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

9 DIFFERENT TYPES OF HEARINGS

There are a number of different types of hearings. What follows is an outline of the main types of hearings and the decisions available to them. Panel members are encouraged as part of the pre-hearing preparation to check with colleagues and the reporter what legal options are possible. The special provisions relating to hearings dealing with child protection orders are dealt with later. Warrants are covered in detail later in this section.

New grounds for referral s52

Decisions available at first hearings where there are grounds:

• if grounds not accepted by child or relevant person - discharge or send for proof
• if grounds not understood by child - discharge or send for proof
• if grounds are accepted
  • discharge the referral (following discussion of the case if it is considered that compulsory measures of supervision are not required)
  • continue the hearing for further information (with consideration being given to whether it is necessary to issue a warrant to keep the child in a place of safety)
  • make a supervision requirement, with or without condition(s).

In order to reach a decision, it is important for the hearing to explore the circumstances relating to the grounds for referral.

Review hearings s73

Fundamental to the concept of compulsory supervision is the aim to promote change. The hearings system, therefore, has always provided for supervision requirements to be reviewed at least annually, or sooner if requested by someone with the right to do so. Intervention should be proportionate and necessary. Accordingly, the Act provides that:

• no supervision requirement may remain in force for a period longer than one year s73(2)
• a supervision requirement ceases to have effect when a child reaches the age of eighteen. s73(3)

Circumstances and timing of reviews

The local authority is required to refer the case of a child who is subject to a supervision requirement to the reporter if they are satisfied:

• the requirement ought to cease or be varied
• a condition in the requirement is not being complied with
• the best interests of the child would be served by their applying under section 86 of the Act for a parental responsibilities order, or applying under section 18 of the Adoption (Scotland) Act 1978 for an order freeing the child for adoption or placing the child for adoption, and they intend to apply for such an order. s73(4)

Additionally:

• where the local authority is aware that an application has been made or is pending under section 12 of the Adoption Act in respect of a child subject to a supervision requirement, the case must be referred immediately to the reporter s73(5)
• if a supervision requirement has been made specifying a place of residence for a child and the local authority is unable to give effect to this requirement, the reporter must be informed within twenty-two days and a review hearing must take place within a maximum of seven days of notification to the reporter than the requirement cannot be carried out.

Children's Hearings (Transmission of Information etc)(Scotland) Regulations 1996,(reg 4)

A review will also be held:

• if the hearing making the supervision requirement specify a date for review s70(7)
• if the child or any relevant person request a review. They may do so at least three months after a supervision requirement is made, continued or varied s73(6)
• in a case of urgent necessity when a child subject to a supervision requirement is being transferred from one residential placement to another in the interests of that child or other children. It must be reviewed within seven days of the transfer s72
• when a relevant person proposes to take a child subject to a supervision requirement to live outwith Scotland s73(7)
• when a child already on supervision accepts new grounds at a further hearing. s65(3)

The panel members' task in review hearings

The hearing must consider what has happened since the original supervision requirement was made and decide whether a change is necessary. A suitable starting point is to look at the original reasons for decision and consider whether they are still applicable and whether or not compulsory measures of supervision are still required. If the review has been requested by the child, relevant person(s) or local authority, it is appropriate to ask the person who has requested the review to explain why they have done so.

As at the initial hearing, decisions will be based on available reports and on discussion with child, family and others present at the hearing. It is appropriate early on in the hearing to ask the person who called the review to explain the reason why this request was made.

Decisions available

The following decisions are available to the hearing:

• terminate existing supervision requirement
• continue the hearing for further investigation if necessary
• continue existing supervision requirement
• vary existing supervision requirement (for example, by changing a child's place of residence, adding a new condition etc.).

Additional grounds for referral

If a child who is subject to a supervision requirement, is referred to a hearing by the reporter on fresh grounds, the hearing must proceed as with any new grounds but, at the same time, the supervision requirement must be reviewed. s65(3)

Child subject to condition of residence in secure accommodation

A review hearing must take place within three months of the condition being made or continued. A legal representative will normally have been appointed for the child. s75(5) -(6) and Children's Hearings (Legal Representation)(Scotland) Rules 2002,rule 3

If the child has not been placed in secure accommodation during the preceding six weeks, the child or any relevant person may request a review of the supervision requirement. The reporter must arrange this review hearing within twenty-one days of receiving the request. The procedure is as at any review hearing. Secure Accommodation (Scotland) Regulations 1996, regs 11 and 12

Local authority unable to implement residential placement

If a local authority is unable to implement a supervision requirement naming a particular residential establishment in a condition within twenty-two days, the reporter must be informed and must arrange a hearing within seven days of notification. The hearing will review the situation, including the reason why the condition has not been implemented, and decide what action is appropriate in the child's best interests. s73(4)(b) andChildren's Hearings (Transmission of Information etc.)(Scotland)Regs 1996, reg 4

Review of case of child arrested by the police

When the reporter is informed by the police that the procurator fiscal is not proceeding with charges against a child whom they have detained in a place of safety and the reporter nevertheless considers that compulsory measures of supervision are necessary, he or she must arrange for a hearing to take place not later than the third day after the information is received. This hearing has two decisions to make:

• whether to direct the reporter to arrange a hearing for the purposes of putting grounds to child and parent
• whether to grant a warrant to keep the child in a place of safety

However, common practice is for the child to be brought from custody on the first working day. Grounds for referral will have been framed. Given the time-scales - and there are human rights implications in terms of Article 6 - the child and relevant persons may well deny the grounds. The hearing can either discharge the grounds, send them to the sheriff for proof or continue the hearing to enable the child and relevant persons more time to consider the matter.

The hearing should consider whether or not it is necessary to issue a warrant for the child to be kept in a place of safety. The hearing may also consider whether it is necessary to appoint a legal representative for the child for the next hearing, particularly if the warrant contains a condition for the child to be kept in secure accommodation.

Review by court of previous establishment of grounds for referral s85

If new evidence becomes available in a case where grounds for referral have previously been established at court, the child or relevant person may apply to the sheriff to have the established grounds reviewed. If the sheriff decides that none of the original grounds for referral is established, he or she must discharge the referral and can order the supervision to be terminated. Alternatively, an interval before the termination or some variation of the supervision requirement could be specified to allow the child and family time to adjust to the new circumstances.

The hearing has no part in this process. However, if the sheriff finds the original grounds not valid but decides that a different ground is established, the case can be sent back to the hearing to be dealt with on the basis of the new ground. The legislation is very complex and there have been very few reviews by the courts.

Remits from court

In certain circumstances, the court may send a child's case back to the hearing for disposal:

• when grounds sent for proof have been established s68(10)
• when a child under seventeen and a half has pled guilty to or been convicted of an offence in the criminal court ( see also Advice Hearings, below) s49(1)
• where an appeal against a previous hearing's decision has been upheld. If the sheriff decides to remit the case to the hearing for disposal, he or she is not entitled to give any directions as to how the hearing should dispose of the case. After reconsideration of the case, the hearing might therefore reach the same decision as the previous one. Note, however, that the sheriff is not bound to remit back to the hearing for disposal but may substitute a decision of his or her own. This power has been used very rarely. s51(5)(c)(i)
• if in the course of other proceedings involving children (such as divorce, parental rights orders, adoption orders, prosecution of parents whose children have failed to attend school) it appears to the court that grounds for referral to a children's hearing exist except for the offence ground (and presumably that there is enough evidence to establish them), then the court has discretion to refer the case to the reporter for investigation. If the reporter considers that compulsory measures of supervision are necessary, he/she will bring the case to a hearing which should treat the grounds as established. s54

At all these hearings, grounds are deemed to be established and do not need to be put to the child and relevant persons again. The reporter will explain the background to the case and why it was remitted. The hearing will then proceed to a full discussion.

Decisions available to the hearing

• discharge the referral
• continue hearing for further information
• make a supervision requirement, with or without condition(s).

Advice hearings

In the following circumstances, the courts may (or in some cases must) ask the hearing's advice before making a decision about a child.

Criminal cases s49

In terms of the Criminal Procedure (Scotland) Act 1995, when a child (up to the age of seventeen and a half has been prosecuted in court and pled guilty to or been convicted of an offence, the court may (and if the child is subject to a supervision requirement must) seek the hearing's advice about the most suitable disposal. Rules vary according to the court where the case has been heard, the age of the child and whether or not a supervision requirement is currently in force. The High Court of Justiciary is under no obligation to seek the advice of a hearing but has done so even in very serious cases involving young people, including rape and culpable homicide.

When a hearing's advice is sought, the reporter will explain the circumstances of the case. The case must be discussed with the child and relevant persons and the hearing will decide what advice to offer to the court. The options are:

• to advise the court to remit the child to the hearing for disposal if it is considered that the resources available to the hearing are appropriate for that particular child
• to advise the court to dispose of the case itself. The hearing may wish to suggest which of the disposals open to the court would be most suitable but only if they feel competent to do so.

At the end of the hearing, the chairman must inform the child and family what advice the hearing will be giving and the reasons for it. It is essential that the child and family should be aware that the hearing is being asked for advice only: the court is not bound to take it.

Disposals open to the sheriff

Children under sixteen

• remit to a hearing for disposal

This power may be exercised without the sheriff first calling for the advice of a hearing, but most sheriffs will not take this course without first obtaining advice

• absolute discharge

This effectively means that the offender is left without any criminal record

• admonition

This is in effect a warning - it counts as a conviction

• defer sentence

The sheriff may defer sentence for any period of time - rarely longer than a year - for the offender to prove that he or she can be of good behaviour; conditions may be imposed. Sentence may be deferred on more than one occasion. At the end of the period of deferred sentence, the offender returns to court. The court's sentencing powers are as they would have been initially

• probation

This is similar to a supervision requirement and the sheriff may add special conditions - period from six months to three years. The offender must be willing to accept the probation order and its terms and can be brought back to court and sentenced for the original offence if the order is breached

• fine

In summary procedure, the maximum fine is 5,000. The fining of children is rare; parents cannot be fined for their children's misdemeanours

• caution (for good conduct)

This means lodging a sum of money which is repaid after a set period of time if no further offences have been committed. This form of disposal is very rare; parents cannot be made to find caution for the child

• compensation

The court may make an order requiring the offender to compensate the victim of the crime. Rarely used in respect of children; as with fines and caution, parents cannot be order to pay compensation on behalf of their child

• residential disposals

In summary procedure, the sheriff can order the child to be detained for a period not exceeding one year in local authority residential care. When the child is released from detention, he or she may be placed under supervision for a specified period. In more serious cases, the High Court of Justiciary, or the sheriff, can order detention for a specified period in a particular place and on such conditions as the First Minister may direct. The child may later be transferred to a young offenders' institution and then to prison but this is likely to apply only to someone convicted of a very grave crime, such as murder or culpable homicide.

Children aged sixteen to eighteen

All the above disposals apply with the exception of the residential disposal. Children over seventeen and a half will not be remitted to a hearing for disposal.

In addition, the following disposals are available:

• detention in a Young Offenders Institution

Persons under twenty-one cannot be sentenced to imprisonment. The only custodial sentence for a person who is over sixteen but under twenty-one is detention in a young offenders' institution. The period of detention must not exceed the maximum period of imprisonment which might otherwise have been imposed. If the young person passes his or her twenty-first birthday in the YOI, then the rest of the sentence is served in prison

• Community Service Order

The sheriff may require the offender to perform a stated period of unpaid work in the community (forty hours minimum, three hundred maximum). The social work department supervise the order and failure to comply will mean a return to court for an alternative sentence.

• Restriction of Liberty Order

A restriction of liberty order can restrict a person to a place for up to twelve hours per day and/or from a place for up to twenty-four hours per day for up to twelve months.

• Supervised Attendance Orders

Supervised attendance orders impose a fine on the offender's time for a specified number of hours (between ten and one hundred hours). They are used as a community alternative for fine defaulters and provide for the offender to undertake a range of constructive activities, which fall under three main headings: those of an educational nature, those designed to stimulate interest and encourage constructive use of time and those involving unpaid work.

Permanency planning s73(4)(c)&(5)

Under section 73 of the Act, a hearing must be arranged for a child subject to a supervision requirement whenever the local authority intend to apply to the court for a parental responsibilities order or when adoption or freeing for adoption are under consideration.

The hearing has two tasks:

• To consider the case and the reasons why the local authority wish to pursue this course of action and to decide whether or not they support it. The hearing will draw up a report to provide advice to the court. The report will focus on the suitability or otherwise of the proposed long term plans for the child. The court is obliged to consider the report before reaching its decision
• The hearing will also review the supervision requirement and consider whether it should be varied in any way. Contact arrangements are a crucial part of the discussion in this regard and hearings should not restrict or terminate contact to further or support the local authority's plan unless it is causing significant harm to the child. The relevant persons' rights under ECHR Article 8 must be considered. (Further information on permanency planning is in the section on Roles, Responsibilities and Resources).

Surrender to or execution of a warrant

Where a warrant has been issued for the child to be found, kept in a place of safety and brought to a hearing:

• if the child is found, the child will be brought to a hearing on the first working day after being taken to the place of safety s45(7)
• if the child voluntarily agrees to come to a hearing after a warrant has been issued, or a parent who has been withholding bring a small child to a hearing agrees to do so, the hearing will take place at the earliest opportunity.

The procedure in the hearing depends on whether it is a new referral with grounds or a review hearing. In both cases, the normal range of decisions applies.

Continuation of a warrant

The circumstances in which hearings may issue a warrant are outlined in more detail in the section on Warrants. The reporter will arrange for a hearing to take place before the warrant expires. The hearing, in considering whether or not to renew a warrant, will consider the child's current situation, taking into account his or her well-being and any risk factors which may mean that the warrant needs to be renewed.

As at any hearing, the views of the child and relevant persons must be sought and taken into consideration and the child's welfare is the paramount consideration of the hearing. It is also very important to consider issues relating to contact and whether or not there should be non-disclosure of the child's address.

Emergency transfers

If a child is required under a supervision requirement to reside in a specified place, and the child must be moved in any case of urgent necessity in the interests of the child, or of other children in the establishment or accommodation, the reporter must be notified and a hearing must be arranged within seven days of the transfer. s72(2)

If a child is moved to secure accommodation, the reporter must be informed immediately and a hearing will take place within seventy-two hours of the move (although it may be delayed for a further twenty-four hours in certain circumstances). s75(1)(2) & Secure Accommodation (Scotland) Regulations 1996, reg 6

The hearing will review the child's circumstances and supervision requirement, with the normal range of decisions being available. If secure accommodation is a possibility, the hearing should consider appointing a legal representative, if this has not already been done.

Transfer of cases to another local authority area

If, when a hearing is considering a case, they think it would be better considered by a children's panel in another local authority area, they can at any time during the course of the hearing request the reporter to arrange for the transfer of the case. s48(1)

Where a case has been transferred, the grounds for referral accepted or established do not need to be accepted or established again for the children's hearing to which the case has been transferred. s48(2)

Suspension of supervision requirement pending an appeal s51(9)&(10)

When a child or relevant person appeals against a hearing's decision to impose a supervision requirement, they may also apply to a further hearing to have the requirement suspended pending the sheriff's decision. The reporter must then arrange a hearing as soon as practically possible to consider whether or not the requirement should be suspended.

As usual, consideration must be given to the views of the child and family and the paramount consideration of the hearing will be the welfare of the child. It should be noted, however, that although the child or relevant person(s) may be appealing against a condition in a supervision requirement, if the supervision requirement is suspended, it is suspended in its entirety. Therefore, careful consideration must be given to any risk to the child. The purpose of the hearing is not to consider the merits of the original hearing's decision but to consider the child's best interests in the period before the appeal is heard. The hearing may either grant or refuse the application. There is no appeal.

10 EMERGENCY PROTECTION OF CHILDREN

The Children (Scotland) Act 1995 established a new framework for the emergency protection of children and introduced a series of new orders. Though wide powers are available to the authorities under this legislation, including the removal of children from home, strict criteria are laid down for the granting of these powers and a set timetable is established for their implementation. In addition, opportunities are available to the child and relevant person(s) to challenge decisions at every stage in the process. These procedures are intended to protect the rights of individuals against unjustified intervention in their lives. This section explains what the procedures are and at what stage the hearing becomes involved.

Child protection order s57

'Any person' believing that a child is in need of protection may apply to the sheriff for a child protection order (CPO). s57(1)

The criteria for granting it are as follows:

(a) there are grounds to believe that the child is being so treated or neglected that he is suffering significant harm, or will suffer such harm, if he is not removed to and kept in a place of safety, or kept where he is presently being accommodated;

and

(b) an order under this section is necessary to protect that child from such harm (or such further harm).

A sheriff may also grant a child protection order to a local authority who suspect that a child is suffering significant harm but their enquiries into the child's situation are being unreasonably denied. s57(2)

If the application is for a child protection order, the sheriff can grant no other order. If not recalled, the order lasts for a maximum of eight working days. (Working days are every day except Saturday and Sunday; 25 and 26 December and 1 and 2 January.)

Emergency measures s61

If it is not practicable for a sheriff to hear an application for a child protection order, and in order to remove a child from an immediate source of danger, a justice of the peace may authorise removal from home or keeping of a child in a place of safety if the basic criteria for the granting of a child protection order are fulfilled. In similar circumstances, the police have authority to remove a child to a place of safety. Both these authorisations will lapse if not replaced by a child protection order within a maximum of twenty-four hours.

What can a child protection order do? s57(4)

A child protection order can:

• require any person to produce a child
• authorise a child to be removed and kept in a place of safety
• prevent the removal of a child from a specified place
• prevent the disclosure of a child's location.

Directions by the sheriff s58

In granting a child protection order the sheriff is obliged to consider whether any directions are necessary in relation to:

• contact between the child and family members
• the exercise of parental rights and responsibilities (in particular in relation to any examination or assessment of the child).

What happens following the granting of a child protection order?

The complex chain of events which take place once a child protection order has been granted is summarised on the chart on page 81. This also shows the choices being made at the various stages and the different paths followed as a result.

Application for recall or variation of a child protection order s60(7)&(8)

Specified persons (child, person having parental rights over the child, relevant person) may appeal to the sheriff within two working days of its implementation to have the child protection order or any attached direction recalled or varied. This application must be heard within three working days of it being made.

Advice to sheriff s60(10)

If an application is made to the sheriff to set aside a child protection order, the reporter may arrange a hearing in order to give advice to the sheriff as to whether the order should be continued, varied or set aside. This hearing must be held before the three day time limit for the sheriff to hear the application and may prove to be very difficult to arrange within this time. The hearing will offer advice to the sheriff as to whether the order (or any directions attached to it) remains necessary to safeguard the child's welfare. This type of hearing takes place very rarely.

The sheriff's options s60(11-13)

Having heard the application the sheriff can:

• confirm the child protection order and any direction attached
• vary the order
• give a new direction
• recall the order
• cancel any directions.

The reporter's power to 'liberate' a child s60(3)

If at any time before the start of the initial hearing (second working day, see below) the reporter considers that, in the light of further information or changing circumstances, the conditions for granting a child protection order are no longer satisfied, he or she must notify the sheriff who made the order and the person who implemented it, of this view, and the order will cease to have effect. This provision covers the situation where the immediate emergency which led to the application for the child protection order has passed and there is no need to keep the child any longer in a place of safety. The reporter may still decide to refer the child to a hearing in due course under normal rather than emergency procedures.

Second working day hearing s59(2)&(3)

Unless immediate application has been made to the sheriff to recall or vary the child protection order or the reporter has decided to release the child from the place of safety, an initial hearing must take place on the second working day after the order has been implemented.

Grounds for referral will not be available at this hearing. There will, however, be some form of report - written or verbal - indicating the steps taken; why these steps have been taken; information on where the child is now and - where possible - an assessment of the parent/child relationship. The panel members' task is to decide whether or not the conditions for the making of the child protection order are established (i.e. that they exist). If so, the hearing may continue the order, with or without variation of any directions the sheriff may have imposed. One of the most likely variations is in relation to whether or not there should be contact and the relevant person(s) and in relation to non-disclosure of the child's address.

Although the second working day hearing must consider the appointment of a safeguarder, it is not considered best practice to make such an appointment due to the timescales and absence of grounds for referral. An appointment is more appropriately left to the eighth working day hearing.

Eighth working day hearing s65(2)

Following further investigation, the reporter may decide that a child subject to a continued child protection order does not need to be brought to a hearing, in which case the order will cease to have effect.

Where the reporter considers, however, that grounds for referral exist and that the child who is the subject of the continued child protection order is in need of compulsory measures of supervision, he or she must arrange for a full hearing to take place on the eighth working day after the order was implemented.

The grounds for referral will be put to the child (if present) and relevant persons at this hearing. In most cases, either because of the age of the child, or, more probably, denial of the grounds, the hearing will need to consider whether to continue and send the grounds to court for a proof hearing or to discharge the case. Given the short time-scales, it is very unlikely that a full social background report will be available to enable the hearing to reach a substantive decision, even if the grounds for referral are accepted by the child and relevant person(s).

If the hearing feel that at this stage the child still cannot be returned home, consideration can be given to issuing a warrant for the child to be kept in a place of safety (for up to twenty-two days). The child protection order expires automatically.

Before issuing a warrant to keep the child in a place of safety, the hearing should be satisfied:

• that the risk in returning the child home is too great
• that the substitute care arrangements are adequate for the child's needs.

If a warrant is being issued, panel members should consider:

• contact arrangements and whether these should be regulated by way of a condition or agreed in discussion so that parents know what contact they can expect to have with each other
• if any conditions should be attached to the warrant: for example, non-disclosure of the child's present address.

Because the time-scales are short, a subsequent hearing (or hearings) may take place when renewal of the warrant will be considered if it is due to expire. ( See Warrants below.)

Other orders

It is important for panel members to know about two other orders for the protection of children introduced in the Children (Scotland) Act 1995, although the hearing is not directly involved in their implementation.

Child assessment order s55

This is intended to be less interventionist than a child protection order, for use when the local authority have reasonable cause to suspect that a child is suffering 'significant harm' through abuse or neglect and believe that an assessment of the child's health or development is necessary but is unlikely to be carried out without an order. Only a local authority can apply for a child assessment order and the sheriff may grant one if these conditions are satisfied.

The order will specify the date on which the assessment should begin and the duration of the order up to a maximum of seven days. It will require the person looking after the child to produce the child and to allow an assessment to be carried out in accordance with the order. If necessary, the child may be taken to any place and kept there for the purposes of the assessment. If this entails separation from his or her family, the sheriff may make directions regarding contact with them or with any other person. (N.B. s.90 of the Act protects the rights of children to consent or refuse to examination or treatment even when there is an order authorising this). The reporter must be notified of an application for a child assessment order but this will not necessarily result in a child being brought to a hearing.

If an application for a child assessment order has been made but the sheriff considers that the conditions for granting a child protection order are satisfied, s. 55(2) requires him/her to make a child protection order instead.

In practice, since the implementation of the Act in April 1997, very few applications have been made for child assessment orders.

Exclusion order s76-79

An exclusion order has the effect of removing an alleged abuser from the family home and may be used as an alternative to a child protection order which removes the child. This is intended to reduce the possibly traumatic effects on the child of removal from home, in addition to the suffering already caused by the abuse. Only a local authority can apply to the sheriff for an exclusion order and three conditions must be satisfied before the sheriff grants such an order:

(a) that the child has suffered, is suffering, or is likely to suffer, significant harm as a result of any conduct, or any threatened or reasonably apprehended conduct of a named person

(b) that the making of an exclusion order against the named person

1. is necessary for the protection of the child, (irrespective of whether the child is for the time being residing in the family home)

2. and

3. that, if an order is made, there will be a specified person in the family home who can take responsibility for caring for the child and any other member of the family who needs such care.

Before an exclusion order can be made, the named person must have the opportunity to be heard by the sheriff, though if this cannot happen immediately, the sheriff has power to make an interim order to achieve the same result pending the full hearing of the case.

An exclusion order can last a maximum of six months and is thus not intended to be a long-term measure: it can offer a breathing-space while a longer term solution is sought to ensure protection for the child.

If an application for an exclusion order has been made but the sheriff considers that the conditions for granting a child protection order are satisfied, a child protection order may be made instead. s76(8)

Although exclusion orders were included as a protective measure for the child, there are so many practical difficulties relating to implementation and protection of the child, and also the rights of the person to be excluded, that in practice they have been used in a very limited number of cases.

Involvement of the reporter

The reporter will receive notification of an application for an exclusion order. The child concerned will not automatically be brought to a hearing, though it is likely that circumstances leading to the granting of an exclusion order would also provide grounds for referral and the need at least to consider compulsory measures of supervision.

11 WARRANTS

Consideration of issue of warrants

In some circumstances where the hearing is not immediately able to dispose of a case, panel members may have reason to believe that an additional degree of compulsion is necessary in the interests of the child. In this case, the hearing will need to consider granting a warrant. In decisions about warrants, hearings should be guided by the three section 16 principles of the Act and must discuss with child, relevant persons and any safeguarder what arrangements would be in the best interests of the child. Issues relating to contact must always be discussed.

A hearing may also consider issuing a warrant if a child fails to attend a hearing, without good reason, or is likely to fail to do so, or if there is cause to believe that the child may be prevented from attending a hearing - usually more likely in relation to younger children.

Warrants are measures which may entail removal of children from home to a place of safety, possibly against their will, and may entail pursuit by the police, and/or placement in secure accommodation. Panel members should approach these decisions with caution and are unlikely to use their powers unless convinced that the risks to the child, or in some circumstances to others, offer no alternative. In reaching a decision, panel members should weigh the potential risks to the child and whether more harm will be caused by removal from home than by leaving the child in his or her current situation.

When a hearing is considering the issue or continuation of a warrant, they should take steps to obtain the views of the child, and endeavour to obtain the views of any relevant person or of any safeguarder, if attending the hearing, on what arrangements would be in the best interests of the child. Rule 25(1)

Types of warrants

Different parts of the Act provide for warrants to be issued in the circumstances laid out below. ( A summary of the warrants, reasons for issuing, conditions, duration and whether or not they are renewable can be found above).

Child failing to attend a hearing s45

If a child fails to appear at a scheduled hearing or there is reason to believe that he or she may not attend a future hearing, the hearing may decide to issue a warrant to ensure the child's attendance. This means that the child will be found and kept in a place of safety until brought to a hearing, which should, whenever practicable, be held on the first working day after the child is taken to the place of safety. The child may not be kept in the place of safety for longer than seven days.

Warrant when hearing unable to dispose of a case s66

If a hearing is being continued (for example, when grounds are sent for proof or to allow attendance at the hearing by someone other than the child) hearings may decide to issue a warrant to keep the child in a place of safety if they are satisfied that any of the following conditions are met:

• the child may not attend a hearing
• the child may fail to comply with a requirement for assessment or investigation
• it is necessary to keep the child in a place of safety to safeguard or promote his/her
  welfare.

These warrants may last up to twenty-two days and may include conditions relating to medical examination or treatment, contact, the withholding of a child's address or any other condition the hearing may consider necessary. They may also include authorisation to keep the child in secure accommodation if the necessary criteria are met. In this case, the hearing must consider appointment of a legal representative. A warrant may be renewed on further occasions, but under s66 the hearing may not authorise a child to be kept in a place of safety for a period exceeding sixty-six days in total.

Further extension of warrants by the sheriff s67

If it appears necessary to keep the child in a place of safety beyond sixty-six days, the reporter can apply to the sheriff for a further extension of the warrant. This can include any of the conditions included in the earlier warrant. No time limit is specified by the Act, but the sheriff must have regard to the child's welfare as the paramount consideration.

Warrant when hearing continued for further investigation s69

When grounds have been accepted or established but more information is needed before a decision can be made, the hearing may be continued. If necessary, a warrant may be issued if:

• it is necessary to promote the child's welfare
• panel members believe that the child may not attend the next hearing.

Warrants issued under this section of the Act also cover the situation where a child has failed to attend for some kind of investigation specified by a previous hearing. It may include the conditions specified under s66 above, including authorisation for placement in secure accommodation. It can last a maximum of twenty-two days and may not be renewed.

Review of case of child arrested by the police s63

One of the tasks at this type of hearing is to consider whether to issue a warrant for the child to remain in a place of safety under the same conditions as warrants issued under s66. ( See also Different Types of Hearings.)

Appeals against warrants s51

The child or relevant person (or both) may appeal against the granting or renewing of any warrant, within twenty-one days of its issue. Legal aid is available on application to the sheriff. Any appeal against a warrant must be heard within three days of being lodged with the sheriff clerk. If the sheriff upholds the appeal, the warrant will be recalled.

12 SUMMARY

This part of the Manual has set out the legal powers and responsibilities imposed on hearings, reporters and others in dealing with children who may require compulsory measures of supervision. The powers available to hearings are extensive and must be balanced with consideration of the welfare of the child and the rights of children and relevant persons.

13 FURTHER READING

Appendix 1
THE REHABILITATION OF OFFENDERS ACT 1974

This note explains how the above Act may affect you or your child in the future. If you require any further information or explanation, do not hesitate to contact a reporter.

What is the purpose of the act?

It is intended to limit the time during which a person must reveal that they have a 'criminal conviction', especially when applying for a job.

Is any appearance at a children's hearing a 'criminal conviction'?

Normally no, the appearance is in private and the press, even if present, cannot publish details of any child. Children and their parents do not need to tell anyone about it except for the circumstances defined in the Act. Children's hearings are not part of the criminal court system but records of decisions taken at children's hearings are kept by the police on the national computer system. They cannot formally become a 'previous conviction' in any later appearance before a court but they may be mentioned in background reports to a court.

What does the Act say?

An appearance at a hearing becomes a 'criminal conviction' under this Act if grounds for referral involving the commission of an offence by a child are admitted or are proved before the sheriff.

For how long do 'criminal convictions' have to be revealed?

The Act talks about a 'rehabilitation period' after which the conviction does not have to be revealed. It becomes a 'spent conviction'. This rehabilitation period is six months from the date the grounds were accepted or proved. When this has led to the child being placed on a supervision requirement, it is one year from the date it was made. If the child is on supervision for more than one year, then it is on the date it is terminated. This can be quite complicated if the child has had several appearances over time for various offences. You may want to ask the reporter to give you guidance on this.

AFTER THIS PERIOD, YOU DO NOT HAVE TO TELL AN EMPLOYER ABOUT THE OFFENCES. BUT…

Are there any exceptions to this rule?

Yes. As you can imagine, there are a number of jobs and situations where it is considered that even a child's previous behaviour is very important to know about. There is a list of these stated in law. They are printed below and if any one of them applies, then every 'criminal conviction' must be revealed, not matter how long ago it was.

What will a prospective employer do?

If a child does reveal any 'conviction', then it does not mean that there is an automatic bar to the job, licence etc. Any employer or agency must use the information fairly and sensibly. Many children who have 'convictions' gain employment in the jobs or professions listed below.

'Spent convictions' may be a proper reason for refusing a person employment, dismissing him from his employment, demoting him within his employment or in any other way prejudicing him in his employment if the employment is or relates to the following:

• Judicial appointments
• Employment in the office of the Director of Public Prosecutions
• Employment in the office of a Procurator Fiscal or District Court Prosecutor or in the Crown Office
• Justice's clerks and justice's clerks' assistants, and their equivalent in Scotland
• Constables, police cadets, military, naval and air force police and certain posts involving police work or assisting the police
• Employment in the prison service, including appointment to a Board of Visitors or in Scotland to a visiting committee
• Traffic wardens
• Probation officers
• Teachers in schools or establishments for further education
• Other employment in schools and establishments for further education which involves access to persons under 18
• Proprietors of independent schools
• Employment connected with the provision of social services which involves access to the young, the old, the mentally handicapped or physically handicapped or the chronic sick or disabled
• Employment concerned with the provision of health services, within the National Health Service or otherwise, which involves access to patients
• Employment by a youth club, local authority or other body which is concerned with the promotion of leisure or recreational activities for persons under the age of 18 and which involves access to persons under 18
• Employment within a cadet force, which involves access to those under 18
• Firearms dealer
• Any occupation requiring a licence, certificate or registration from the Gaming Board for Great Britain
• Dealer in securities
• Director, controller or manager of an insurance company
• Any occupation concerned with the management of an abortion clinic or the carrying on of a private hospital or nursing home
• Any occupation concerned with carrying on an establishment for which registration is required by section 37 of the National Assistance Act 1948 or section 61 of the Social Work (Scotland) Act 1968
• Any occupation for which a certificate of fitness to keep explosives is required.

'Spent convictions' may be taken into account in considering a person's suitability for admission to the professions listed in the following paragraph. A person may be refused admission to the roll or register of these professions because of a 'spent conviction'. Such convictions are also admissible as evidence in disciplinary proceedings against a member of any of these professions. The professions referred to are:

• Medical practitioner
• Barrister (in England and Wales), advocate (in Scotland), solicitor
• Chartered accountant, certified accountant
• Dentist, dental hygienist, dental auxiliary
• Veterinary surgeon
• Nurse, midwife
• Ophthalmic optician, dispensing optician
• Pharmaceutical chemist
• Registered teacher (in Scotland)
• Any profession to which the Professions Supplementary to Medicine Act 1960 applies and which is undertaken following registration under that Act.

'Spent convictions' may be taken into account in relation to any application for the following licences etc:

• Firearms certificates and permits, shotgun certificates and registration as a firearms dealer
• Licences to employ abroad a person under the age of 18
• Certificates of fitness to keep explosives for private use
• Licences, certificates and registration granted by the Gaming Board of Great Britain
• Licences to deal in securities, orders declaring a person to be an exempted dealer and orders declaring a unit trust scheme to be an authorised scheme
• Approvals of abortion clinics by the Secretary of State, and the registration of private nursing homes
• Registration of homes for the elderly, the disabled and the mentally or physically handicapped and (in Scotland) children's homes
• Certificate of fitness to keep explosives.

Appendix 2
Scottish Children's Reporter Administration: Principles of the Hearing Papers for Children Scheme

A: Details

1. Where the child is aged 12+ at date of Hearing, the Reporter will send the child a full set of Hearing papers, but -

(a) Specific information may be omitted from reports in circumstances as specified in paragraph 4 below.

(b) Exceptionally, in circumstances described in paragraph 5(b) below, no papers will be physically sent but alternative methods of provision of information will be used.

2. Where the child is aged under 12 at date of Hearing, the Reporter will not send Hearing papers to the child, but -

(a) Where a report-writer expressed the view that it is in the child's interests to receive it, the Reporter will send that report (or the parts of the report not excluded by paragraph 4 below) to the child.

(b) Where the child or his/her adult representative requests the papers, subject to any material excluded under the terms of the paragraph 4 below, the Reporter will send the Hearing papers for the child to the child or his/her adult representative.

3. Where, during the Children's Hearing, the Chairman of that Hearing, in light of the duty under Rule 20(4) of the Children's Hearing (Scotland) Rules 1996, comes to the conclusion that it is in the child's interests to receive copies of reports, in whole or in part, that Chairman may request the Reporter to provide such reports and the Reporter will do so, subject to appropriate timescales.

B: Exceptions and SCRA expectations of Report-Writers

4. Report writers will be asked to consider whether any information contained within their reports falls into any of the following categories-

(a) It is likely to cause significant distress or harm to the child if disclosed to him/her because s/he is unaware of the information;

(b) It is likely to cause significant distress or harm to the child if s/he is made aware that others are aware of the information;

(c) It is likely to cause significant distress or harm to a relevant person or any other person if the child is made aware of the information;

(d) It is likely significantly to prejudice the prevention or detection of crime or the apprehension or prosecution of an offender;

And, if so, to append that information as an annexe to the main body of their report.

5. Where the child is, or is approaching, or is over 12, report-writers will be asked to advise the Reporter -

(a) Whether in their view there is a reason as specified in paragraph 4 above why the child should not receive any part of their report and what that reason is;

(b) Whether in their view the child should be informed of but not be sent the report (for example, for reasons of emotional or intellectual immaturity or damage) and that, in the event that a Children's Hearing is arranged, an alternative means of sharing the information will be undertaken by the report-writer which is as effective as possible in the child's circumstances.

6. Where the child is younger than 12, report-writers will be asked to advise the Reporter -

(a) whether in view of the child's age and maturity and, taking into account the criteria stated at paragraph 4 above, it is in the child's interests to receive the report in whole or in part. Where the report-writer so indicates, the Reporter will, subject to paragraph 7 below, forward a copy of the report (excluding the appendix where appropriate) to the child; and,

(c) in other cases, whether the report-writer has explained the substance of the report to the child.

NOTE: The report-writer should also be alert to the possibility that papers may be supplied to an under 12 child on the child's or his representative's request, or at the request of the Chairman of the Children's Hearing.

C: Responsibility of The Reporter

7. The Reporter, in assembling papers for children, shall honour the opinions expressed by the report-writers and made clear in the "Statement by Report Writer" unless it appears to the Reporter that in the whole circumstances of the child's case there is a clear and necessary imperative against doing so, and in such instances the Reporter may choose to provide or not to provide papers for the child and shall note his/her reasons for that decision. In such an eventuality, the Reporter should inform the report-writer of his/her decision.

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