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Children's Hearings System in Scotland - The Essential Guide


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scotland childrens hearing

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).

What Will This Guide Cover?

  • A broad definition of the Children’s Hearings System in Scotland
  • People present at a children’s hearing
  • The grounds of referral
  • Arranging a hearing
  • Hearings
  • Decisions of a hearing
  • Appeals

What Questions Does This Guide Answer?

  • What is a children’s hearing?
  • Who is present at a children’s hearing?
  • Who can attend a children’s hearing with a child?
  • Why would a child be referred to the hearing panel?
  • What can be expected when attending a hearing?
  • What will the hearing panel consider when reaching its decision?
  • What might a hearing panel decide?
  • How can a hearing decision be appealed?

What is a Children’s Hearing?

childrens-hearings-in-scotland

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.

Who May Be Present at a Children’s Hearing?

  • The child or young person (unless the panel agrees they do not need to attend)
  • A children’s reporter
  • Panel members
  • A social worker
  • A relevant person - someone who “has (or recently had) a significant involvement in the upbringing of the child”. This is decided at a pre-hearing panel or at the start of the hearing. A relevant person will not automatically be identified, so, to be considered, the person should contact the reporter if they want to be involved. They have the right to attend the proceedings, although they do not have to. If they do decide to attend, they can bring someone along as a representative to assist them.
  • A safeguarder – someone who makes sure a child’s or young person’s interests are protected. Not all children and young people need to have a safeguarder and an assessment of whether they are relevant may be made by a pre-hearing panel. A safeguarder acts independently of the hearing and provides the panel with more information, if required, to reach their decision. To accomplish this, the safeguarder may speak to everyone involved (especially the child or young person) to help build a better picture.

The chairman of the meeting may also permit other people to attend the hearing, for example, the child’s teacher.

Grounds of Referral

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:

  • There is a case establishing one of the grounds of referral (details below); and,
  • Compulsory measures of supervision may be needed.

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:

  • is beyond the control of any relevant person
  • is falling into bad associations or exposed to moral danger (e.g. joining a gang or if drugs are present in the home)
  • is likely to either suffer unnecessarily or be impaired seriously in their health or development due to a lack of parental care
  • has suffered from offences such as those of a sexual nature, neglect or female genital mutilation (or is, or is likely to become, a member of the same household as a child who has suffered from any of these offences, or the same household as a person who has committed any of these offences)
  • is, or is likely to become, a member of the same household as a person who has committed incest or had intercourse with a child
  • has failed to attend school regularly without a reasonable excuse
  • has committed an offence (criminal responsibility in Scotland only applies to an offence committed by a child over the age of eight)
  • has misused alcohol or any drug (for this ground to be satisfied there must be a misuse of alcohol or drugs, not merely use)
  • has misused a volatile substance by deliberately inhaling its vapour, other than for medicinal purposes
  • is being provided with accommodation by a local authority or is the subject of a parental responsibilities order, and special measures of adequate supervision are in their or another’s interest.

Arranging a Hearing

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.

Hearings

Proceedings

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.

Consideration

If the grounds of referral are accepted, the hearing can be conducted at once. In making its decision, the panel considers:

  • the grounds of referral
  • any available reports, such as social background reports
  • any other relevant information available to it

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.

Exclusions

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:

  • It is necessary to obtain the views or options of the child;
  • A person’s presence is causing, or is likely to cause, distress or alarm to the child.

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 Decisions of a Hearing

The Children (Scotland) Act 1995 requires children’s hearings and courts to bear in mind the following principles when reaching decisions:

  • the welfare of the child is usually the most important thing to consider when making a decision;
  • no court should make an order relating to a child and no children’s hearing should make a supervision requirement unless the court or hearing believes it will improve the child’s situation;
  • children should be given an opportunity to express a view and, if they do so, consideration should be given to the child's views (children 12 or over are presumed to be mature enough to form a view).

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:

  • Discharging the ground of referral - Unless the hearing is convinced that the child is in need of compulsory or further measures of supervision it must discharge the referral.
  • Continuing the case - If the panel wishes to investigate further or needs more detailed information, the case may be continued to a later date.
  • Referring the case to the Restorative Justice Service (RJS) - This allows for the child or young person and victim involved in a specific offence to collectively resolve how to deal with the aftermath of the offence and its implications for the future. This outcome depends on the attitude of the child or young person towards the grounds of referral and may only be referred to the service if both the young person and the victim agree to participate.
  • Making a supervision requirement - If the panel feels the child or young person needs compulsory measures of supervision because the current living arrangements are not good for the child’s welfare, it will make a supervision requirement. The child might need to live at an allocated place, with relatives or within a foster care environment, or be subjected to a medical examination or medical treatment (although the panel does not have the power to ignore a child’s right to consent or refuse this treatment, if the child is old enough to understand the circumstances). Supervision requirements may also regulate the child’s contact with specific people or a class of people, or the child’s location. A movement restriction condition can be used to make sure the young person is in a specified place at a certain time. This can also be used to make the young person stay away from a specified place. This restriction of movement can include the use of electronic monitoring or tagging. The hearing has the power to order a review of the supervision requirement at a specified time.

Appeals

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.

Key Points

  • The most important outcome of a hearing is ensuring the welfare of the child
  • A parent or person with parental responsibilities in relation to a child may be able to accompany them to a hearing and have their opinions heard and taken into consideration
  • Even if they are not entitled to attend proceedings, a safeguarder may be appointed to ensure a child’s welfare is looked after
  • There are a number of possible outcomes and taking custody of a child is only done when absolutely necessary

Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent advice on matters that affect you.

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Jurisdiction

Scotland

Last Updated

Tuesday, 30 August 2016

Categories

Family Law

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