Part 1 of the Children (Scotland) Act 1995: review

Part 13: Children’s Hearings

Background

13.01 We are seeking your views in this section on a number of topics in relation to Children’s Hearings. The specific areas where we are seeking views are on:

• The Principal Reporter right of appeal from the Sheriff Court: Relevant Persons;
• Amendments to allow modernisation of the Children’s Hearings System through enhanced use of available technology;
• Local authorities as a recipient of certain papers; and
• Personal cross examination of vulnerable witnesses and children.

13.02 The fundamental principles of the Children’s Hearings System are that the welfare of the child is the paramount consideration and that children and young people who offend and those who require care and protection are equally deserving and should be considered as children in need.

Principal Reporter right of appeal from the Sheriff Court: Relevant Persons

Background

13.03 Under the Children’s Hearings (Scotland) Act 2011 (the 2011 Act), a pre-hearing panel or a Children’s Hearing can decide whether an individual either is or is not to be deemed as a relevant person. To be a deemed relevant person, an individual must have (or recently had) a significant involvement in the upbringing of a child. Being granted deemed relevant person status brings with it a number of rights within the system, including the right to be involved in proceedings and to receive all relevant information and reports.

13.04 There are appeal rights in relation to the decisions made by a pre-hearing panel or Children’s Hearing on deemed relevant person status. Section 160 of the 2011 Act provides a right to appeal such decisions to a sheriff. Under section 164 of the 2011 Act, there is also a further right of appeal to the sheriff principal or the Court of Session against the decision of the sheriff. This appeal right is restricted to the individual requesting deemed relevant person status, the child, a relevant person in relation to the child, or a combination of those persons acting jointly.

13.05 Section 163 ^[117] of the 2011 Act already allows the Principal Reporter a right of appeal in certain cases where a sheriff does not confirm a children’s hearing decision ^[118] , but does not currently give the Principal Reporter a right to appeal the decision of a sheriff in an appeal against deemed relevant person status in the same way. Situations can arise where there appear to be grounds to appeal the sheriff’s decision, but the child or family does not take this step. This can be for a number of reasons, including that they are not aware that there is a basis for a challenge, or to appeal would add to conflict between family members. Failure to appeal could result in a deemed relevant person being party to all Children’s Hearings proceedings when they have not met the test of having significant involvement in the child’s life, or alternatively not being involved in the proceedings when they should be. We are seeking views on whether to extend the Principal Reporter’s right of appeal, similar to the right in section 163, to appeals relating to deemed relevant person status.

Pros/Cons

13.06 There are pros and cons to adding the Principal Reporter to the list of individuals who may appeal a sheriff’s decision on the deemed relevant person status.

13.07 The inappropriate deeming of a relevant person and all of the rights that this status brings can have important legal implications. If there is an error in law, it would be in the interests of the child for this to be reviewed and clarified by an appeal court. This amendment will ensure that the Principal Reporter has the power to intervene where necessary and therefore protect the best interests of the child. The Principal Reporter already has rights of appeal in relation to other Sheriff Court appeals and the extension to cover relevant person appeals is likely to lead to such appeals only rarely. Between February 2017 and February 2018, there were forty four children’s hearing cases involving relevant person status appeals made to a sheriff, with only two of those being appealed further.

13.08 In some cases, however, the Principal Reporter may consider it necessary to challenge a decision when the child and one or all of the relevant persons are content with the decision made, despite there being a possible legal error. The additional stress of a further court decision could, in the short term, cause uncertainty for the child or the adults involved in the case.

Question 48): Do you think the Principal Reporter should be given the right to appeal against a sheriff’s decision in relation to deemed relevant person status?
Yes
No
Why did you select your answer above?

Amendments to allow modernisation of the Children’s Hearings System through enhanced use of available technology

Background

13.09 It may in future be possible for young people and families to be able to participate in hearings in different ways such as remote-link and to share digitally pre-recorded views. Facilitating such change could require changes to the 2011 Act and the procedural rules for Children’s Hearings. Any changes would fit within the Children’s Hearings System Digital Strategy.

13.10 The Children’s Hearings System Digital Strategy ^[119] is being taken forward by the Scottish Government in partnership with SCRA and Children’s Hearings Scotland. Children’s Hearings Scotland are a public body who supports the National Convener. The National Convener has responsibility for the delivery of functions related to the recruitment, selection, appointment, training, retention and support of Children’s Panel members.

13.11 The strategy aims to improve meaningful participation at and around children’s hearings and to transform how we think, engage and interact with those involved in children’s hearings through the use of digital tools. It is focussed on improving the current provision of children’s hearings by enhancing the ways in which views can be given to a children’s hearing and the ways in which Children’s Hearings can proceed to have a discussion and make a decision.

13.12 However, the basic principles of a Children’s Hearing will remain unchanged, keeping the child at the centre.

Pros/Cons

13.13 Allowing for elements of digitisation in Children’s Hearings should improve the experiences and opportunities of children and young people in the system particularly around the issues of engagement, attendance and the provision of information.

13.14 Changes allowing the modernisation of the Children’s Hearings System through the enhanced use of available technology could also offer the potential to support participation, safety and wellbeing, and in particular, where there are concerns about domestic abuse. This could allow vulnerable participants to communicate with the hearing remotely.

13.15 However, such changes would require suitable technology to be made available and would raise issues of data protection, information security, information retention and confidentiality. In addition, careful consideration would need to be given to terminology around papers and paperwork and the physical presence of individuals.

Question 49): Should changes be made which will allow further modernisation of the Children’s Hearings System through enhanced use of available technology?
Yes
No
Why did you select your answer above?

Local authority as a recipient of certain papers

Background

13.16 Currently in Children’s Hearings, the local authority will provide a report to the hearing setting out a summary of the child’s circumstances taking into account information known to them. Children’s Hearings can also receive reports from other sources that will include information that may not be known to the local authority that could be relevant and material to their decision about the child.

13.17 Local authorities are currently not legally entitled to receive copies of any of the information that is provided ^[120] to the child, relevant person(s); panel members and safeguarders in advance of a Children’s Hearing. This can mean that a child’s social worker may only learn of new information, assessments and recommendations made by others, including professionals, as the hearing takes place.

13.18 Recent research conducted on behalf of the Scottish Government on the role of the safeguarder in the Children’s Hearings System highlighted this issue. An extract from the research is below:

“At interview, some stakeholders also indicated that allowing the social worker to have sight of the safeguarder report in advance of the hearing would be beneficial in focussing the discussion at the hearing. The social worker will also have to implement a substantive decision taken by the children’s hearing which may follow a safeguarder recommendation. Social workers have no current right to see the report as they are not parties to the proceedings. At the social worker focus group, it was pointed out that, where a safeguarder recommendation was accepted, it could change the child’s plan. In terms of effective planning, then, it may be valuable for the social workers to receive the safeguarder report in advance of the children’s hearing. The Practice Standards for Safeguarders (2015: 10) do currently indicate that it would be best practice for safeguarders to share their recommendations with “relevant persons and representatives from services and agencies in advance of hearings, to allow appropriate preparation and minimise potential distress and delay, in particular for the child” and this is reiterated in the Practice Notes for Safeguarders on Reports (2017: 18-19). Currently, it is not legally possible to share the actual report and consideration should be given to whether it would be beneficial to the process for social workers to see recommendations in the context of the whole report in advance. At interview, panel members, reporters and social workers indicated that they thought that sharing the full report would be appropriate, though safeguarders tended to think that sharing recommendations was both sufficient and more important.” ^[121]

Pros / Cons:

13.19 Providing for safeguarder and other independent reports to be given to the local authority at the same time as other participants of a children’s hearing could reduce the likelihood of disagreements in front of the child and allow the local authority to better prepare and plan for a child’s case. This could lead to cases being dealt with more quickly and avoid some deferred hearings.

Question 50): Should safeguarder reports and other independent reports be provided to local authorities in advance of Children’s Hearings in line with other participants?
Yes
No
Why did you select your answer above?

Personal cross examination of vulnerable witnesses, including child witnesses

13.20 We are seeking, in this section of the consultation, your views on whether to ban the personal cross examination of vulnerable witnesses, including children, in applications to the sheriff to determine whether grounds of referral ^[122] are established under sections 93, 94 or 110 ^[123] of the 2011 Act or in appeals to the sheriff against children’s hearing decisions under that Act (“2011 Act proceedings”). In these proceedings sheriffs may hear evidence from vulnerable witnesses in making their decision.

13.21 Measures to protect children and other vulnerable witnesses in 2011 Act proceedings may involve a ban wider than the proposed ban in child contact and residence cases described in paragraphs 9.06-9.15. 2011 Act proceedings can relate to a variety of matters specified in the grounds of referral, and a party to the proceedings can seek to personally examine a child or other vulnerable witness in circumstances which are likely to be highly distressing to the witness. For example, at the moment, it is possible for a party to the proceedings to personally examine a child or other vulnerable witness against whom they are said to have committed offences of a sexual or violent nature, or where they are said to have failed to care for the child.

13.22 We are proposing putting in place protections for vulnerable witnesses to cover: a child witness who is the subject of the 2011 Act proceedings; any other child witness; or any other vulnerable witness as defined in section 11 of the Vulnerable Witnesses (Scotland) Act 2004.

13.23 Two options for regulating personal cross-examination of vulnerable witnesses in 2011 Act proceedings would be to introduce:

• A mandatory ban on self-representation in certain defined circumstances, for example , where the evidence of the witness or the grounds of referral relates to certain matters such as sexual offences, offences under Schedule 1 of the Criminal Procedure (Scotland) Act 1995 Act, domestic abuse, forced marriage or lack of parental care and
• A discretionary ban in other circumstances on the application of any party or on the courts own motion

13.24 Such prohibitions against self-representation could be similar to the equivalent provisions for criminal proceedings. Sections 288C to 288F of the Criminal Procedure (Scotland) Act 1995 sets out the protections for child and vulnerable witnesses involved in criminal proceedings.

Pros and cons

13.25 Banning cross-examination of vulnerable witnesses in specific circumstances would bring the protection of witnesses in line with the protection given in criminal cases. It would also assist vulnerable witnesses to give their best evidence, which is in the interests of the child who is the subject of the 2011 Act proceedings.

13.26 However, consideration would need to be given to measures to ensure fairness to the person banned from cross examination. This may include allowing a person banned from cross examination to receive legal aid for a legal representative. These cases may need to be specified in the Legal Aid (Scotland) Act 1986 as a case where a person gets automatic legal aid. A ban on personal cross examination would have wider implications on how the whole case is conducted by the person. This could have cost implications and would need to be considered further.

Question 51): Should personal cross examination of vulnerable witnesses, including children, be banned in certain Children’s Hearings (Scotland) Act 2011 proceedings?
Yes
No
Why did you select your answer above?