The Children’s Hearings System is Scotland’s unique system of juvenile justice and care. It makes decisions that ensure the safety and wellbeing of vulnerable children and young people.
The system allows the welfare of a child to be evaluated by people who take into account all circumstances to decide the best course of action for the child’s future. These people represent a cross-section of the community and are not just from the legal profession.
The system is based on the philosophy that those who offend and those who are the victim of an offence are equally deserving of support and should, if necessary, receive intervention in their lives. However, the aim is to let children remain in their own community, where possible, and integrate any measures required. This is because it is recognised that parents are usually the best people to bring up their own children.
A number of different bodies work together to make this happen. These include: social work, police, education, the Scottish Children’s Reporter Administration (SCRA) and Children’s Hearings Scotland (CHS).
The purpose of a children’s hearing, sometimes called a children’s panel, is to make decisions that help vulnerable children or young people who are experiencing problems in their lives. The rights of the parents, as well as those of the children, are protected by a legal framework, but the child’s welfare is always the priority when coming to a decision. Any appeals of these decisions are dealt with by the courts.
The hearing is made up of a lay tribunal (ordinary people who are not part of the legal profession) of three volunteer panel members. Panel members come from a wide range of backgrounds. They listen to a child's situation and decide what next steps are required and if any intervention or support is needed. Intervention and support could include moving the child into foster care or letting the child stay at home but with support from other agencies.
The main agencies involved are the Scottish Children’s Reporter Administration (SCRA) and Children’s Hearings Scotland (CHS).
The SCRA employs children’s reporters and administrative staff to service Children’s Hearings. Reporters are usually legally qualified. They appear in court and deal with grounds of referral, applications for warrants to bring a child before the hearing panel and defend hearing decisions when they are appealed. Their role involves ensuring that the hearing is fair and to record what has been decided.
The CHS is the dedicated national body which deals with the recruitment, selection, training, retention and support of panel members.
The chairman of the meeting may also permit other people to attend the hearing, for example, the child’s teacher.
A child enters the system when reporters are notified that the welfare of a child is at risk. Information can come from many sources, most commonly from the police or local authority. However, anyone can refer a case to a reporter, including the courts.
For a reporter to justify a hearing, two things must be satisfied:
The Children (Scotland) Act 1995 lists the reasons why a child can be referred to a children’s hearing (other than direct referrals from a court). These include where the child:
After a reporter is satisfied that one or more of the grounds of referral have been met they will arrange a hearing.
The three panel members who will supervise the hearing will be notified of the time, date and location and will be provided with relevant background documents detailing the circumstances of the case.
Any relevant persons will also receive similar notifications and relevant background documents.
The child will receive notification of the time, place and date of the hearing and whether they have to attend. Normally, a child over the age of 12 is entitled to receive the relevant documents, unless there is protected information which would distress them. A child under 12 years of age will not receive these documents unless their representative requests it.
The chairperson introduces the hearing and explains the purpose of the proceedings and exactly what the grounds of referral are.
The child and any relevant persons must accept the grounds of referral for the hearing to proceed. This step is extremely important as, depending on the response of the child or relevant person, the hearing can either discharge the referral or ask the reporter to apply to a sheriff to investigate whether the grounds have been fully established.
If the child or relevant person only partially accepts the grounds of referral, the hearing can proceed on those grounds alone or, again, it may discharge the referral or direct the reporter to apply to a sheriff for investigation of the grounds.
If the child or relevant person accepts the grounds, then the hearing can proceed to the next stage.
Throughout the proceedings, the panel members can appoint a safeguarder if they think it necessary to protect the welfare of the child.
If the grounds of referral are accepted, the hearing can be conducted at once. In making its decision, the panel considers:
To ensure the welfare of the child remains the priority, everyone involved in the proceedings are encouraged to participate freely and in a positive way.
A relevant person can be temporarily or permanently excluded from the hearing if it is felt that a child’s right to participate in their own hearing is inhibited by their presence.
This can only happen in two circumstances:
If the relevant person is then allowed to return to the hearing, then the chairperson has to inform them of what happened in their absence.
The Children (Scotland) Act 1995 requires children’s hearings and courts to bear in mind the following principles when reaching decisions:
These principles are straightforward but may become complicated in cases where there is tension between the rights of the parents and children, dispute over long and short term needs or the precise nature of the problem.
When coming to a decision, the panel takes into consideration everything discussed at the hearing and, still with the child’s welfare at heart, decides on the appropriate next steps, which may include:
A child or relevant person has the right to appeal the decision of a children’s hearings, as does the child’s safeguarder. This right is available even if they did not attend the hearing.
The appeal must be lodged within three weeks, beginning from the date of the hearing’s decision. The date lodged for the appeal will be no later than 28 days after the note of appeal was lodged.
The appeal will be conducted by a sheriff who will, again, decide whether a safeguarder is necessary. The appeal will be heard if the sheriff is convinced that the hearing’s decision is “not justified in all the circumstances of the case”. The sheriff is allowed to take all circumstances of the case into consideration, and to examine the circumstances of the case arising after the conclusion of the hearing. They may also recall and review all evidence or people, such as the reporter, to help them reach a decision.
The sheriff will then either allow or dismiss the appeal.
If the appeal is allowed, the case may be referred back to the hearing for reconsideration; the child may be discharged from further proceedings on that particular ground of referral or the outcome of the hearing may be amended more appropriately.
If the appeal is dismissed, the sheriff must confirm the decision of the hearing.
A further appeal may be made to the Court of Session or to the sheriff principal on a point of law or if there is any irregularities surrounding the procedures of the case. These appeals must be stated within 28 days of a decision being made and are accepted from any child, relevant person, safeguarder or reporter of the hearing.
Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent advice on matters that affect you.