Children's hearings redesign - policy proposals: consultation

5. Before a Children’s Hearing

This section of the consultation paper considers measures relating to the processes before a children’s hearing, including the use of certain forms of language, who can attend a hearing, and how the Scottish Government can support system actors to improve levels of participation and engagement with children.

5.1 Statutory Referral Criteria

In Chapter 3, the Hearings for Children report recommended that “Changes to the statutory referral criteria and to updating and modernising the language of ‘protection, guidance, treatment or control’ in section 60(2) of the 2011 Act must be considered.” The report goes on to state that “referral processes should be underpinned by the key principles of rights-based proportionality, consistency, and timeliness”.

Section 60 of the 2011 Act states:

60 Local authority's duty to provide information to Principal Reporter

(1) If a local authority considers that it is likely that subsection (2) applies in relation to a child in its area, it must make all necessary inquiries into the child's circumstances.

(2) This subsection applies where the local authority considers—

(a)that the child is in need of protection, guidance, treatment or control, and

(b)that it might be necessary for a compulsory supervision order to be made in relation to the child.

(3) Where subsection (2) applies in relation to a child the local authority must give any information that it has about the child to the Principal Reporter.

The Hearings for Children report highlights the terms “treatment” and “control” as being in need of modernisation and recommended that the legal implications of removing this language should be explored. The report proposed that the referral criteria could be amended to:

(a) The child or young person is in need of safety, protection, care, guidance or support (Clearly specify which is needed); and

(b) Compulsory intervention is likely to be needed (With clear rationale why necessary); and

(c) Only refer if proportionate and timely to do so (With clear rationale why now)

The language used in the children’s hearings system, and in connected systems, professions and disciplines can have a profound effect on children and young people.

The Scottish Government is supportive of the ongoing work to promote the common use of accessible and sensitive language across the children’s hearings system.^[12] The Scottish Government’s ambition is that everyone within the redesigned children’s hearings system is able to recognise the power of language, and this must extend, appropriately, to the language used in the legislation which governs the system. However, the Scottish Government have concerns that these proposed changes could have significant consequences across practice, case law and legislation, so it would be wrong to drive through change without a strong evidence base to indicate that particular changes are necessary. The Scottish Government are therefore interested in respondents’ views on whether the existing criteria need to be updated in the way suggested by the report, and why.

Questions:

• What elements of language in the existing referral criteria need to be updated, if any?
  • ‘control’?
  • ‘treatment’?
  • other?
• Do you support the proposed referral criteria from the Hearings for Children report?
• What are the advantages or disadvantages of the proposed draft referral criteria?
• Do you have any other comments about potential changes to the referral criteria?
• Do you support the proposal to change the applicable referral test that compulsory supervision ‘might be necessary’ to it being ‘likely to be needed’?

5.2 Before the Hearing – Relevant Persons

Chapter 8 of the Hearings for Children report makes the following recommendation:

“The preparation phase prior to a Hearing taking place must give particular consideration to the information held by the people who know the child best, including those working closely alongside them, and foster, kinship and adoptive parents. These people must be able to participate appropriately and share their views. Legislative or policy changes may be needed to the definition of ‘relevant person’ status to facilitate these changes.”

The term “relevant person” is well-established in legislation and policy. Being, or becoming, a relevant person confers certain rights and obligations on an individual.

Relevant persons enjoy significant rights in relation to children’s hearings, including rights to appeal, review determinations, and receive detailed papers relating to proceedings.

When an individual is automatically classed as a relevant person, there are no means to remove that status from them, other than via a court order having removed their Parental Responsibilities and Parental Rights (PRRs).^[13]

Under the Children’s Hearings (Scotland) Act 2011, and its subordinate legislation^[14], the legislation does not include a definition of ‘parent’, but the following people are considered to be “automatic” relevant persons:

• Any parent, whether or not they have PRRs (unless their PRRs have been removed by the court)
• Any other person who has obtained PRRs.

This definition means that a biological parent qualifies as a relevant person, regardless of the level of their involvement in the child’s life. The Scottish Government would welcome respondents’ views on this existing definition, and whether it would be appropriate for a hearing to have the power to remove automatic relevant person status where the involvement of an individual in hearings proceedings may not be compatible with the rights of the child or others.

There are mechanisms to allow the hearing or Sheriff to consider whether other people should be deemed relevant persons. A pre-hearing panel can be convened to consider whether to deem an individual to be a relevant person if it considers that the individual has (or has recently had) a significant involvement in the upbringing of the child^[15]. “Deemed” relevant persons can have their relevant person status removed in situations where their relationship with the child no longer meets the deeming criteria.

The Scottish Government recognises that, under the current legislation, there are no means for an individual to be deemed a relevant person prior to a pre-hearing panel taking place. The Scottish Government understands there may be justification for introducing a process for individuals to be deemed relevant persons at an earlier stage to ensure they are able to participate fully in the preparation phase before a hearing. The Scottish Government is interested in views regarding whether changes are required to enable more effective gathering of information prior to a hearing and to support proper opportunities to participate.

It is the Scottish Government’s view that, in practice, the preparation for a hearing, and the provision of information to a hearing, can and should involve appropriate consultation with the people who know the child best. This should happen at the relevant time either before a referral is made, or during the preparation for a hearing. This activity should, in the main, be undertaken by the local authority, with the children’s reporter making additional inquiries where it is necessary.

This is provided for in current legislation and practice, but respondents’ views are invited on where and how the current arrangements could be improved. In particular, the Scottish Government is interested in whether respondents feel it is necessary to legislate for the participation and engagement of a broader range of people in the preparation for a hearing. The Scottish Government would particularly be interested in views on whether there would be advantages in creating an additional class of person with certain rights to provide their views at an early stage, and to participate appropriately as the case proceeds.

Questions:

• What are the advantages and disadvantages of the current definition of “relevant person”?
• Should the legislation include a definition of “parent” and if so, what should it be?”
• Do you have any views on whether it would be appropriate for a hearing to have the power to remove relevant person status from any relevant person in certain circumstances and if so, please explain?
• What are the advantages and disadvantages of an earlier process for deeming other people to be relevant persons?
• What changes could be made to legislation to enable more effective gathering of information prior to a hearing and to support proper opportunities to participate for other people in the child’s life?
• What are the advantages and disadvantages of the creation of an additional class of person whose views and participation are essential to the business of the hearing, but do not require the full rights and obligations of a relevant person?

5.3 Participation and Attendance

Each child’s view on how they participate in their hearing must be a significant feature of a redesigned system. Article 12 of the UNCRC is clear that a child who is capable of forming his or her own views has the right to express those views freely in all matters affecting them, and their views must be given due weight in accordance with the age and maturity of the child.

Within the current children’s hearings system, there are multiple ways for children and young people to appropriately participate – according to their age, stage and preferences.^[16] Enabling children to have a clear choice of how to participate in their hearing, unencumbered by administrative barriers, is in keeping with broader trauma-informed practice, and the Scottish Government is supportive of this in principle.

The Hearings for Children report recommends that:

“The existing obligation for a child to attend must be removed and replaced with a presumption that a child will attend their Hearing, with some limitations. There must be no presumption that babies and infants will attend their Hearing.”

Section 73 of the 2011 Act sets out the obligation for a child to attend their hearing, and the circumstances in which a child can be excused from their hearing. Further provisions on the child’s duty to attend court proceedings are laid out in sections 103 and 112 of that Act. There is no provision to proceed in the absence of a child if they have not been, or cannot be, excused under the criteria in section 73.

Should the obligation to attend be completely removed, this could have concerning rights implications, for example where an offence ground is under consideration. However, the Scottish Government acknowledges that there is support for greater flexibility in this regard. System partners and stakeholders have reflected positively on the impacts of, and learning from, the emergency arrangements for children’s hearings introduced by the Coronavirus (Scotland) Act 2020, which removed the obligation for children to physically attend their hearing. Anecdotally, the Scottish Government understand that this flexibility was well received by children and young people, and their families.

Questions:

• Do you agree with the recommendation to remove the child’s obligation to attend their hearing, to be replaced with a presumption that the child will attend?
  • If yes, what limitations would need to be applied to this presumption?
• Does the hearing need a power to overrule the child’s preference not to attend their hearing in certain circumstances?
• What steps could be taken to support the child’s participation and protect their rights, if they choose not to attend their hearing?
• Should a child still be obliged to attend hearings held in consequence of offence referrals, or in consequence of the 2011 Act section 67(m) ‘conduct’ ground?

5.4 Voices of very young children

Where the hearing relates to babies and infants who are too young to express a preference regarding their participation, the Hearings for Children report recommends:

“The voices and experiences of babies and infants must be captured and shared with the [hearing].”

Question:

• Do you agree that particular arrangements should be made to capture and share the voices and experiences of very young children in a redesigned children’s hearings system?
  • If so, what should those arrangements be?

5.5 The offer of advocacy to the child

It is important that, in advance of a hearing, children and young people of all ages are involved in the consideration of how they can appropriately give their views. Where necessary, this should involve the support of a children’s advocacy worker, and the Hearings for Children report also recommends “there should be an immediate offer of advocacy at the point of referral to the Reporter for all children” and “the offer of advocacy should be repeated to children and to their families at different stages of the process.”

The current section 122 of the 2011 Act states that the chairing member of a hearing must inform the child of the availability of children’s advocacy services. In practice, the offer of advocacy does happen before the children’s hearing.

Questions:

• Should the focus and wording of section 122 of the 2011 Act be reformed to reflect an earlier, more agile and flexible approach to the offer of advocacy to the child?
• How should the rights and the views of children and young people of all ages, including very young children, be better represented in the children’s hearings decision making?
• Should there be a statutory obligation to support the sharing of information to advocacy workers, and other people who can help children and families to understand their rights?

5.6 Amplifying children’s voices throughout the process

Existing legislative requirements mean that a hearing, pre-hearing panel, or Sheriff must ensure the child has the opportunity to express their views, in a manner they prefer, and decisionmakers then must have regard to those views. It is also a requirement that anyone providing any document to a hearing under the terms of the legislation, must include any views given to them by the child. The chairing member of a hearing must also ask the child if their views are accurately reflected in the documents provided to the hearing.

However, it should be seen as the responsibility of all those involved with the child to capture their views, and to support methods of preparation for, and participation in, the various stages of the children’s hearings system - appropriate to the child’s age and stage. If the child is not going to attend their hearing, there should be a recorded process which assesses what has been done to support their participation in other ways, and to get their views, in a way that also makes clear recommendations on what more needs to happen before a hearing is convened.

The Scottish Government considers that there may be value in the creation of a statutory process, undertaken by the children’s reporter, which:

• Records what has been done up to the point of referral to gather the child’s views, including confirming that they have been offered advocacy.
• Applies a “best interests” test regarding appropriate participation prior to a hearing being arranged. This would account for the child’s views on how they wish to attend/participate, their age and stage of development, and the nature of the matters due to be considered by the hearing.
• Makes any necessary further arrangements to gather the child’s views and support their ongoing participation. This would include additional offers of advocacy and bespoke and enhanced forms of participation depending on the age and stage of the child, or any other needs they may have.

The Scottish Government is therefore interested in the views of respondents on how changes to participation might operate in practice, to ensure children’s rights and best interests are upheld, and their views and wishes reflected to decisionmakers.

Question:

• Do you support the creation of a statutory process, undertaken by the children’s reporter, to record the capturing of children’s views and participation preferences?

5.7 Before the Hearing – Provision of Papers

Chapter 8 of the Hearings for Children report includes discussion of the issues around the provision of information for hearings to children, families and panel members. It also describes the support given to those that may be seriously affected by reading deeply sensitive or repercussive material about their personal and family lives, especially where that happens without the right support, reassurance or explanation.

The current 2013 Rules of Procedure^[17] require that the child, each relevant person and any appointed safeguarder must receive certain papers as soon as practicable, and no later than 7 days before the hearing. Other reports, such as those produced by the safeguarder and the local authority are required to be provided no later than 3 days before the date of the hearing. The Hearings for Children report suggests that these timescales might not be sufficient to allow children and families to be adequately supported to understand and emotionally address the contents in a way that would help them to prepare properly for their hearing.

“There should be full consideration of the time a child and ‘relevant person’ is given to read and understand the information that they have received. ……Th[ere] may not be enough time for a social worker, family support worker or advocacy worker to sit down with a child and family and help them to understand and process the information, however the balance between introducing drift and delay into the system and this being provided should be considered.”

Hearings for Children report, Chapter 8

SCRA advise that actual usual practice is for papers to be provided to children and families well in advance of the minimum legal requirement of 3 days. Altering the time frames as set out in the current 2013 Rules of Procedure could have implications for the professionals involved in their production and could introduce delay.

Any proposed change would need to balance the need to ensure that paperwork continues to be produced to the standard required, that the material remains relevant and current for discussions and decisions at the subsequent hearing, and that any new timeframes reflect the imperative to ensure that the best interests of children are served.

Chapter 8 of the Hearings for Children report considers a range of issues relating to the way in which information is currently provided. Non-legislative issues relating to the provision of information will be considered by the Children’s Hearings Redesign Board rather than this consultation.

Chapter 8 also discusses the implications for panel members of timeframes for the provision of papers to them:

“There are few children and families that engage with Children’s Hearings that have not experienced some degree of complexity and trauma in their lives. The papers received by the [panel members] can be substantial and include weighty reports by social workers, psychologists, parenting, and other assessment relating to health or education. Currently, Panel Members will commonly have only a few days, at most, to appraise themselves of these complexities ahead of a Hearing taking place. The Group has heard that sometimes the [hearing] does not have time to assess all of the information. In a redesigned Children’s Hearings System all reports must be shared with plenty of time for Panel Members to review them.”

Hearings for Children report, Chapter 8

Questions:

• Should the timeframes for the provision of papers in advance of a children’s hearing to the child and relevant persons as set out in the 2013 Rules of Procedure be altered?
• Should the timeframes for the provision of papers to children’s panel members as set out in the 2013 Rules of Procedure be altered?