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The Children's Hearings System in Scotland 2003
Training Resource Manual 2nd edition

1 INTRODUCTION

Most of the legal provisions which govern the children's hearings system are contained in the Children (Scotland) Act 1995 and the Children's Hearings (Scotland) Rules 1996. Other rules and regulations will be referred to as they arise in context. This section outlines the main provisions in the legislation and how they are implemented.

2 LEGAL FRAMEWORK AND BEST PRACTICE

Children's hearings can never be more than relatively informal, when compared with courts. Children and their families often have little knowledge or understanding of their rights or of the procedures to be followed at a hearing. While panel members are not expected to be legal experts, they need to be equipped with a competent understanding of the legal framework and how it is operated. Panel members are members of a legal tribunal and act independently of the State to protect children. They make decisions with the welfare of the child as their paramount consideration. In doing so panel members need to operate in such a way that they ensure the protection of the rights of the individuals concerned.

In terms of human rights legislation, the rights of parents and children may have to be balanced and hearings (and courts) must assess and consider competing rights and interests fairly and openly while bearing in mind their duty to regard the welfare of the child as their paramount consideration.

Over the years notions of best practice have been developed to supplement the formal procedures. It is the skill of panel members in implementing legal procedures, through best practice, that not only ensures protection of rights but also enables families to participate to the best of their ability in the decision-making process.

The Rules concern the operation of Part II of the Act and must be followed. However, there are certain circumstances where panel members may use their discretion (guided by the chairman of the hearing or in consultation with the reporter) in deciding how to interpret the Rules. There is therefore an important distinction between what must be done, what may be done, and what is desirable practice.

3 THE CHILDREN (SCOTLAND) ACT 1995

Structure of the Act

A diagram showing the different parts of the Act is given overleaf. Further information on the parts is given later in this section of the Manual.

Fundamental principles of the Act

There are three child-centred principles which must be implemented by children's hearings and courts in most situations in which decisions relating to children are made. They are contained within section 16 of the Act.

• The welfare of the child throughout childhood is the paramount consideration. In adoption cases, decisions by courts must consider the child's welfare throughout his or her life. The only exception to this principle is to protect members of the public from serious harm.
• No court should make an order relating to a child, and no children's hearing should make a supervision requirement (or certain other decisions), unless the court or hearing considers that to do so would be better for the child than making no order or supervision requirement at all.
• The child must be given an opportunity to express a view, and regard should be given to it. Children over twelve are presumed to have sufficient maturity to express a view and children under twelve should, if they wish, be given a chance to express a view and this should be considered in reaching a decision.

These principles must also be adhered to by courts which are considering applications for parental responsibilities and parental rights under section 11 of the Children (Scotland) Act 1995, that is, the private law sphere. Local authorities in supporting children and families are also required to give effect to the principles.

4 CHILDREN, PARENTS AND GUARDIANS

Part I of the Children (Scotland) Act 1995 deals with private law aspects of the relationship between parents (or guardians) and children. It sets out the responsibilities and rights of parents and guardians towards children and also covers decisions about various family matters for example, where children should live when parents separate. It provides the framework for the relationship in law between parents and children. The shift in emphasis from automatic parental rights over children to the linking of rights with responsibilities brings the legislation into line with the United Nations Convention on the Rights of the Child.

Parental responsibilities

Parents have a number of responsibilities in respect of their children:

• to safeguard and promote the child's welfare until the child reaches age sixteen
• to provide direction and guidance in a manner appropriate to the stage of development of the child up to the age of eighteen
• to maintain personal relations and contact with the child on a regular basis (even if the child is not living with the parent) up to age sixteen
• to act as the child's legal representative until the child is sixteen.
  

These responsibilities must be implemented only so far as is practicable and in the interests of the child.

Parental rights

Parental rights set out in the Act are as follows:

• to have the child living with the parent or otherwise regulate the child's residence
• to control, direct or guide the child's upbringing in a manner appropriate to the stage of development of the child
• to maintain personal relations and direct contact on a regular basis if the child is not living with the parent
• to act as the child's legal representative.

It is clear from the above that parental rights and responsibilities are closely linked and flow from and into each other. In order to be able to exercise parental rights, the parental responsibilities must be met.

People who hold parental responsibilities and rights

Although the concept of parental responsibilities and rights underpins the belief that children are best looked after by their parents and that both parents should share an active role in raising children, even if parents separate or divorce, the position of the unmarried father is less favourable than that of the mother.

Parental responsibilities are held automatically by the following:

• a mother
• a father if married to the mother
• an unmarried father who by agreement with the mother has been registered in the Books of Council and Session as the child's father
• a guardian who is a person appointed by a parent to act in the parent's place in the event of his or her death.

An unmarried father with no parental responsibilities or rights still has an obligation to support his child or children financially.

Applications for parental responsibilities and rights

Applications can be made to court by any person for an order awarding all or some of the parental responsibilities and rights in terms of section 11 of the Act. A court may make an order depriving a person of some or all of his or her parental responsibilities or rights in relation to a child. It can also make an order imposing or giving some or all parental responsibilities or rights to another person. Such a person might include an unmarried father, a grandparent or other relative or person with an interest in the child.

A local authority is not considered to be 'a person' in terms of Part I: applications by local authorities for parental responsibilities orders are made under section 86 of Part II of the Act.

Residence and contact orders

The Children (Scotland) Act 1995 replaced the concepts of 'custody' and 'access' which focused on the rights of parents over their child with residence and contact orders which are more child-centred and set out responsibilities in relation to the child.

A residence order regulates the arrangements made about where the child lives. This could include arrangements that the child should reside at different times with each of his or her parents and not just with one parent all of the time. It may also include residence with other persons.

Contact orders set down the arrangements which should be made to ensure the child has contact with people with whom he or she is not living, for example, a parent or other members of the family. The Act ensures that an order limiting or amending a parent's right to maintain personal relations and contact with the child is made only if it is in the best interests of the child. Both these orders last until the child is sixteen.

Consent to medical treatment

Under the Age of Legal Capacity (Scotland) Act 1991, reinforced by the Children (Scotland) Act 1995, children under the age of sixteen have the capacity to consent to (or refuse) medical examination and treatment where, in the opinion of the attending qualified medical practitioner, the child is capable of understanding the nature and possible consequences of the examination or treatment.

Instructing a solicitor

Children under sixteen who have a general understanding of what it means to do so, may instruct a solicitor in connection with any civil matter and can apply for legal aid. They are able to do this under the Age of Legal Capacity (Scotland) Act 1991 as amended by the Children (Scotland) Act 1995. A person of twelve years or more is presumed to be of sufficient age and maturity to have such understanding but even below that age some children may be sufficiently mature.

5 PROMOTION OF CHILDREN'S WELFARE

Scope of Parts II and III of the Act

Part II of the Children (Scotland) Act 1995 is divided into four chapters.

• Chapter 1 sets out the duties of local authorities in providing support for children and families. These duties may or may not relate to children who appear before hearings.
• Chapter 2 covers a range of issues relating to children's hearings, including the formation of children's panels and hearings, safeguarding children's interests, general provisions about the conduct of hearings - including privacy and rights of attendance, exclusion from hearings of specified individuals and appeals against decisions of hearings.
• Chapter 3 relates to the protection and supervision of children. It also sets out the reporter's investigative duties, the grounds upon which children may be referred to hearings, and the decisions that can be taken.
• Chapter 4 covers parental responsibilities orders and the circumstances in which courts may transfer parental responsibilities and rights to a local authority. This is different to the procedures in Part I of the Act which is concerned with private not public law.

Throughout Part II of the Act, there are references to the Principal Reporter. In practice, the Principal Reporter's powers and duties are delegated to other reporters employed by the Scottish Children's Reporter Administration. ( See Roles, Responsibilities and Resources)

Part III of the Act makes amendments to the law on adoption of children.

There are five schedules and Schedule 1 deals with the appointment of CPACs, and the recruitment, training and expenses of panel members and the publication of their names.

Local authority duties

Local authorities have a range of general and specific duties to provide support for children and families. These include provision of services, advice and assistance for young persons formerly looked after by local authorities and a number of miscellaneous and general duties, including provision of short-term refuges for children. Chapter 1 contains sections 16 to 38 of the Act. This is dealt with in further detail in the section on Roles, Responsibilities and Resources.

General purpose of children's hearings

Children's hearings have been given extensive powers to make decisions about children who may be in need of compulsory measures of supervision. These measures may include protection, treatment, guidance or control (or a combination of these elements).

Definition of child s93(2)(a) & (b)

A 'child' for the purposes of a hearing is a person who is:

• not yet sixteen years old (no lower age limit other than that the child has been born)
• over sixteen years but not yet eighteen and subject to a supervision requirement
• over sixteen but has not yet reached the school leaving age and has been referred to a hearing on the grounds that he or she has failed to attend school regularly without reasonable excuse
• referred to a children's hearing from a different part of the United Kingdom and is under a similar requirement or order to the ones made in Scotland.

Definition of a relevant person s93(2)(b)

In everyday language we speak about children's parents. The Children (Scotland) Act 1995 introduced the concept of a relevant person. This does not mean 'relevant' in the way the term is commonly understood but is a specific legal term. The plural is relevant persons, not relevant people. In terms of the legislation, a 'relevant person' for the purposes of a hearing is:

• any person who has parental responsibilities under Part 1 of the Act. This will include a child's mother unless she has been deprived of parental responsibilities by a court. It will also include the father if he is married to the mother. It will not include an unmarried father unless there is a court order or unless he has registered an agreement with the mother under s4(1) of the Act giving him parental responsibilities and rights. A residence order with a condition that the child should stay with a father will give that father parental responsibilities and rights
• any other adult with parental responsibilities and rights. This could include grandparents who have a residence order, or a relative or friend appointed as guardian in a parent's will or by the court
• any person who appears to be a person who ordinarily has charge of, or control over, the child other than by reason only of his or her employment. This may include a step-parent or parent's partner or it could be a friend, relative or in certain limited circumstances a foster carer

In October 2002, following the outcome of a case in the Court of Session, foster carers who have looked after a child for a period of approximately seven months, or longer, may be deemed to be relevant persons.

6 REFERRAL TO THE CHILDREN'S REPORTER

The processes under which a child may be referred to a children's reporter, the reporter's investigative powers and jurisdiction, the referral of children to hearings, and the decision-making powers of hearings, are outlined below. s53&54

People who may refer a child

A local authority must refer a child to the reporter if they receive information which suggests that compulsory measures of supervision may be necessary if this is substantiated by enquiries into the case. This may be because the child is being neglected or harmed in some way or that the child's actions require to be considered. Reasons could include a child who is stealing, truanting, running away or abusing alcohol or drugs. Although the duty refers to the local authority, in practice most referrals come from social work, in particular, and the education services to a lesser extent. Other departments, such as housing, might also refer but are more likely to do so through social work. s53(1)

Similarly, if police officers have reasonable cause to believe that compulsory measures of supervision may be required in respect of a child, they have a duty to pass that information on to the reporter. s53(2)

Anyone can refer a child to the reporter. There is no limitation on who may do so - it may be a medical practitioner, health visitor, neighbour, youth club leader, friend, nursery or children's centre, or even the child or parents themselves. s53(2)

A court dealing with matters such as divorce, separation, parental responsibilities or parental rights, adoption or freeing for adoption, or proceedings against a parent for failing to secure regular attendance by his or her child at school, may, if satisfied that one or more grounds for referral to a hearing is established, refer the child to the reporter. s54

If a child has either admitted to being guilty or been found guilty of an offence in a criminal court, the court may have the case referred to a children's hearing with the grounds already established. s49

Initial investigations by the reporter

Having received information about a child, the reporter must make an initial investigation. He or she may request from the local authority a report on the child and the local authority is obliged to supply such a report. s56(1)&(2)

The reporter may seek information from a variety other sources, such as the child's school or a nursery placement, health visitors and medical services.

Grounds for referral s52

In order to reach a decision on whether or not a child requires compulsory measures of supervision, one of the tests applied by the reporter is to see if the concern referred 'fits' any of the conditions which need to be satisfied in order for there to be jurisdiction to intervene.

Section 52(2) of the Children (Scotland) Act 1995 states that a child may be in need of compulsory measures of supervision if at least one of a list of conditions is satisfied in respect of the child. These conditions are generally referred to as 'grounds for referral'. In common with most legislation the pronoun 'he' is used to denote both he and she.

There are twelve conditions (or grounds) which may indicate that a child is in need of compulsory measures of supervision.

The child is beyond the control of any relevant person s52(2)(a)

A relevant person has the responsibility of providing control for the child. This condition may be used when a child is behaving in such a way that he or she does not respond to the reasonable demands made by the parent(s), for example when a child is running away or continually staying out until the early hours of the morning without the consent of the parent.

The child is falling into bad associations or is exposed to moral danger s52(2)(b)

The essential concept here is of a child being coerced, led astray, or otherwise exposed by an older person to such matters as drugs, drink, or sexual behaviour. It may refer to a child under eight years old (the age of criminal responsibility) who is involved in offences and cannot be charged with them.

The child is likely -
(i) to suffer unnecessarily; or
(ii) be impaired seriously in his health or development, due to a lack of parental care s52(2)(c)

Generally, this condition refers to poor parenting over a period of time which may be due to alcohol or drug misuse on the part of the person who has parental care of the child It may also refer to children living in filthy conditions or being fed insufficiently. Emotional deprivation might also fall within this condition. There have been examples of the condition being used where parents have failed to seek or to allow medical treatment. Lack of parental care might also result from low intelligence and lack of parenting skills rather than intentional behaviour and could also cover a parent's severe personality or mental health problems. 'Likely' means past or present lack of parental care but also refers to probable future lack of care.

The child is a child in respect of whom any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 (offences against children to which special provisions apply) has been committed s52(2)(d)

This condition relates to children against whom offences have been committed. These include sexual offences, wilful assault, ill-treatment, neglect, exposure or abandonment, in a manner likely to cause unnecessary suffering. It is not necessary to prove who committed the offence - it is sufficient for it to be established that the child has been a victim of such an offence. For the purpose of children's hearing proceedings, it is sufficient to prove on the balance of probabilities, i.e. it is more likely than not that an offence has been committed against a child. Even if someone has been acquitted by a criminal court, the ground for referral can be established (or stand) if there is sufficient supporting information.

The child is, or is likely to become, a member of the same household as a child in respect of whom any of the offences referred to in paragraph (d) above has been committed s52(2)(e)

This condition offers equal protection to all the children in the household. If one child in the household is a victim of an offence, then all the other children in that household may be referred to a children's hearing. It can be used to protect a new-born child joining the household. The definition of 'household' is wide and refers to persons held together by a particular tie, as for example, a married couple or another member of the family who may sometimes though not usually, live under the same roof.

The child is, or is likely to become, a member of the same household as a person who has committed any of the offences referred to in paragraph (d) above s52(2)(f)

This condition can be used to protect any child, from birth onwards, if someone who has committed an offence mentioned in Schedule 1 becomes a member of the same household.

The child is, or is likely to become, a member of the same household as a person in respect of whom an offence under sections 2A to 2C of the Sexual Offences (Scotland) Act 1976 (incest and intercourse with a child by step-parent or person in position of trust) has been committed by a member of that household s52(2)(g)

This condition protects both boys and girls growing up in a household where someone has committed a particular sexual offence. It is a ground which is rarely used as it is also covered by ground 52(2)(f) above.

The child has failed to attend school regularly without reasonable excuse s52(2)(h)

The child must be of school age. Reasonable excuses are defined in section 42 of the Education (Scotland) Act 1980 and refer to difficulties with travel arrangements, health problems or special circumstances acceptable to the education authority or a court. Exclusion due to a child's disruptive behaviour does not constitute a reasonable excuse for not attending school. If the child is being appropriately educated at home however this is considered to be a reasonable excuse.

The child has committed an offence s52(2)(i)

This ground applies only to children who are above the age of criminal responsibility (eight years old) who have committed offences.

The main types of offences in which children are likely to be involved are:

It is important to remember that anyone helping someone to commit an offence can be considered to be equally involved, for instance if he or she gives advice, provides tools or other materials, keeps a lookout or acts as a decoy (and is, therefore "art and part" of the offence). It has also to be established that the person acted intentionally or recklessly. This is sometimes difficult for children to understand and requires careful explanation by the chairman of the hearing.

The Lord Advocate may decide that a child who has committed a very serious offence will be prosecuted in court, in the public interest. The Lord Advocate's Direction to Chief Constables sets out the circumstances when a child must be jointly reported to the procurator fiscal and the reporter. There is normally discussion between these officials prior to a decision being taken by the fiscal. ( See Roles, Responsibilities and Resources)

The child has misused alcohol or any drug, whether or not a controlled drug within the meaning of the Misuse of Drugs Act 1971 s52(2)(j)

This condition brings Scots law into line with Article 33 of the UN Convention on the Rights of the Child which expects member states to take appropriate measures to protect children from the illicit use of drugs.

The child has misused a volatile substance by deliberately inhaling its vapour, other than for medicinal purposes s52(2)(k)

This condition covers solvent abuse and glue sniffing. It is used rarely.

The child is being provided with accommodation by a local authority under section 25, or is the subject of a parental responsibilities order obtained under section 86 of this Act and, in either case, his behaviour is such that special measures are necessary for his adequate supervision in his interest or the interest of others s52(2)(l)

This relates to children who are being looked after by the local authority who repeatedly abscond or endanger themselves or others by their behaviour. This might lead to consideration of the need for secure accommodation.

The reporter's decision

The reporter's decision is based on the answers to the following primary questions:

• is there sufficient, relevant evidence to support grounds for referral?
• are compulsory measures of supervision necessary?

1. Take no further action on the referrals56(4)(a)

If the reporter believes that the answer to one or both of these questions is no, he/she will inform the child, the relevant person and the person who brought the case that no further action will be taken.

This does not necessarily mean in every case that nothing has been done. The reporter may have met with the child and parents where it is believed that an offence has been committed by a child, and the child accepts he or she has committed the offence. There may be some agreed form of reparation to the victim - for example, paying back the cost of a broken window from pocket money, or a letter of apology. The child might be diverted to another agency for mediation and reparation work, or receive a police warning.

2. To refer the case to the local authority for advice, guidance and assistances56(4)(b)

There may be evidence available to support the grounds for referral, but the reporter may consider that compulsory measures of supervision are not required. In this kind of situation, a family may be willing to accept advice, guidance and assistance on a voluntary basis and the reporter would refer them to the local authority for this to be provided. Advice, guidance and assistance does not constitute supervision which is compulsory intervention based on a decision of a children's hearing.

If a reporter decides to take no further action or refer for advice, guidance or assistance, he/she cannot subsequently refer the child to a hearing solely on the basis of information already considered. s56(5)

3. Arrange a children's hearing s56(6)

If the reporter believes that there are grounds for referral and that compulsory measures of supervision are necessary then he or she will arrange a hearing.

It is important to bear in mind that once the reporter has referred a child to a hearing, the decision-making passes to the hearing. In some cases, hearings may reach decisions which are different to those the reporter might have reached. However, that is the essence of what was intended by the legislation: a separation of the decision-making functions of the reporter, hearings and courts. Each stage in the process is designed to protect the rights of children and relevant persons and to provide a series of checks and balances.

The referral process

Notification of a children's hearing

Once the reporter has reached a decision to call a hearing, he or she must, whenever possible, give the panel members, child and the relevant persons concerned seven days notice in writing of the time and place of the hearing. The chief social work officer must also be informed when any hearing is arranged. Rules 6, 7 & 8

A safeguarder, where appointed, will also receive the same notice. Rule 14(2)

If a business meeting or hearing has appointed a legal representative for a child, the legal representative is entitled to the same notification and documentation as a safeguarder.

The Children's Hearings (Legal Representation)(Scotland) Rules 2002,Rule 4(1) and (2)

In certain emergency circumstances the seven day rule may be waived, for example when a child is detained by the police because he or she has run away or been moved from a place where he or she is required to stay in terms of a supervision requirement. In these circumstances, the reporter must give verbal notice to the child and relevant person. Rule 7(5)

In addition the child and each relevant person must receive a copy of the grounds for referral seven days in advance. This will enable them to have time to prepare for the hearing and seek legal advice if they wish to do so. Rule 18 (1)

There are two exceptions to this:

(1) When a child protection order is continued at a second working day hearing and grounds for referral are being prepared for the eighth working day hearing Rule 18(3)

and

(2) If the child is being kept in a safe place under the legislation, the words "as soon as reasonably practicable" may be substituted for the words "not less than seven days". Rule 18(2)

If the child is being referred on the ground of having committed an offence, the reporter will send to the child and relevant person(s) a copy of a leaflet explaining the provisions of the Rehabilitation of Offenders Act 1974 and the 1975 Exceptions Order so that they have time to consider possible consequences of acceptance of the grounds. ( See Appendix 1).

Documentation for the hearing Rules 5(1)(2)&(3)

Not later than three days before the hearing the reporter should provide the panel members and each relevant person with the following documents, as relevant:

• a report of a local authority on the child and his or her social background
• the statement of the grounds for the referral of the case
• any judicial remit or reference by a local authority
• any supervision requirement to which the child is subject
• any report prepared by any safeguarder appointed in the case
• any views of the child given in writing to the reporter.

If the father of a child is living together with the mother of the child as if they were man and wife, then he is also entitled to receive a copy of the documentation, although he is not a relevant person if the child is being looked after elsewhere. Rule 5(3)(6)

Although the present Rules do not permit children to have access to reports, as a result of the case of S v Principal Reporter and LordAdvocate, a non-statutory scheme commenced in July 2003. ( see Appendix 2 for the terms of the Scottish Reporters Administration Scheme).

Confidentiality

The contents of the documents must be kept strictly confidential by panel members. They are responsible for keeping the papers safe and must not discuss any information concerning cases outside the hearing. No matter how complex, disturbing or perplexing the problems are, panel members must respect confidentiality and resist the temptation to discuss the case even with their own families and close friends. Reports should not be highlighted or defaced. The documentation must be returned to the reporter at the end of the hearing. s44, Rules 5(4)&(5)

Panel members should normally make personal notes to help their preparation or to assist them during the hearing. These should be brief and hand-written - not more than one A4 page. All personal notes should be handed to the reporter at the end of the hearing so that they can be destroyed.

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