Children's hearings redesign - policy proposals: consultation

7. Role of the Children’s Reporter

In this section of the consultation, Scottish Government use the term ‘children’s reporter.’ This refers to the Principal Reporter and anyone employed by the Scottish Children’s Reporter Administration exercising their functions, as delegated in accordance with the 2011 Act.

If you would find it helpful to see flow diagrams setting out the referral processes described in sections 6 and 7 of this consultation paper please email childrenshearingsconsultation@gov.scot.

7.1 Enhancing the role of the children’s reporter

Discussion around enhancing the role of the children’s reporter is set out in the following sections:

• Pre-birth activity by the children’s reporter.
• Pre-referral involvement of the children’s reporter.
• children’s reporter’s relationship with the child’s plan.
• children’s reporter’s right to convene a new hearing without bringing fresh grounds.
• Re-referrals to the children’s reporter within certain timescales.

7.2 Pre-birth activity by the children’s reporter

The Scottish Government have conditionally accepted the terms of recommendation 3.6.1 within the Hearings for Children report, and seeks respondents’ views on the following recommendation: “When it is considered that compulsory measures may be required immediately upon a child’s birth, the Reporter must be engaged in multi-agency processes and decision making and must be empowered to undertake an investigation and prepare draft grounds for referral before a baby is born.”

The Scottish Government recognise the important benefits of pre-birth planning by health and social service professionals, and of adhering to the well-established concept of effective early intervention approaches. It is important for local services to plan interventions in an inclusive manner with expectant parents, at as early a stage as possible. Health and social services often work collaboratively to identify pregnancies where there are significant potential child welfare risks and concerns, and to develop child plans which include support for the expectant parents in developing parental skills for the benefit of the entire family unit, not least the wellbeing of the child if/when subsequently born.

Engagement with specialist pre-birth support services is undertaken by families on a voluntary basis. There is no current involvement for the children’s hearings system before a child is born. A children’s reporter currently has no role in a child’s case until a referral is received by them. Referrals to the children’s reporter can only be made after a child’s birth, as this is the point at which the child becomes a legal person who can be the subject of a referral. The Scottish Government understand that agencies working with expectant parents consider they are not permitted to share information with the children’s reporter ahead of a child’s birth on this basis.

Similarly, it is not currently possible to apply for a Child Protection Order until after a child is born. There are no proposals from the Scottish Government in this consultation, or contained within the Hearings for Children recommendations, to change that position.

In terms of the specific recommendation highlighted above, the Scottish Government considers there are both benefits and risks in involving the children’s reporter prior to a child’s birth.

Where compulsory interventions are anticipated immediately or shortly after a child’s birth, if professionals working with expectant parents were empowered to share information with the children’s reporter, that may support efficient and expeditious children’s reporter investigation and decision making at the point when the child is born.

However, the Scottish Government is alert to the risk that obliging professionals to consider sharing information with the children’s reporter ahead of a child’s birth could risk damaging trust in an already delicate relationship between some expectant parents and professionals (including social workers, family nurses and health visitors). This may hinder or prevent work in developing child plans intended to support expectant parents in developing parental skills for the benefit of the child after their birth.

In these circumstances, it is also possible that the involvement of the children’s reporter may unintendedly place additional stress on the expectant parents which could be detrimental in particular to the health of the expectant mother and unborn child.

The Scottish Government is carefully considering the potential implications of this proposal, including from all the relevant rights holders’ perspectives, and it intends to engage with the Information Commissioner’s Office directly on the connected data protection issues. To further inform the Scottish Government’s considerations, respondents’ views are sought on proposals for expanding the children’s reporter’s role to pre-birth situations. In particular:

Questions:

• How could a redesigned children’s hearings system better protect babies shortly after their birth?
• What can be done to improve interagency pre-birth preparatory work?

7.3 Pre-referral involvement of the children’s reporter

The Scottish Government have accepted the following recommendation (3.5) of the Hearings for Children report:

“The role of the Reporter prior to a referral being made to the children’s hearings system must be enhanced. The engagement of the Reporter must routinely be considered during other child protection and care and support meetings and discussions, and there must be a consistent approach to partnership working between agencies and the children’s hearings system.”

The children’s hearings system is a rights-based system which necessarily involves clear delineation between the roles of the children’s reporter and agencies who regularly refer to them. That delineation of roles must be tempered with the need for effective collaborative working to promote the wellbeing of each child. The children’s reporter is currently able to achieve that latter ambition as a matter of practice in a pre-referral discussion by:

a. engaging with a potential referrer about a case, noting that the children’s reporter can neither prevent nor require a referral; nor can the children’s reporter give any undertaking or expectation about what specific action will be taken if a referral is actually made.

b. attending and observing a child protection case conference (although not acting as a member of the case conference) which can consider whether to refer the child to the children’s reporter among other matters.

c. sharing information about the child with agencies who have responsibilities for the child, in a way that is compliant with data protection requirements. This may extend to social work, health and education professionals who are involved in child protection proceedings relating to the child. The purpose of sharing the information is to assist the person or persons to whom it is disclosed to decide on whether to refer the child to the children’s reporter.

d. in certain limited situations, using information received during a pre-referral discussion to form the basis for the children’s reporter’s consideration that “it appears the child might be in need of protection, guidance, treatment or control” (see section 66(1)(b) of the 2011 Act), triggering the consequent decision on whether to convene a children’s hearing.

Revision in 2023 of the “National Guidance for Child Protection in Scotland 2021” brought new prominence to the role, and potential contribution, of the children’s reporter. This new guidance revision reiterates conditions when early referral to the reporter might be needed, adding that referral to the children’s reporter should be considered at all stages of the child protection process, and decisions to either refer or not refer need to be recorded.

The Children’s Hearings Improvement Partnership has also developed guidance for making referrals to the children’s reporter. The guidance is available to referring agencies “during other child protection and care and support meetings and discussions”. It is expected that this guidance may be reviewed further by the Children’s Hearings Redesign Board.

Any move to enhance or expand the role of the children’s reporter prior to referral must not complicate experiences, or cause confusion or duplication between the roles of the various professionals involved in supporting the child. In such sensitive and critical systems, there must be justifiable trust for, and between, the professionals and decision makers in each of the separate processes, along with clear understanding of, and respect for, their roles.

The Redesign Board is well placed to a review the existing guidance and protocols, to consider any need for revised and fresh guidance and protocols so as to achieve a “consistent approach to partnership working between agencies” as recommended by Hearings for Children.

Questions:

• Do you agree that non-statutory action (practice improvements and guidance updates) is sufficient to deliver an enhanced pre-referral role for the children’s reporter in a redesigned hearings system?

7.4 Children’s reporter’s ability to call a review hearing

The Scottish Government have given further consideration to recommendation 12.8 of the Hearings for Children report:

“The Reporter should be given the discretion to call for a Review Hearing without the need for new grounds to be investigated and established, where appropriate.”

A “review hearing” is held to review an existing compulsory supervision order (CSO). A range of circumstances exist in which a review hearing must be arranged (see section 137(1) of the 2011 Act).

Currently, when the children’s reporter considers that a ground under section 67 of the 2011 Act applies and that it is necessary to make a CSO, the ground must be accepted or established before any CSO is made and implemented. In the case of a child who is already subject to a CSO, a new ground for referral must also be accepted or established before review of the existing CSO can proceed on that basis.

It is important to consider how a child’s rights would be protected if a children’s reporter had absolute discretion to call for a CSO review hearing on the basis of new facts which had neither been accepted nor established. It is important to bear in mind that the children’s hearing, in reviewing a CSO, has the option of introducing new measures of care which potentially carry more restriction on the freedoms of a child.

The Scottish Government accordingly consider it appropriate that the children’s reporter may only review a CSO in light of new welfare concerns after any new ground of referral is accepted or established. This can be contested by the child and family under the scrutiny of a sheriff (or, if adopted, a ‘legal member’) in respect of the factual element – and considered by the review hearing from a welfare perspective. A statement of grounds (containing grounds of referral) is the principal basis for decision-making by a children’s hearing.

Should a CSO require to be varied for reasons unconnected with newly emerging or newly identified child welfare concerns (for example, issues with engagement or implementation), a review hearing can be arranged where the local authority (in certain circumstances), child, relevant person, or other person who has a statutory right to do so, requires it. In the case of a child or other person requiring a review, the review can currently only take place after three months of the CSO having been made, continued or varied.

The Scottish Government wishes to consult on whether the current three-month period within which a CSO cannot be reviewed - at the request of a child, relevant person or other entitled person - should be abolished or shortened.

There is concern that a genuine need for review may arise within the three-month period. Therefore, it is arguable that a child, relevant person and/or entitled person should have the right to make representations to a hearing without waiting for up to three months. This particularly applies in respect of very young children, where three months can represent a significant period in relation to their own whole life to date.

The Scottish Government seek respondents’ views on the following issues associated with any potential change:

• Do you think it would be appropriate for the children’s reporter to be able to initiate a review hearing before the expiry of the relevant period?
• Do you think the statutory three-month period should be revised so that individuals who are entitled to request a review of a child’s CSO can do so within a shorter time period?

7.5 Re-referrals to the children’s reporter within a given timeframe – a trigger for other action?

The Scottish Government has explored recommendation 4.4.4 of the Hearings for Children report: ‘The following measures should be considered with a view to reducing the number of ‘repeat referrals’ and increasing coordination between the children’s hearings system and the other parts of the ‘care system’: 4.4.4 Re-referrals of children to the Reporter within a specific timeframe should be considered as part of a continuation of the previous concern, rather than new circumstances, and wherever possible should be considered by the same Reporter.”

The Scottish Government agrees with the concept of the children’s reporter developing a cumulative understanding of a family’s challenges, strengths and circumstances. The Scottish Government also supports minimising both intersecting referral activity and the number of children’s hearings proceedings.

There is also support at the level of principle for the same children’s reporter (along with some continuity in children’s hearings’ personnel) looking again at a supervised child’s case when new information becomes available.

However, a child’s circumstances can be fluid, as can their views and wishes.

This proposal could have impacts on children’s rights, where ‘re-referrals’ prompted by fresh concerns risk being inappropriately linked to established previous concerns about a child, without that child or their family being able to contest the new alleged facts.

Permitting re-referrals may be appropriate as a means of reducing the number of repeat referrals in respect of children already subject to supervision within the children’s hearings system. Fresh action may reflect ongoing or escalating difficulties which continue to meet or exceed the statutory threshold for referral to a hearing. Under the principles of GIRFEC’s National Practice model, planning support for a child or young person is a dynamic and evolving process of assessment, analysis, action and review. Any forward course of action should continue to reflect this.

Questions:

• Do you consider that a child being re-referred to the children’s reporter within a certain timeframe should result in that ‘re-referral’ being treated as a continuation of the pre-existing referral?
  • If yes, what would be an appropriate timeframe from the original referral for re-referrals to be treated in this way?