Children's hearings redesign: consultation analysis

After a Children’s Hearing

After the hearing – the length of interim orders

Question 80: What are the advantages and disadvantages of increasing the statutory 22 day time limit for the duration of interim compulsory supervision orders (ICSOs)?

Advantages

The most frequently mentioned advantages of increasing the 22-day limit were that it would save people from having to attend multiple hearings (which was felt to be particularly stressful for children and families) and that it would allow more time to resolve issues, to see evidence of progress, and to gather information:

• “Lengthening the time has the potential to subject the child and family to fewer Hearings in situations where it is recognised that it is likely to take longer than 22 days to, for example, gather information needed to make a substantive decision or to determine grounds of referral” [R99, U/O Org].
• “When Grounds are being established and these are complex and likely to be lengthy, it avoids the additional intervention and burden on families & children of having to go through the anxiety of coming to a hearing. Where an independent report/safeguarder or other service providing support or intervention needs longer to complete an informative report that will enable a more permanent decision to be made. Less disruption in the development of a plan & it’s progress. When an order is “only” 22 days some individuals put a hope in the next review changing the decision and so become less likely to engage” [R15, CH Indiv].
• “Allowing this extension would reduce the frequency of hearings a child is required to attend when there will not be a substantive decision. This will reduce the time required for taking them away from school, as well as reducing the emotional impact of frequent hearings. This will also have positive resource benefits for those organisations involved with the family” [R56, U/O Org].
• “Twenty two days is a very short period to give effect to a care plan; and regular review (often without change) can be re-traumatising for children and their families. Increasing the period would allow an interim order to be tailored to a child’s plan” [R65, LA/SW Org].

A number of respondents also said that increasing the limit would relieve pressure on the system and its personnel (including social workers) and would help to save resources (especially in terms of money and time spent on hearings). Others mentioned the need for flexibility in relation to a time limit and advocated tailoring the length of an order to the needs of the child in question.

Disadvantages

Some respondents used this question to express the view that increasing the time limit would have no advantages or that they agreed with the current time limit. Many participants were concerned that increasing the 22-day limit would introduce unnecessary and problematic drift and delay into the system. Concerns in this vein included the potential stress and frustration caused to children and families by extended periods of waiting and prolonged periods of uncertainty, and the consequent negative impact on a child’s sense of stability (for example, if a child is separated from their parents or siblings). Several respondents said that the current limit is already a long time in the life of a child, especially in the kinds of situations where an ICSO has been granted, where a child’s situation may be urgent and evolving quickly. Some also mentioned that retaining a relatively short time limit ensured that information relating to a child’s case was relevant and up to date.

Respondents who supported retaining the 22-day limit said that the current limit allows decisions to be made quickly and in a proportionate manner. Some stressed the importance of the idea of minimal intervention and children’s rights, particularly in the context of restrictions placed on a child’s liberty:

• “There may be changes in circumstances which would mean that either the ICSO was no longer required or the measures within the ICSO require to be varied. This is particularly the case where there is close monitoring of contact and the impact on the child. Grounds hearings in Court can take many weeks and months to conclude. Where there are unproven allegations, it is particularly worrying that a child could be separated from their parents for an extended period of time without any review of circumstances and necessity” [R45, 3^rd S Org].
• “The disadvantage is a lack of opportunity for child’s circumstances to be reviewed, for child and family to put forward their position, and to limit interference in line with statutory tests of necessity and proportionality. We consider it important to recognise that children’s circumstances can be dynamic and fluid. […]. Decision making must be flexible enough to allow for the changing needs of children to be reacted to” [R71, Leg Org].
• “Infringements on rights and freedoms rights and freedoms would be in place for a longer period without these being established as necessary or proportionate” [R99, U/O Org].

Question 81: Do you feel that there should be more flexibility in the duration of these interim orders?

• 60% of respondents did not answer this question.
• Of those respondents who did answer this question, 90% said “Yes” and 10% said “No”.

Support for a flexible approach

Many respondents felt that the duration of interim orders should be dependent on the specific circumstances of the child in question and on their best interests, as well as responsive to the child’s needs. Some reflected that shorter orders may be needed for younger children, while longer orders may work well for older children to allow them to settle and for progress to be tracked. Many said that a flexible approach was essential, alongside various “checks and balances”, in order to ensure fairness and proportionality in decision making relating to an ICSO. This included:

• “Yes, to be considered on a case-by-case basis. Circumstances would have to be very specific such as independent assessment completed, safeguarded report to be completed and so timescales to be agreed around that” [R30, LA/SW Org].
• “Any order being placed on a child should be tailored to their specific needs and circumstance. An interim order is no different. An interim order should be put in place for a length of time that is in the best interests of the child, which doesn’t result in children and families physically attending hearings more often than is absolutely necessary” [R39, CH Org].

A number of respondents expressed the view that 44 days (double the current length) was an appropriate maximum limit. Several commented that during Covid, the timescale was extended to 44 days and that this worked well. The time periods of six weeks and three months were also suggested by several respondents.

Question 82: Could ICSO reviews be undertaken by lone Children’s Panel members?

• 58% of respondents did not answer this question.
• Of those respondents who did answer this question, 28% said “Yes” and 72% said “No”.

There was a high degree of overlap between responses to this and other questions, particularly to question 6.

Reasons in favour of lone panel members revieing ICSOs

Where respondents were supportive of this change, the benefits were cited as streamlining the process, reducing delays and administrative burden. Consistency with ICSOs being made by Sheriffs was also noted, although the distinction between panel members as volunteers and the appropriateness of effectively placing responsibilities of a Sheriff was raised.

Some respondents were supportive of this change in certain circumstances. These included where nothing has changed, the hearing is only owing to the order having reached the maximum timescale for which it can last or is procedurally necessary whilst awaiting a particular event such as a report or court proceedings.

Reasons against

Where respondents were not supportive of this suggestion, they argued the review of ICSOs would benefit from a full panel management discussion and decision. This was because ICSOs are complicated, often being used for young children, where the child is at significant risk or in crisis situations, which can change rapidly. Also mentioned was the significance of this decision, which can authorise significant levels of state intervention and interference in children’s rights, including to family life and the child’s liberty. This included: “This is a substantive decision, often involving very young children and contentious issues, therefore the content can be distressing, divide opinion, involve legal representation and be highly emotive. This decision, therefore, requires a three-person panel where the panel members can take responsibility for certain parts of discussion and provide perspective” [R56, O/U Org].

Other reasons included that this would undermine the core principles of the hearing system, ICSOs can inform subsequent decisions about CSOs, and can be appealed.

Other comments included:

• Practical considerations such as whether the lone member would be a (paid) chair, the skills and experience of the panel member, and whether the child and relevant persons would still attend.
• Any change should align with changes to the approach to grounds, given that most interim orders are issued whilst grounds are being established, and other recommendations of the Hearing for Children Report.
• The option of allowing two panel members to make a decision in the cases of risk to the welfare or safety of the child or to reduce procedural delay.

After the Hearing – the concept of a child’s exit plan

Question 83: Do you support the proposal to create a child’s exit plan from the Children’s Hearings System?

• 43% of respondents did not answer this question.
• Of those respondents who did answer this question, 78% said “Yes” and 22% said “No”.

Question 84: What elements should be included in a child’s exit plan? - Please give us your views

Some respondents utilised this question to give broad views on the proposal for exit plans.

Arguments in favour of exit plans

Some responses were supportive of holistic exit plans developed in conjunction with children and their families, and that were multi-agency. Young people’s experiences were highlighted by a range of respondents, with young people particularly supportive of this change. The key benefit was that this could provide a clear plan and timeline to assist children and their families to understand expectations and move on with ongoing support, although this would need to be fluid, with experiences in other areas of practice highlighted that could be drawn upon. For example:

“This would be a positive for children and young people, making a plan for them to move forward without the input or attendance from any Children’s Panel” [R9, PM Org].

Many respondents stated the exit plan would need to be tailored to the needs of the individual child, their wellbeing and rights, with a focus on transitional and ongoing support being a key theme: “... Exit plans should consider the transition children and young people will experience on account of their move from compulsory measures and should document how children have been prepared for this move, including factors such as community supports, housing, health and education” [R49, 3^rd Org].

Various elements for inclusion as part of a child’s exit plan were suggested including:

• What supports will be or have been in place, where the child will live, engagement with others, assessments that will be completed, and how risks will be managed?
• What does the hearing expect to happen (across different parts of the child’s life) for the order to be removed, thereby establishing targets and expectations for all parties, reflecting elements of the child’s plan?
• What impact has the order had with reference to grounds for referral? What could delay the exit plan?
• How can a further referral to the hearing system be made?
• Opportunities for children to feedback on their experiences of the hearing system.
• Information and safety planning for people who have been harmed.
• Where and how the child can gain further support, for how long, how will this be resourced, and any entitlements to support? Key themes for this support included housing, independent living, health (particularly mental health), education/training, financial and budgeting, sustaining relationships, and youth work.
• How does this plan link with other planning processes for example permanence and aftercare?

Reasons against

A number of respondents deemed exit plans to be unnecessary for various reasons:

• There are already existing statutory duties for planning, often fulfilled by social work, with the reasons for termination of an order and future plans already part of children’s hearings review reports: “[We]…. fundamentally disagree with the new presentation of children’s plans as “statutory plans” and GIRFEC plans... All children subject to compulsory measures of care will have a child’s plan and when compulsory measures are no longer indicated that plan should reflect the reason for this, and any ongoing support being provided in the next stage of the child’s journey… An additional “exit plan” would be repetitive an unnecessary additional work” [R40, LA/SW Org].
• The principle of minimum intervention and no order is already enshrined in law and supports the termination of a CSO where this is no longer required
• A range of other options for support exist at that stage, over which the hearing would have no accountability or jurisdiction: “…The Hearing cannot impose any conditions on the termination of the CSO and it is unclear what weight would be placed on any expectations they have on the child exiting the Hearings System and therefore how effective an exit plan would be” [R45, 3^rd S Org].

Other comments

• Practical implementation would be key, with some respondents stating this could be sufficient rather than legislative change. This included how plans were written, presented and utilised to ensure these were meaningful for the child and their family.
• Reporters and panel members understanding of GIRFEC, child’s plans and the expectations that these were presented to hearings should be developed.
• The wider recommendations of the Hearings for Children report on the topic of exiting the hearings system.

System redesign overall

Question 85: Do you have any other suggestions where you consider that new legislation is needed to deliver a successfully redesigned Children’s Hearings System?

Question 85 is a duplicate of the final question of the consultation (Question 90). Responses to both questions were combined and analysed together at the end of the report.

Secure accommodation timescales for review

Question 86: Do you agree that the timescales for review of a child’s placement in secure accommodation in Scotland, as laid out in legislation, are still appropriate?

• 55% of respondents did not answer this question.
• Of those respondents who did answer this question, 91% said “Yes” and 9% said “No”.

Reasons in favour of existing timescales

When the timescales for reviews were commented on as being appropriate, reference was made to the existing legislative and rights requirements of minimum intervention, deprivation of liberty for the shortest time necessary, and only when appropriate, proportionate and in the child’s best interests, which the current timescales for review were deemed to support. A small number of respondents spoke about existing options for these periods being shorter than 3 months. Such as there being a requirement to remove the child from secure care if the head of unit and CSWO reviewed the child’s case and determined that this was no longer necessary, as well as the ability of the child, social workers and relevant persons to seek reviews.

Reasons against

Some young people called for timescales to be shorter, with two weeks and two months suggested as things can change quickly, and in order to be flexible and protect children’s rights.

A small number of respondents cited balance between reviewing a child’s case quickly and frequently enough, with giving children having enough time to settle, and the unsettling nature of reviews. The challenges of setting defined periods, but also the need for time to effect change, was also highlighted, as was the impact of interim orders on the commencement of therapeutic work that requires the child to have a sense of stability which such orders cannot afford.

Other comments

Further points that were raised by a small number of respondents included:

• The need to share information to ensure children, relevant persons and legal representatives know when a review has taken place, receive a copy of decisions, understand how they can contribute to this process, and both child and parents know about their right to request a review by the CSWO and the hearing.
• The need for further training to panel members on secure care and the governing regulations.
• Other recommendation from Hearings for Children in respect of secure care were cited that have not been covered in the consultation.