Children's hearings training resource manual: volume 1

1 Different Types of Hearing

There are a number of different types of hearings. What follows is an outline of some of the main types of hearings and the decisions available to them. Panel members are encouraged, before the start of the hearing, to check with colleagues and to quickly review what legal options are possible.

SECTION 67 GROUNDS HEARING (s 90 to 95)

When grounds are being put for the first time there are a number of options available to panel members depending on the response from the child and family. In order to reach a decision, it is important for the hearing to explore the circumstances relating to the statement of grounds.

Panel member task

If grounds not accepted or not understood, the hearing may:

• discharge the referral if a compulsory supervision order is not required
• send the case to the sheriff court for proof
• send the case to proof and in a matter of urgency make an interim compulsory supervision order if the nature of the child's circumstances is such that it is necessary for the protection, guidance, treatment or control of the child (if the child is not subject to a CSO)

or

• send the case to proof and in a matter of urgency make an interim variation of a compulsory supervision order if the nature of the child's circumstances is such that it is necessary for the protection, guidance, treatment or control of the child. (if the child is subject to a CSO)

If grounds accepted, the hearing may:

• discharge the referral if a compulsory supervision order is not required
• defer making a decision about a compulsory supervision order to a subsequent hearing
• make a compulsory supervision order which will contain the standard measure and any other measure which is deemed to be appropriate
• defer the case and in a matter of urgency make an interim compulsory supervision order if the nature of the child's circumstances is such that it is necessary for the protection, guidance, treatment or control of the child (if the child is not subject to a CSO) or

• defer the case and in a matter of urgency make an interim variation of a compulsory supervision order if the nature of the child's circumstances is such that it is necessary for the protection, guidance, treatment or control of the child. (if the child is subject to a CSO)

ADDITIONAL SECTION 67 GROUND AND REVIEW

• If a child is subject to a compulsory supervision order, is referred to a hearing by the reporter on a new ground, the hearing must proceed to consider the new ground but at the same time review the compulsory supervision order.

CUSTODY HEARING - CHILD DETAINED BY THE POLICE (s 65)

When a child has been detained in custody, the Principal Reporter has several options:

• to liberate the child if the reporter feels that there is insufficient evidence to proceed to a children's hearing
• liberate and investigate the case
• not to liberate the child and investigate.

If the child is liberated, the reporter will follow the normal investigation route and will make a decision about whether to refer the child to a children's hearing at a later date.

If the child is not liberated, a children's hearing must take place within 3 days and this initial hearing will be a section 67 grounds hearing. If the child has capacity to instruct, automatic legal aid will be available for the child.

Panel member task

The children's hearing will proceed as normal see panel member task for a section 67 grounds hearing, although panel members should be alert to the fact that the hearing will have been arranged at short notice and some of the statutory timescales may not have been met.

REVIEW HEARINGS (s129 to 142)

It is a fundamental concept of the children's hearing system to promote and effect positive change in child's circumstances. The legislation provides for the child's circumstances to be reviewed at least annually or sooner if requested by someone with the right to do so. No compulsory supervision order will remain in force longer than:

• One year and one day after the order was made.
• The day on which the child attains the age of 18. (s 83(7))

There are numerous types of review that a panel member may come upon. It is implicit that the child is subject to a compulsory supervision order in each of the circumstances

• Annual review. (s 133)
• Child being taken to live out with Scotland. (s 134)
• Secure accommodation review (within 3 months of the order). (s 135)
• Antisocial behaviour review. (s 129)
• The child or relevant person require a review (after three months after the order). (s 132)
• The previous hearing asked for a review.

Additionally the implementation authority must require a review of a compulsory supervision order in the following circumstances

• The compulsory supervision order ought to be terminated or varied. (s 131(2)(a))

• The compulsory supervision order is not being complied with. (s 131(2)(b))

• Authority intends to make an application for permanence order or adoption. (s 131(2)(c))

• The authority intends to place the child for adoption or is aware that an application is to be made by someone or is pending.

Panel member task

The children's hearing must consider what has happened since the original compulsory supervision order was made or last reviewed and decide what change, if any, is necessary. A suitable starting point is to look at the original grounds that brought the child into a hearing and the last reasons for the decision considering whether they are still applicable. Consideration must also be given to whether the child is still in need of compulsory supervision. If the review is requested by the child, relevant person or local authority, it is appropriate to ask the person who requested the review to explain why they have done so. Where a children's hearing is carrying out a review of a compulsory supervision order, the following options are available to them:

In the first instance they

• May defer making a decision about compulsory supervision order until a subsequent hearing. (s 138(2))

or

• In a matter of urgency defer the case and consider making an interim variation of the compulsory supervision order if the nature of the child's circumstances is such that it is necessary for the protection, guidance, treatment or control of the child.

If they do not defer the decision they may

• Terminate the compulsory supervision order.
• Vary the compulsory supervision order.
• Continue the compulsory supervision order for a period not exceeding one year. (s 138(3))

If the hearing varies or continues the compulsory supervision order they must be satisfied that it is necessary to do so for the protection, guidance, treatment or control of the child and they must also consider whether it is necessary to include any additional measures. (s 138(4/5))

If the hearing terminates the compulsory supervision order, they must decide whether, notwithstanding this decision, the child is in need of supervision and guidance, and if so they must make a statement to that effect and it will be the duty of the relevant local authority to give the child such supervision or guidance that the child will accept. (s 138(6/7))

SECOND WORKING DAY HEARING (s 45-47)

Grounds will not be made available at this hearing. There should however be some form of report, preferably written which indicates the circumstances surrounding the child protection order, what steps have been taken, details of where the child is (provided there is not a non-disclosure direction in place) and assessment of the child's situation and potential risk factors. If the child has capacity to instruct automatic legal aid will be available for the child.

Panel member task

The hearing has three options available to them.

If satisfied that the conditions for making the order continue to be met they must either:

• continue the order or
• continue and vary the order- the variation is likely to be around the information non-disclosure direction, contact direction or parental responsibilities and rights direction. The variation may involve an entirely new measure.

If not satisfied that the conditions for making the order are met, they may

• terminate the order.

Working days are every day except

• a Saturday
• a Sunday
• 25 December
• 26 December
• 1 January
• 2 January.

EIGHTH WORKING DAY HEARING

Where the reporter considers that grounds exist and a compulsory supervision order should be made for the child, he or she must arrange for a children's hearing to take place on the eighth working day after the order was implemented. As soon as the hearing takes place, the child protection proceedings are at an end and the case must consider the situation as a normal grounds hearing.

At the eighth working day, a statement of grounds will be available and the normal processes for a grounds hearing will apply. The children's hearing may find that there is not a full report on the circumstances of the child that would allow the hearing to make a substantive decision even if the statement of grounds were accepted by the child and the relevant person/s.

Panel member task

The statement of grounds will be put to the child (if present) and relevant persons at this hearing. In most cases because of the age of the child or because the statement of grounds have not been accepted, the children's hearing will need to consider whether to continue and send the case to the sheriff for proof or to discharge the referral.

A children's hearing can give consideration to

• issuing a interim compulsory supervision order, if the child is not subject to a compulsory supervision order
• making an interim variation of a compulsory supervision order if the child is subject to compulsory measures.

Before reaching this decision, the children's hearing should be satisfied that this course of action is necessary as a matter of urgency and that

• the risk in returning the child is too great
• the substitute arrangements for the care of the child meets the child's full range of needs.

If an interim compulsory supervision order or an interim variation of a compulsory supervision order is issued, panel members should consider if there are any measures that would need to be attached to the order.

Working days are every day except

• a Saturday
• a Sunday
• 25 December
• 26 December
• 1 January or
• 2 January.

EMERGENCY TRANSFER (s 143)

Another review hearing which may occur is where a child is transferred as a matter of urgent necessity.

If a child is subject to a compulsory supervision order with a measure naming a place of residence, the chief social work officer may transfer the child to another place if:

• it is a matter of urgent necessity to do so and
• it is in the interests of the child subject to the compulsory supervision order or another child resident in that place.

When the Principal Reporter is advised that the child has been transferred from a place where they are residing either under a compulsory supervision order or interim compulsory supervision order, a review of the order must be initiated. (s 136 )

This hearing is an emergency hearing and must take place within 3 working days beginning the day on which the child is transferred. (s 137(3))

Panel member task

Because of the emergency nature of the situation, there are limited options available to the children's hearing.

The hearing must satisfy itself that the place where the child has been moved to meets the needs of the child and is in the child's best interests.

The options available to this hearing are very limited:

• To defer making a decision about a compulsory supervision order until a subsequent hearing.

or

• To defer making a decision about a compulsory supervision order and in a matter of urgency consider an interim variation of the compulsory supervision order.

REVIEW OF A COMPULSORY SUPERVISION ORDER RELATIVE TO PERMANENCE ARRANGEMENTS (s 131)

Where a child is subject to a compulsory supervision order and the local authority feels that the best interests of the child would served by making an application for

• A permanence order.
• A variation of a permanence order.
• An amendment of a permanence order.
• The revocation of a permanence order.
• Placing the child for adoption.
• An application for an adoption order has been made and is pending or is about to be made.

An implementation authority must advise the reporter and require a review of the compulsory supervision order.

An implementation authority when they become aware that an application has been made for an adoption order must require a review of the compulsory supervision order as soon as practicable. (s 131(5))

Panel member task

The hearing has two tasks, in the first instance the hearing:

• Must review the compulsory supervision order and consider whether it should be varied in any way. Contact arrangements are a crucial part of the discussion in such cases and hearings should not restrict or terminate contact to further or support the local authority's plans in relation to permanence. The children's hearing should always remember to justify any reduction and have a good basis for doing so. It is not necessary for the hearing to wait for actual significant harm or distress to the child before taking action. Once an application for a permanence order has been made to the sheriff, a hearing may not at any future hearing vary the terms of the order without first having the permission of the sheriff.
• Must consider the case and the reasons why the local authority wish to pursue permanence and decide whether or not they support permanence. The hearing must prepare a report providing advice about the circumstances of the case for both the local authority and the court who will reach a decision. (The court is bound to have regard to the report provided by the hearing when coming to its decision) (s 141(2))

REVIEW OF RELEVANT PERSON DETERMINATION (s 142)

When a child is subject to a compulsory supervision order and following a review of that compulsory supervision order, it appears to a children's hearing that an individual may no longer have a significant involvement in the upbringing of the child, the hearing must review whether or not the individual should continue to be deemed to be a relevant person in relation to the child. This must be done at the conclusion of the review of the CSO which either continues or varies the CSO.

Panel member task

Panel members may:

• Defer determining the review of the deemed relevant person status until a subsequent hearing has been convened- usually to obtain some information which would be useful in determining the matter.
• Make a determination that the individual continues to have a significant involvement in the child's life and should retain the deemed relevant person status.

or

• Make a determination that the individual no longer has, or recently has had, significant involvement in the child's life and should no longer be deemed to be a relevant person.

Because of the implications of this decision in removing an individual's right to participate fully in the decision making process for the child, the individual, the child and any other relevant person may appeal individually or jointly against the determination within seven days to the sheriff court.

SUSPENSION OF HEARING DECISION PENDING OUTCOME OF APPEAL (s 158)

When a child or relevant person appeals against a hearing's decision to make, vary, continue or terminate a compulsory supervision order, they may also request that the reporter arranges a children's hearing to consider whether the decision made by the original hearing should be suspended until there is a decision reached in respect of the appeal lodged. The reporter is bound to arrange a hearing as soon as practicable after the request has been made.

Under normal circumstances, consideration must be given to the views of the child and family and the paramount consideration must always be the welfare of the child, not only for the time being but forward looking to the rest of their childhood.

Panel member task

The purpose of the hearing is not to consider the merits of the original hearing's decision but to consider what is in the child's best interests in the period before the appeal is heard.

The children's hearing may either:

• suspend the decision of the children's hearing and any of the measures attached

or

• not suspend the decision of the children's hearing.

The children's hearing can make no other decision. This means that the decision of the hearing will be suspended in its entirety but the child would remain subject to any CSO that was in place before the decision if there was one.

REVIEW OF CONTACT DIRECTION ORDER (s 126)

If

• a contact direction is made within a compulsory supervision order, an interim compulsory supervision order or a medical examination order which regulates contact and
• there is someone who has a contact order or a permanence order which specifies their contact arrangements and
• this person is not a relevant person.

After the decision has been made, a further hearing must be held within 5 working days of the decision to review the contact direction that has been made. There is no requirement on either the child or any relevant person to attend the hearing.

Panel member task

• confirm the decision of the children's hearing or
• vary the order but only in terms of varying or removing the contact direction

REVIEW OF CONTACT DIRECTION ORDER REQUEST (s 126)

The reporter must arrange a hearing to review a contact direction which regulates contact if requested to do so by a person who claims to have established family life with the child within five working days of the request.

There is no requirement on either the child or any relevant person to attend the hearing.

Panel member task

The powers of the hearing are limited in such circumstances and the hearing must

• Take no further action - if they consider that the individual who has requested the hearing does not have established family life with the child. or

In the case of an individual who has satisfied the hearing that there is established family life may

• Confirm the decision of the children's hearing.

or

• Vary the order but only in terms of varying or removing the contact direction.

REMITS FROM COURT

In certain circumstances, the court may send a child's case back to a hearing for disposal:

• When a section 67 ground has been established at court (s 108)
• Where a child, who is not subject to a compulsory supervision order, has appeared in court and pled guilty to or has been convicted of an offence in a criminal court. The offence which was admitted to or proven will be a ground established for the purposes of a children's hearing. (s 71)
• Where a child, who is subject to a compulsory supervision order, has appeared in court and pled guilty to or has been convicted of an offence in a criminal court. The offence which was admitted to or proven will be a ground established for the purposes of a children's hearing in terms of s 67(j). (s 130)
• Where an appeal against a previous hearings decision has been upheld. If the sheriff decides to remit the case to the children's hearing for disposal in terms of any of the options open to a children's hearing. ( s 156)
• If in the course of any other proceedings involving children it appears that one of the section 67 grounds may apply, the court has the discretion to refer the case to the reporter for investigation. If the reporter considers that a section 67 ground applies and that a compulsory supervision order is necessary, he/she will bring the case to a hearing and this will be a grounds hearing. (s 62)
• Where a sheriff deals with a child under the Anti Social Behaviour etc (Scotland) Act 2004 and that child is not subject to a compulsory supervision order, the sheriff will specify a ground which will be taken to be established and require the reporter to arrange a children's hearing. (s 70)

Panel member task

The hearing will proceed to hold a hearing under normal circumstances in the knowledge that at least one of the section 67 grounds is already established. The hearing should not treat these cases in any different way, and the decision will ultimately be to decide whether or not a compulsory supervision order is required.

Decisions available to the hearing are

• Discharge the referral,.
• Defer the decision to a subsequent hearing.
• If the child is not subject to a compulsory supervision order make a compulsory supervision order.

or

• If the child is subject to a compulsory supervision order, make a continuation, variation or termination of a compulsory supervision order.

ADVICE HEARINGS

In the following circumstances, the courts may (or in some cases must) ask the hearings advice before making a decision about the child.

Criminal cases

In terms of the Criminal Procedure (Scotland) Act 1995, when a child has been prosecuted in the sheriff court and pled guilty to or been convicted of an offence, the court may (and if the child is subject to a compulsory supervision order must) seek the advice about the most suitable disposal. Higher courts other than the sheriff court are not under an obligation to seek the advice of a hearing but may do so if they feel that it is appropriate. This has been done in very serious cases involving young people.

When a hearing's advice is sought, it is important for panel members to remember that the charges itemised in the paperwork from court stand and the young person has either

• Pled guilty to these charges in court. or
• Been found guilty of these charges in court.

Panel member task

The case and the established charges must be discussed with the child and relevant persons and on the basis of this discussion, the hearing will decide what advice to offer the court. It is vital that panel members should explore the circumstances surrounding the case for example: why the offence took place, who the child was with, what influences are around. It is useful to include in the advice to give details of what has happened since the time of the offence, whether the young person has offended since the incident, broken off negative friendships, expressed remorse, gained employment, level of co-operation with agencies etc.

The options are

• To advise the court to remit the child to a children's hearing for disposal if it is considered that the resources available to the hearing are appropriate for that particular child. This is in line with the Whole System Approach for children which promotes retaining young people within the children's hearing system for as long as is appropriate in the circumstances.
• To advise the court to dispose of the case itself. The hearing may wish to suggest which of the disposals open to the court would be most suitable but only if they feel competent to do so. Some sheriffs find this type of information useful in their deliberations whilst others do not. CHS will provide further guidance in relation to national discussions with the judiciary.

At the end of the hearing, the chairing member must inform the child and family what advice the hearing will be giving and the reasons for it. It is essential that the child and family should be aware that the hearing is being asked for advice only and the court is not bound by it.