Children's hearings redesign - policy proposals: consultation

4. The Principles of a Redesigned Children's Hearings System

4.1 Background

“The overarching principles of the Kilbrandon Report which have run through the legislation that developed the Children’s Hearings System remain as relevant today as in 1964 when it was first published. These principles have been found to be in accordance with European and international law relating to the rights of children and their families, when considering the provisions of the ECHR as enacted in the Human Rights Act 1998 and UNCRC, ratified by the UK in 1991.”

Hearings for Children report – May 2023

The principles of the Kilbrandon Report are well established and continue to be the right ones to underpin a redesigned children’s hearings system. The Scottish Government have no plans to change this fundamental approach.

However, the Hearings for Children report asked that:

“an overarching principle in primary legislation or procedural rules and a shared set of national standards for the workforce should be made that explicitly describes the children’s hearings system as inquisitorial.

“This will foster an inquisitorial approach and culture within the children’s hearings system and ensure there is a clear understanding across the entire system of what this means.”

The adoption of an explicitly inquisitorial approach was central to the deliberations of the Hearings System Working Group and reflected their finding that the children’s hearings system was seen as “adversarial”. Adversarial legal proceedings involve two opposing sides, usually represented by lawyers, presenting their cases to an impartial judge, judges or jury. The nature and significance of the decisions being made within the setting of a children’s hearing mean that it can be an emotive and sensitive process for all participants, including for professionals.

Difficult, high stakes conversations that can be characterised by discomfort, challenge sometimes feeling accusatory towards professionals, a sense of undermining and exposure among a number of contributors, along with feelings running high, can all combine to an experience that feels fraught with hostility and jeopardy.

While their governing legislation does not explicitly require the adoption of an “adversarial” approach, some tribunals by their nature will be more adversarial, e.g. Employment Tribunals, which predominately hear disputes between competing claims. Others, such as Mental Health or Special Educational Needs and Disability Tribunals, tend to function more as an inquisitorial hearing, as they are tasked with obtaining facts to determine the best outcome for an individual.

While the governing legislation for the Mental Health Tribunal for Scotland, for example, does not require an “inquisitorial” approach, it sets out overarching principles for discharging certain functions (see section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003). These principles both drive the intended nature and character of the tribunal as inquisitorial, but also keep the person intended to be central to proceedings at their core. The Scottish Government will consider whether, to achieve the aim of making children’s hearings more inquisitorial, statutory principles such as these could be appropriately adapted for application in a redesigned children’s hearings system.

It is arguable that - at different phases - it will remain legitimate for the redesigned children’s hearings system to comprise features of both adversarial and inquisitorial approaches. The Scottish Government note the remarks of Lord Hope about the ‘genius of this reform’ [the inception of the hearings system] being a clear separation of substantive decision-making about the need for compulsory supervision from establishing matters of fact (Sloan v B, 1991 SLT 530 at p. 548))

The Scottish Government consider that it will be difficult to devise a rights-respecting process that is not in some respects adversarial - at least during the phases of the process that are concerned with the acceptance or establishment of facts justifying potential compulsory state intervention in children’s and families’ lives.

That said, when it comes to the identification of the necessary measures, if any, of support and supervision, it would be desirable to emphasise an inquisitorial approach.

By that, the Scottish Government intend for the forward-looking aspects of children’s hearings’ discussions and decisions to be optimistic, respectful, enquiring, problem-solving and collaborative - to the fullest extent possible.

‘Hearings for Children’ report stated (p207): ‘The Hearing itself should have the characteristic of an inquiry into the needs of the child or young person…. This inquiry should seek to ensure both the views of the child and their family are sought and considered, and that they are able to actively participate in discussions and contribute to decision-making processes in ways that are appropriate to them. Children and families should feel included in the decision-making process and gain a sense of working alongside the Panel to make strong and competent choices and decisions in the best interests of the child.’

The Scottish Government believes that many of the proposals being progressed and considered as part of the process of redesign will lead to a more inquisitorial approach in any event, thereby improving the experience of a children’s hearing for children and other participants.

However, the Scottish Government recognise that a legislative acknowledgement of overarching principles may emphasise and clarify the intended approach.

In considering this, the Scottish Government must be cognisant of any unintended consequences for proceedings that legitimately differ in their approach, or could unintentionally interfere with the independence of hearings themselves or the judiciary.

In 2016 the Children’s Hearings Improvement Partnership (CHIP) published Our Vision and Values for the Children’s Hearings System.^[11] The cover of the document contains a quote from a young person – “a children’s hearing should be a conversation not a confrontation”. Much of this document remains relevant and the Children’s Hearings Redesign Board are revisiting it as part of their ongoing work.

4.2 Proposal

Views are invited on the principles that should underpin a redesigned children’s hearings system and whether it is necessary for these to be enshrined in legislation.

Questions:

• What principles should underpin a redesigned children’s hearings system and why?
• What would be the advantages and disadvantages of enshrining overarching principles in legislation?