Children's hearings redesign: consultation analysis

Role of the Children’s Reporter

Pre-birth activity by the Children’s Reporter

Question 44: How could a redesigned Children’s Hearings System better protect babies shortly after their birth?

Common themes

Whilst there were divergent views as to what extent the redesigned hearing system had a role in better protecting babies shortly after their birth, where change was identified, the mostly commonly highlighted theme could be described as core components of support. This included: ensuring early intervention; multi-agency voluntary support to keep families together and address identified risk and need; tailored, non-judgemental approaches; efforts to build relationships with families; and where required concurrent and long-term care planning. To achieve this, all professionals involved in the child’s care having sufficient training including on trauma, child development and the need for timely decision making; and being able to support the building and sustaining of relationships between babies and their parents, as well as with siblings.

Other suggestions included:

• Promoting the voice of babies and infants and the supportive adults around them.
• Improved collaborative working and information sharing between agencies, including health, social work and SCRA.
• Ensuring health and social work had the right to attend hearings.
• Timely making of referrals to the Reporter.
• Decisions being focused on the rights of the child.
• Early safeguarder involvement.
• The potential role of specialist panels with advanced knowledge and expertise.
• Early legal advice for parents.
• Addressing the challenges experienced in the use of CPOs, voluntary measures under section 25, and permanency.

Other comments

A number of responses outlined existing approaches that could be taken pre- and post-birth, including through child protection processes. There were, however, some concerns raised regarding local variations and constraints to service access, which one respondent highlighted: “…the urgent need for an advanced understanding of a) the kinds of evidence-based therapeutic support that may most benefit parents in the pre-birth period and b) the current landscape of pre-birth provision in Scotland. This is a pre-requisite to successful strategic planning for the pre-birth period” [R68, Adv Org].

Question 45: What can be done to improve interagency pre-birth preparatory work?

Again, existing approaches to assessment, planning and multi-agency meetings, including under the GIRFEC national practice model and national child protection procedures, were raised by various respondents. Suggested areas for improvement included:

• Better communication and information sharing between agencies, including health, social work and SCRA.
• The provision of practical support for families that was accessible and targeted, based on the needs of the unborn child and their family, with various research findings highlighted by participants which should inform such an offer, alongside the need for further mapping of provision to be undertaken.
• Increased resources and funding, particularly for social work to ensure pre-birth work could be prioritised and caseloads reflected the complexity and intensity often required.
• Inter-agency training, including with Reporters and panel members.
• Collaboration with third sector partners who could be well placed to build relationships and provide wrap-around support.

Pre-referral involvement of the Children’s Reporter

Question 46: Do you agree that non-statutory action (practice improvements and guidance updates) is sufficient to deliver an enhanced pre-referral role for the Children’s Reporter in a redesigned hearings system?

• 67% of respondents did not answer this question.
• Of those respondents who did answer this question, 79% said “Yes” and 21% said “No”.

Information concerning pre-birth involvement of the Reporter, referrals and hearings featured heavily in responses to questions 44 and 45 which is included here. Across responses to this and the previous question, there were differing views as to what extent the Reporter could already be involved prior to a child being born, which impacted on respondents’ answers. There were mixed views on whether the Children’s Hearings System should have a statutory role ahead of a child’s birth. Some respondents said that it was not necessary to make changes to the role of the Reporter, whether through statutory or non-statutory means.

For others, this was cited as an area for development. Reference was also made to the conclusions of the Hearings for Children Report and whether this change would sufficiently address these.

Reasons in favour of amending the Reporter’s role through non-statutory changes

Many respondents agreed that non-statutory changes would be sufficient in terms of amending the role of the Reporter, citing the agility and responsiveness of guidance over legislation, similar models in other areas, and the potential of legislative obligations to cause unwanted delay:

• “Enabling evolving best practice makes for a more responsive system rather than relying on legislative minutiae to constrain or delay. And, to avoid something being necessary because it is in legislation which becomes outdated or contrary to emerging research and so causes delay while compliance is demonstrated” [R15, CH Indiv].
• “We agree that non statutory guidance is sufficient to enhance the role of the Reporter pre-referral, which may result in an earlier referral, although there must be clear, non-statutory guidance on any change to the Reporter’s role and duties, to ensure the Reporter’s role is not blurred, and that children and families continue to view the Reporter as an independent decision maker. The example given of the guidance related to the Reporter in the “National Guidance for Child Protection in Scotland 2021” is a good example of how this could work” [R56, U/O Org].
• “Current practice has been strengthened by the updated national child protection guidance - practice guidance can be used to enhance this further without fundamentally changing the role and remit of the Reporter” [R50, LA/SW Org].

Concerns about the implications of making statutory changes to the Reporter’s role included:

• How this would impact the Reporter’s role at the pre-birth stage.
• The risk of blurring of boundaries and the potential impacts on impartiality.
• Rights implications for the child and their parents.
• The potential enhanced stresses and impacts on parents and families of involvement in statutory processes.
• Legal, moral, and ethical questions: “…The ability to share information with the Children’s Reporter prior to the child’s birth could support more efficient and timely decision making after the child’s birth. However, changes to this could raise ethical questions in relation to when a child becomes a legal person. Currently this happens once they are born but involvement of the Children’s Reporter prior to this could blur the distinction” [Response to Q45, R35, LA/SW Org].

Support for making statutory changes to the Reporter’s role

However, others advocated for introducing statutory changes in relation to the Reporter’s role in order to provide a clear legal framework, to strengthen accountability, and to ensure consistent application:

• “While this could improve consistency and collaboration, statutory measures may be needed to ensure a clear legal framework that defines the Reporter’s responsibilities and powers. This should strengthen accountability, ensure uniform application across Scotland, and better align with the goals of The Promise and GIRFEC in providing early support and safeguarding for children” [R91, Leg Org].
• “In the context of current pressures on the children’s services workforce (Ottaway et al., 2023) and the Children” s Hearing System, there is a risk that if practice improvements are not statutory, then improvements may not be implemented consistently. This could be mitigated, however, through appropriate resourcing and co-ordination” [R99, U/O Org].

Further benefits of statutory action highlighted in previous questions included:

• Clarity of planning, including for parents.
• More timely (although this was questioned by some respondents) and better informed decision making.
• A more planned approach to statutory orders and removing the emergency use of orders taken rapidly following the child’s birth (although again this was questioned by other respondents).
• Increased opportunity for parental engagement with lawyers and advocates.

Other comments

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

• Significant legal issues relating to the point at which a person acquires legal personhood in Scots law (from the moment of a live birth), and the potential negative unintended legal consequences of enacting legislation that places obligations on professionals in respect of a “child” who is not yet born.
• The need to ensure adequate resourcing of the Children’s Reporter workforce to prevent high caseloads and to allow time for implementing improvements.
• Concerns about whether the needs of women and children experiencing domestic abuse are being taken into account.
• The negative impact on expectant parents of being surrounded by professionals “waiting to remove the child”, rather than providing them with support and the opportunity to show that they can be a good parent.
• Concern that early involvement of the Reporter would constitute inappropriate or disproportionate interference in family life by the state.
• Some respondents were confused by the question and did not understand what was being asked.

Children’s Reporter’s ability to call a review hearing

Question 47: Do you think it would be appropriate for the Children’s Reporter to be able to initiate a review hearing before the expiry of the relevant period?

• 58% of respondents did not answer this question.
• Of those respondents who did answer this question, 67% said “Yes” and 33% said “No”.

Reasons in favour of the ability to initiate a review hearing

The majority of respondents agreed that it would be appropriate for the Children’s Reporter to be able to initiate a review hearing before the expiry of the relevant period, in certain circumstances: for example, if doing so would be in the best interest of the child, if new welfare concerns or evidence were to arise, if the child’s circumstances change, or if the child requests it:

• “If the Children’s Reporter becomes aware of a change of circumstances etc that requires a review/potential change to the existing order and measures they should be able to initiate a review hearing” [R03, U/O Indiv].
• “[We] are of the view that it would be appropriate for the Reporter to be able to initiate a review before the expiry of the relevant period, but only in the circumstances that a new referral has been received which represents a significant development or material change of circumstance that would require a panel to be convened” [R39, CH Org].
• “Yes, this flexibility would allow the Reporter to respond to significant changes in the child’s circumstances that might require immediate action. It would help ensure that the child’s welfare is continuously monitored and that decisions remain in the best interests of the child, in line with The Promise and GIRFEC principles, which focus on responsive and timely interventions for children and families” [R91, Leg Org].
• “We believe it could work in certain circumstances, namely when this is requested by the child or where there is compelling evidence that this is required to be heard, and a review has not been called by social work” [R56, U/O Org].

Reasons against

Those who disagreed did so for a range of reasons. The most frequently mentioned reasons were: that changes were not needed or were content with existing arrangements, that it would be inappropriate for the Reporter to have the power to initiate an early review hearing, and that existing routes, such as through social workers” existing emergency powers, were sufficient:

• “In the current arrangements professionals involved in the life of the child can initiate a review. It is unclear what benefit would be gained by the Reporter also having this power. Where a review is called due to new, unexamined grounds there should be a fact finding process to establish the new grounds in order to protect the rights of children and their families” [R96, LA/SW Org].
• “No changes are needed because if a review hearing is required within three months, the child’s social worker can arrange it” [R30, LA/SW Org].
• “Already sufficient routes for reviews to be requested” [R50, LA/SW Org].
• “Expanding the role of the Reporter so that the Reporter could directly cause a hearing to review a CSO in the absence of a new referral or new statement of grounds changes the role of the Reporter - and therefore might impact on the overall balance of the Children’s Hearings System. […]. We also have a concern that this new power for the Reporter would take away power or undermine the powers that exist for other key roles within the Children’s Hearings System. We are of the view that focussing on ensuring knowledge of the current powers / duties in relation to review and making sure that current system actors use their powers / follow the duties appropriately, should be the priority, rather than a new power for the Reporter” [R69, CH Org].
• “This would fundamentally alter the Reporter’s role as a receiver of referrals. Currently, there is a separation of functions between the Reporter who is in, practice remote from the child and the child and family and those working with the family or who have an ongoing relationship with the family. These Agencies and people are best placed to make a referral. If information comes to the attention of the Reporter where they consider that fresh Grounds for Referral should be referred to a Hearing, they can, as matters stand, make a decision to refer. There is no need to alter the status quo” [R45, 3^rd S Org].

Other comments

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

• Whether it might be beneficial for the Reporter to have a “supervisory” duty to call a review where a review has been requested by someone else.
• The impact of this proposal on social workers and other system partners in terms of resources and capacity.
• The potential increase in demand caused by additional reviews.

Question 48: Do you think the statutory three-month period should be revised so that individuals who are entitled to request a review of a child’s compulsory supervision order (CSO) can do so within a shorter time period?

• 61% of respondents did not answer this question.
• Of those respondents who did answer this question, 38% said “Yes” and 63% said “No”.

There was little consensus among respondents as to whether the statutory three-month period should be revised in relation to a CSO. Some thought that the current three-month timeframe worked well, and did not support the proposal to make changes to it. Many others said that the three-month timeframe was too short – and that it was unlikely that significant progress could be made within that period. Some respondents disagreed entirely with the idea of a set timeframe in relation to requests for reviews.

Reasons against revising the three-month timeframe

Some respondents said they did not support making changes to the current statutory three-month period and said that the current three-month timeframe should be retained:

• “[The] [t]hree-month period should remain, this is considered the minimum amount of time for any Social Work assessment to be undertaken and for any changes to be [effected]” [R31, LA/SW Org].
• “The existing three month period offers an important safeguard against abuse of this right of Review by requiring a succession of unnecessary Reviews, which may be distressing for the child and other family members. This is a particularly important safeguard in the context of domestic abuse where the perpetrator may seek to continue their controlling behaviour by exercising their right to require a Review” [R54, R Indiv].
• “The current three month review period seems to strike an appropriate balance between protecting the rights of children and relevant persons and managing unnecessary or vexatious interventions” [R69, CH Org].

Reasons in favour of revising the three-month timeframe

Many respondents, however, thought that the timeframe should be longer, pointing out that three months is a tight timescale for children and families to have sufficient time to meaningfully engage with therapeutic work or other support, meaning that they are not given a fair chance to make the changes they want and need to make before a review is called. Some respondents did not support the idea of having a set timeframe for reviews at all, calling for the removal of the existing timeframe, and suggesting that children and families should be able to request a review at any time:

“If a CSO has been made, continued or varied there must be significant concerns and support needs. Generally, it would take longer than three months to see changes in behaviour or circumstances. Even if changes have been made, it’s important to know that these can be sustained before making any significant decisions” [R35, LA/SW Org].

As in previous questions, several respondents made the point that three months may seem like a reasonable period of time to an adult, but to a child, three months feels like a very long time:

• “3 months to adults is a reasonable time but to children it is in the words of a child “forever” if things have change in that period and a review is needed it should be reviewed as soon as possible” [R16, U/O Indiv].
• “I agree with the consultation document insofar as it makes the case for the child or RPs to request a review within the first 3 months. In my experience, this is often when interventions are not taking place in line with the CSO + measures, or there has been a significant change in circumstances that requires review. I also agree that, for very young children, 3 months represents a significant part of their lives” [R48, U/O Indiv].
• “Yes, this would provide greater flexibility for families and professionals to respond more quickly to significant changes in the child’s circumstances, ensuring timely adjustments to the CSO when necessary. This aligns with The Promise and GIRFEC’s focus on responsive and child-centred interventions, ensuring the child’s needs are consistently met” [R91, Leg Org].

The most frequently raised issue in response to this question, as alluded to in earlier quotations, was the potential for the power to request a review being abused and leading to unnecessary hearings, to the detriment of the child’s wellbeing. Many respondents were concerned that a parent (or another relevant person) could repeatedly call for reviews, even when doing so would not be in the best interest of the child – either because the parent was unhappy with a decision, or in a deliberate attempt to exercise control over and to cause distress to the child or other family members. Accordingly, several respondents called for strict safeguards to be introduced in order to address this potential problem:

• “If the Panel are trusted to make the best decision for the child, the law should support that trust by enabling the child to get on with their life and the professionals to make their judgement call about when a review is needed. We see far too many reviews by dissatisfied parents who just keep calling for reviews as they didn’t get the answer they wanted at the first hearing and will keep calling reviews until they get the answer, they want which wastes everyone’s time and causes heaps of unnecessary stress to all involved” [R02, U/O Indiv].
• “While social work can call for a review at any time where families are working and engaging well, they can discuss with SW if an earlier review would be possible - this already happens. There are frivolous reviews where it can be seen that every 3 months an RP calls for a review and the same decisions are being made for same or similar reasons. These can be harmful for the child and distressing for both the child and other RPs or carers. Stability and consistency remain essential elements in supporting children’s development & recovery from trauma” [R15, CH Indiv].
• “We understand the rationale behind this proposed change, however it will be important to ensure that safeguards are put in place to ensure that this is not inappropriately or excessively used. This includes use by perpetrators of domestic abuse who may seek to use it as a measure of coercive control” [R93, U/O Org].

Other comments

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

• The need to strike a balance between responsiveness and stability; a shorter review period could make the system more responsive to, for example, changes in a child’s circumstances, but this could also introduce an element of instability and insecurity to a child’s daily life.
• Whether it is appropriate, in a purportedly rights-based system, for a Reporter to have the right to call a hearing at any time, but a child does not.
• How the child’s views and wishes might be used to inform this part of the process.
• To what extent the Reporter’s judgement and discretion should be involved in the decision to call or approve a request for a hearing or review.

Re-referrals to the Children’s Reporter within a given timeframe – a trigger for other action?

Question 49: Do you consider that a child being re-referred to the Children’s Reporter within a certain timeframe should result in that “re-referral” being treated as forming part of the pre-existing referral?

If yes, what is an appropriate timeframe from the original referral for re-referrals to be treated in this way?

• 66% of respondents did not answer this question.
• Of those respondents who did answer this question, 71% said “Yes” and 29% said “No”.

Divergent views

Respondents who agreed with the proposal suggested a number of timeframes considered appropriate:

• Four respondents suggested a period of 12 months or within 12 months.
• Five respondents suggested a period of six months.
• Four respondents suggested a period of three months.

Some respondents generally agreed with the proposal, but did not suggest a specific timeframe, instead commenting on, for example, the importance of taking into consideration the child’s full history in the context of re-referrals:

• “This would seem appropriate rather than each referral being viewed in isolation. There may be a number of concerns regarding a child’s welfare that should be viewed in the context of the child’s life and appropriate measures put in place to safeguard the individual, rather than looking at individual situations in isolation” [R57, LA / SW Org].
• “[We] strongly agree with the proposal to treat re-referrals of the same child to the Reporter as a continuation of a pre-existing referral. Treating re-referrals of children as new referrals represents structural delay in the system” [R57, LA/SW Org].
• “To not acknowledge previous referrals could potentially withhold significant evidence. Therefore altering potential outcomes” [R55, Adv Indiv].

Many respondents said that they thought that the question of whether to treat a re-referral as part of a previous referral depended on the reasons for, or the content of, the referral. For example, it was suggested agreed that welfare re-referrals should be treated as part of a previous one whereas for offences committed by a child, the referral should not be treated as part of a previous one as the new referral may be more serious. Others said that there should be a degree of flexibility and that the decision to include a re-referral as part of a previous referral should be made on case-by-case basis, or at the discretion of the Reporter:

• “I think this could depend on the age of the child and the nature of the re referral. It may also be impacted by whether it is the same person(s) or different ones making the referral. This would need considerable exploration of the parameters and consequences” [R15, CH Indiv].
• “Yes, [if] the subsequent matter is related to the previous matter” [R48, U/O Indiv]
• “Treating a “re-referral” as a continuation of the pre-existing referral may support a cumulative understanding of a family’s challenges, strengths and circumstances. However, this may not always be appropriate if the re-referral relates to separate concerns or circumstances. To avoid inappropriately linking previous concerns to new and possibly separate concerns, there should remain the option to make a re-referral rather than a continuation of the pre-existing referral. In situations where the concerns are linked then treating this as a continuation of the pre-existing referral would be appropriate” [R35, LA/SW Org].
• “We cannot answer yes or no to this question as we believe it depends on the grounds of referral. If the grounds are different, then we would say no this should not form part of the pre-existing referral. The same child within the same family could be referred for a completely different reasons from the original referral. If the situation was the same as the pre-existing referral, then yes we would support it forming part of that referral. It is already standard practice that if a child is already on a CSO and something else happens, that the Reporter considers the referral holistically. We believe this decision is best left to the referring agencies and Reporter to review with all other contextual information” [R68, 3^rd S Org].

Those who did disagree with the proposal did so because of concerns relating to “unintended consequences”, the potential for added delay, and the negative impact on children and families right to have each referral legally tested and scrutinised.

Other comments

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

• The suggestion that the Reporter needs to be able to exercise discretion in relation to re-referrals.
• The importance of respecting children and families” legal and procedural rights, including Article 6 of the ECHR.
• Concerns that the wording or framing of the proposal demonstrates a misunderstanding of the ways in which referrals currently work.