Children's hearings redesign - policy proposals: consultation

8. The Children’s Panel and Children’s Hearings

Scottish Ministers did not accept the Hearings for Children recommendation which specifically sought to introduce a full-time, salaried chairperson alongside two paid panel members for each children’s hearing.

The national children’s panel is the largest legal tribunal in Scotland. Ministers took the view that the particular structure of this recommendation would have had broad and unsupportable consequences, including a significant and unsustainable funding requirement. There were also significant implications for the workforce resource demands both within, and beyond, the children’s hearings system.

However, the Scottish Government is supportive of investing in additional capacity for the decision-making function within a redesigned children’s hearings system. This includes exploring further whether changes could or should be made to the make-up of the national children’s panel and to the composition of particular types of hearings proceedings – to promote more capacity, continuity and confidence. Potential changes could include:

• whether the entire panel should be remunerated in some form, or that should be confined to certain categories,
• whether the current number of panel members is appropriate for all types of hearings proceedings and ancillary decision making,
• whether the panel should include specialist hearings members to make decisions in certain types of children’s cases or
• whether individual, specially recruited and qualified, panel members should be given authority to make decisions - in a one or two member forum - which are currently the preserve of a full children’s hearing of three panel members.

Under the 2011 Act, the National Convener is an independent position, and they have the authority to appoint members to the children’s panel.^[32]The consideration of potential changes in this area would therefore, in addition to a number of other factors, be predicated on full and further consultation with CHS, the National Convener, and the current children’s panel community.

Scotland’s children’s hearings system is distinct from other tribunals in its use of volunteer members for legally binding decision-making. While volunteerism is not expressly stated in legislation, the custom and practice is well-established and has served Scotland’s children well for over 5 decades. The Scottish Government notes that accompanying policy documents for the Children’s Hearings (Scotland) Act 2011 state that members of the children’s panel should be, as they had been since the systems’ inception, volunteers: ‘The existing children’s panels will be replaced by a single national Children’s Panel, comprising volunteers from local communities who will continue to be recruited and sit as panel members for hearings in their local communities.

Children’s Hearings Scotland will, through the area support teams, work closely with local authorities to provide support to ensure that all children’s hearings make nationally consistent and high quality decisions in relation to children and young people.’

The Scottish Government recognises the value of local people making decisions about children who live in their own area, and the vast array of experience and expertise brought to the system by volunteer panel members offering extraordinary time, skill and energy to the children and families from their own community who may need help and support.

The Scottish Government has deep respect for the track record and outstanding public service of volunteer children’s panel members. A careful combination of supports and understandings have been constructed over the years, and that has been essential to the unbroken success and delivery record of the current children’s panel construction. Real care has to be exercised in the discussion of further reforms in this area.

However, it is also recognised that the legal decisions taken by panel members have grown more complex, and the environment more contentious and litigious over the years. It is arguable that the current wholesale reliance on lay members may be asking too much of an unpaid volunteer community.

As previously noted, the National Convener is independent of Government and all others in discharging his functions and has the authority to appoint members to the children’s panel. For further background about the appointment of members to the national Children’s Panel, please see sections 4 and schedule 2 of the 2011 Act.

The Scottish Government have been collaborating with the National Convener and CHS officers to develop and assess a range of potential future roles within a reconfigured children’s panel. Scottish Ministers are inclined to the view that any potential new investment in developing and sustaining new children’s panel roles should be understood as an agenda of ‘reinforcement’ rather than wholesale ‘replacement’, but respondents’ views are sought on these issues.

8.1 A redesigned children’s panel

The Scottish Government recognises that the make-up of the children’s panel overall, and the long-standing use of volunteers in these key roles, are emotive issues. Any discussion on the future of the panel should not be considered adverse commentary on the extraordinary contribution of volunteers through the decades. However, it is right, in light of the Hearings for Children report and its recommendations, to consider whether the volunteer mode – alone - is the most appropriate approach, especially as the cases that fall to children’s hearings trends towards greater complexity and requires additional stability and sustainability.

The ultimate viability of each configuration, and combination of configurations, is contingent on the outcome of discussions and decisions on the future role(s) of chairs, panel members and children’s reporter / SCRA staff, as well as whether new demands will be made of the tribunal members.

By way of illustration, the current system demand (and the anticipated demand flowing from commencement of the Children (Care and Justice) (Scotland) Act 2024) has been applied to a range of potential modifications to the current ‘single class of lay unpaid panel member’ model. Some of the potential reconfigured children’s panel roles, and the appropriate roles that they might play in deciding cases in a redesigned system, are reproduced below.

• 1 Paid Chair and 2 Paid Panel Members (only for complex cases^[33]) - other cases decided by volunteers.
• 1 Paid Chair, 1 Paid Specialist Panel Member, and 1 Volunteer Panel Member – for certain cases
• 1 Paid Chair and 2 Paid Specialist Panel Members
• 1 Volunteer Chair and 2 Paid Specialist Panel Members
• 1 Paid Chair and 2 Volunteer Panel Members
• 1 Paid Chair and 1 Paid Panel Member
• 1 Volunteer Chair and 1 Volunteer Panel Member – for certain cases

The Scottish Government invites initial views from respondents on these potential approaches, and intends to engage in deeper dialogue with the National Convener, children’s panel members and system partners in the months beyond this consultation – once analysis has been completed and firmer forward policy positions have been adopted in respect of the issues covered in this consultation.

Questions:

• Do you believe the children’s panel element of the children’s hearings system should retain the unpaid lay volunteer model in whole or in part?
• Would you support some measure of payment for panel members, over and above the current system of expenses, in return for the introduction of new and updated expectations?
• Do you have any views on the introduction of new roles into the children’s panel –
  • Paid Chair.
  • Paid specialist Panel Member – possibly including care-experience.
  • Paid Panel Member.
  • Volunteer Panel Member.
• Recognising that payment of panel members/chairing members would represent a significant new national investment in decision making, do you have views on priority resourcing for other parts of the system?
• Each children’s hearing currently consists of 3 panel members, with one chairing:
  • Does every decision taken by a children’s hearing need to be taken by three children’s panel members in a redesigned system?
  • Should all panel members, on completion of appropriate training, still be required to chair hearings in a redesigned system?
  • Would you support some children’s panel members being paid for ‘specialist’ knowledge, while others’ involvement remains voluntary? E.g. a specialist panel member may have a particular qualification or expertise in childhood development, ACEs, or be a professional with prior experience of working with children in some other capacity.
  • Would you support the remuneration of a cohort of care-experienced panel members?

8.2 The Chair of the children’s hearing

The Hearings for Children report links the establishment of a full-time chairing member to a number of connected recommendations.

These additional recommendations have been accepted in principle but must be subject to broader consideration given that the redesigned roles of chair and panel members have yet to be confirmed, and will be subject to further work following this consultation.

The following recommendations and associated discussion are considered appropriate for grouping together:

8.3 Engagement with the Chairing member before the Children’s Hearing

The Hearings for Children report asks that: In advance of a hearing taking place, the child or young person and their family should be offered an opportunity to meet the Chair outwith the formal setting of a hearing. Consideration should be given to the production of a note of the meeting shared, with the permission of the child and their family with everyone who has a right to receive information relating to the children’s hearing by the Chair.

This proposal potentially could foster a more relaxed, informal atmosphere for the child to meet the chairing member of the hearing, reducing uncertainty about the hearing room, the panel members and process.

The Scottish Government considers that many of the desired benefits could be achieved without the need for a full-time salaried chair, and there is much to recommend in the mainstream of existing good practice. However, careful consideration needs to be given to whether what is actually required is a dedicated further meeting, or just a more informal opportunity for the Chair and panel members to greet the child and family and introduce themselves just before the hearing on the given day.

Clear boundaries would need to be set around any introductory meeting to ensure there was no discussion of the substance or focus of the pending children’s hearing. Discussions of that type would then have to form part of the formal record, thereby removing the benefits sought under a more informal approach.

The Scottish Government would instead support more informal measures – for example, through practice guidance – which would allow a chairing member to make introductions, offer any appropriate reassurance and explain to the referred child and family what will happen next (should it be appropriate to the particular circumstances of the case)

Questions:

• Should the chairing member of the hearing meet the referred child, their family or representatives to welcome them to the centre and offer any appropriate explanations and reassurances before the actual children’s hearing?
• If an additional orientation / reassurance meeting is held in the hearings centre with the chairing member, would you support this being an informal meeting?

8.4 Children’s hearings decision making in a redesigned children’s hearings system

Hearings for Children proposed that ‘the final decision will be a majority decision. If there is a dissenting view from a Panel Member, the Chair must reflect that in the written decision.’

The current decision-making approach already operates by majority. That is, regardless of the view of the chairing member, where two children’s panel members take a decision then that majority holds sway and becomes the applicable decision. Any dissenting, or minority, decision is noted in the Decisions and Reasons document.

However, should the make-up of the children’s hearing, and the roles of children’s panel members within that, change in a redesigned children’s hearings system, how the decision-making model operates may also need to be reviewed.

The Scottish Government would welcome respondents’ views on whether the majority decision approach should be maintained, or whether in light of potential changes to the decision-making model, consideration should be given to alternative approaches.

The Hearings for Children report states: “At the end of the information gathering and discussion part of the Hearing there should be consideration of a short break to enable the Panel[sic] to retire and reflect on the information they have received and to confer on their decision.”

“This break will also allow the child, their family, and other important people in their lives to reflect on what has been discussed, and to decompress and have some time away from the intensity of the Hearing.”

The Scottish Government is supportive of changes to practice which would allow a period of adjournment and reflection for decisions to be taken away from the hearing room, before being relayed to the child, family and representatives.

Currently, children’s hearings are expected to deliver their Decisions & Reasons verbally without recourse to an adjournment.

Introducing a brief period of recess to consider and outline the decision of the children’s hearing - which could then be delivered by the chairing member - may assist in greater clarity of decision-making. It would avoid the need for three successive decisions and reasons to be narrated as currently takes place, potentially thereby minimising the repetition of traumatic material.

Questions:

• Do you support the proposal that the children’s hearing should have a brief period of recess/adjournment before reaching their decision and sharing it with those present?
• Do you agree that the majority decision-making approach should be maintained, in respect of the relevant redesigned three member hearings?
• Should the children’s hearing be asked to reach a unanimous decision during adjournment, in order to minimise repetition and potential retraumatisation?
• If a majority decision approach remains, would you agree that any dissenting decision should be noted and explained?

8.5 Decision-making and specificity of measures in a Compulsory Supervision Order (CSO)

The Scottish Government has heard, in response to a previous consultation on policy proposals for the recent Children (Care and Justice) (Scotland) Act, that it would be desirable to introduce more clarity and specificity in CSO decisions, particularly those placing children away from home with kinship or foster carers, or in recognised regulated childcare institutional settings like residential schools.

Such a move would be to assist children to challenge interventions and restrictions that had not been explicitly authorised by a Sheriff or hearing. This engages questions of restriction up to the level of restraint.

Questions:

• Do you agree that it is desirable or necessary to introduce clearer authorisation for particular interventions with children, or particular interferences with their liberty, on the face of measures included in an Interim Compulsory Supervision Order or Compulsory Supervision?
• If so, do you agree that a ‘maximum authorised intervention’ is an appropriate means of delivering that clarity to children and to professionals?

8.6 Timely notification of children’s hearings decisions

Hearings for Children recommended: ‘The Chair must provide the decision within a reasonable time limit.’

The decision of the children’s hearing is currently communicated to the child and family immediately within the hearing room, with the written decision transmitted by SCRA on behalf of the children’s hearing within 5 working days per Rule 88 of the Children's Hearings (Scotland) Act 2011 (Rules of Procedure in Children's Hearings) Rules 2013. Rule 88 also prescribes the information that is to be transmitted, and identifies the classes of person entitled to receive that information. The Scottish Government seeks respondents’ views on the current approach.

Questions:

• Is the current time frames for written confirmation of the decision by the children’s hearing (5 working days) still appropriate?
• Should certain children’s decisions (e.g for an ICSO) have accelerated notification timeframes, relative to the urgency of the decision?

8.7 Continuity of Panel members in children’s cases

Hearings for Children considered the issue for continuity of panel and chairing members, envisioning continuity for each case where possible. “As far as possible the Chair must be the same Chair each time a child and their family attend a Hearing. This should also apply to Panel Members where possible and desirable.”

Of relevance here is Rule 3 of the Children's Hearings (Scotland) Act 2011 (Rules of Procedure in Children's Hearings) Rules 2013, which states that:

3.— (1) Where a children’s hearing is held in relation to a child, by virtue of the Act or any other enactment, the children’s hearing may request that the National Convener select, where practicable, one of the members of that children’s hearing to be a member of the next children’s hearing to be arranged in relation to that child.

The issue of consistency, or continuity, of panel members for the referred child is a challenging and complex area from both rights and resourcing perspectives.

However, it is broadly agreed that a greater degree of continuity (that is, one or more of the same panel members sitting on the same child’s hearings) can be desirable and can improve the experience for the child.

The Practice & Procedure manual published by CHS cites the ‘Better Hearings’ research by SCRA as evidence for this position.

This research cited the views of children, young people and practitioners within the system. It found broad consensus that a greater understanding of a child’s life and circumstance will lead to more informed decisions by panel members, as well as reducing the need for a child to either tell, or hear, their story on multiple occasions with different children’s panel members.

Judicial consistency has been promoted in family law court processes both in Scotland and other jurisdictions to ensure cases continue to progress and minimise drift and delay. It is perhaps likely that children’s panel member continuity would follow this pattern and improve children’s experience, especially in particularly complex cases.

However, the children’s panel – and each children’s hearing - needs to remain an independent and impartial tribunal. Different individual children’s panel members being involved in different cases goes towards supporting the impartial consideration of the individual child’s case facts and circumstances. Excessive use of continuity may undermine the necessary objectivity of individual children’s panel members and may not necessarily be in the best interests of every child.

The recommendation to have the same chair for each child’s successive hearing is complex, particularly where the system doesn’t currently support a full-time chair approach. While the Scottish Government is generally supportive of moving towards a presumption of continuity, modelling for continuity and consistency is deeply complex. The Scottish Government would welcome views on wholesale continuity where practicable, including a position where, perhaps, only one panel member is consistent across each case.

Questions:

• Should consistency or continuity of chairing members be the default position for each child’s hearing?
• Would you support one single children’s panel member’s consistent involvement as an alternative approach?

8.8 Substantive vs Procedural decisions

The Scottish Government is supportive of the position adopted by Hearings for Children in regard to consideration of the types of decisions which do and don’t require a full children’s hearing: “In a redesigned children’s hearings system there must be a separation between procedural decisions relating to the hearing itself and the decisions made by the hearing. There should be an assessment to understand which procedural decisions a Chair can take without the need to convene a full Panel [sic] in advance of a hearing. This should include scrutiny of whether anything needs to change in legislation or procedural rules to better facilitate decision-making and eliminate structural drift and delay in the system.”

Currently, each children’s panel member is assigned a number of ‘sessions’ per month (around two, on average), one session in the morning and one in an afternoon in busier areas. Each hearings session will contain up to three separate cases, fewer if the children’s reporter considers that an individual case is more complex and will have to take longer than the allocated slot.

Following analysis of the recommendations in the Hearings for Children report, the Scottish Government believes there may be scope to change which decisions require a full children’s hearing of three children’s panel members, in line with established expectations and with the 2011 Act.

It may be considered appropriate, subject to further full legal analysis, that some procedural decisions could be taken by an individual children’s panel member (usually the assigned chairing member), or potentially a ‘legal member’ before the grounds are determined – see section 6.

This would free up capacity for other children’s panel members to engage in substantive decision making, so that allotted sessions could be used more appropriately for substantive discussions and decisions in the best interests of a child - as opposed to procedural matters at which the child or their family may not be present.

This would also allow for increased capacity of the total panel member community, reducing the number needed by removing a significant number of hearings from the allotted sessions.

Examples of where ‘procedural’ decisions could be taken, and where there is no requirement for the referred child to be in attendance include:

• Pre-hearing panels covering:
  • Deem or un-deem a relevant person, subject to the existing routes of appeal.
  • Excusal of child or relevant person from attending.
  • Attendance by electronic means.
• Advice hearings.
• Review of a Child Protection Order.

Questions:

• Should children’s panel members or chairing members, for certain procedural decisions, be able to take decisions without recourse to a full three member children’s hearing?
• Are there other areas you would consider appropriate for a single-member decision making approach?
• Would you propose additional safeguards to accompany these proceedings and decisions?

During a Children’s Hearing

8.9 The Powers of the Chair during a Children's Hearing

The Hearings for Children report made several recommendations relating to the powers of the chairing member of a children’s hearing. Particular emphasis is placed on those attending the children’s hearing, and how the Rules of Procedure, along with training provided by the National Convener and the relevant CHS practice guidance should enable the chair to robustly and effectively manage attendance and participation. The relevant recommendation states:

“The existing Rules governing a Children’s Hearing must be sufficiently robust to ensure that the Chair is able to manage the dynamics and conduct of an inquisitorial approach to a Children’s Hearing. This includes determining who is present at each stage of a Children’s Hearing, whilst effectively balancing rights of attendance and participation, and having the flexibility to change the speaking order and arrangements and the authority to ask contributors to the meeting to leave the room after they have spoken, if that is in the best interests of the child.”

The report made it clear that this includes recognising the potentially challenging relationships between attendees which may affect participation, even when there are no outward signs of violence and disruption.

There are existing powers to manage attendance at a children’s hearing, including the exclusion of relevant persons, in both the 2011 Act and the 2013 Rules of Procedure. The chairing member also has a responsibility under section 78(4) of the 2011 Act to keep the number of people in attendance to a minimum.

However, the Scottish Government acknowledges that these are highly complex issues, and there could be benefits to creating a set of clearly stated statutory powers to enable more robust management of hearings. The Scottish Government also agrees that empowering the chairing member to take difficult decisions on participation and attendance could help minimise hostility and promote inquisitorialism - by making these decisions clearer and backed by potential future primary legislation.

Questions:

• Would it be beneficial for the chairing member to have a robust and clearly stated set of powers to manage how and when people attend and participate in the different phases of a children’s hearing?
• Are the existing powers of the chairing member and of the hearing sufficient to protect the rights of all involved?
• What enhancements could be made to the existing powers of the chairing member and the hearing to promote inquisitorial approaches?

8.10 Recording of Children’s Hearings

The Hearings for Children report considered the potential benefits of recording children’s hearings. The development of that recommendation included consultation with children and young people. Their views on this issue were reflected in the report and were broadly in favour of recording hearings. The report concluded by recommending that:

“There should be a full examination of the potential benefits and consequences of recording hearings. This should include a full assessment of the impact this would have on the rights of children and their families.”

The Scottish Government has committed to exploring this further as part of the broader consideration of the practice and procedure in a redesigned hearings system.

The Scottish Government takes careful note of the views put forward by children and young people and captured in the Hearings for Children report. The Scottish Government recognises that there are both benefits and drawbacks to recording hearings.

Respondents’ views are therefore sought about whether hearings, in full or in part, should in principle be recorded. Comments and suggestions are also invited about the benefits and risks of video, audio or written recordings.

Questions:

• In your view, should children’s hearings be routinely recorded?
  • If yes - which method of recording should be routinely used?
    • Written
    • Audio
    • Video
    • Other – write in.
  • What are the main benefits and risks of this method of recording hearings?
  • If no, what are your most significant concerns about recording hearings?
• If only the decision element of a children’s hearing were to be recorded, would this change your view?

8.11 Child friendly summaries of decisions

The Hearings for Children report asked that: a summary of the decision made by the Hearing in plain language and in a format appropriate to the age and stage of the child must be shared alongside the full decision. There must be consideration given to whether this would also be appropriate for family members.

The Scottish Government is generally supportive of this proposal but recognises that it may have resource implications and impose a requirement for the chairing member or other suitably qualified person to oversee any ‘translation’ to a child-friendly document - to ensure consistency with a legally binding decision.

This recommendation links to wider considerations about the role of the chairing member and other children’s panel members within children’s hearings, and improvements to the reporting and delivery of decisions. It is also linked to future decisions about the child’s attendance at their hearing and considerations of their ability to participate. If processes for the production of child-friendly summaries of decisions are to be developed, this must be considered and progressed alongside other relevant changes.

“While a fully reasoned decision will assist in improving openness and transparency and to inform appeals, this might be inappropriate for, and inaccessible to, children—especially very young children, and children with a learning disability. A summary of the decision in plain language in a format appropriate to the age and stage of the child should therefore be prepared and issued alongside the full decision. Similar accommodations may support family members with learning disabilities to, for example, understand the written decision more easily.”

Hearings for Children report

Questions:

• Should there be a statutory requirement for the production of age and stage appropriate summaries of Children’s Hearing decisions?
• Should the specific needs of other family members – especially other children - be taken into account when decisions and reasons are being prepared and issued?

8.12 Family Group Decision Making (FGDM) and Restorative Justice

The Hearings for Children report considered that Family Group Decision Making (FGDM) and restorative justice processes should be pursued where appropriate, prior to a referral to the children’s reporter, and potentially after a reporter referral. The report recommended that: “[Hearings] must be empowered to create space for restorative justice and FGDM processes to take place, by deferring hearings for a sufficient time.”

The operation of FGDM and restorative justice services, and how they may appropriately interact with children’s hearings, require careful consideration.

The Scottish Government does have concerns about the potential impact of deferring children’s hearings – especially when the intention is to minimise the number of those hearings to the point that only those that are absolutely essential still remain - in order to pursue these other processes.

When a child is referred to a children’s hearing, it has been determined by the children’s reporter that they are likely in need of compulsory measures to address concerns about their welfare. Other routes of support, such as FGDM or restorative justice, may have already been considered, or they may still be thought to be helpful – but that should not delay a children’s hearing making a decision, or the implementation of essential support to the child through a CSO. The Scottish Government is therefore interested in views on how these processes might appropriately interact with a redesigned children’s hearings system.

Questions:

• Is it appropriate for children’s hearings to defer their decision in order for Family Group Decision Making or restorative justice processes to be offered, or to take place?
• What other ways could consideration of these processes feature in the redesigned hearings system?