Role of the safeguarder in the children's hearing system

4 Reasons for the appointment of safeguarders

4.1 Introduction

This Chapter examines the reasons for appointment of safeguarders as part of its exploration of how the current system of safeguarding operates and ways in which the role impacts on decision-making. It sets out findings on common reasons given for appointment and on appointment practices of sheriffs and panel members. The analysis of the SCRA and sheriff samples ( Chapter 2) allowed the research team to identify documented reasons for appointment alongside those given in the questionnaire and at interview.

4.2 Considering a safeguarder appointment

At interview, all the sheriffs and the majority of solicitors and panel members favoured the statutory requirement for sheriffs (s 31(2) of the 2011 Act) and panel members (s 30(1) of the 2011 Act) to consider, albeit not appoint, a safeguarder in every case. Eight (73%) of the 11 safeguarders stated at interview that this requirement was appropriate, despite one describing it as being like using ‘ a sledgehammer to crack a nut’ (Safeguarder 5), akin to what one sheriff (Sheriff 2) referred to as ‘ overkill’.

4.3 Reasons identified for safeguarder appointments

Free text responses from both non-safeguarders and sheriffs in the questionnaires provided information about the types of situations or circumstances in which a safeguarder should be appointed. These were categorised as conflict, gathering information, ascertaining views, independence, child’s interests and child’s rights ( Appendix 2 Table 401).

Reasons for appointment (often more than one in the same case) were also identified from the analysis of the SCRA sample and these were coded under the categories of: inadequate information, conflict, seeking views and as a result of an impasse ( Appendix 2 Figure 1). Coded responses from the analysis of the sheriff sample identified as reasons, inter alia, the age of the child and the child’s welfare and interests ( Appendix 2 Figure 2). These reasons are discussed in more detail below.

4.3.1 Conflict

The majority of non-safeguarders (n = 208, 58%) and sheriffs (6/16) identified conflict as a reason for appointment ( Appendix 2 Tables 402 and 403). Conflict was also the second most common reason (n = 23, 46%) identified from the SCRA sample ( Appendix 2 Figure 1). Both the questionnaire responses and the SCRA sample identified this conflict as arising, inter alia, between parents/carers and agencies (predominantly social work) ( SCRA sample: n = 18, 36%) or within the family ( SCRA sample: n = 18, 36%). Questionnaire responses also mentioned disagreement around the child’s plan, and a lack of engagement by the family with the relevant agencies as relevant situations of conflict ( Appendix 2 Table 401).

At interview, all 5 solicitors, 4 panel members, 3 sheriffs, and the majority of social workers and reporters cited, as a reason for appointment, the likelihood of conflict.

There’s hassle with a mother and father over contact, there’s hassle between social work and parents (Safeguarder 8).

Two sheriffs also suggested that the appointment of a safeguarder can assist in resolving conflict and help to conclude the case

My prime motivation [in appointing] is to make sure that the interests of the child are properly protected but I also think that there are quite a lot of cases where a safeguarder can, depending on who it is… help to resolve the case… there are cases… after there’s been a couple of continuations and the safeguarder’s been round everybody and talked to everybody and… and then says ‘well, it’s all sorted out’… It saves time, and more importantly, it saves contested court procedure… these are the sorts of cases that if they can be resolved by agreement rather than by imposition of a decision, that’s probably no bad thing (Sheriff 2).

They are quite a useful conduit for unrepresented parents… in effectively mediating agreement about grounds of referral between the reporter and the parents… often you’re told by the Safeguarder that the Reporter has agreed to amend the grounds and the Safeguarder will say: ‘well I’ve gone through it with the parents who have agreed it’. Because they’re able to do it out of the court setting, outside the court room, then it is a better place for the parents to be discussing it rather than in the formal [one] (Sheriff 4).

A third sheriff described the safeguarder as ‘an honest broker’ (Sheriff 5).

4.3.2 Information gathering

The need for additional information was the second most common situation identified in the questionnaire in which non-safeguarders (n = 139; 39%) including sheriffs (2/16) felt that a safeguarder should be appointed ( Appendix 2 Tables 402 and 403). Free text questionnaire responses to the questionnaire mentioned gaps in the available information or that it was conflicting or lacked clarity. Other questionnaire responses coded under this category included concerns around the honesty of parents/carers and the potentially entrenched views of professionals ( Appendix 2 Table 401).

Within the SCRA sample, the most commonly identified reason for a safeguarder appointment (n = 35, 70%) was the inadequacy of information ( Appendix 2 Figure 1). The further information sought usually related to a specific issue, such as family dynamics, the child’s school attendance, or the state of the home environment, though some were more general, such as ‘identifying the issues’, ‘clarifying the problem’ or ‘identifying the child’s current situation’. Some related to information in relation to parents rather than the child, for example parental drug misuse, mental health, or non-cooperation with agencies. Thirty records (60%) sought specific information and a recommendation (for example as to nature, frequency and duration) on contact arrangements and 17 (34%) on residence (for example the suitability of the child’s current placement).

At interview, the ability to gain additional, current information to help decision making was the other main reason (alongside conflict) given for appointment:

[I hope] to get some direct and independent and some detailed feedback on the child’s perspective of things and the child’s up to date circumstances because that’s often missing (Sheriff 6).

4.3.3 Ascertaining views

Ascertaining views was the third most cited reason for appointment by non-safeguarders (n = 128, 36%) and sheriffs (4/16) ( Appendix 2 Tables 402 and 403). Predominantly, the views sought were those of the child, for example where the child’s voice had been lost or where his/her views had not been represented within proceedings but this category also covered appointment to seek views of parents, carers and other professionals ( Appendix 2 Table 401).

The gathering of views was also the third most common reason in the SCRA sample (n = 21, 42%). In each of these cases the child’s views were sought but, in some cases, views of foster carers (n = 3; 6%), parents (n = 2; 4%), and professionals working with the child and family (n = 2; 4%), were also asked for. Nine records (18%) involved a request for the child’s views on contact.

At interview, sheriffs stated that they would also appoint a safeguarder as a conduit for the child’s voice.

I want to hear the child’s version of events through the safeguarder and not just on the principal allegation but also on ancillary matters such as what is to happen in the meantime, like custody and residence and are they scared of the parents (Sheriff 6).

Often during the course of proceedings, it becomes apparent that the child… isn’t really prepared to engage personally, and so I will appoint [a safeguarder], ‘cause otherwise the child is left effectively without a voice because the parents may have different views (Sheriff 4).

They should be appointed to give the sheriff a direct and more reliable channel of communication with the child and a more direct and reliable … view of the child’s circumstances (Sheriff 6).

4.3.4 Independence

In the questionnaire, independence was the next most common reason for appointment by non-safeguarders (n = 68, 19%) and sheriffs (1/16) ( Appendix Tables 402 and 403). Free text responses highlighted the need for an independent assessment or view of the child’s circumstances or the benefits of an impartial report and recommendation ( Appendix 2 Table 401).

At interview, 7 safeguarders, 4 sheriffs and 2 social workers also cited the independent nature of the role as a reason for appointment.

[Safeguarders] have an independent role and I think that’s what’s very important… because you often have a great deal of conflict between relevant persons, children and social work and that’s where a safeguarder can come in and carry out a completely independent enquiry (Safeguarder 10).

[Safeguarders offer] a direct and independent channel of communication and… independent view… so independent of the Reporter, independent of Social Work and independent of the parents (Sheriff 6).

[F]rom a social worker’s point of view… when one’s worked with a family for quite some time and it’s got to the stage where we’re now involved in the Children’s Hearing and things become quite adversarial for whatever reason that is, it can often actually be very helpful to us to have somebody independent going in (Social Worker 5).

4.3.5 Protecting the Child’s Interests, Rights or Welfare

The final two categories for safeguarder appointment from the questionnaire were protecting the child’s interests (non-safeguarders: n = 65; 18%; sheriffs: 6/16) and their rights (non-safeguarders: n = 46, 13%) ( Appendix 2 Tables 402). Free text responses mentioned circumstances where the child’s interests had been lost sight of or, in relation to rights, where the child could not understand the process ( Appendix 2 Table 401). The child’s lack of understanding was also identified in the sheriff sample (n = 2, 4%). In addition, safeguarding the interests of the child (n = 7, 14%) and protecting the welfare of the child (n = 3, 6%) was recorded in the sheriff sample ( Appendix 2 Figure 2).

4.3.6 Impasse

In the SCRA sample, the final coded category for appointment was the reaching of an impasse (n = 12, 24%). For example, interventions were not perceived to be working, or there was a perceived lack of planning by relevant agencies, such as social work, in respect of the child. The reason for the safeguarder’s appointment was thus to advise on a new strategy to address the child’s needs and/or comment on plans and options for the child’s future care. Hearings requested a recommendation around short and/or long term planning for the child in 11 (22%) of records.

4.3.7 Age of the Child

In the sheriff sample, the age of the child was a reason for appointment in 9 records (18%) ( Appendix 2 Figure 2). Although 2 of those records intimated the child’s young age, overall they related to children from 5 months to 12 years. It is, therefore, impossible to draw any general conclusions about age as an indicator of the need for a safeguarder.

At interview, there were mixed views, across all stakeholder groups. Sheriffs in particular, had differing views as to what age of child would most benefit from a safeguarder, with some saying that they would appoint a safeguarder for babies or very young children, whilst others would only appoint where the child was at an age and maturity where their views could be voiced (deemed to be upwards of 5 or 6 years old).

Overall, given that it was possible to identify some consistency as to what constitute appropriate situations to appoint, stakeholders were asked at interview whether decision-makers might benefit from a “drop down menu” of reasons for appointment to make the process more consistent. This suggestion was generally not perceived positively. As one safeguarder commented: ‘I think we should just really be appointed for the best interests of the children and then the safeguarder can work it all out’ (Safeguarder 6).

4.4 Reasons and “remits”

In all but one of the sheriff sample (n = 49, 98%) a reason for appointment was provided. These were brief and generic providing little or no guidance, and certainly no “remit”, to safeguarders. The most common “reason” was ‘at the sheriff’s request’ (n = 25, 50%). This language – the references to the sheriff as a third party - tends to suggest that sheriffs do not directly set down reasons for appointing a safeguarder – they merely instruct their clerks to appoint.

At interview, sheriffs said that they were unlikely to give a reason for appointment, tending to leave the form-filling to the sheriff clerk.

[Do you give reasons for appointment?] No… Well, there’s an interlocutor but the interlocutor just appoints one. There’s a form which the Sheriff Clerk gives me saying do you want a Safeguarder?.. I just tick yes… I don’t have to give any reason. If you did, then they would be almost certainly formulaic… Because of the age of the child or something… [Might it assist the Safeguarder to know what they’re meant to be doing?] Not really, no, ‘cause they all know what they’re supposed to be doing anyway. [So you don’t give them a remit?] No (Sheriff 4).

By contrast, all of the SCRA sample provided complex and multi-faceted reasons for appointment with a “remit” being stated either explicitly (n = 13, 26%) or implicitly (n = 32, 64%).

At interview, reporters, panel members and social workers all indicated that there was a need to give a remit or focus to the safeguarder and at times also to reassure the family that another stranger intruding into their lives was justifiable. Panel members were also aware of the fact that they cannot convey their wishes to a safeguarder directly and indeed are unlikely to be at the hearing in which the safeguarder reports back, thus necessitating, in their mind, a clearer written focus for the appointment:

I think it’s only fair… to provide the safeguarder in written form, bearing in mind we don’t speak to them face to face, with directions and a brief as to what we want them to particularly focus on (Panel member 1).

You need to make enough time to write reasons… Panel members think everybody sees it the way they see it and it’s as clear as day why they appointed the safeguarder, but it’s not always. And the safeguarder’s not there at that point, so how are they gonna know ‘cause they’ve not heard the Hearing discussion (Panel member 8).

Safeguarders were ambivalent about receiving a reason that amounted to a ‘remit’. On balance it would seem that they do expect and indeed appreciate a steer in planning their investigation, despite having the independence to go beyond this where appropriate.

I always put at the beginning of my report the purpose of the report, this is the reason, but I always add in the extra wee bullet point: a safeguarder’s entitled to cover anything that they think is relevant (Safeguarder 11).

However, some safeguarders maintained that a remit from hearings was unnecessary and at times unhelpful:

They can’t tell a safeguarder what to do because the investigation is mine and I decide what to investigate but they can give you an indicator… I decide my remit (Safeguarder 3).

The remit… tries to narrow down the role of the safeguarder and that’s wrong… The whole role of the safeguarder is to bring a range of knowledge and assimilated views from all those concerned in a kind of fairly broad-based report (Safeguarder focus group participant).

Social workers, panel members and reporters had mixed views about whether the reasons given for appointment provided clarity for the safeguarder, not least where that reason was seen by social work as duplicating their own remit.

[The safeguarder’s] purpose is to come in and assess contact and I feel sometimes that they’re being used like a secondary social worker… our own professional opinion as social workers isn’t taken as serious (Social worker 2).

4.5 “Inappropriate” appointments

At interview, stakeholders were asked if safeguarders were ever appointed when it was not appropriate to do so. A number felt that the appointment of a safeguarder by a children’s hearing was sometimes a means of ‘stalling for time’.

I do think that sometimes Panels in particular find themselves getting flustered, find themselves not knowing quite which way to go and out of desperation almost… we’ll just get a safeguarder and that’s a way of putting off a hard decision (Reporter 5).

I think they appoint a safeguarder when a Hearing has got tough and difficult. I think they are hoping that the safeguarder will make everything easier for them… to make a decision (Safeguarder 8).

[Panel members] are struggling to make a decision so they go for this cop out decision without actually thinking it through… just chucking another person in the mix isn’t gonna solve it. You’ve actually got to make a bold decision sometimes… But simply [appointing a safeguarder] because you can’t think of anything better to do doesn’t seem to me to be a good reason (Panel member 4).

The answer to this issue is perhaps best summed up by a focus group participant who suggested that there needed to be a definite reason for safeguarder appointment for example, the existing professionals could not fully represent the child’s best interests:

You’re always looking to see if… the professionals that are there are actually looking after the best interests of the child. Now, if that was not the case, I would certainly consider the appointment of a safeguarder… But for me, social workers - all the professionals there - usually work in the best interests of the child. Therefore, the appointment of a safeguarder, you have to think very, very carefully about what you would actually have for… the remit for a Safeguarder (Panel Member Focus Group participant).

Some interviewees commented on the differing rates of appointment between children’s hearings and sheriffs. In Aberdeenshire, Edinburgh, Glasgow, Fife, Highland and South Ayrshire, for example, interviewees suggested, anecdotally, that appointments might be made as a matter of course by some sheriffs.

I think if a sheriff perceives that a child is able to express a view and a child is not legally represented, then there are certain sheriffs, certainly in this sheriffdom, who will almost automatically appoint a Safeguarder (Solicitor 2).

I feel that Sheriffs appoint – and I don’t know whether statistically this is borne out or not – but tend to appoint more safeguarders than panels do and I think that they do it just as a matter of course. So does that point to a misunderstanding of the situation? (Panel Member 1).

We do notice that the Sheriffs seem to automatically appoint them (Panel Member 9).

In fact, however, 7 of the 9 sheriffs interviewed stated that they would not appoint in every case. One sheriff gave as an example the fact that the child had offended as precluding the need for a safeguarder.

4.6 Discussion and conclusions

Safeguarders’ effectiveness in any case is clearly affected by the reasons for, and the circumstances in which, they are appointed. If there is no real reason, then their work may simply duplicate that of others adding little. The relative consistency across stakeholder groups in identifying conflict, missing information, ascertainment of views (of the child and, on occasion, others), coupled with the safeguarder’s ability to act independently of all other professionals involved in the child’s life, indicates that these are areas in which safeguarders’ investigations can and do add value. The other reasons stated such as the reaching of an impasse in the hearings process and protecting the child’s rights, interests and/or welfare demonstrate the breadth of the role.

Our research identified a number of different reasons for safeguarder appointment across different stakeholder groups. While there were some areas of agreement, decision-makers may benefit from further written guidance on reasons for appointing to assist them in this respect. This would not preclude appointment by panel members and sheriffs for other reasons.

In relation to conflict, interview data obtained from sheriffs suggests that there can also be added value in safeguarders’ ability to talk to everyone involved, but particularly the child and the family, outwith the charged setting of the court room in terms of potentially defusing conflict and reaching early resolution.

The analysis of the SCRA and sheriff samples shows different practices in terms of giving reasons for appointment: children’s hearings provide extensive reasons; sheriffs do not. Interview data tends to confirm this. S 31(6) of the 2011 Act states “If the sheriff appoints a safeguarder, the sheriff must give reasons for the decision”. The extent of compliance with this requirement is rather unclear. While it may be inferred that sheriffs are of the view that safeguarders will know what is required of them, it would be conducive to effective work by the safeguarder if sheriffs were encouraged to give a reason(s) for appointment of a safeguarder in accordance with the legislation. ^[3]

Panel members’ obligation to give reasons is found in s 30(4) of the 2011 Act. An issue for them is whether they are seeking to over-direct, or provide a remit for, the safeguarder, potentially infringing the latter’s independence. Unlike in the court setting, a different set of panel members will receive the report and apply it in decision-making so, as well as the safeguarder, they will need a clear statement of the appointing panel’s reasons. Indeed, these reasons (required by statute) and what it is that the safeguarder is asked to do in the case may be almost inseparable. At interview, safeguarders generally indicated that they are not hampered by the sometimes prescriptive nature of panel members’ reasons for appointment. Overall, then, “remits” were not found to constrain the work of individual safeguarders and may, in some cases, be helpful (see also paired report analysis in Chapter 5).

Finally, in relation to potentially inappropriate appointments by panel members, there should always be a reason specifically to appoint a safeguarder. If there is no such reason, then a safeguarder is probably not appropriate.