Children's hearings redesign: consultation analysis

Assessing impact

Many of the responses in this section cross-referenced responses elsewhere in the consultation which were not duplicated in this section of the analysis, or stated they could not comment, did not know, or required more detailed information to inform their view.

Question 87: What, if any, do you see as the data protection related issues that you feel could arise from the proposals set out in this consultation?

A small number of respondents stated all considerations within this consultation could have data protection implications and these would need to be fully considered, making reference to existing legislative requirements and the role of the data protection impact assessment.

Common themes

The most commonly cited data protection issues related to proposals to record hearings. Particular issues in relation to the storing, ownership (including matters of consent from all parties represented at a hearing), sharing, retention and use of data were highlighted. A linked point related to virtual hearings: “…If digital participation in hearings is expanded, data protection issues related to the secure handling of video communications and storage of any recordings would need to be addressed. The proposals to allow digital engagement, which could include sensitive discussions, require robust encryption, secure storage, and controlled access to prevent data breaches” [R91, Leg Org].

Proposals to extend those who have a right to access information about a child or attend a hearing, namely relevant persons or advocacy workers, was also seen to carry data protection risks: “More people being present in the hearing room (from all elements, i.e. children, families, panel members, professionals, etc.) Introducing more people creates a data protection issue” [R17, PM Ind].

Other proposals with particular data protection implications were identified as:

• Entrance and exit point to the hearing system.
• Panel composition.
• Roles and remits of the Reporter, safeguarder or chairperson.
• Introduction of the legal member.

Implications for non-disclosure cases were highlighted by a small number of respondents, as were existing GDPR/ information sharing barriers, including those that the Hearings for Children report had identified, and as a result one respond stated: “There is justification for a review of data protection issues around child protection and Children’s Hearings matters with a view to a review of the relevant legislation to allow an exception for this class of data” [R62, Leg, Ind].

Possible solutions

A small number of respondents highlighted possible solutions to such issues including: sharing information anonymously; use of electronic means of sharing papers with appropriate safeguards; written information only being shared on the day of the hearing and shredded before leaving; and not permitting mobile phones in hearings. The provisions in the Children (Care and Justice) (Scotland) Act 2024 on sharing information with victims was raised by one respondent.

Question 88: What, if any, do you see as the children’s rights and wellbeing issues that you feel could arise from the proposals set out in this consultation?

There was a variation in views as to the extent to which children’s rights and wellbeing were already being promoted by all involved in children’s hearings, consistently across Scotland, recognising that this often involved competing demands. Whilst it was noted by some respondents that the proposals appear to be grounded in upholding children’s rights and promoting their wellbeing, with many citing UNCRC and incorporation into Scots law, various respondents commented that any change would have children’s rights and wellbeing issues that would need to be considered further and through all decision making. This was on both a case-by-case basis and in respect of the redesign as a whole, taking account of both intended and unintended consequences, with the completion of a Children’s Rights Impact Assessment encouraged: “…Every aspect of the proposals within the consultation will have an effect on children’s rights and wellbeing. Until further details are available in relation to how future policy and practice changes will be designed and implemented as a result of this consultation, it is challenging to provide an absolute or succinct answer to this question. A Children’s Rights Impact Assessment should be completed for the policy proposals and CHS would welcome the opportunity to contribute to this” [R39, CH Org]. One response noted an Equality Impact Assessment had been published alongside the Hearings for Children Report.

Areas of likely impact

Particular attention was given to UNCRC Articles 1, 3, 6, 12, 13, 16, 18, 19, 37, and 40, as well as proposed changes including:

• The need to ensure the rights of all children to share their views, participate, and have these views taken into account in decision making was upheld in any changes.
• Upholding other (and potentially more) people’s rights to participation, could interfere with the child’s rights to participate and privacy, with changes to relevant person status cited as having both risks and benefits.
• Impacts of changes that could cause delays.
• Establishment of grounds, with the risks of loss of legal representation.
• Recording of hearings.
• Changes to panel configuration, particularly the use of lone panel members, and ensuring panel members had the right skills and qualifications.
• Roles and responsibilities including at an earlier stage for the Reporter and safeguarder.

Other comments

Further issues raised included:

• The role of the Children’s Hearings System in data collection on upholding children’s rights.
• Geographical variations in the training and measures available to panel members are inconsistent which can present rights issues.
• The importance of children being supported by trusted adults at hearings.
• The need to make information accessible and for coordination to prevent children having to repeatedly tell their story to different people.
• Consideration of the specific rights of babies, infants and child victims.

Question 89: What, if any, do you see as the main equality related issues that you feel could arise from the proposals set out in this consultation?

As with the other questions on assessing impact, one respondent stated:

“Many aspects of the proposals within this consultation may affect equality related issues such as the recording of hearings, the accessibility of hearing papers and access to additional supports. Until further details are available in relation to how future policy and practice changes will be designed and implemented as a result of this consultation, it is not possible to provide a comprehensive answer to this question” [R39, CH Org].

Common themes

The need for equality to underpin all work of the children’s hearing and redesign was highlighted by a number of respondents, with the need to fully understand equality legislation and consider protected characteristics cited: “We call for steps to ensure equality to be embedded throughout the Children’s Hearing System – with special consideration given to child victims with protected characteristics” [R71, 3^rd S Org].

A number of respondents highlighted the particular needs of children and families that may be overrepresented in the hearing system and therefore could be disproportionately impacted by the proposed changes. This included, for example, those with diagnosed or undiagnosed learning disabilities, neurodivergence, non-verbal communication, from areas of multiple deprivation, black and minority ethical backgrounds, and with family overseas or from diaspora communities, for whom particular attention to prevent discrimination, enable participation and additional support might be required. For example: “The Scottish hearings system should ensure that children with family overseas or from diaspora communities are not discriminated against due to their background. Articles 8 and 20 in the UNCRC emphasise governments” responsibility to respect and protect children’s right to identity including family relationships, nationality, culture, religion and language...Legislation, guidance and training should embed these principles at every level” [R32, 3^rd S Org]. One respondent respectively cited the need for both an equality, and an island, impact assessment to be completed.

The need for local panel members from a diverse range of backgrounds and experiences was also cited by a small number of respondents, but views were divided on whether payment for panel members could assist this or instead would be divisive.

Question 90: Do you have any other suggestions where you consider that new legislation is needed to deliver a successfully redesigned Children’s Hearings System?

Respondents highlighted an extremely wide range of different topics and issues in response to this question. Many respondents raised particular issues or topics that they thought could be tackled with new legislation, but did not provide specific detail. A small number of respondents provided highly detailed legal recommendations; these have not been included in full in the list below.

The hearings system: procedures and processes

• Accountability and quality assurance: the need for a mechanism to ensure meaningful accountability for the whole system – perhaps an independent body, similar to the Care Inspectorate.
• Advocacy and safeguarding: an enhanced role for advocacy and safeguarding within the hearings system and enshrining these as statutory rights.
• Attendance at hearings: moving to a presumption for children to attend their hearings, especially for offences (rather than mandatory attendance).
• Combatting professionals’ adversarial behaviour (especially on the part of parents’ lawyers) with clear boundaries, in order to prioritise the welfare of the child.
• Panel members: payment for panel members; cohesion of local teams; a forum for panel members’ operational concerns to be shared and addressed; composition of the panel; consistency of at least one panel member throughout the process; emotional and mental support for panel members.
• Rights of audience: introducing rights of audience for all legal professionals working within the system, with lawyers required to undergo relevant training to gain this right of audience.
• Removing bureaucracy and simplifying the process.
• Resources: increased resources and training is needed rather than large-scale legislative change in order to meet the aims of the Promise.
• Reviews and appeals: tightening appeal rights to prevent multiple appeals from relevant persons that cause distress to children; limiting the ability of a relevant person to use the right to call a review in a vexatious or excessive manner.
• Other procedural issues: removing GDPR barriers and improving multi-agency working between organisations such as the CHS, SCRA, and local authorities; a review of the respective functions of the CHS and SCRA; removing unnecessary or under-used orders (such as Medical Examination Orders); reviewing non-disclosure provisions.
• Statement of grounds: allowing children to be excused from statement of grounds hearings; overhaul of the overall process of establishing and proving a statement of grounds.
• Technological innovation: offering better access to electronic participation; improved recording and sharing of information between agencies and for children and families.
• Timescales and timing: reviewing timescales in terms of the overall process and decision making; setting hearings at times that work for children (i.e., not during the school day) and offering families more flexibility and choice when it comes to timings.
• Training: compulsory training for panel members every three years; refresher training for panel members if required; reviewing training, learning requirements, and outcomes for panel members and other professionals within the system; training for legal representatives working within the system, for example, in relation to understanding trauma.
• Balancing and managing the rights of children and family members: prioritising the best interests of the child while also respecting the legal rights of parents and other family members; better access to timely legal representation for parents; ensuring children are being adequately represented, especially in situations where both parents have a legal representative.
• Wellbeing and trauma-awareness: support offered directly after the hearing for the child and their family; creating opportunities for children to raise concerns or worries in absolute confidence at any stage in the process; considering trauma triggers for children and relevant persons throughout the process.

Beyond the hearings system

• Adoption and foster care: a review of the legal intersections and interactions between the Children’s Hearings System and permanence and adoption proceedings.
• Age of criminal responsibility: raising the age of criminal responsibility in Scotland to one at least in line with the recommendations of the UNCRC.
• Structural inequality: concentrating on reducing poverty and resolving structural inequalities that feed into the Children’s Hearings System; “poverty-proofing” the Children’s Hearings System experience.

Other issues

• Better enforcement or implementation of current legislation and the resources needed to do this.
• Consolidated legislation: laying out all the relevant legislation in one Act in order to ensure clarity and understanding.
• Data and privacy: facilitating effective and seamless data-sharing between relevant agencies while also ensuring children’s data is protected; consideration of who should be able to access a child’s personal data (such as their address).
• Gender identity: ensuring that a child’s gender identity is respected within the hearings system; considering the recommendations of the Cass Review.
• Language: making hearings jargon-free and giving more consideration to the language used.
• Mothers and fathers: respecting the rights of both mothers and fathers in relation to a child’s residence and any changes in residence.
• Compulsory measures: introducing measures in relation to parents, for example, compelling parents to commit to drug tests.
• Pre-birth planning and legislative changes to recognise the rights of a child yet to be born.
• Alignment of legislative and non-legislative changes to ensure clarity for practitioners, children, and families in the system.
• Family Time: creating national best practice guidance for decision making in relation to Family Time.