Oct 2024

The Principles of a Redesigned Children’s Hearings System  

• What principles should underpin a redesigned children’s hearings system and why? 

Historically, the Children’s Hearings System has been grounded in what are commonly described as the Kilbrandon Principles. It was never thought necessary to set these out in legislation – at least not as an express set of principles – rather they informed and underpinned the content of the relevant legislation from 1968 onwards.  

Since the 1990s, human rights principles have increasingly become part of the system, for example the Children (Scotland) Act 1995 was influenced by the provisions of the UN Convention on the Rights of the Child (UNCRC). In 1998, the Human Rights Act made the European Convention on Human Rights (ECHR) directly justiciable in the UK courts. A number of cases both confirmed the system’s broad compliance with the Convention and required important changes to be made to aspects of its operation.  

Children’s rights have increasingly become part of how the hearings system works and understands itself over the last 20 years or so. The landmark passage of the UNCRC (Incorporation) (Scotland) Act 2024 requires all public bodies, including the Reporter and the Hearing itself to act compatibly with the UNCRC.  

Scottish Government should therefore consider whether in effect this provides the clear set of enforceable child-centred principles and legal standards required to ensure the child remains at the heart of all decision making. The application of the 2024 Act to the hearings system is still to be tested but we anticipate case law will develop in due course.  

We are supportive of the policy intent to reduce conflict in the system, and improve the environment for children and young people, However, what makes a legal system inquisitorial or adversarial is the way in which it operates. Aspects of the system could perhaps be made more inquisitorial in nature where that is in the child’s best interests, but the reformed system will require to remain compliant with the European Convention on Human Rights and the United Nations Convention on the Rights of the Child. While neither Convention requires decisions to be taken with an adversarial system, care will need to be taken to ensure the rights of the child and other participants in the process are respected. For example, evidence provided by professionals will still need to be tested and challenged, even in a wholly inquisitorial system, and parties will still need legal representation.  

It is also the case that parts of the hearings system take place in court (in line with one of the Kilbrandon Principles – separation of fact finding and disposal) and Scotland’s civil courts are adversarial by history and design. It would require a fundamental reformation of civil court procedure to achieve what is being proposed here in any meaningful way.  

In fact, one of the benefits of separating fact finding (which is where disputes are most likely to occur) from disposal, is to help reduce the scope for conflict in the hearing itself. From the Children’s Hearings (Scotland) Act 2011 however, the distinction has been unhelpfully blurred, with hearings now expected to adjudicate matters of fact and law including whether or not someone is a Relevant Person. Reinforcing the separation of functions and refocusing the hearing on disposal would assist in making the process feel less adversarial.  

Finally, it must be remembered that the hearings system is a part of the wider care system. By the time a referral is made to the Reporter by definition there is a view that the State needs to intervene on a compulsory basis in a child’s life. What leads up to that referral in terms of practice and relationships will have just as significant an impact on whether further proceedings involve conflict.  

Statutory Referral Criteria  

• What elements of language in the existing referral criteria need to be updated, if any?  ‘control’?  ‘treatment’?  other 

We broadly support the proposal to modernise language. It is important that children and young people are able to understand the reasons they have been referred to the Reporter, and to a Hearing. That is an important part of the ECHR Article 6 right to a fair hearing and will condition the extent to which children and young people are able to meaningfully participate in decisions, in line with UNCRC Article 12.  

• Do you support the proposed referral criteria from the Hearings for Children report?   

We would note that both the terms ‘guidance’ and ‘support’ imply interventions that are not compulsory in nature and may therefore be potentially misleading and not appropriate.  

• Do you support the proposal to change the applicable referral test that compulsory supervision ‘might be necessary’ to it being ‘likely to be needed’? 

Care should be taken not to inadvertently change the thresholds for referral without good reason. Detailed legal analysis will be necessary here to understand the potential impact of the change before moving ahead with it. We note the Hearings for Children report recommended that Scottish Government undertake a detailed legal analysis. We are therefore surprised that a consultation has been issued without it seemingly having been done.  

Relevant Persons  

• What are the advantages and disadvantages of the current definition of “relevant person”?   

 We have no strong views about changing the definition of Relevant Person, except to note that any amended definition must be consistent with protection of the child’s UNCRC Article 16 (and ECHR Article 8) rights to privacy.  

Participation and Attendance  

• Do you agree with the recommendation to remove the child’s obligation to attend their hearing, to be replaced with a presumption that the child will attend?  If yes, what limitations would need to be applied to this presumption?   

While we are sensitive to concerns about requiring children to attend hearings when they do not wish to, we do see some issues with completely removing the obligation. As with so many of these questions, there is an inextricable link with other proposals; in this case the ability of the system as a whole to ensure the child’s voice and views are heard. We would not support removing the obligation to attend from those children who have capacity to understand the process until Scottish Government is confident that the necessary changes have been embedded and secured.  

While rights have become increasingly embedded in the system, there are still occasions when a more paternalistic approach is the default. We are particularly concerned about the risk that disabled children, especially those with communication support needs, will simply end up excused as a matter of course, without proper consideration being given to how the hearing itself could accommodate their rights and needs, or how in their absence their views will be expressed to the hearing so that decisions can be made in their best interests.  

• Does the hearing need a power to overrule the child’s preference not to attend their hearing in certain circumstances?   

See above.  

• What steps could be taken to support the child’s participation and protect their rights, if they choose not to attend their hearing?   

A great deal of work has taken place over the last decade aimed at better facilitating children’s rights within the hearings system. We do not see an obvious need for further legislation, rather the existing good practice should be rolled out, seeking to ensure that children have as many options as reasonably possible to express their views to the hearing. Particular care must be taken to ensure routes to participation are available to disabled children in line with the State’s additional obligations towards them.  

• Should a child still be obliged to attend hearings held in consequence of offence referrals, or in consequence of the 2011 Act section 67(m) ‘conduct’ ground? 

See above. There are further considerations in that offence grounds lead to a range of significant consequences for children, some of which can be life-long. In any case, we suggest that caution should be exercised in creating further distinctions between children who come before a hearing on offence vs non-offence grounds.  

Voices of very young children  

• Do you agree that particular arrangements should be made to capture and share the voices and experiences of very young children in a redesigned children’s hearings system?  If so, what should those arrangements be?   

Yes.  

The offer of advocacy to the child  

• How should the rights and the views of children and young people of all ages, including very young children, be better represented in the children’s hearings decision making?   

See above.  

 Amplifying children’s voices throughout the process   

• Do you support the creation of a statutory process, undertaken by the children’s reporter, to record the capturing of children’s views and participation preferences?   

This is information that is essential to the hearing. In fact, the hearing may find itself vulnerable to an appeal or a challenge under the UNCRC Act if it proceeds to make a decision without it and as a result does not take account of the child’s views. We are supportive of a clearer mechanism to ensure that children’s views are captured at all appropriate points in the process but have no strong view about how this should operate.  

Grounds for Referral and Associated Processes  

• Do you consider the current scheme of stating the grounds of referral sufficiently promotes the understanding of children and families as to why they are in the children’s hearings system?   

We note that children and families have said that they do not always understand the grounds. These views must be taken account of.  

• Do you agree that there should be changes to the current approach to grounds of referral?   

While we broadly support modernising and clarifying the language of grounds of referral, a number of important points must be borne in mind.  

The grounds are the legal basis on which the State interferes in a child’s life and rights on a compulsory basis. Therefore, they must sufficiently clearly set out the basis of concern. We note that clarity and simplicity are not necessarily the same thing; over-simplification risks losing the legal clarity necessary to justify intervention.  

The current grounds benefit from an established body of interpretative case law. Significant changes will mean that this precedent becomes less relevant, creating greater uncertainty about the scope of the new grounds (at least in the short term). This risk must be weighed against any perceived benefits.  

• Do you agree with the proposal to set grounds positively as a range of wellbeing orientated entitlements, before clarifying how the child’s experience or conduct falls short of expectations – to the point that compulsory care is needed?   

We strongly oppose rewriting the grounds of referral to match the SHANARRI indicators. We see no compelling argument in favour. GIRFEC, (and SHANARRI) was designed as a policy framework not a legal one. Given the judgement of the UK Supreme Court in the Christian Institute case, there may be a risk of another legal challenge, creating unnecessary and unjustified delay.  

There are also risks of making assumptions that children and families are as familiar and comfortable with GIRFEC language as professionals are, and that “woollier” grounds might lead children and families accepting grounds they do not really agree with. 

If grounds are to be changed then they should be rights-based, not wellbeing-based.  

• If a new scheme of grounds based on unmet expectations around wellbeing indicators were to be introduced, are any safeguards needed (statutory or operational)?  

See above.  

Children’s views within Reporter investigation and decision making – a post referral discussion?  

• Do you support the introduction of the offer of a post-referral discussion between the children’s reporter and the child and family?   

We note that this proposal interacts and overlaps with the proposal about recording the child’s views and participation preferences. It will therefore be important to be clear about the purpose of this meeting, and indeed what it is not.  

For example, if it is considered to be part of the Reporter’s investigation then ECHR Article 6 protections apply and families and children may require legal advice and support to engage in the process. If it is to establish the child’s preference for engaging with the hearing, or if it is simply intended to aid understanding, then the timing becomes critical, and there may be risks of children and families misunderstanding the nature of the discussion.  

Establishing Grounds of Referral  

• What would be the advantages and disadvantages of passing the fact-finding function from sheriffs to a new cohort of legal members within the redesigned children’s hearings system? 

There is not enough information about the anticipated role, skillset and duties of the legal member to answer this question. However, we are concerned that this proposal further blurs the Kilbrandon Principle distinction between the role of the courts (to establish fact) and the role of the hearing (to make decisions on the most appropriate disposal in the best interests of the child).   

• Do you consider that this proposal fulfils the intention of the recommendation from the Hearings for Children report that there should be a consistent specialist sheriff throughout the process? 

No. There is not enough information about the role of the legal member, and in any case a legal member is not a Sheriff.  

• Is it proportionate and necessary for there to be a fact finding hearing in every case?   

See above.  

Babies, infants, very young children and the grounds of referral  

• Do you have any other views about how the youngest children should be supported in this part of the process to establish grounds of referral? 

 No.  

Statutory time limits in establishing grounds of referral  

• Do you support a defined time period for triggering a review of the progress of the case?   

Yes, timely decision making is an important part of a rights-based process.    

Pre-birth activity by the children’s reporter  

• What can be done to improve interagency pre-birth preparatory work?   

This is not an area on which we have a view.  

A redesigned children’s panel  

• Do you have any views on the introduction of new roles into the children’s panel? (Paid Chair, Paid specialist Panel Member – possibly including care-experience, Paid Panel Member, Volunteer Panel Member)  

We note the recruitment and retention issues currently experienced by Children’s Hearings Scotland. However, it is important to consider the balance of power across the three panel members when considering changing roles. There is a risk that panels become three person in name only with decision making in reality driven by members who are paid, specialist in some way or full time. We do not see a strong argument for specialist Panel Members. In relation to care experienced people, effort should be put towards identifying and removing barriers to them applying for, and being recruited as, panel members.  

Engagement with the Chairing member before the Children’s Hearing 

• Should the chairing member of the hearing meet the referred child, their family or representatives to welcome them to the centre and offer any appropriate explanations and reassurances before the actual children’s hearing?  

Yes, though it could be any one of the Panel Members. If the child is provided in advance with information about the Panel members, there could be an element of choice.  

• If an additional orientation / reassurance meeting is held in the hearings centre with the chairing member, would you support this being an informal meeting? 

Yes. 

Children’s hearings decision making in a redesigned children’s hearings system  

• Do you support the proposal that the children’s hearing should have a brief period of recess/adjournment before reaching their decision and sharing it with those present?   

We have concerns about this proposal and the lack of detail (how long for, who would be involved, for what purpose) makes it hard to respond further. We would simply note that the openness and transparency of the hearing’s decision making is a strength of the system.  

• Should the children’s hearing be asked to reach a unanimous decision during adjournment, in order to minimise repetition and potential retraumatisation?   

No. It is important for Panel Members to arrive at individual decisions and for dissent to be recorded where the decision is a majority one. As noted above, we are concerned about changes to the make-up of hearings creating a power imbalance that may influence decision making particularly if it takes place in private.  

Decision-making and specificity of measures in a Compulsory Supervision Order (CSO)  

• Do you agree that it is desirable or necessary to introduce clearer authorisation for particular interventions with children, or particular interferences with their liberty, on the face of measures included in an Interim Compulsory Supervision Order or Compulsory Supervision? 

While we understand the possible motivation for this proposal, we caution that it may have unintended consequences, and become seen as permissive, instead of restricting the circumstances in which restraint is used. We, along with the Promise Scotland, the Scottish Human Rights Commission, the Equality and Human Rights Commission and the Mental Welfare Commission have repeatedly called on Scottish Government to put in place a coherent legal framework around restraint in all settings. We still consider this to be the best approach and strongly encourage Ministers to revisit it instead of persisting with siloed policy and law making in this area.   

Timely notification of children’s hearings decisions  

• Is the current time frames for written confirmation of the decision by the children’s hearing (5 working days) still appropriate?   

Given we expect the decision to be communicated to child in a manner they understand on the day, both by the hearing itself and by the advocate or social worker, we do not see a strong argument to change timescales for the written decision. However, it is important that information be provided in child-friendly formats.  

Continuity of Panel members in children’s cases  

• Should consistency or continuity of chairing members be the default position for each child’s hearing?   

Yes, where the child wishes it to be so. However, we are aware of the challenges this poses.  

• Would you support one single children’s panel member’s consistent involvement as an alternative approach?   

Yes, where the child wishes it to be so. However, we are aware of the challenges this poses.  

Substantive vs Procedural decisions  

• Should children’s panel members or chairing members, for certain procedural decisions, be able to take decisions without recourse to a full three member children’s hearing?   

It is important to properly define what is meant by a “procedural decision”. For example, deeming or undeeming a Relevant Person is a decision of fact and law which has a potentially significant impact on the rights of the child and other participants. Similarly, excusing a child’s attendance requires robust assessment and scrutiny of how, in their absence, a child’s rights to participate in decision making and express their views will be upheld. These decisions ought to be taken by the full hearing.  

• Are there other areas you would consider appropriate for a single-member decision making approach?   

No.  

  During a Children’s Hearing  

• Are the existing powers of the chairing member and of the hearing sufficient to protect the rights of all involved?   

We have no comment to make here.  

Recording of Children’s Hearings  

• In your view, should children’s hearings be routinely recorded?  

No. 

• What are the main benefits and risks of this method of recording hearings?  

The potential impacts on the child’s privacy rights (Article 16 UNCRC) given the recording will need to be provided to Relevant Persons and may find its way online or be inappropriately shared. The risk of causing the hearing to become both more formal and more adversarial due to people wanting/needing to go “on the record” with a consequent impact on the child’s ability to exercise their participation rights (Article 12 UNCRC).  

• If only the decision element of a children’s hearing were to be recorded, would this change your view?   

Possibly. A Data Protection Impact Assessment and Children’s Rights Impact Assessment would be required first.  

Child friendly summaries of decisions  

• Should there be a statutory requirement for the production of age and stage appropriate summaries of Children’s Hearing decisions?   

Yes.  

Family Group Decision Making (FGDM) and Restorative Justice  

• Is it appropriate for children’s hearings to defer their decision in order for Family Group Decision Making or restorative justice processes to be offered, or to take place?   

This should be on a case-by-case basis and particular kinds of interventions should not be specified in legislation. There may be limited circumstances where it is appropriate and in the child’s best interests for the hearing to defer a decision to allow for non-compulsory intervention to take place and be assessed. 

The length of interim orders  

• Do you feel that there should be more flexibility in the duration of these interim orders?   

Yes, where flexibility is in the child’s best interests.   

• Do you support the proposal to create a child’s exit plan from the children’s hearings system? What elements should be included in any child’s exit plan?  

Yes, but this should already be part of the Child’s Plan.  

Assessing Impact  

• What, if any, do you see as the data protection related issues that you feel could arise from the proposals set out in this consultation?   

We have identified these in respect of each of our answers.  

• What, if any, do you see as the children’s rights and wellbeing issues that you feel could arise from the proposals set out in this consultation?  

We note that this consultation has been issued at an extremely busy time in terms of policy and legislation and that the office’s capacity to engage with it has therefore been more limited than we would have wished. While have identified children’s rights issues in respect of each of our answers we have not been able to conduct a detailed and holistic rights analysis.  

• What, if any, do you see as the main equality related issues that you feel could arise from the proposals set out in this consultation? 

We have identified these in respect of each of our answers.