Children's hearings training resource manual: volume 1

2 Section 67 Grounds

In order to reach a decision on whether or not the child requires a compulsory supervision order, one of the prime considerations by the reporter is which one or more of the section 67 grounds most appropriately reflect the principal concerns about the child's welfare.

Section 67 of the Children's Hearings (Scotland) Act 2011 notes all the different grounds at least one of which must apply before a child can be referred to a hearing.

(a) The child is likely to suffer unnecessarily, or the health or the development of the child is likely to be seriously impaired, due to a lack of parental care.

Generally this ground refers to poor parenting over a period of time by a carer. The reasons for this may be that the carer may have limited parenting ability, substance misuse problems, mental health issues or relationship difficulties and is unable to prioritise the child's needs before that of their own or of others in the household.

This ground will include children living in poor physical conditions or children whose basic needs are not being met i.e. not being fed appropriately, inadequate accommodation or poor standards of living conditions. Emotional abuse will also fall into this category but it should be added that any abuse of a child will have an emotional element.

It is important to remember that lack of parental care can involve omission as well as commission of acts. The lack of parental care may be past or present and the word 'likely' refers to possible and probable future lack of care and the likely impact on the child. (s 67(2)(a))

(b) A schedule 1 offence has been committed in respect of the child.

A list of all the schedule 1 offences is contained in the Criminal Procedure (Scotland) Act 1995. Schedule 1 offences include offences involving assault, ill treatment, neglect, exposure, abandonment or any offence involving bodily injury in a manner likely to cause unnecessary suffering. Sexual offences are also contained in schedule 1.

Although in some cases the identity of the perpetrator may be known, it is not necessary to prove who has committed the offence- it is sufficient for it to be established that the child has been a victim of such an offence. For the purposes of children's hearings proceedings in court, it is sufficient for the reporter to prove this on the balance of probabilities. i.e. There is enough evidence to tip the balance in favour of the offence having been committed against the child. Even if a perpetrator has had no criminal proceedings brought against them or has been acquitted in criminal proceedings, the ground of referral can still be upheld if there is supporting evidence. (s 67(2)(b))

(c) The child has, or is likely to have, a close connection with a person who has committed a schedule 1 offence.

This ground can be used to protect any child from birth onwards where the child has had or is likely to have in the future, a close connection with someone who has committed an offence mentioned in Schedule 1 of the Criminal Procedure (Scotland) Act 1995. A child is taken to have a close connection with a person if:

• the child is a member of the same household as the person or
• the child is not a member of the same household but has significant contact with the person.

The word 'household' has a wide meaning and may involve the person either living in or not living in the same house. If not living in the same house as the child, then that person having a continuing relationship or family tie with the child and/or his family would constitute member of the same household. (s 67(2)(c))

(d) A child is, or is likely to become a member of the same household as a child in respect of whom a schedule 1 offence has been committed.

For this ground to be upheld, the child has to be a member of the same household as a child who has been the victim of a schedule 1 offence. It is important to remember that the word 'household' has a wide meaning and may involve the child not actually physically living in the same house as the referred child but having a continuing relationship with the child. (s67(2)(d))

(e) The child is being, or is likely to be, exposed to persons whose conduct is (or has been) such that it is likely that -

(i) the child will be abused or harmed, or

(ii) the child's health, safety or development will be seriously adversely affected.

This ground can be used when the child's safety is or is likely to be compromised by more than one person due to their past or present conduct. It has the potential to cover a broad range of circumstances such as being present in a house where substance misuse is taking place or pornography is being shown. 'Likely' also applies to the impact on the child. (s 67(2)(e))

(f) The child has, or is likely to have, a close connection with a person who has carried out domestic abuse.

This ground protects any child who has a close connection with the perpetrator of domestic abuse whether that person is a man or a woman. If the only significant concern is exposure to domestic abuse then it is more likely that this ground would be used as opposed to 'lack of parental care'. The second element to this ground is that the child is taken to have a close connection with the person who has carried out domestic abuse. The child will have a close connection with a person if:

• the child is a member of the same household as the person or
• the child is not a member of the same household but has significant contact with the person.

The ground covers current or 'likely' close connection with a person who has carried out domestic abuse but it is not necessary that the domestic abuse has been carried out in the referred child's family. (s 67(2)(f))

(g) The child has, or is likely to have a close connection with a person who has committed an offence under Part 1, 4 or 5 of the Sexual Offences (Scotland) Act 2009 (asp 9)

This ground protects any child who has a close connection with someone who has committed an offence of unlawful sexual intercourse, rape etc of a young child (a child who has not attained 13 years of age) or an older child - a child who has not attained 16 years of age.

A child is taken to have a close connection with a person if:

• the child is a member of the same household as the person or
• the child is not a member of the same household but has significant contact with the person. (s 67(2)(g))

(h) The child is being provided with accommodation by a local authority under section 25 of the Children (Scotland) Act 1995 and special measures are needed to support the child.

This ground relates to children who are being looked after by the local authority on a voluntary basis whose behaviour is potentially risk taking and may include repeatedly absconding or endangering themselves or others by their behaviour. This might lead to the consideration of stronger measures to support them including a compulsory supervision order, a movement restriction condition or indeed secure accommodation. Note the use of the word 'support' in the ground. (s 67(2)(h))

(i) A permanence order is in force in respect of the child and special measures are needed to support the child.

This ground relates to those children whose future has been secured by way of a permanence order. The presumption here would be that the child is not subject to a compulsory supervision order and that some form of compulsion may be necessary to support the child through a difficult period. Note the use of 'support' in the ground. For example a child who has been looked after for several years and has their future secured by way of a permanence order. The compulsory supervision order is terminated and the child is outwith the system. If further down the line, the child was

to experience difficulties for example where the placement was breaking down, the child could be referred to a children's hearing for support and be brought back into the system. (s 67(2)(i))

(j) The child has committed an offence

This ground applies only to a child over the age of criminal responsibility who has committed at least one offence.

The age of criminal responsibility for a child in Scotland is 8 which means a child can be referred to a children's hearing on an offence ground if he was eight years old at the time of the alleged offence. The age of criminal prosecution for a child in Scotland is 12 which means that should a child commit a very serious offence, only a child of 12 or over will be prosecuted in an adult court of law.

Children aged 8 -11 who commit an offence are referred only to the children's hearings system.

Some of the main types of offence that children are likely to be involved in and may lead to a children's hearing are:

• Theft - Taking the property of someone else without their permission and appropriating it for their own use.
• Reset - Receiving from another person property known to be stolen.
• Damage to property - This may include malicious mischief, vandalism or fire raising.
• Offences against the person - This may include assault, leading to injury or various sexual offences.
• Possession of an offensive weapon - The carrying of an offensive weapon, knife or other implement which is used either in a threatening manner or without lawful authority.
• Offences which might hinder the prevention or detection of a crime - Giving a false name and details to the police is the most common offence which prevents the detection of a crime.
• Traffic offences - The most common offence which concerns hearings is the taking and driving away of a motor vehicle. There is also a range of statutory offences arising from driving under the permitted age, namely driving without insurance, without a seatbelt etc
• Miscellaneous - Possession of air weapons in certain unlawful circumstances, or recklessly firing them; general breach of the peace; vandalism, fraud or false pretences.

It is important to remember that anyone helping someone to commit an offence can be considered to be equally involved, for instance if he or she gives advice, provides tools or other materials, keeps a lookout or acts as a decoy (and is, therefore 'art and part' of the offence).

The Lord Advocate may decide that a child who has committed a very serious offence will be prosecuted in court, in the public interest. The Lord Advocate's Direction to Chief Constables sets out the circumstances when a child must be jointly reported to the procurator fiscal and the reporter and this is confined to very serious offences. There is normally discussion between these officials prior to a decision being taken by the procurator fiscal about whether to prosecute or remit the case to the reporter to deal with. (s67(2)(j))

Where the statement of grounds prepared by the reporter relates to an offence, it must have the same degree of specification as a charge and specify the nature of the offence. (Rule 14)

(k) The child has misused alcohol

This ground brings any child who has misused alcohol into the system which is in line with Article 33 of the UN Convention of the Rights of the Child which expects member states to take appropriate action to protect children from illicit drug use. (s 67(2)(k))

(l) The child has misused a drug (whether or not a controlled drug)

This ground includes children who have misused a class A, B or C drug, prescribed or a non-prescribed drug. For example class A drugs e.g. ecstasy, heroin, crack cocaine, class B drugs e.g. cannabis, ritalin and amphetamines, Class C e.g. tranquilisers, ketamine, GHB. (s 67(2)(l))

(m) The child's conduct has had, or is likely to have, a serious adverse affect on the health safety or development of the child or another person.

This ground can bring any child into a hearing who exhibits a range of behaviours that is likely to have an adverse effect in terms of the child's health, safety or development or that of any other person. This could involve a child who has been running away from home, has substance misuse issues or has been missing from home and exposed to potential danger in the community e.g. sleeping rough. Self harming behaviour might also fall into this category. (s 67(2)(m))

(n) The child is beyond the control of a relevant person

A relevant person has the responsibility of providing control for the child. This ground may be used when a child is behaving in such a way that he or she does not respond to the reasonable demands made by a relevant person, for example when a child is running away or continually staying out until the early hours of the morning without the consent of the parent. (s 67(2)(n))

(o) The child has failed without reasonable excuse to attend school regularly

The child must be of school age. Reasonable excuses are defined in section 42 of the Education (Scotland) Act 1980 and refer to difficulties with travel arrangements, health problems or special circumstances acceptable to the education authority or a court. Exclusion due to a child's disruptive behaviour does not constitute a reasonable excuse for not attending school. If the child is being appropriately educated at home however this is considered to be a reasonable excuse. (s 67(2)(o))

(p) The child-

(i) is being, or is likely to be, subjected to physical, emotional or other pressure to enter into a civil partnership, or

(ii) is, or is likely to become, a member of the same household as such a child.

This ground would apply to any child who is being or is likely to be put under pressure to enter into a civil partnership. A civil partnership is a legal relationship exclusively for same sex couples which is distinct from marriage but which essentially gives same sex couples the same rights and responsibilities as a married couple. To enter into a civil partnership, the child must have attained the age of 16.

This ground also protects any child who is a member of the same household as the victim or is likely to become a member of the same household as the victim. (s 67(2)(p))

(q) The child-

(i) has been, is being or is likely to be, forced into a marriage(that expression being construed in accordance with section 1 of the Forced Marriages etc (Protection and Jurisdiction)(Scotland)Act 2011 (asp15) or,

(ii) is, or is likely, to become a member of the same household as such a child

This ground would apply to any child, male or female, who has been, is being or is likely to be forced into a marriage. The pressure may be physical, emotional or involve duress etc. For example, if the child was held captive somewhere unless he/she agreed to the marriage, this would fall under physical pressure. If the child is threatened to be cut off from his/her family if he/she does not comply with the marriage, this would fall under emotional pressure. It is important to remember that arranged marriages, where the family play a significant role in selecting a partner and the bride and groom consent, does not fall under this category.

However, a consenting arranged marriage may turn into a forced marriage if either of the parties changes their mind and there is pressure or duress exerted upon them to proceed with the marriage. This ground also protects any child who is a member of the same household as the victim or is likely to become a member of the same household as the victim. This ground covers existing or future pressure and covers past marriages. (s 67(2)(q))

Standard of proof in court

When the reporter seeks to prove a section 67 ground in court, different standards of proof apply. The standard of proof for every ground (except s 67(2)(j)) is that of the balance of probabilities i.e. that there should be enough evidence to make it more likely than not that the incident took place. However, when a child has committed an offence under s 67(2)(j), the higher standard of proof applies that of beyond reasonable doubt- it must be 'beyond reasonable doubt' that the child has committed the offence.