Children's hearings training resource manual: volume 1

4 Procedures at Children's Hearings

General

If there is a matter that should have been considered by a pre-hearing panel but there has been insufficient time to arrange one, this matter/s must be dealt with at the start of the children's hearing before considering any other matter.

At the beginning of the children's hearing the chairing member must:

• Introduce the members of the children's hearing and explain the purpose of the children's hearing.
• Check that the child, each relevant person in relation to the child and any safeguarder has received all relevant information and documents required to be received by the Rules.
• Confirm whether the child, each relevant person and any safeguarder:
  • has received reports within the legal timescales before the children's hearing
  • had the opportunity to read and consider these reports and
  • whether these have been understood by the child and each relevant person.
• Ask the child whether the reports accurately reflect their views- unless the chairing member considers it inappropriate to do this given the child's age and maturity. If the child confirms that the reports do not accurately reflect the child's views, the chairing member must try to clarify the child's views.

Legal Assistance

A children's hearing may recommend that in order:

• To allow the child or relevant person to participate effectively in the hearing it is necessary that the child or relevant person be represented by a solicitor or counsel. and
• It is unlikely the child or relevant person will arrange to be represented by a solicitor or counsel.

The children's hearing should defer making a decision and require the reporter, as soon as possible, to notify the Scottish Legal Aid Board of the recommendation, the reasons for the recommendation and the name and address of the child and /or relevant person.

Automatic Legal Assistance for Children

Legal Aid for the provision of legal assistance will be automatic to children in the following circumstances:

• Application to vary or terminate a CPO.
• Second working day hearings.
• Custody hearings- when a child has been detained by the police.
• Any hearing considering secure accommodation authorisation.

The child has to have the capacity to instruct a solicitor. If the child is present at any of the hearing types mentioned above, has the capacity to instruct a solicitor but is not legally represented, the children's hearing should check that the child has been offered the opportunity to have a solicitor and if not the hearing should be deferred for this purpose.

Procedure at section 67 grounds hearing

When explaining the statement of grounds the chairing member may exclude any relevant person if they are satisfied that the presence of that person is preventing the children's hearing obtaining the acceptance or denial of the grounds from any person who is required to accept or deny the grounds.

After the exclusion the chairing member must explain to the relevant person what has taken place in their absence.

Where the child or relevant person accepts a section 67 ground but does not accept all the facts, the hearing, where it considers it appropriate, may amend the statement of grounds by removing any facts that are denied or amending the facts. If a hearing amends the facts, the hearing must be satisfied that any amendments to the facts do not call to question the acceptance of the section 67 ground. If it does, then the hearing should consider sending the section 67 ground to the Sheriff for proof or discharging the referral.

Hearing where section 67 grounds are denied or not understood

When a section 67 ground is denied or not understood, the hearing members must give reasons for either directing an application for proof or discharging the grounds.

If the case is sent to the sheriff and:

• the child is not subject to a compulsory supervision order, the hearing may issue an interim compulsory supervision requirement ( ICSO) if they consider it necessary as a matter of urgency for the protection, guidance, treatment or control of the child or if
• the child is subject to a compulsory supervision order, the hearing may issue an interim variation of the compulsory supervision order ( IVCSO) if they consider it necessary as a matter of urgency for the protection, guidance, treatment or control of the child.

In doing this they have to consider what measure(s) should be attached to the interim order. Each hearing member has to give reasons for the interim order any measures attached.

The chairing member must:

• confirm and explain the decision of the children's hearing
• state the reasons for the decision
• inform the child, any relevant person and safeguarder of the right to appeal the decision to discharge the referral, make an ICSO, an IVCSO or grant a warrant to secure the child's attendance.

Procedure when a section 67 ground accepted or established, at a deferred hearing or at a review hearing

At a hearing where a section 67 ground is accepted or established, or at a deferred hearing or review hearing, the chairing member must:

• inform the child and any relevant person in relation to the child who is present of the substance of any relevant reports or documents
• take all reasonable steps to obtain the views of the child, each relevant person in relation to the child and safeguarder in relation to:
  • any report, document or matter being considered by the hearing and
  • what, if any, measures would be in the best interests of the child.

The chairing member may invite others present to express their views on, or provide any other information relevant to anything being considered by the hearing. The hearing must consider any report from a safeguarder.

Procedure when decision deferred

If a children's hearing decides to defer making a decision, the hearing may do any one or more of the following actions if appropriate:

• appoint a safeguarder if one has not already been appointed
• require the reporter to obtain any report from any person which the children's hearing considers would be relevant to any matter to be determined by the hearing
• set a date for the subsequent children's hearing to be held
• direct the reporter to notify the Scottish Legal Aid Board of the need or potential need for legal assistance for the child or any relevant person
• require the reporter to make arrangements for an interpreter for the child or any relevant person or take any other step with a view to securing participation of the child or any relevant person.

Each member of the children's hearing must give their decision and reasons for deferring the decision. They must also give reasons for any interim compulsory supervision order, interim variation of a compulsory supervision order or medical examination order.

If making an interim compulsory supervision order, an interim variation of a compulsory supervision order, a medical examination order or granting a warrant to secure attendance, the hearing members must state what measures are to be contained in the order or warrant and the reasons for their inclusion.

The chairing member must:

• confirm and explain the decision of the children's hearing
• confirm the reasons for the decision
• inform the child, any relevant person and safeguarder of the right to appeal.

Procedure where hearing proceeds and makes a decision

When a hearing makes a decision either to make a compulsory supervision order or to continue, vary or terminate a compulsory supervision order or discharge the referral, each member of the children's hearing must:

• state their decision and the reasons for their decision
• where the decision is to make a compulsory supervision order or continue or vary a compulsory supervision order state their decision in relation to any measures to be included in the order and the reasons for the measure.

The chairing member must:

• confirm and explain the decision of the hearing
• confirm the reasons for the decision
• inform the child, relevant person and safeguarder of the right to appeal the decision within 21 days
• where the decision is to make a compulsory supervision order or to terminate, vary or continue a compulsory supervision order, inform the child, relevant person and safeguarder of the right to seek a suspension of the hearing's decision once an appeal has been made.

Privacy of proceedings

A children's hearing is conducted in private. No one should be present unless they need to be there for the proper consideration of the case or else if their attendance is permitted by the chairing member, who has a duty to restrict the number of people present at any one time. This can be quite difficult to achieve in a complex case where it may be necessary to hear from a number of different parties who may assist the decision making process. Prior to the hearing, panel members should consider how this might be managed and who needs to be in the hearing at any particular time and for how long.

The publication of protected information about proceedings at a children's hearing is prohibited if it is intended that publication will, or is likely to, lead to the identity of the child being revealed or the address or the school of the child.

Scottish Ministers may in the interests of justice, dispense with this prohibition or relax it if considered appropriate. (s 182)