Children's hearings training resource manual: volume 1

3 Non Disclosure of Information

General

In addition to the different kinds of hearing mentioned above, there may be a request from a person attending the hearing to withhold information or a document from a particular person. While this is a procedure and not a hearing in its own right, the issues that must be dealt with are very much a part of the decision making process and are contained in this section.

Dealing with a request

The children's hearing must consider the request for non-disclosure at the beginning of the hearing. In the case of a section 67 grounds hearing, the grounds must be put to the child and family first before considering the request.

Documents not subject to non-disclosure

The following documents may not be subject to a non-disclosure request:

• The statement of grounds.
• A copy of any remit from court in respect of a criminal matter.
• A copy of a relevant requirement by a sheriff under the Antisocial Behaviour etc. (Scotland) Act 2004.
• Any order or warrant which relates to the child.

Reporter's power to withhold information

When the reporter is making arrangements for a children's hearing, the reporter can, in their own right, withhold information about the whereabouts of the child or relevant person if knowledge of their whereabouts would be likely to cause significant harm to the child or relevant person.

NON DISCLOSURE REQUEST IN ADVANCE OF THE HEARING

A non-disclosure request refers to a request for information or a document to be withheld from a particular person. The criterion for withholding the information is that the disclosing of the information would cause significant harm to the child. This would have to be more than a temporary upset for the child. The hearing would have to be of the opinion that the disclosure of this information either about the child or the child's case would cause the child significant harm.

The request must specify:

• the parts of information or documents to be withheld and the reasons for this
• the persons the information or documents are not to be disclosed to and the reasons for this.

A reporter must arrange for a hearing to consider the request from either the report or document writer or on their own initiative if they consider it appropriate.

Panel member task

When requested to do so, a children's hearing must consider and determine a non-disclosure request at the beginning of the hearing or in the case of a section 67 grounds hearing, after the grounds have been put to the child and family, and before making a decision where they consider that the person's presence would prevent the hearing from properly considering the non-disclosure request. The hearing may exclude the specified person from the hearing when deciding this. The options open to the children's hearing are:

• to agree to the non disclosure of information.

The impact of this decision is that the specified person would not be given a copy of the information or report.

• to reject the non disclosure of information.

If the hearing makes this decision and they have excluded the person from the hearing, they must ask the excluded person to return to the hearing and ensure that the document is given to the excluded person in a manner and at a time as the hearing consider appropriate having regard to the child's best interests. If a person is to be given information, it may be necessary for the hearing to be deferred to allow the person to fully consider the information and so avoid unfairness.

NON DISCLOSURE REQUEST MADE AT A HEARING

A non-disclosure request may be made during the course of a children's hearing by

• the child
• any relevant person
• any appointed safeguarder.

Again, the criteria for withholding the information is that the disclosing of the information would cause significant harm to the child.

Panel member task

The children's hearing may exclude from the hearing the person to whom the information should not be disclosed. The children's hearing must consider the request and determine the request. i. e. either:

• to agree to the non-disclosure of information
• to reject the non-disclosure of information.

If the hearing makes this decision and they have excluded someone from the hearing, they must ask the excluded person to return to the hearing and ensure that the document is given to the person in a manner and at such a time as the hearing considers to be appropriate having regard to the child's best interests. If a person is to be given information, it may be necessary for the hearing to be deferred to allow the person to fully consider the information and so avoid unfairness.