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ADOPTION POLICY REVIEW GROUP: CHOICES FOR CHILDREN IN FOSTERING AND ADOPTION

Chapter 4. Role of the Hearing System in Permanence

Many 'looked after' children for whom permanence plans are made are subject to supervision requirements from the Children's Hearing system, under s.70 of the 1995 Act. When children are on s.70 requirements, it is the hearing that makes all legal decisions about them, including where they stay, who their specific carers will be and arrangements for any contact, s.3(4) of the 1995 Act. This means that these children continue to be involved with the hearing system until requirements are terminated, usually at the same time or after any permanence orders are granted.

When permanence plans are initiated by local authorities for children who are subject to supervision, two main types of children's hearings will take place:

• review hearings;
• advice hearings.

The hearing system includes a wide-ranging review structure. The main types are:

• where the child or a 'relevant person' (someone with the right to attend the child's hearings, including anyone with parental responsibilities) asks for a review, provided the last decision on the requirement was more than 3 months before, s.73(6) and(8)(a)(ii) of the 1995 Act;
• where the local authority asks, which they can at any time, s.73(4)(a) and (b) and (8)(a)(i);
• where permanence plans are being made for the child, s.73(4)(c) and (8)(a)(i);
• where hearing members asked for a review as part of the previous decision, s.70(7) and s.73(8)(a)(iii);
• where it is more than 9 months since the last decision (often called the 'annual review'), s.73(8)(a)(v).

When a review is requested, the reporter has no discretion and must fix a hearing. Every review decision can then be appealed from the hearing to the sheriff, by the child and/or the relevant person, s.51(1) of the 1995 Act.

Therefore, all requirements must be reviewed at least once a year but there may be reviews more frequently than that. These rights of review and appeal are used appropriately by some 'relevant persons', but are sometimes abused. On occasions, this leads to hearings every three months and appeals from them. Different hearings usually have different panel members, who may make different decisions from previous hearings, even when specific plans have been agreed earlier. As a result, there can be great uncertainty about whether a plan will continue. This increases anxiety and uncertainty for children, families and those making plans for them.

If a child is subject to supervision, and an application is made for adoption, freeing or a PRO, the court dealing with the case should have a report from the children's hearing (usually called 'advice') before it grants any order, s.73(14) of the 1995 Act. It is one of the reports the court has to consider. There must be a hearing to give this advice and there are timetables for this in the 1996 Regs. when birth parents do not agree with the plan. The hearing does not have to agree with the plans, but should comment on them one way or the other.

When there is an advice hearing, there must always be a review at the same time, s.73(8)(a)(i) of the 1995 Act. There is no appeal against the 'advice' given, as it is not a decision but a report to another forum. However, the review part of the hearing can be appealed.

Prior to the introduction of the 1995 Act in 1997, it was difficult for permanence, particularly adoption, to be discussed at children's hearings, because this was felt to be interfering with long term decisions. The 1995 Act attempted to open up discussions about these issues at hearings by introducing 'advice' hearings and providing for regulations to be made about timetables for the process - now set out in the 1996 Regs. One of the purposes of the timetables is to allow a local authority to proceed with a court application for a child, even when the hearing opposes the plan. However, as discussed under Chapter 3, Freeing Orders, an unintentional consequence of the timetables has been to force local authorities into freeing applications where plans are not agreed by parents and the children are not placed.

Any child in this position may be involved in a mixture of review and advice hearings, with or without appeals. This type of situation tends to be very confusing for everyone: child, family and professionals. In the most complicated cases, there is confusion about the status of decisions where, for example, there is an outstanding appeal and a new review hearing is fixed before the appeal is heard. Also, as indicated, there is usually little continuity of panel members, so different views can be taken and different decisions made about the same things, over quite a short period.

Taking all these points together, the role of the Children's Hearing system is one of the current concerns in permanence law and practice, where hearings are making decisions about children for whom the local authority have made planning decisions that they need permanence away from home. Some hearing members are unhappy about dealing with such cases, and feel that they are not familiar with all practice issues. The main purpose of the hearing system is to offer care and protection to children in the short and middle term, with reviews, rather than to provide a forum to make long-term decisions for children's care away from home.

A further unforeseen complication is that some hearing members feel uncertain about permanence, and, when asked to provide advice, appoint a safeguarder under s.41 of the 1995 Act, to prepare a report. Such an option is not provided for in the timetables in the 1996 Regs, so there is a gap in the process, while the safeguarder is preparing the report.

It can also be argued that introducing a further person (the safeguarder) into the process is unnecessary, given the number of different professionals involved, the other reports provided to court and that the child's interests are represented in court by the curator. ( See Chapter 19 below for information about curators.) The court will always have two reports in every case, disputed or not, from the agency/local authority and the curator. And birth parents who are disputing the plan are able to contest the application in court with legal representation, and give evidence about their facts and views. Introducing a safeguarder is perceived as bringing yet another person into the process, often with no apparent benefit to the child, given the appointment of a curator in the court proceedings. It is argued that if hearing members are not happy with the plan put to them, they are able to say so, without appointing a safeguarder.

The number of children involved in these situations is small, but the effect of many different types of proceedings in different settings usually causes delays in cases and can be confusing for decision-makers, professionals and the birth family. In some cases:

• the hearing makes a decision about placement and/or contact;
• the family appeal to the sheriff;
• while the appeal is pending, there is another hearing;
• and meantime a permanence application has been raised in court.

None of the problems raised are in the interests of children, their birth parents or prospective carers. Serious consideration needs to be given to how these problems should be tackled. Options for change and development include:

• Increased specialist training on permanence and contact issues for all panel members.
• Developing a core of 'specialist' panel members so that one of them would form part of any hearing dealing with a child for whom a local authority had made a decision to seek permanence. There could be peripatetic specialists.
• Rules providing for definite continuity of panel members for any hearing dealing with a child for whom a local authority has made a decision to seek permanence.
• A radical suggestion is that when a local authority decide at a 'looked after' review that a child who is subject to supervision should have a plan for permanence away from home, the child's case is immediately transferred to the local sheriff court. The child would remain subject to a supervision requirement at all times, and be 'looked after'. If an adoption or freeing order did not go ahead or was abandoned or refused, the child's case would immediately go back to the hearing system. However, in the interim, between the local authority's decision and a final decision by the court on the permanence case, short-term decisions would be made by the sheriff, who would be provided with the same information that the hearing members would have received. Appeals could be heard by the sheriff principal. At an appropriate stage, a hearing would provide advice on the case for the court's long-term decision.

This suggestion involves no interference with the integrity of the Children's Hearing system, merely the removal of some decisions, in the short-term, to another setting. With such a system in place, it would also be possible to retain the panel's role of providing advice to the court in the permanence case.

On the other hand, cases would lose the external overview of the panel. Hearing members are specifically trained to make welfare decisions whereas sheriffs are not trained in this area. The position in England and Wales is different. There courts deal with interim and full care orders for protection, and also hear permanence cases. Many judges are specialists with expertise in child care law.

• Consideration of an alteration to the provisions about safeguarders, so that the appointment of a safeguarder would not be allowed when a hearing is providing advice on permanence. In practice, hearings do not appoint a safeguarder when providing advice to the court in criminal matters, so such an alteration is not a great change to the system.

QUESTIONS:

7. What are views on the suggested ideas and what are other options?

8. What, if any, should be the role of safeguarders in advice hearings in permanence cases?

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