Children's hearings training resource manual: volume 2

5 Permanence

Children's Hearings System and the Adoption (Scotland) Act 2007

This chapter outlines the ways in which the children's hearings system inter-relates with the 2007 Adoption Act for Permanence Orders and adoption particularly.

Key inter-relationships

There are four main areas where the children's hearings system and the 2007 Act meet.

1 Advice hearings for adoption and all Permanence Order applications, when children are subject to compulsory supervision orders.

2 When Permanence Order court applications are in court.

3 Termination of compulsory supervision orders when adoptions or Permanence Orders are granted.

4 Effect of Permanence Orders when children remain on compulsory supervision orders, or new compulsory supervision orders are made subsequently.

1. Advice hearings for adoption and Permanence Order applications

Advice hearings are not a new concept under the 2007 Act: they were introduced by the 1995 Act, and the 2007 Act amended that section without changing the essence of the process.

When a child is subject to a compulsory supervision order ( CSO), any court dealing with an adoption or PO application should have a report from a children's hearing, with its view about the application. This report contains the hearing's advice to the court about the proposed court order. This type of children's hearing is commonly referred to as an "advice hearing", and the report is usually called "Advice". The court must consider the report or advice but does not have to follow it. If a children's hearing advises against an application, the court may still go ahead and grant the order, and vice versa.

Advice from children's hearings is an essential part of court applications for adoptions, Permanence Orders, and Permanence Orders with Authority for Adoption when the children are subject to compulsory supervision orders.

2. Interface between Compulsory Supervision Orders and Permanence Order court applications

Unlike advice hearings, this process is a new one and was introduced by the 2007 Act. It affects children who are subject to compulsory supervision orders and for whom there are PO court applications, but it does not impinge on every child in this situation.

When there is a PO application in court for the child, his or her existing compulsory supervision order cannot be varied, unless the court "refers the child's case to the Principal Reporter". Similarly, if there is a PO application in court, a new compulsory supervision order cannot be made for the child. This applies not only to an application for a PO, but also to an application for variation or amendment of an existing PO.

It is crucial to realise that this process does not occur in every case when there is a PO application before the court but does:

• if there is a PO case before the court and the child is the subject a CSO and a hearing wants to change the terms of the CSO; or
• if there is a PO case before the court and the child is not the subject of a CSO but a hearing wants to make one.

The hearing must write a report for the court, stating what changes it wants to make to the compulsory supervision order, or what new compulsory supervision order it wants to make.

The report must contain the terms of:

• the proposed new compulsory supervision order
• any existing compulsory supervision order
• any proposed modification to an existing compulsory supervision order
  • any conditions in the above
  • any residence requirements in the above
  • any duties imposed on the local authority

(This part is done by the children's hearing members together with their reasons )

• the report of the proceedings, which includes:
  • place and date of hearing
  • name and address of child, relevant persons, and others present
  • various other details of the hearing

(This part is done by reporters )

This report is sent to the court dealing with the PO application. The clerk of the court then sends the report to everyone involved in the PO application and in the hearing process.

They all have seven days to respond, at which point the court must make its decision to agree or not agree with the proposed change or new compulsory supervision order; or it must fix its own court hearing to discuss the matter to be held within seven days. This court hearing may be continued twice, but for no more than 14 days each time. The court must therefore make its final decision, to agree or not agree with the proposal, within a specific timeframe.

When the court has made its decision, this is sent back to the hearings children's system, through the reporter and there should then be another children's hearing to implement what the court has said. If the court agrees with the proposal, the children's hearing may then vary the CSO or make the new one, as it wishes. If the court does not agree with the proposal, the next hearing cannot vary the existing compulsory supervision order or make a new one, as wanted by the previous hearing.

3. Termination of Compulsory Supervision Orders when adoption or Permanence Order granted

When a court grants an adoption order or any PO, and the child is subject to a compulsory supervision order, the court 'must' terminate that compulsory supervision order if it 'is satisfied that….compulsory measures' are no longer 'necessary'.

This does not mean that a CSO must always be terminated when a PO is granted, but that it should only be left in place if its continuance is necessary for the child. The expectations, therefore, is that a CSO will be terminated by the court when an order is granted, unless there is a good reason for it to continue.

The most common reason would be when an appeal against the order is clearly anticipated, and the CSO is needed to provide legal security for the child until the appeal is resolved. However, in most cases, the clear intent of the legislation is that a child who has been adopted or is subject to a PO should not also normally require a CSO.

4. Effect of Permanence Orders when children remain on Compulsory Supervision Orders or new Compulsory Supervision Orders are made subsequently

There will not normally be CSOs for children who are subject to POs, or possibly only for a short time after POs are granted and/or there are appeals.

However, there will be situations when children for whom there are POs are also subject to continuing CSOs or have new ones made. This is most likely to occur for children who are involved in offending behaviour.

The only provisions which apply when children are subject to both POs and CSOs are that a local authority which has a PO for a child 'must not act in any way which would be incompatible with…a CSO'.

This means, for example, that if a child on a PO has a CSO with contact directions, these will effectively take precedence over contact arrangements under the PO. The same could apply to arrangements about where the child lived - a CSO may interfere with the local authority's right to control the child's residence.

Permanence Order /Children's Hearings Interface

This process applies when there is a pending court application for

• any permanence order:
• any variation of a permanence order; and
• any amendment of a permanence order

Where there is a pending court application in one of these cases, a children's hearing cannot vary an existing CSO or make a new one without the permission of the court dealing with the application.

This is true even if everyone agrees with the variation/new CSO.

Stage 1 Children's Hearing wants to

• vary a child's existing CSO; or
• make a new CSO for a child who is not already on a CSO

Hearing prepares a Report, saying what it wants to do, and why, and the hearing is continued

Stage 2 Reporter sends the Report to the court dealing with the

PO/ PO variation

Stage 3 Sheriff clerk intimates report to all parties to the court application and to all "relevant persons".

They all have 7 days to respond to the court and a Form is provided

Stage 4 After 7 days, the court

(a) decides to allow the variation of CSO/new order and "refer" to the hearing or

(b) decides not to allow the variation of CSO/new order and not "refer" to the hearing or

(c) fixes a court hearing about the proposal or

(d) makes any other order appropriate for the 'expeditious progress of the case'.

Stage 4A If the court decides (c), to fix a court hearing

This must be within 7 days of that decision and the sheriff clerk intimates this court hearing to:

I. parties to the application for PO/ PO variation; and

II. anyone who has lodged a Form or Response; and

III. any "relevant person" not included in the above; and

IV. anyone else the court thinks is appropriate.

Stage 4B At the hearing the court may

• make a decision (a) to allow the variation/new CSO and "refer" or
• make a decision (b) not to allow the variation/new CSO and not to "refer" or
• continue the hearing for no more than 14 days.

Stage 4C At any continued hearing, the court may

• make a decision (a) to allow the variation/new CSO and "refer" or
• make a decision (b) not to allow the variation/new CSO and not to "refer" or
• continue the hearing again for no more than 14 days

Stage 4D At any 2nd continued hearing, court must make its final decision

With thanks to BAAF Good Practice Guide "Permanence and adoption for children" by Alexandra Plumtree