed earlier in the process, this should end once grounds have been established. This is to ensure clarity is maintained as to the reason for their involvement” [R35, LA/SW Org].
• “Adding more professionals into a child’s life, when they will have had a number of professionals involved already, can be stressful and counterproductive to progress. Children and families in the hearings system have spoken clearly about how overwhelming it is to have so many unfamiliar people involved in the process, particularly when they are required to retell their stories and experiences to each one. Having a safeguarder involved after grounds have been established (and therefore, after they have fulfilled their role that they have been appointed for) may be unhelpful” [R39, CH Org].
• “Establishing the s67 grounds and determining the outcome as a result (should the grounds be established) are two separate functions and so a safeguarder may be needed for one but not the other” [R54, R Indiv].

Other comments

Further issues raised or comments made in response to this question included:

• The importance of being able to reinstate the same person as safeguarder if reappointment is necessary later in the process, for the sake of consistency for the child.
• Rejection of the early appointment of a safeguarder, or rejection of the appointment of a safeguarder at all.
• Calls for the panel should be able to make the decision as to whether or not a safeguarder should be appointed and when.
• Concern that the framing of the question is not aligned with the recommendations of the “Hearings for Children” report.