Children's hearings redesign - policy proposals: consultation

6. Grounds for Referral and Associated Processes

‘Hearings for Children’ recommended that: The drafting of grounds and the Statement of Facts should be reframed to take a rights-based approach to help families to better understand why grounds are being established and recognise themselves in the drafting.

Discussion and analysis around grounds of referral are set out in two sections:

• Grounds of referral: concept and language and
• Grounds of referral: processes.

Each section aims to pursue improvement to the children’s hearings system in terms of experiences, fairness, efficiency and expediency, and is in response to recommendations identified as numbers 5.1.1, 5.1.3 and 5.1.4. in the Scottish Government response to Hearings for Children.

In this consultation, the phrase “grounds of referral” refers to the headline legal reasons expressing welfare concerns about a child and represent the legal justification for potential compulsory intervention. In statutory terms, grounds of referral are currently contained in s67(2) of the 2011 Act.

There are currently seventeen grounds. The “statement of grounds” denotes the document prepared by the children’s reporter under section 89(2) of the 2011 Act, where they determine that a ground(s) of referral applies, and the child requires compulsory measures of supervision. The statement of grounds sets out the statutory ground(s) that best relate(s) to the primary presenting welfare concern, and this is accompanied with averments of fact to support the ground(s).

If, as Hearings for Children suggests, the language of grounds of referral should be better understood by children and families so that they might “better …recognise themselves in the drafting”^[18], then the processes for putting grounds to families and for having grounds established must reflect that.

6.1 Grounds of referral: concept and language

The Hearings for Children report states: The drafting of grounds and the Statement of Facts should be reframed to take a rights-based approach to help families to better understand why grounds are being established and recognise themselves in the drafting.

The children’s reporter will remain the “gatekeeper” to the system considering legal compulsory measures, while recognising the importance of working collaboratively alongside other professionals – linking where necessary to prior inter-related children’s services’ processes. The decision as to whether to impose compulsory measures of care will continue to rest, subject to rights of appeal, with a children’s hearing.^[19]

The Scottish Government proposes to retain grounds of referral (to continue to be drafted within statements of grounds by the children’s reporter) as the means for introducing welfare concerns about children and young people to a children’s hearing.

The status quo will be retained with the statement of grounds acting as “the principal legal basis for decision making by a children’s hearing”^[20], while allowing the hearing to have regard to all information which is relevant to its decision-making around compulsory measures of care^[21].

The Scottish Government seeks respondents’ views on proposals – extrapolated from the Hearings for Children analysis - meaning that the statutory non-offence grounds could change from those currently listed in s67(2) of the Children’s Hearings (Scotland) Act 2011- to grounds that are aligned to the statutory wellbeing indicators (safe, healthy, achieving, nurtured, active, respected, responsible and included)^[22].

The intended benefits of that change would be to:

• maximise engagement with children and families by improving their understanding of the grounds - by using positive rather than negative language, wherever possible and appropriate.
• provide continuity of language and meaning for children and families and professionals alike - before, during and after a children’s hearing and link to “other inter-related processes and meetings in their lives”^[23].
• link children’s hearings’ language and concepts to those familiar to the children’s services workforce in inter-related processes, particularly around wellbeing assessment^[24] and the statutory wellbeing indicators.
• reinforce the concept that the children’s hearings system seeks to minimise the use of technical language wherever possible.

The statements of grounds drafted under a redesigned scheme may have some potential to offer a more positive experience for children and families.

The remainder of the statement of grounds could demonstrate how the underpinning SHANARRI indicators are not being met for the child in the absence of compulsory support and supervision.

At the stage of drafting grounds, in many cases families have already become unable or unwilling to accept the need for change. However, that situation should not be made worse by grounds that can be difficult for families to understand, or that can be perceived as accusatory.

For example, where the welfare concern is one of the child experiencing a lack of parental care, the current prescribed ground, under s67(2)(a) of the 2011 Act, which states, “ the child is likely to suffer unnecessarily, or the health or development of the child is likely to be seriously impaired, due to a lack of parental care’ could be replaced with a new ground akin to “the child is entitled to be cared for in a safe and nurturing environment”.

There would have to be a way to connect the grounds of referral with the supporting concerns. That would necessarily use language with a negative connotation, for example - “The child has not been and/or is unlikely to be cared for in such an environment because: ….”, followed by statements of fact, containing sufficient specification. If a new ground of referral were to state - simply and clearly - the standard to which the family should be adhering, and gives them and their lead professional/team around the child a goal to work towards, then that may improve both experiences and understanding.

In introducing new ’wellbeing expectations’ grounds of referral in this way, there is a risk that some important welfare concerns might not be capable of being captured with the right degree of specificity.

The Scottish Government’s ambition is for children’s welfare and justice to be delivered in a responsive manner that maximises the potential for children and families to understand significant statements put to them, and to support them to participate fully in the processes affecting them.

The Scottish Government would be interested in respondents’ views on the following questions:

• Do you consider the current scheme of stating the grounds of referral sufficiently promotes the understanding of children and families as to why they are in the children’s hearings system?
• Do you agree that there should be changes to the current approach to grounds of referral?
• Do you agree with the proposal to set grounds positively as a range of wellbeing-orientated entitlements, before clarifying how the child’s experience or conduct falls short of expectations - to the point that compulsory care is needed?
• If a new scheme of grounds based on unmet expectations around wellbeing indicators were to be introduced, are any safeguards needed (statutory or operational)?

6.2 Grounds of referral: processes

Hearings for Children recommended at 5.1 that the “process of establishing grounds must change” and specifically:

“5.1.3 Grounds must be established in a separate process before a child and their family attend a Children’s Hearing. There must be no more Grounds Hearings.

“5.1.4 A more relational way of working to agree grounds and confirm the Statement of Facts should be encouraged, where the Reporter exercises professional judgement to determine when children and families might be able to discuss grounds.”

The Scottish Government has therefore given close consideration to the processes by which children and their families enter the children’s hearings system, and how those processes impact them. If the language of grounds of referral is to be better understood by children and families with an aim they might “better …recognise themselves in the drafting”[i], then the processes for putting statements of grounds to children and families; allowing them to meaningfully contest aspects of the statements of grounds; and for having grounds determined must all reflect that aim.

Over the following three sections, the Scottish Government is proposing a new approach covering the journey from initial referral (to the children’s reporter) to the legal grounds being accepted or established. For ease of reference, a high-level flow chart and more detailed flow chart seek to explain potential redesigned processes around the children’s reporter’s investigation into grounds for referral and the consequent finding of facts, where required.

6.3 Engagement between the children’s reporter and children and families

The Scottish Government has accepted recommendation 4.3.1 of the Hearings for Children report: “Once a referral has been received, the Reporter must work more closely alongside children and families, where possible. This should include: Ensuring the voices, views and experiences of children and their families are routinely part of the Reporter’s investigation (and there must be consideration of a statutory duty on the Reporter to seek the views of the child and family if they wish to share them).”

Currently, the children’s reporter writes to children (of sufficient age and maturity) -and families - at the initial stage of the investigation. The reporter then invites them to express their views on the referral, share any information or discuss any queries.

SCRA’s website also contains information on how children and families can engage with the children’s reporter. Response rates from children and families to the current approach are low.

The Scottish Government considers that further improvements to engagement between the children’s reporter with children and families are primarily practice-based issues that can, at least in part, be addressed by SCRA. A programme of continual practice improvement, commencing with a review of current arrangements and efforts by the children’s reporter to engage with children and families, is being considered.

Section 27 (“views of the child”) of the 2011 Act obliges a children’s hearing, pre‑hearing panel or sheriff to give the child an opportunity to express views and thereafter to have regard to those views before making a decision about the child. Section 27 does not apply to children’s reporters. Currently SCRA are operating a project to consider the implications of UNCRC Article 12 (a child’s right to participation in decisions which concern them), applying their review work across the whole current role of the Reporter. This project will consider the children’s reporter’s approach to seeking views and information from children and families, along with how they can better gather and use views consistently and proportionately.

The programme of activity is capable of being developed within SCRA, but with visibility into that activity for the Children’s Hearings Redesign Programme Board.

In light of Article 12 being incorporated into Scots law under the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, the Scottish Government has not yet identified any significant potential added value by introducing a statutory duty – over what is already in place or being planned – to strengthen engagement between the children’s reporter and children and families.

However, views are sought below on whether new legislative expectations may assist by confirming the central importance of these issues to a successful redesign of the system.

6.4 Children’s views within Reporter investigation and decision making – a post-referral discussion?

One means of giving effect to the Hearings for Children recommendation around “consideration of a statutory duty on the children’s reporter to seek the views of the child and family if they wish to share them” would be to statutorily oblige the children’s reporter to offer a post-referral discussion with the child and family. This could be convened at any point during the investigative stage of the children’s reporter process, prior to any decision being taken.

Where the children’s reporter decides upon receipt of the referral or during the investigation process that compulsory measures are not required, they should act in accordance with the ’minimum intervention’ principle and end their investigation. This reflects the Principal Reporter’s current practice direction that “investigation[s] should be proportionate” and “case actions and decisions should be based on relevant, reliable information and objectively justifiable”^[25]. There would be no statutory requirement on the children’s reporter to offer a post-referral discussion for cases where the children’s reporter’s decision is not to arrange a children’s hearing.

If proceeding with a post-referral discussion, the children’s reporter would be present and the child and family may, if they wish, be accompanied by their representatives, including solicitor and advocacy worker where applicable.

The purpose of this post-referral discussion would be to allow:

• the children’s reporter to explain directly to the child and family the content of the referral, and welfare concerns behind it along with the purpose of any potential compulsory measures of care to address those concerns.
• the child to give their views directly to the reporter on the referral and have direct opportunity to inform the reporter’s decision-making.
• the children’s reporter to further assess whether compulsory measures of care may be necessary before making a final decision on whether to refer the child to a children’s hearing.
• the children’s reporter to assess whether the child and family are likely to accept any subsequent grounds of referral and plan accordingly.

The Scottish Government would welcome respondents’ views on the suggestion for a post-referral discussion:

• Do you support the introduction of the offer of a post-referral discussion between the children’s reporter and the child and family?
• Who else, if anyone, should attend a post-referral discussion?

6.5 Establishing Grounds of Referral

The Hearings for Children report proposes a bold new approach to the establishment of grounds. It recommends:

“Grounds must be established in a separate process before a child and their family attend a Children’s Hearing. There must be no more Grounds Hearings.”^[26]

Currently, the children’s reporter, having decided that a section 67 ground(s) applies in relation to the child and that compulsory measures of care are necessary, must arrange a children’s hearing (a “grounds hearing”). The children’s reporter prepares a statement of grounds for the grounds hearing, and the child and relevant persons are obliged to attend.

At the outset of a grounds hearing, the chairing member must explain the statement of grounds (alleged facts and relevance to statutory grounds for referral) to the child and relevant persons, and to ask whether each element of the statement of grounds is accepted. This process can be a disproportionate use of volunteer panel member time, where their principal role is to make substantive decisions in the best interests of the child.

The Hearings for Children report and the Scottish Government recognise that, in order to safeguard the rights of the child and relevant persons, there must be a process whereby a recognised decision maker considers whether the grounds of referral have been established.

Views are invited on a proposal that grounds hearings be replaced with ‘fact finding hearings’ to be presided over by a new, legally qualified member operating within the environment of the children’s hearings system (the “legal member”). A fuller description of the potential role and function of the legal member, and the purpose of the fact finding hearings is outlined below.

The Legal Member

The Scottish Government invites views on the proposal that the role in determining grounds for referral currently performed by a sheriff be reformed, with the sheriff’s current functions and powers being assigned to a new role - the ‘legal member.’ The legally qualified legal member would operate in the existing children’s hearings centres but would not be a children’s panel member.

The Scottish Government considers this proposal has the potential to proportionately fulfil the intent of the recommendations and narrative in Hearings for Children which proposed specialist Sheriffs^[27] by providing for a specialist decision maker (of fact and interim decisions) while also minimising the exposure of children and families to the court environment.

The Scottish Government does not propose that the legal member replaces the decision-making role of the children’s hearing relating to dispositive decisions around the child’s welfare, but rather replaces the roles currently carried out by:

• grounds hearings (relating to procedural and interim decisions) and
• Sheriffs in determining statements of grounds.

If their introduction is supported, it is proposed that the ‘legal member’ may receive written and oral evidence with similar powers with which the Sheriff currently operates, and would then determine whether there should be findings made in relation to the statement of grounds.

Rules of procedure would need to be developed to support flexibility in the proceedings – making them adaptable to each child’s particular circumstances (including age and stage of development). These proceedings should be handled as fairly, expeditiously and efficiently as possible, having regard to the age and stage of each child. The legal member, when determining statements of grounds could be given statutory powers (within new rules of procedure) to direct matters, including:

• any issues on which they require evidence.
• the nature of the evidence.
• the way in which the evidence is to be presented; and
• the exclusion of any evidence which is irrelevant or unnecessary.

If this approach were to be adopted, it is envisaged the legal member would operate the fact-finding function from children’s hearings centres - with parties, representatives, witnesses and all others required for the proceedings of proof also attending, or participating to an appropriate extent remotely in accordance with rules of procedure.

The Scottish Government considers that where a legal member makes a determination relating to grounds of referral, there would still be a right of appeal to court, adopting similar procedures to existing arrangements.

The proposed legal members would be legally qualified, competency-based and fee-paid, consistent with legal members of other Scottish tribunals. They would be provided with induction and ongoing education on their functions and would be subject to rigorous performance monitoring.

These proposals have potential to make the redesigned children’s hearings system less dependent on competing demands within sheriff courts, and also better able to explore ways of identifying and eliminating sources of delay in establishing grounds. The proposals could also bring the realisation of the concept of continuity of decision-maker (expressed at recommendation 11.22^[28]) within the direct control of the appropriate and discrete mechanisms integral to the redesigned children’s hearings system, and potentially relieving the courts system of the burden of this demand.

The Scottish Government seeks respondents’ views on the following questions:

• What would be the advantages and disadvantages of passing the fact-finding function from sheriffs to a new cohort of legal members within the redesigned children’s hearings system?
• Do you consider that this proposal fulfils the intention of the recommendation from the Hearings for Children report that there should be a consistent specialist sheriff throughout the process?
• Do you have any views on the proposed retention of the appeal arrangements - appeals going from legal member to Sheriff - within a redesigned children’s hearings system?
• Other than a legal member or sheriff is there another person or body who could:
  • present the statement of grounds to the child and family and receive responses?
  • make interim orders?

Fact Finding Hearings

Once the children’s reporter decides that compulsory measures of care are necessary, the children’s reporter would prepare a statement of grounds and refer it to a fact finding hearing. This would be attended by the child (subject to other possible reforms around the obligation to attend) and relevant persons (who may attend with the support of their advocacy workers and/or representatives). At that fact finding hearing, the legal member would explain the grounds of referral to the child and family and seek to elicit their responses.

In the event that the legal member is satisfied i) that the child understands and accepts the statement of grounds and ii) that the grounds are also accepted by the relevant persons, the legal member would require the children’s reporter to arrange a children’s hearing.

Currently where a statement of grounds is not understood and/or accepted, the children’s reporter, at the direction of the children’s hearing, applies to the Sheriff, who determines contested or non-understood elements of statements of grounds^[29]. While children’s court callings are held in private, and courts do make special arrangements to adapt the environment for children and families, court will always be an anxious and difficult experience for many children and families.

Under the proposed approach, if a statement of grounds is not understood and/or accepted by the child or relevant persons, the legal member could then defer the fact finding hearing if necessary. This would allow them to consider evidence relevant to the statement of grounds, similar to a sheriff’s current approach, while minimising the need for children and families to attend court.

The existing functions of the grounds hearing relating to interim decisions (including the making of an interim compulsory supervision order, medical examination order and interim variation of a compulsory supervision order) would transfer to the legal member, to be made as necessary at a fact finding hearing.

The Scottish Government seeks respondents’ views on the following questions:

• What would be the advantages and disadvantages to replacing grounds hearings with a fact finding hearing where the process would be undertaken by a single ‘legal member’?
• Is it proportionate and necessary for there to be a fact finding hearing in every case?

6.6 Babies, infants, very young children and the grounds of referral

The Hearings for Children report recommended that “there must be no requirement for young children to agree with the grounds for referral. When all relevant persons agree the grounds and Statement of Facts, this must be sufficient to consider the grounds as agreed, with no need for additional proof proceedings.”[ii]

Under current legislation, where a child would not be capable of understanding or responding to the grounds (for example because the child is an infant), and the children’s hearing does not discharge the referral, a Sheriff must determine the grounds of referral on behalf of the child^[30]. Where the grounds are accepted by the relevant person(s) before determination, a Sheriff may make a determination in a case without a hearing, in accordance with section 106 of the Act.

Where a child is very young it may be clear that they would not be capable of understanding, or they have not understood, the explanation of the grounds.

In these cases, where the grounds are agreed by all relevant persons, the requirement to involve a Sheriff can create a strain on capacity, and unnecessarily extend timescales.

The Scottish Government acknowledges the need to take a pragmatic and

age-appropriate approach to young children, their important additional needs, and their capacity to understand proceedings.

Conversely, there may be a need to safeguard the child’s interests by leaving it to a decision maker (be that a sheriff or legal member) to decide on the right subsequent procedure, having regard to all the circumstances of the case, including whether any grounds of referral have been accepted by relevant persons. This allows each child’s unique needs and circumstances to be considered, and the appropriate course of action to be determined.

The Scottish Government is interested in respondents’ views on whether any additional safeguards would be needed for very young children in a redesigned grounds process.

Questions:

• In order to safeguard the interests of very young children, should the legal member or sheriff have discretion to convene a fact finding hearing, even if all relevant persons accept the statement of grounds?
• Do you have any other views about how the youngest children should be supported in this part of the process to establish grounds of referral?

6.7 Statutory time limits in establishing grounds of referral

The Scottish Government does not propose introducing statutory time limits on establishing grounds (c.f. recommendation 5.4.1^[31]) because it is arguable that the proposals set out in this consultation, alongside wider non-statutory action, will combine to expedite processes around grounds of referral.

However, the Scottish Government is interested in respondents’ views around introducing a procedural rule whereby if the grounds of referral have not been established by a specified time, that situation should trigger a review by the decision maker (be that a sheriff or legal member).

Questions:

• A period of three months has been suggested as a time limit for triggering a review where an application to determine grounds of referral has not been dealt with.
• Do you support a defined time period for triggering a review of the progress of the case?
  • If you support defining a time period, but not the suggested three months, should another time period be considered? Please explain why?

6.8 Potential involvement of safeguarder in grounds establishment proceedings

The Hearings for Children report puts forward the view that enabling the involvement of a safeguarder earlier in the redesigned process would be beneficial to some children and to decision makers. The report then states ‘Where there is added value in their involvement [at a subsequent children’s hearing], this should be considered however should not be presumed.’

The Scottish Government seeks respondents’ views on the potential involvement of safeguarders during and beyond grounds establishment in redesigned children’s hearings proceedings.

Questions:

• Do you agree that there should be earlier consideration of the appointment of a safeguarder in a redesigned system?
• Should the proposed legal member have discretion to appoint a safeguarder to assist them with establishing the grounds of referral?
• Do you support the suggestion that a safeguarder’s early appointment to a child (before grounds have been established) should be presumed to end once grounds have been established?