Role of the safeguarder in the children's hearing system

3 The role of safeguarders

3.1 Introduction

This Chapter offers an understanding of how the safeguarder’s role is articulated in statute and regulations and implemented in practice, addressing this through an examination of its statutory basis, stakeholders’ views of its content, stakeholders’ perceptions of the extent to which others understand the role and its overlap with other roles within the children’s hearings system. It also identifies differences in the role between children’s hearings and court proceedings.

3.2 The statutory basis of the safeguarder role

For panel members, in children’s hearings or pre-hearing panels, the statutory test for appointing a safeguarder is very broad: ‘whether to appoint a person to safeguard the interests of the child to whom the children's hearing relates’ (2011 Act, s 30(1)). For sheriffs, effectively, there is no statutory test. They are required, simply, to ‘consider whether to appoint a safeguarder for the child’ (2011 Act, s 31(2)). There were contrasting views at interview as to the value of this flexibility. Safeguarders predominantly, but also some social workers, did not favour tightening the criteria for appointment. However, other stakeholders considered that the current test left unsaid the more practical tasks expected of safeguarders (discussed further below).

[The test is] very vague... anything can hide under the banner of the best interests of the child. Taking the child into care can march under that banner. Keeping the child out of accommodation can march under that banner. Anything can. It’s a very nebulous and very subjective concept (Solicitor 3).

[The test] leaves you open to different interpretations… it often appears that it’s not about… the interests of the child. It’s about conflict with the parents and about the interests of the parents… there’s a lack of clarity about what the role of the safeguarder is (Social Worker 4).

Nine (out of 10) panel member interviewees thought it was inadequate as a statutory test, suggesting that they would welcome a more detailed specification of the content of the role. By contrast the (9) sheriff interview respondents generally welcomed the breadth inherent in the statutory provision.

I don’t think their role should be constrained by statute or anything else. I think they should be given a fairly loose rein as to what they perceive they’re doing (Sheriff 4).

In making appointments however, sheriffs indicated that they set some parameters for the role. The main “test” which they applied was whether appointment was necessary, in the child’s interests.

3.3 Perceived lack of understanding of the role

In their questionnaire responses, safeguarders themselves generally indicated that they were clear about what was expected of them in the role: the scores awarded by the 88 respondents ranged from 7 to 10 ( Appendix 2 Table 301). Safeguarders’ views on other stakeholders’ understanding of the role were more mixed: the scores awarded by the 87 responders ranged from 3 to 10 ( Appendix 2 Table 301).

Interview data provided more detail as to which stakeholder groups perceived some lack of clarity in the understanding of which others ( Appendix 2 Table 303). Some indicative comments are given below.

[T]he way panel members articulate the role of a safeguarder [in Hearings] confuses me. They really struggle with that and it really needs to be streamlined into a coherent narrative about what the role of a safeguarder is… a lot of social workers’ noses get put out of joint by safeguarders… ‘I’ve worked on this case for 2 years, you float in here for an hour and you undermine what I said’. There’s a perception amongst loads of families that safeguarders simply align themselves with the local authority’s position anyway and a lot of families struggle to see the difference (Reporter 4).

[s]ome safeguarders… don’t appreciate what the role is (Panel member 1).

The issue is succinctly summed up by a safeguarder: ‘there’s as many different views as there are people’ (Safeguarder 2).

3.4 The content of the safeguarder role

By contrast with stakeholders’ perceptions that there was a lack of clarity amongst other professionals about the safeguarder role, questionnaire, interview and focus group data indicated a fair degree of consistency around what it is that safeguarders do and should do.

Free-text responses were used in the questionnaire to collect opinions on the key functions of a safeguarder. Ninety-nine safeguarders and 373 non-safeguarders responded and their responses were coded prior to analysis ( Appendix 2 Table 304). The most commonly mentioned activities were those associated with looking out for the child’s best interests: mentioned by 81 of the 99 safeguarders (82%) and 157 of the 357 non-safeguarders (44%). There was some variation in the importance of other activities such as information gathering and informing decision making and in relation to the significance of the independence of the role ( Appendix 2 Table 305).

At interview, safeguarders, in particular, stressed the independence and objectivity of the role. Panel members, social workers, reporters and sheriffs stressed the need to safeguard the child’s interests in situations of conflict. A panel member summed up the role in this way:

[O]f course the safeguarder protects the interests of the child but predominantly, from my point of view, the role of the safeguarder is an information gatherer, collates information and has the necessary experience and understanding of the position to provide a recommendation and to be able to justify that recommendation (Panel member 1).

3.5 Overlap of roles

The safeguarder role adds value to the system where it is distinct from, or complementary to, the function of all other professionals and participants. Overlap was therefore addressed in the questionnaire and a majority of the respondents in each stakeholder group (safeguarders, non-safeguarders and sheriffs) felt that the role of safeguarder was unique in the children’s hearings system ( Appendix 2 Tables 306 – 308).

A number of those who felt there was overlap perceived this to exist between the roles of social worker and safeguarder (safeguarders n = 7, 47%, non-safeguarders n = 71, 63% and sheriffs 2/3). Few respondents stated there was overlap between all potentially overlapping roles ( Appendix 2 Table 309).

When asked how the overlap between roles affected the safeguarder role, the majority of safeguarders (n = 10, 59%) and sheriffs (2/3) along with a large proportion of non-safeguarders (n = 40, 35%) saw it as complementary. That said, the majority of non-safeguarders, in particular social workers, indicated that the overlap negated the safeguarder role ( Appendix 2 Tables 310 and 311).

Interview data provided more detail on overlap. For example, one solicitor identified what they perceived as an overlap.

[S]ometimes [safeguarders] are appointed to look at grounds of referral… and see parents about what their views are on grounds of referral. I think there’s a terrible crossover there between what they’re doing and what we’re doing… if there’s not a solicitor involved, then yes, I can see the helpfulness in it, but otherwise… it’s a duplicate of work (Solicitor 5).

Safeguarders themselves were, however, able to differentiate their role.

I think they’re such different roles… A child in secure doesn’t want to be there, so as a lawyer you are saying ‘the child wants out’… so as a lawyer, [it’s] what they want. As a safeguarder, I do what’s best for them. So I would say in my report that the child doesn’t want to be there but it’s my view this is in their best interests… As a lawyer you don’t look at best interests (Safeguarder 6).

In considering reasons for being appointed, another safeguarder recognised the difference between communicating the child’s view and making a recommendation in their interests.

It tends to be where there’s conflict or where a child’s views have not been able to be ascertained… a child is particularly vulnerable or unable to articulate their own views. Quite often you are appointed where it’s very young children and it’s referrals that are going to court and that’s important to ensure the child’s interests are protected… Interests, yes, not views. I think that’s the important aspect (Safeguarder 10).

3.6 The role in children’s hearings versus courts

Finally, our research suggested that the safeguarder role differed in the hearings setting compared with the court setting. While the core functions of the safeguarder ( Appendix Table 304) are recognised in both fora, their relative importance can differ, as can the way in which the safeguarder presents the results of their investigation.

The safeguarder focus group recognised a sense that a social justice / educative framework is prevalent in children’s hearings proceedings which is different from the wholly legal framework prevalent in court proceedings. It was also suggested that their role in children’s hearings was ‘woolier’ than in court proceedings, because the hearing is seeking to make a decision disposing of the case in the child’s best interests (which may involve myriad considerations) whereas the sheriff is taking a decision as to whether, at proof, factually, the evidence presented indicates that the ground is established or, at appeal, whether the decision is justified.

In children’s hearings, the overt focus of the safeguarder role is to produce an independent written report, which will usually present the views of the child, other family members and/or professionals involved in the case, and to identify a recommendation for the child, based on analysis of all information collected ( Chapter 5).

In the courts, conversely, the focus was more on giving the child a voice, on seeking a check on the child’s position (independent of that put forward by the reporter and/or the social worker) and giving sheriffs information on the actual domestic situation on the ground. One sheriff summarised the role in this way

They’re really there just to ensure that whatever happens… the children’s interests are being protected… what I’m wanting [the safeguarder] to tell me is how [the children] are, what their views are, how the contact’s going (Sheriff 7).

One solicitor commented that

‘Some sheriffs… maybe don’t have the fullest of confidence in the Reporter’s Office’ (Solicitor 3)

The inference that, therefore, an independent opinion would be sought from the safeguarder was endorsed by two sheriffs at interview. Another sheriff described the safeguarder as ‘ the eyes and ears of the sheriff’ (Sheriff 6).

Some sheriffs also emphasised that the way for the safeguarder to bring their accumulated information into the court process was by leading it as evidence:

I have not yet heard a question from a safeguarder that’s provided me with any assistance in terms of my decision making. And I think that’s because they are outwith their comfort zone, because quite often you will have the Reporter who is generally legally qualified, you may have counsel or solicitors for the parents, and the safeguarder is like a duck out of water… the safeguarder should be putting questions to the witnesses that they consider appropriate in the interests of the children. [But] they do not have the knowledge to do that (Sheriff 9).

In the court, the safeguarder was not expected to produce a written report. They can be a party to the proceedings, albeit, on occasion, a somewhat passive one in sheriffs’ and solicitors’ opinions. Some interviewees expressed the view that safeguarders were less effective in the court setting.

I actually would like to see more safeguarders leading evidence themselves, citing witnesses…. Help the court take a rounded and complete view of the issues… but it doesn’t happen very often (Sheriff 5).

I don’t think in any case I’ve handled since 2013… that a Safeguarder has come to court with a set of questions that they want to ask in a proof situation… most Safeguarders that I deal with are very passive in court and don’t – if I’m being honest – appear to me to be equipped with that side of their role… I’ve had a Safeguarder I’m thinking of saying to me, whatever you decide is fine! (Reporter 2).

One safeguarder did, however, acknowledge this aspect of the role and the need to be an active participant in the court setting

Well, sometimes you appear in an appeal … because it’s been a case that you’ve done from the proof to the decision to the appeal. So there’s continuity and that would be the reason why you’re automatically appointed for the appeal… You go and you are a party to the proceedings in the court, so you might be expected to prepare answers, for example, to the appeal process. So it’s slightly different from doing a report that you would do for a Children’s Hearing… The report is… just a by-line of what we actually do. We’re much more active participants and the problem is that Children 1 ^st don’t realise that. They don’t realise that actually our role is to be an active participant. Not giving a second opinion or writing advice (Safeguarder 1).

3.7 Discussion and conclusions

This Chapter discusses aspects of the role of the safeguarder and the way in which this is understood by stakeholders. It notes the paucity of guidance on this in the 2011 Act. It recognises that, while safeguarders report having a clear understanding of their own role, they tend to think that others do not understand it well, in particular social workers and panel members. Indeed, interviews suggest that all stakeholder groups think that certain other such groups do not clearly understand the role. By contrast, questionnaire responses suggest a common understanding of key functions among stakeholders ( Appendix 2 Table 304) albeit with mixed views as to their relative importance. The common understanding may in part reflect the work undertaken by Children 1 ^st, for example around the Practice Notes on Role of the Safeguarder (2016), to try to ensure a consistent understanding on the part of safeguarders. One way to promote a more consistent understanding of the role might be the adoption of a core definition for use across all stakeholder groups. A possible example, using the data collected on the content of the role, and discussed with all three focus groups (safeguarder, panel member and social worker), is

The paramount role is to safeguard the best interests of the child, to keep him/her at the centre of proceedings, and to inform decision making through independent information gathering (including, as appropriate, the child’s and others’ views), and objective and analytical reporting.

If adopted, such a definition could promote a consistent understanding of the safeguarder role within and between stakeholder groups. Given that safeguarders’ work is always with children, a child-friendly version may also be developed, but research with children and families to inform such a definition is beyond the scope of this project.

The Chapter also considers overlap with other roles, identifying that this may exist with the roles of social worker (see Chapter 5), solicitor/legal representative, advocate / advocacy worker, children’s rights officer and reporter. Safeguarders do perform some of the same functions as other professionals, for example in obtaining the child’s views. Safeguarders, however, go beyond this and consider views only as one element of their analysis and recommendation in relation to the child’s interests. Also, unlike solicitors, safeguarders do not act on anyone’s instructions - one of the defining features of the role is its independence. There will, therefore, be circumstances in which a child can benefit from the input of both a legal representative and a safeguarder. In these respects, then, the safeguarder role is differentiable and adds value.

These perceived overlaps require decision-makers to be clear that a safeguarder appointment is necessary (in that the work is not already being undertaken by another) (see Chapter 4) and safeguarders to be focused on their own role and navigating the work undertaken by others to enhance the decision-making process (see Chapter 5).

The safeguarder’s role is broad and, as identified above, can involve obtaining the child’s (and possibly others’) views thereby overlapping with other professionals who also seek and present these views. We will present in more detail in Chapter 5 (work of the safeguarder) a comparison with the role of the social worker.

Finally, the Chapter examined differences in the role between children’s hearings and courts. The research identified that there was a different emphasis on key functions between these fora and a perception on the part of some stakeholders that safeguarders were, on occasion, less effective or more passive as participants in proof and appeal hearings in the court room. In this respect, safeguarders may benefit from further written information on working within the court setting and, as appropriate, being a party to court proceedings.