The Scottish Government

« Previous | Contents | Next »

Listen

'Voice of the Child' Under the Children (Scotland) Act 1995: Volume 1-Mapping Paper

Chapter Four: Part II of the Children (Scotland) Act 1995, Chapters 2 and 3

Which decisions require children's views to be considered?

4.1.1 The following table lists decisions affecting children made in terms of Chapters 2 and 3 of Part II of the Act, and indicates whether there is any requirement to seek to ascertain their views. It organises these decisions according to who makes them: the children's hearing, the sheriff, the police, and 'others'. Within each category, it seeks to follow a logical sequence of events, although some provisions, such as those for warrants, are listed together for the sake of comparison. It then looks at the decisions made in the context of criminal proceedings, as well as those made by the Principal Reporter and the Secretary of State, neither of whom is subject to any requirement to seek the views of children.

4.1.2 With regard to courts and children's hearings, Section 16(2) of the Act requires them to take account of children's views in the circumstances set out in Section 16(4). The impact of Section 16 in this respect is assumed throughout the table and it is specifically referred to only in the context of the issue about the extent to which this is undermined by the sheriff's power to dispense with service on, or attendance of, the child.

4.1.3 In some of the situations omitted from Section 16(4), a requirement to seek the views of the child has been inserted in Rules or Regulations having legal effect. The table acknowledges this and also includes reference to the situation with regard to the making of a child protection order and accompanying directions (Sections 57 and 58), when official guidance gives encouragement to ascertainment of the views of the child, even though this is not legally required.

Table 4.1 Analysis of Decisions under Part II, Chapters 2 and 3, and Associated Rules, etc.

The Criminal Procedure (Scotland) Act 1995, Section 49

4.1.4 This provision replaced Section 49 of the Children (Scotland) Act 1995. It sets out the circumstances in which a criminal court must, or may, refer the case of a child, who has either pleaded or been found guilty of an offence, to the Principal Reporter for advice or disposal from, or by, a children's hearing. An amendment effected by the Crime and Punishment (Scotland) Act 1997 allows the child to appeal the decision to remit the case for disposal. Where the case is referred for advice, CH Rule 22 requires account to be taken of the child's views where the child is already subject to supervision, and is thus referred in terms of S49(3) of the Criminal Procedure (Sc) Act. There is no equivalent provision for a child not already under supervision, who is referred in terms of Sections 49(1) or (6) of that Act. Nevertheless, Norrie (1997) makes no distinction between Sections 49(1), (3) and (6), and implies that the provisions regarding attendance at the hearing and seeking of the child's views apply to all such cases.

The Principal Reporter

4.1.5 The Principal Reporter is not required to seek to ascertain the views of children. Relevant decisions identified by the Act include:

• action on receipt of a referral from a court (Section 54);
• initial investigation of any referral (Section 56);
• responsibility to convene an initial hearing of the case of a child subject to a child protection order (Section 59);
• decision to liberate a child detained under a child protection order; or decision not to take the case to a hearing (Section 60);
• decision to call a hearing to give advice to a sheriff re an application to recall or vary a child protection order (Section 60(10));
• decision to liberate a child detained in terms of emergency protection measures (Section 61(8));
• decision to liberate a child or hold a hearing, where a child is arrested by the police (Section 63);
• duty to refer to a hearing in the circumstances set out in Section 65.

The Secretary of State

4.1.6 Neither does the Secretary of State need to consult children when carrying out his secondary legislation function identified in the Act with regard to:

• procedure at children's hearings (Section 42);
• emergency child protection measures (Section 62);
• children subject to supervision requirements (Section 74);
• secure accommodation (Section 75);
• the functions of a local authority re exclusion orders (Section 80).

Comment on the above

4.1.7 The above identification of situations, in which a child's views do or do not require to be ascertained, is based upon a close reading of the Act and secondary legislation. However, some of the judgements made by the author might be open to other, more generous interpretations. In particular:

1. One might argue that ancillary decisions fall within the ambit of the requirement to ascertain views, even if not specified, on the basis that they form part of the "consideration" leading to the making of the particular decisions which are specified in Section 16(4). This might apply to the attachment of secure authorisations, and decisions to prohibit disclosure of the child's whereabouts, in relation to warrants and supervision requirements (Refs. 8, 21 , 31, 32), and to the children's hearing decision to set a date for review of a supervision requirement (Ref. 21). It might also be arguable with regard to the sheriff's making of a secure order in connection with a Section 67 warrant (Ref. 31).
2. Ref. 9 refers to the Table in Appendix B for a discussion of the interpretation of the Children's Hearing (Scotland) Rules with regard to the requirement to take account of views when issuing of secure warrants. It would certainly appear to have been the intention to specify these matters amongst the situations in which the child's views must be sought.
3. It might also be argued that practice operates beyond the level of legal requirement with regard to ascertaining the views of the child. However, in an era when increasing emphasis is placed upon the need to comply with international instruments such as the European Convention on Human Rights, this may not be sufficient to persuade critics.

Is there any pattern in the picture presented with regard to decisions related to a requirement to seek to ascertain the views of the child?

4.1.8 The Children (Scotland) Act 1995 sought to move the Scottish legal system towards implementation of the UNCRC. The requirement to take account of the child's views is set out in Article 12 of that Convention. Another basic principle of the Convention is Article 3, which requires all actions concerning children to take the child's interests as a "primary consideration." Section 16(1) of the 1995 Act requires that the child's welfare be the "paramount consideration" when decisions are made in terms of Part II of the Act. Unlike the requirement concerning the child's views, which the Act applies only in the circumstances set out in Section 16(4), the requirement concerning welfare applies to "any matter". Thus, the Act goes beyond the requirements of the UNCRC in giving greater weight to the welfare of the child (the "paramount" rather than the "primary" consideration) but falls short of the requirements of the Convention in its restriction of the requirement to ascertain views to particular situations.

4.1.9 It is of interest that the Travaux Préparatoires to the Convention show that the invitation to a child to express her/his views was regarded by the drafters as integral to identification of the child's interests (Marshall 1997). This makes it difficult to justify limitation of the requirement regarding children's views, in the light of the almost unrestricted application of the primacy of the child's interests. What might be the justification for exclusion of the requirement to ascertain the child's views?

1. It might be argued that, in some of the situations omitted from Section 16(4), it would not be possible to ascertain the views of the child because of the dynamics and speed of the relevant situation. However, this is already taken account of in Section 16(2), which says that the requirement to take account of views applies only "so far as practicable." This might apply to the making of a child protection order and accompanying directions, a situation in which official guidance encourages ascertainment of the child's views so far as practicable (Ref. 34). There is no equivalent encouragement in the guidance on emergency protection measures (Ref. 51), although the relevant regulations do require the child's views to be taken account of at the earliest possible stage by a police constable implementing such measures or a person authorised by a JP to do so. It is only the actual decision by the JP that is exempt from this requirement. This may be due to an assumption that it is not practicable in these circumstances and this may well be the case in many situations. The question remains whether this is not already taken account of in the practicability qualification in Section 16(2).
2. It might reasonably be argued that it would be oppressive and illogical to require ascertainment of a child's views with regard to a decision aiming to remove barriers to their expression, such as the decision to exclude certain persons from the children's hearing (Ref. 15 and 16).
3. It might be argued that it would act against other articles of the UNCRC (Article 3 regarding welfare and Article 19 regarding protection of the child) to insist on the ascertainment of the child's views regarding decisions to refer the matter to the Principal Reporter (Refs. 49, 53, 54). This argument might also be applied to parts of the decision of the Principal Reporter himself (decisions (a), (b), (c) and (h)).

4.1.10 There are other decisions exempt from the requirement to take account of the child's views that may well be present merely as casualties of the approach taken. Had the Act stated that the child's views should be sought, where practicable, in all except the circumstances specified, the list of exemptions may well have been smaller. The fact that it chose to apply the principle only to specified decisions, means that there may be unintended and unjustifiable omissions. These are surveyed below.

Children's Hearings

• Secure authorisations: As indicated above, with regard to the children's hearing, these might be included on a generous interpretation of the Act and regulations. However it would be best to have the matter clarified (Ref. 8).
• Appointment of a safeguarder (Ref. 14): There seems no reason why this should not be included in the requirement to seek to ascertain children's views so far as is practicable.
• Sharing information with "relevant persons" (Ref. 17): This requirement, introduced as a consequence of the European Court decision McMichael v UK (1995) 20 E.H.R.R. 205, has been the cause of considerable concern to many involved in the children's hearing system who consider that it is too sweeping and inhibits the free expression of children's views.
• Transfer of a case to another children's hearing (Ref. 18): There seems no reason why this should not be included in the requirement to seek to ascertain children's views so far as practicable.
• Consideration of an application for suspension of a supervision requirement pending appeal, when the child is not the applicant. (Ref. 23): There seems no reason why this should not be included in the requirement to seek to ascertain children's views so far as practicable.

Sheriff

• Sheriff's decision to dispense with service on a child or with the child's attendance (Ref. 29): While the inclusion of a power to dispense in some circumstances is understandable, this provision has the potential to undermine the requirements of Section 16(2) with regard to the child's views. It is important to monitor its application.
• Child cannot apply for variation or discharge of an exclusion order (Ref. 38): There seems no reason why the child should not be able to apply.
• Sheriff's decision to dispense with the hearing of evidence re grounds for referral (Ref. 41): There seems no reason why this should not be included in the requirement to seek to ascertain children's views so far as practicable.
• Exclusion of child from hearing application for establishment of grounds of referral, due to the nature of the evidence (Ref. 42): One can understand why this might be appropriate in some circumstances, if the evidence was such that it would be against the child's interests to hear it in the way in which the court required that it be presented. Further consideration might be given to how the relevant substance of the information considered during the exclusion might be imparted to the child. The Rules of Court allow the safeguarder and relevant person or representative of the child to remain. In most circumstances, this would be a sufficient safeguard of the child's rights. It is however concerning that such exclusion appears, in theory at least, to be applicable also in cases where the application is based upon an offence by the child.
• Decision to keep a child in a place of safety, whether with or without a secure condition, when grounds are established (Ref. 43): There seems no reason why this should not be included in the requirement to seek to ascertain children's views so far as practicable.
• Review of establishment of grounds for referral and possible, consequent decision to terminate, or delay termination of, a supervision requirement (Ref. 47): There seems no reason why this should not be included in the requirement to seek to ascertain children's views so far as practicable. Indeed, it would seem crucial to obtain the views of the child about the timing of the termination of the requirement and any associated arrangements.
• Recovery of fugitive children (Ref. 50): In the light of the research and findings of public inquiries about the reasons for children absconding from public care, it would be advisable to include some requirement that the child be given an opportunity to discuss their reasons, in case there is a situation of abuse or neglect.
• Harbouring of fugitive children (Ref. 58): Some of the same considerations apply as set out above regarding the recovery of fugitive children. The impact of the offence of harbouring is softened by the possibility of refuge in terms of Section 38. However, it is understood that implementation of Section 38 is patchy and inconsistent in approach.
• Publication of proceedings at children's hearings (Ref. 57): It is difficult to envisage a situation in which a child might wish or benefit from publication. However, there seems no reason to deny an opportunity for the child to present their views about both publication and non-publication, especially as the sheriff, the Court of Session and the Secretary of State have a power to dispense with the prohibition.
• Principal Reporter's decision to liberate children detained in places of safety (decisions (d), (f) and (g)): There seems no reason why this should not be included in the requirement to seek to ascertain children's views so far as practicable. Indeed the child may well have a relevant view on this matter.
• Principal Reporter's decision to call an advice hearing related to an application to the sheriff to vary or recall a child protection order (decision (e)): There seems no reason why this should not be included in the requirement to seek to ascertain children's views so far as practicable.
• Secretary of State's decision with regard to the content of secondary legislation: It would be consistent with Article 12 of the UNCRC, and would lead to more informed procedures, if relevant children were consulted about the content of such secondary legislation.

Which children are included in any such requirements?

4.2.1 Three sets of questions were asked in the introduction: are fixed ages prescribed? Is there a presumption of age 12? Is there a 'gradualist' approach, and if so, who makes the judgement and on what criteria is it based?

Age and Maturity

Section 16 - children's hearings and sheriffs:

4.2.2 Section 16(2): "Without prejudice to the generality of this subsection a child of twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view."

Children's Hearing (Sc) Rules 1996

4.2.3 CH Rule 15(1): "The children's hearing, taking account of the age and maturity of the child whose case has been referred to the hearing for a purpose mentioned in paragraph (2) shall so far as practicable give the child an opportunity to indicate whether he wishes to express his views." (Note: the "age and maturity" criterion seems to apply here to the presentation of an opportunity to express views, rather than the weight to be given to views expressed, which is the activity to which this criterion is applied in Article 12 of the UN Convention.) CH Rule 15(5) says: "For the purposes of this rule, a child of twelve years of age or more shall be presumed to be of sufficient age and maturity to from a view."

Act of Sederunt

4.2.4 A.S. 97 r. 3.3: "Where the sheriff is satisfied, taking account of the age and maturity of the child, that it would be inappropriate to order service on the child, he may dispense with -

1. Service on the child; and
2. The attendance of the child at the hearing of the application.

Section 17 - the local authority

4.2.5 Section 17(3) regulates the local authority's responsibilities with regard to children they look after or propose to look after, and contains no reference to age 12.

Comment on the above

4.2.6 The CH Rule provision merely reinforces Section 16(2). A.S. 97 contains no such specific reinforcement concerning the age of 12, but does allow the sheriff to consider age and maturity generally in deciding whether the child should be invited, or required, to participate in the proceedings. It may seem anomalous that Section 17(4) contains no reference to the age of 12 but this is perhaps appropriate as the local authority's contact with the child is of a more ongoing nature, rather than procedural.

What processes are specified for ascertainment of the child's views?

In what situations is a process prescribed?

Section 16 - children's hearings and sheriffs

4.3.1 S16(2): "In the circumstances mentioned in subsection (4) below, a children's hearing or as the case may be a sheriff….shall so far as practicable -

1. Give him an opportunity to indicate whether he wishes to express his views;
2. If he does so wish, give him an opportunity to express them; and
3. Have regard to such views as he may express."

Children's Hearing (Sc) Rules 1996

4.3.2 CH Rule 15(3): "Where he has indicated his wish to express his views -

1. the children's hearing and the chairman of the hearing may exercise any of their powers under the Act or these Rules as they or, as the case may be, he considers appropriate in order to ascertain the views of the child; and
2. the children's hearing shall not make any decision or take any action mentioned in paragraph (2) unless an opportunity has been given for the views of the child to be obtained or heard and in terms of section 16(2) of the Act they have had regard to such views as he may have expressed."

4.3.3 CH Rule 15(4): "Without prejudice to the generality of the powers mentioned in paragraph (3)(a), the views of the child may be conveyed to the children's hearing -

1. by the child, or by his representative, individually or together in person;
2. by the child in writing, on audio or video tape or through an interpreter; or
3. by any safeguarder appointed by the hearing."

4.3.4 CH Rule 26: refers back to Rule 15 with regard to processes.

Act of Sederunt

4.3.5 A.S. 97 r.3.4: "(1) Subject to rule 3.3 [power to dispense with service on child] and to paragraph (2) [sheriff's order that part of the application is not served on the child], after the issue of the first order or warrant to cite… the applicant shall forthwith serve a copy of the application and first order or warrant to cite on the child, together with a notice or citation in…" There follows a list of Forms to be used in connection with applications:

• for a CAO;
• to vary or set aside a CPO;
• for an exclusion order;
• to vary or recall an exclusion order;
• for a warrant to keep a child in a place of safety;
• in respect of an application for establishment of grounds for referral to a children's hearing.

4.3.6 A.S. 97 r.3.5:

"(1) Where a child has indicated his wish to express his views, the sheriff -

(a) may order such steps to be taken as he considers appropriate to ascertain the views of that child; and

(b) shall not make any order or disposal mentioned in paragraph (b) or (c) of section 16(4) of the Act unless an opportunity has been given for the views of that child to be obtained or heard.

(2) Subject to any order made by the sheriff under paragraph (1)(a) and to any other method as the sheriff in his discretion may permit, the views of the child may be conveyed -

1. by the child orally or in writing;
2. by an advocate or solicitor acting on behalf of the child;
3. by any safeguarder or curator ad litem appointed by the court; or
4. by any other person (either orally or in writing) provided that the sheriff is satisfied that that person is a suitable representative and is duly authorised to represent the child.

(3) Where the views of the child are conveyed orally to the sheriff, the sheriff shall record those views in writing".

4.3.7 A.S. 97 r. 3.22: in any proceedings in the sheriff court under Part II of the Act, application can be made for the child to give evidence by live television link.

Section 17 - the local authority

4.3.8 S17(3): "Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the views of -

1. the child….."

S17(4): "In making any such decision a local authority shall have regard so far as practicable -

1. to the views (if he wishes to express them) of the child concerned…"

How do such processes compare with each other?

4.3.9 The processes with regard to the children's hearing and the sheriff are roughly equivalent. There are some differences in the examples given of the ways in which the child's views might be presented but, in both the CH Rules and A.S. 97, these are said to be illustrative only. The main difference lies in the fact that, if the sheriff dispenses with service on the child, the child might never be given an opportunity to express views, although s/he might still be able to present them through various representatives. A.S. 97 requires the sheriff to record in writing any views expressed orally by the child.

4.3.10 The local authority provision is less specific in its terms, which may be appropriate given that many of the decisions with which it will be concerned will take place outwith any formal process.

Is provision made for an advocate/representative of the child?

Children's Hearings

4.3.11 Children's Hearing (Sc) Rules 1996, rule 11(1): Any child whose case comes before a children's hearing and any relevant person who attends that children's hearing may each be accompanied by one person for the purpose of assisting the child, or as the case may be, the relevant person at the hearing.

4.3.12 Section 46(1) allows the exclusion of the relevant person's representative in certain circumstances, there is no equivalent provision regarding exclusion of the child's representative.

Children's Hearings and Sheriffs

4.3.13 Section 41 of the 1995 Act requires consideration by children's hearings and sheriffs of the case for appointing a person "to safeguard the interests of the child in the proceedings."

Sheriff

4.3.14 A.S. 97 r. 3.7:

(1) The sheriff -

(2) Where a safeguarder has been appointed in proceedings before the children's hearing or the sheriff in respect of related proceedings, the appointee shall, unless the sheriff on his own motion or cause shown by a party directs otherwise, be the same person appointed as safeguarder by the children's hearing or sheriff.

4.3.15 A.S. 97r.3.8(c) says a safeguarder should "determine whether the child wishes to express his views in relation to the application and, if so, where the child so wishes transmit his views to the sheriff." R.3.9 allows the safeguarder to appear personally in the proceedings or instruct an advocate or solicitor to appear on his behalf. Any such advocate or solicitor acting for the safeguarder shall not act also as advocate or solicitor for the child in the proceedings.

4.3.16 A.S. 97 r. 3.9:

(1) A safeguarder may appear personally in the proceedings or instruct an advocate or solicitor to appear on his behalf.

(2) Where an advocate or solicitor is appointed to act as a safeguarder, he shall not act also as advocate or solicitor for the child in the proceedings.

4.3.17 A.S. 97 r. 3.5 (quoted above) also envisages that a child's views might be presented by an advocate, solicitor, curator ad litem , or other "suitable representative".

Comment on the above

4.3.18 Children's Hearings: The representative of the child is there to "assist" the child and may therefore be expected to support the child in his or her expression of views, although this is not explicit. Whilst Section 46(1) allows the exclusion of the relevant person's representative in certain circumstances, there is no equivalent provision regarding exclusion of the child's representative. Whilst this may seem appropriate as a matter of principle, it is understood that some concern has been expressed about circumstances in which the person presenting as the child's representative is actually there at the instigation of the relevant person and whose presence may in fact inhibit the free expression of views by a child. Perhaps the solution lies in a more rigorous inquiry into the status of that person and the child's own wishes, although in practice this could be quite difficult and sensitive.

4.3.19 Children's Hearings and Sheriffs: The focus of the safeguarder's role is on the interests of the child rather than the child's views. Nevertheless, it is envisaged, both by Children's Hearing Rule 15(4)(c) and A.S. 97 r. 3.8(c) that the safeguarder might have a role in communicating the views of the child to the hearing or court.

4.3.20 Sheriffs: A.S. 97 identifies a number of persons who might assist in communication of the child's views.

4.3.21 Both the children's hearing and the court have provision for representation of the child's views and interests. The role of the CH representative is not specifically fixed on expression of views. The expression of the child's views in the sheriff court by any of the designated persons may be described as discretionary, which sounds negative, or flexible, which sounds positive.

4.3.22 The role of the safeguarder is interesting. The communication of views in the context of presenting an opinion about the child's interests may seem to reflect the relationship between Articles 12 and 3 of the UNCRC. However, there is a danger that this mode of presentation might give insufficient profile to the views of the child. If the child's views conflict with those of the safeguarder, this may indicate the need to explore whether the child wishes to have a separate representative to advocate his or her views.

Is there a provision about facilitating expression of views by the child by limiting the number of people present or excluding specific individuals?

Children's hearings

4.3.23 Section 43(4) allows a children's hearing to exclude representatives of newspapers or news agencies from any part or parts of a children's hearing for so long as they are satisfied that:

1. it is necessary to do so, in the interests of the child, in order to obtain the child's views in relation to the case before the hearing; or
2. the presence of that person is causing, or is likely to cause, significant distress to the child.

4.3.24 Section 46(1) allows the children's hearing to exclude relevant persons and/or their representatives from any part or parts of the hearing for so long as is necessary in the interests of the child, where they are satisfied that:

1. they must do so in order to obtain the views of the child in relation to the case before the hearing; or
2. the presence of the person or persons in question is causing, or is likely to cause, significant distress to the child.

4.3.25 Where newspaper and news agency representatives are excluded, Section 43(5) says that the chairman may, after the exclusion has ended, explain to the excluded person the substance of what has taken place in his/her absence. Where a relevant person has been excluded, Section 46(2) says the chairman shall explain to the excluded person the substance of what has taken place in his/her absence.

S65(7) and (9) applications for establishment of grounds for referral

4.3.26 A.S. 97 3.47:

(6) "Subject to paragraph (7), the sheriff may exclude any person, including the relevant person, while any child is giving evidence if the sheriff is satisfied that this is necessary in the interests of the child and that:

(7) Where the relevant person is not legally represented at the hearing and has been excluded under paragraph (6), the sheriff shall inform that relevant person of the substance of any evidence given by the child and shall give that relevant person an opportunity to respond by leading evidence or otherwise."

Comment on the above

4.3.27 The A.S. 97 provision implies that, if the relevant person is legally represented, that representative will impart this information. This raises a question about the availability of guidance or training for such legal representatives to help them to communicate the child's views in a way that will not make life more difficult for the child. In both the CH and the Sheriff Court, it is possible to exclude relevant persons, who must later be given some information about what took place in their absence. The CH may exclude media representatives, and the Sheriff can exclude "any person" other than a relevant person, without any duty to communicate what took place in their absence. The Sheriff's power of exclusion is set out only in relation to the hearing of evidence in applications to establish grounds of referral. It may be appropriate to ask Sheriffs whether they would welcome an equivalent power with regard to other procedures.

Is it possible for a child's views to be kept confidential?

Children's hearings

4.3.28 CH Rule 5 requires the Reporter to give to the relevant persons and other specified persons, any information that is supplied to members of the children's hearing. This includes any views of the child given orally to the Reporter. It is therefore not possible for the child's views to be kept confidential.

Sheriff

4.3.29 A.S. 97 3.5(4) "The sheriff may direct that any written views given by a child, or any written record of those views, shall:

1. be sealed in an envelope marked "Views of the child - confidential";
2. be kept in the court process without being recorded in the inventory of process;
3. be available to a sheriff only;
4. not be opened by any person other than a sheriff; and
5. not form a borrow able part of the process."

Comment on the above

4.3.30 It is difficult to justify the discrepancy between the practice at the children's hearing and the court with regard to the confidentiality of the child's views. It cannot be justified on the basis that the court has a distinct function with regard to the hearing of evidence, for it is precisely when the child's views fail to be regarded as evidence as such, as opposed to preferences, that sheriffs are reluctant to maintain confidentiality. If it is the preference of the child for the information to be confidential, the process of expression of views may be halted at the level of the children's hearing, where it cannot be kept confidential, and may never reach the sheriff court, where it might be kept confidential.

4.3.31 No information given by a child can be kept confidential at a children's hearing. This includes expression of views. However, if the matter proceeds beyond the hearing to the sheriff, the sheriff is empowered to direct that the child's views be kept confidential. Case law (see Appendix A) has shown some differences of approach amongst sheriffs regarding the relationship between the child's interests in the preservation of confidentiality and the parents' rights of natural justice in having access to relevant information. In one case (Grant v Grant 2000 GWD 5-177) there appeared to be uncertainty about the source of the child's right to confidentiality. The differences between the children's hearing and the court in terms of the possibility of confidentiality create an illogical situation. The lack of the possibility of confidentiality at the stage of the children's hearing might inhibit a child from expressing views, and this might block progression of the case to the sheriff where confidentiality is at least a possibility. The uncertainty of sheriffs about the legal and philosophical justifications for offering confidentiality to a child may well be inhibiting a whole-hearted embrace of the provision in the Rules of Court and may signal a need for an opportunity for sheriffs to explore these issues in a principled way.

What weight is to be given to the child's views?

Children's Hearings and Courts

4.4.1 Section 16(2): "Taking account of the age and maturity of the child concerned" applies to the extent to which courts and children's hearings are required to "have regard" to children's views.

Children's Hearings

4.4.2 CH Rule 15: paragraph (3)(b) merely says, "have regard to such views as he may have expressed," echoing the words of Section 16(2)(c). The criteria about age and maturity are located within paragraph 15(1) of the Rules and relate to giving an opportunity to express views. However, they will be applied to the weight to be given to the child's views because of the application of Section 16(2), described above.

Sheriff

4.4.3 A.S. 97 does not refer to age and maturity. However, these criteria will be applied to the weight to be given to the child's views because of the application of Section 16(2), described above.

Local Authority

4.4.4 Section 17(4) requires the local authority to "take account of" the child's age and maturity when having regard to the child's views.

Is there any pattern in the picture presented?

4.4.5 In general terms, Section 16(2) is consistent with Section 17(4), and both appear reasonable and consistent with Article 12 of the UNCRC.

Is there provision for feedback to the child about the decision and the consideration given to the child's views?

(Note: The detailed information in this section of the paper is summarised in a table at the end.)

Conduct of children's hearing considering case on referral (Section 65) or at review of supervision requirement (Section 73(8))

4.4.6 CH Rule 20(5): "After the children's hearing have considered the case of the child and made a decision disposing of the case, but before the conclusion of the hearing at which the decision is made, the chairman shall inform the child, any relevant person, any safeguarder, and any representative, if attending the hearing, of:

1. the decision of the hearing;
2. the reasons for the decision;
3. the right of the child and of the relevant person under Section 51(1) of the Act to appeal to the sheriff against the decision and, where the appeal is against a decision relating to a supervision requirement, to apply to the children's hearing for suspension of the requirement appealed against."

4.4.7 CH Rule 21(1): Subject to Sections 70(6) and 73(11) of the Act [non-disclosure of address], as soon as reasonably practicable after a children's hearing have made a decision disposing of the case of a child under this Part of the Rules, the Principal Reporter shall send to the child, any relevant person, any safeguarder and the local authority:

1. Notice of the decision and a copy of any supervision requirement or, as the case may be, any continuation of a supervision requirement;
2. A copy of the statement of reasons for the decision; and
3. Except in the case of a review which continues a supervision requirement, being a review in relation to which an order under S51(7) of the Act is in force [frivolous appeals], notice of the right of the child or, as the case may be, a relevant person under S51 of the Act to appeal to the sheriff against the decision,

And such notice shall be given in writing."

Conduct of children's hearing on reference for advice by court, the local authority or approved adoption society

4.4.8 CH Rule 22(5): After the children's hearing have considered the case of the child and determined the advice they shall provide, the hearing shall inform the child, any relevant person, any safeguarder and any representative, if attending the hearing of that advice. CH Rule 22(6): As soon as reasonably practical after the children's hearing determine the advice they shall provide, the chairman shall make or cause to be made a report in writing providing that advice, including a statement of the reasons for that advice…. CH Rule 22(7): Within 7 days following a determination by the children's hearing, the Principal Reporter shall send a copy of the report prepared under paragraph (6) to the court, the local authority or the approved adoption society, as the case may be, and the child, any relevant person and any safeguarder appointed in the proceedings."

Application for suspension of supervision requirements pending hearing of appeals. CH Rule 4.4.9 23(4) The chairman of the children's hearing shall inform the applicant at the conclusion of the hearing of the decision of the hearing and the reasons for it. Note: the child may not be the applicant.

Procedure relating to warrants, orders, and to requirements under S69(3) of the Act

4.4.10 CH Rule 26(1) requires the views of the child to be obtained in relation to:

4.4.11 CH Rule 26(2): "Where a children's hearing have issued or, as the case may be, continued such a warrant, order, direction or requirement as is mentioned in paragraph (1), the Principal Reporter shall send as soon as reasonably practicable to the child, any relevant person and any safeguarder appointed in the proceedings:

1. a copy of the warrant, continuation of the warrant, continuation of the order, or requirement and a copy of the statement of the reasons for the decision; and
2. notice of the right of the child…. Under S51 of the Act to appeal to the sheriff against the decision."

Child Assessment Order

4.4.12 A.S. 97 r. 3.28: "The local authority shall intimate the grant or refusal of an application to such persons, if any, as the sheriff directs."

Making of Child Protection Order

4.4.13 A.S. 97 r. 3.32: "Where an order is granted, the applicant shall forthwith serve a copy of the order on:

(a) the child, along with a notice in Form 50…." Form 50 is written in child-friendly language and informs the child of how to seek advice or initiate a challenge to the order.

Application to vary or set aside a CPO

4.4.14 A.S. 97 r. 3.33(5): Where and order is made granting the application for variation, that order shall be in Form 53. r.3.33(6): "Where the sheriff so directs, intimation of the granting or refusing of an application shall be given to such person as the sheriff shall direct." Note: No duty to intimate to the child and no consideration of intimation where the application is unsuccessful, or where it relates to the setting aside of the order. This seems to leave the child in limbo, as r.3.4 requires intimation of the application on the child, unless this is dispensed with by the sheriff.

Making of exclusion order

4.4.15 A.S. 97 3.37(2): "Where the sheriff grants an order… it shall be in Form 55 and shall forthwith be served on:

(c) the relevant child…"

Variation or recall of an exclusion order

4.4.16 A.S. 97 r. 3.40(4): Intimation of the granting or refusing of an application shall be given by the applicant to such persons as the sheriff shall direct." Note: No requirement to intimate to the child, although 3.4 requires intimation of the application on the child, unless this is dispensed with.

Section 67 warrants for detention of a child

4.4.17 A.S. 97 r. 3.43: no provisions regarding intimation to child.

Section 65(7) and (9) applications for establishment of grounds for referral

4.4.18 Abandonment of the application - A.S. 97 r. 3.46(2): "The Principal Reporter shall intimate such abandonment to:

(a) the child, except where service on the child has been dispensed with…."

Decision of sheriff

4.4.19 A.S. 97 r. 3.51(2): The sheriff clerk shall forthwith send a copy of the interlocutor containing his decision to:

(3): "The sheriff may, when giving his decision … or within 7 days thereafter, issue a note of the reasons for his decision and the sheriff clerk shall forthwith send a copy of such a note to the persons referred to in paragraph (2)."

Section 51 Appeals

4.4.20 A.S. 97 r. 3.58(4): The sheriff clerk shall forthwith send a copy of the interlocutor containing the decision of the sheriff, and where appropriate of the note [of reasons] referred to in paragraph (2),… to the appellant (and to the child or the relevant person, if not the appellant)…."

Section 51(11) Appeals

4.4.21 A.S. 97 r. 3.61: "(1) The sheriff principal, on hearing the appeal, may either pronounce his decision or reserve judgement. (2) Where judgement is so reserved, the sheriff principal shall within 28 days give his decision in writing which shall be intimated by the sheriff clerk to the parties." Might the child not be a party?

Section 85 review of establishment of grounds of referral

4.4.22 A.S. 97 r. 3.64(2): "The provisions of rule 3.51 shall apply to any order made under paragraph (1)." Note: this refers to the communication of the sheriff's decision re application to establish grounds for referral in terms of Section 65(7) and (9). See above for details.

Is there any pattern in the picture presented?

4.5.1 The following table allows a comparison of the requirements discussed above for notification of decisions to children.

Table 4.2 Part I, Chapters 2 and 3 - Analysis of Provisions Regarding Notification of Decisions to Children

Comment on the above

4.5.2 There does not appear to be a justification for some of the differences shown in the above table. In particular, A.S. 97 r. 3.3 allows the sheriff to dispense with service on the child where such service would seem inappropriate, taking account of the child's age and maturity. A.S. 97 r. 3.2 says that this applies "where by virtue of Section 16(2) of the Act a child may be given an opportunity to indicate whether he wishes to express views in relation to the application or proceedings." It does not therefore apply in general to intimation of decisions. Only the decisions referred to as 11 and 12 above make reference to this prior dispensation as a qualification of a duty to give notice to the child of the decision.

« Previous | Contents | Next »