Children's hearings training resource manual: volume 1

Section 2 Legal Framework and Best Practice

Children's hearings can never be more than relatively informal, when compared with courts. Often, children and their families have little knowledge or understanding of their rights or of the procedures to be followed at a hearing. During the course of the hearing all panel members should be alert to this issue and do what they can to make the proceedings as user friendly as possible. While panel members are not expected to be legal experts, they need to be equipped with a competent understanding of the system's legal framework and how it operates in practice.

Panel members are members of a legal tribunal and act independently of the State to protect children. They make decisions within the context of a hearing, with the welfare of the child as their paramount consideration. Therefore, panel members need to operate in such a way that they take steps to protect children whilst balancing the rights of all of the individuals concerned in the process. It is crucial to remember that the children's hearing process must be fair, transparent and balanced when reaching decisions in the child's best interests.

In terms of human rights legislation and developing caselaw, there can be challenging situations because of the competing rights of parents and children which need to be balanced. Hearings, pre-hearing panels and courts must assess and consider these rights and interests fairly and openly while bearing in mind their duty to regard the welfare of the child as their paramount consideration.

It is the skill of panel members to implement procedures, through best practice principles, which ensures the protection of rights and enables children and families to participate fully in the discussion and the decision making process.

Whilst the Act provides a legislative framework, the Rules provide an operational framework for panel members who may use their discretion in certain circumstances when interpreting the Rules. There is therefore an important distinction between what must be done, what may be done and what is considered to be desirable practice.