The Scottish Government

« Previous | Contents | Next »

Listen

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

1 INTRODUCTION

The organisation and running of the children's hearings system in Scotland is a highly complex process. The system is both broad and flexible, and it demands contributions from a number of different public agencies (for example, police, social work, education and health) as well as specialist bodies constituted expressly for the purpose and individuals with specific appointments.

This section gives information about the agencies, the administrative groups and the individuals who support the system as well as the part they play in determining a child's experience of a hearing. In addition it includes information about the resources that are available for children in need.

A large number of people all over the country carry responsibilities in connection with the children's hearings system and their various duties are wide. It can be rather difficult at first to understand how the whole system works, and how all these people and the posts they occupy relate to each other. More is explained in the section on Law and Procedure about the legal responsibilities of the various individuals concerned. This section of the manual gives a general picture of their role.

2 THE ORGANISATION OF THE HEARINGS SYSTEM

Scottish Ministers

Scottish Ministers are responsible for the operation of the system and appoint members of children's panels who may only be removed from office with agreement of the Lord President of the Court of Session. Scottish Ministers also appoint the chairman and depute chairman of each of the panels and the chair and some of the members of the Children's Panel Advisory Committee (CPAC). In general Scottish Ministers have the power to make rules governing the arrangements for and procedures at children's hearings. They also have certain legal powers which are very rarely exercised; for example they can allow the media to publish the details of any case.

Children and Young People's Group (C&YPG)

The Children and Young People's Group is based at the Scottish Executive headquarters at Victoria Quay and it is to the Children's Hearings branch of this group that Scottish Ministers delegate the overall responsibility for the running and monitoring of the system. The staff of C&YPG are administrative civil servants and are closely involved with all parts of the hearings system. For example they gather information from which they produce circulars offering guidance, advice and direction on particular aspects of procedure. They form the principal body responsible for:

• advising the drafting of legal rules for hearings
• making recommendations on how to operate changes in legislation
• advising Scottish Ministers on appointments and re-appointments to panels and to CPACs
• co-ordinating training provision
• providing general advice on the hearings system.

Social Work Services Inspectorate (SWSI)

The Social Work Services Inspectorate is also part of the Scottish Executive. In addition to their responsibility to inspect the quality of social work services across Scotland, the inspectors work closely with C&YPG to monitor and assess what national policies are achieving and help decide how policy is monitored. They also provide professional advice and information when new policies are being developed.

Children's Panel Advisory Committees (CPAC)

The main responsibility for the recruitment of panel members is delegated to the Children's Panel Advisory Committee. A CPAC is appointed for each of the local authorities in Scotland although local authorities may form joint CPACs. Each CPAC has a minimum of five members. Scottish Ministers appoint the chairman and two members drawn from a variety of backgrounds. A significant number have been panel members at some time in the past. The other two appointments are made by the local authority concerned. In practice they are usually councillors who are members of their council's social work committee. The clerk to the CPAC is usually based in the Law and Administrative Department (or its equivalent) of the council. Up to a further five members may be appointed at the request of the local authority.

The main duties of the CPAC are as follows:

• to submit names of possible panel members to Scottish Ministers
• to advise Scottish Ministers on the suitability of the people referred to them as potential panel members
• to give advice to Scottish Ministers on such matters relating to the general administration of panels as they may refer to them.

Scottish Ministers have referred the following matters to the CPACs for advice:

• the volume of work which may be expected to fall on each panel
• the number of panel members to be appointed to the panel
• the duration of appointments and re-appointments of panel members
• the candidates to be considered for appointment as panel chairs and deputies
• the satisfactory completion of pre-appointment training
• the action to be taken in any circumstances which may cast doubt on the fitness of a panel member to serve
• the extent to which any further training for panel members may be needed.

In order to be able to make recommendations regarding the re-appointment of panel members, CPAC members attend hearings to monitor the performance of panel members.

When recruiting panel members, the characteristics sought by the CPAC include a genuine motivation to help young people in trouble and an ability to communicate with them and their families. Each panel should represent the community in general, as to age, gender, and socio-economic background. The age range is 18 to 60 at the time of appointment.

Individual CPACs have developed special local arrangements for dealing with certain issues, for example recruitment campaigns for new panel members and arrangements for monitoring panel members' performance. A CPAC may decide to appoint members to a sub-CPAC to help them perform these duties more effectively.

When appointed, each CPAC and sub-CPAC member receives notes of guidance from Scottish Ministers on aspects of their role. They also expected to undertake training before taking up their duties.

Children's Panel Advisory Group (CPAG)

CPAG was established in 1983. Its membership comprises the chair and clerk of each CPAC. It discusses matters of common concern and gives advice to Scottish Ministers as required.

Children's Panel Members

There are about 2,500 panel members throughout Scotland. The recruitment and selection of panel members takes place every autumn. The needs of authorities vary. Glasgow for example has the highest number of panel members at any one time, around 450, and among the smallest are the island panels with about 16 members each. Not every panel requires new members each year.

The initial period of appointment of a panel member is 3 years. Appointments can be renewed. There is no statutory maximum period of service. Panel members must normally retire when they reach the age of 65. The CPAC has an important role to play in seeking a balance between the need to maintain a core of experience in any panel and the need to bring in new members.

The names of panel members must be made available to the public. Each local authority is responsible for publishing a list of these in its own area. This is usually kept where an electoral register is also available for people to see, for example in the public libraries and also at the principal offices of the local authority.

The work of panel members is voluntary but they receive allowances for travel expenses and subsistence from the local authority. Panel members are entitled to take time off work for panel duties and are excused jury service during their period of service and for a period after their panel membership ends. Loss of earnings are paid, where appropriate.

Appointment as a panel member is conditional on satisfactory completion of the pre-service training programme. Panel members are also expected to complete the course of new member training which includes specialist training for chairing hearings and in-service training which continues throughout membership of the panel.

Value requirements

Because of the responsibilities that panel members carry and the influence and impact that they can have on the lives of vulnerable people, they must also meet particular value requirements. As well as being skilled and knowledgeable they must treat people with respect and be honest, open and reliable. They must be self aware and critically reflective.

Competences

The following standards apply to panel members completing pre-service training. Before beginning to serve on children's hearings they should be able to:

• fulfil their statutory responsibilities and work within procedures
• work effectively as an individual and as part of a team at a children's hearing
• communicate purposefully at a children's hearing
• assimilate and analyse information in order to assess the needs of the child and make a reasoned decision
• consolidate experience, knowledge and understanding in order to develop own skills.

The following standards apply to panel members completing new member training. Before beginning to chair children's hearings they should be able to:

• fulfil their statutory responsibilities as the chair of the hearing and work within procedures
• chair hearings effectively.

The Chairman of the Children's Panel

Each of the 32 panels has a chairman and deputy chairman (sometimes more than one) appointed directly by Scottish Ministers and both should be experienced panel members. The sole statutory duty of the panel chairman is to select members and chairmen for hearings. However the chairman of the panel undertakes many other duties, including attending CPAC meetings, dealing with matters involving individual panel members, participating in the planning of training and having close and regular contact with all agencies involved locally in the hearings system, particularly in relation to the development of the local authority's Children's Service Plans.

Children's Panel Chairmen's Group (CPCG)

This group is made up of the chairmen of all the panels in Scotland. It meets about six times a year to discuss any matter which relates to the hearings system. It is always consulted by the Scottish Executive about the introduction of changes to the system. It provides a forum for raising common issues and for promoting consistency throughout Scotland.

Scottish Association of Children's Panels (SACP)

The SACP was established in 1977. It is made up of representatives from the panels throughout Scotland. It has no statutory remit but has evolved purely out of the interest and concern of some serving panel members. It aims to provide a forum for communication of views among panel members and to promote understanding by those outwith the system.

Children's Hearings Training Officers (CHTO)

The statutory duty for training panel members, CPAC members and safeguarders rests with the local authority. Scottish Ministers exercise their discretionary power to assist training by financing the provision of Children's Hearings Training Units in four universities (Aberdeen, Edinburgh, Glasgow and St Andrews). Each unit, headed by a Children's Hearings Training Officer (formerly Children's Panel Training Organisers) is responsible for the training of panel members and, from April 2004, CPAC members and safeguarders in a group of authorities. Pre-service and new member training, whilst adapted to fit in with local needs and resources, follow training guidance issued by the Scottish Executive. In-service training is planned in conjunction with the local authority training committees and the training officers work in close liaison with C&YPG. Panel members, CPAC members and safeguarders are also expected to attend refresher training.

Training involves a combination of discussions, group work, lectures, reading, visits of observation to resources and children's hearings and meetings with people who work within the hearings system. National Schools are held for panel members, CPAC members and safeguarders. The broad aims of training are to help participants to discover the ways in which they can turn their experience into informed practice and to give them the necessary knowledge and skills to help them to fulfil their statutory roles.

Safeguarders

Each local authority has a duty to maintain a list of safeguarders in consultation with the sheriff principal and the chairman of the children's panel. Safeguarders are independent of all agencies and are selected from various backgrounds - lawyers, social workers and ex-panel members or people who have had some experience of working with children in other capacities. They are paid a fixed fee for each appointment and receive expenses from the local authority.

A hearing or a court may appoint a safeguarder if satisfied that it is necessary to safeguard the interests of the child in the proceedings. The safeguarder must produce an independent written report for the hearing. He or she may interview the child, members of the family and any other person who may provide information. In addition, a safeguarder may have access to records held by professionals. The contents of a safeguarder's report are not defined in law but there is an expectation that it will reflect interviews with the child, family and any other significant people; put forward the views of the child, identify relevant issues and make a recommendation based on the interests of the child. If appointed by a court a safeguarder may become a party to the proceedings.

Safeguarders are expected to attend hearings, not to speak for the child, although they may present the child's views, but to represent his or her best interests. This may sometimes mean making a recommendation to the hearing with which the child does not agree. Once the hearing has made its final disposal, and the appeal period is over, the safeguarder has no further contact with the child.

Safeguarders have the right to:

• receive copies of the papers which were considered by the hearing which made the appointment and any subsequent hearings during the period of appointment
• receive copies of the reasons for the decision to appoint a safeguarder
• be present at all stages of the hearing
• be informed of the decision and reasons of the final hearing and to be given a copy of those reasons in writing.
• appeal against the decision of the hearing on behalf of the child
• have their views considered in advice and warrant hearings.

Legal Representatives

A hearing may appoint a legal representative for a child if satisfied:

• that secure accommodation is an active issue, i.e. the child is already in secure accommodation or the hearing is considering making a decision which may involve placing a child in secure accommodation; or
• that the child is unable to effectively participate in the hearing because of the legal complexity of the case.

The role of the legal representative is to attend the hearing, normally with the child, and to present the child's views to the hearing. He or she will also protect the child's rights in the proceedings. Once the hearing has made a decision the role of the legal representative ends. He or she is not involved in the appeal process as representation under the Legal Aid scheme is available for this purpose. A fixed fee and expenses are paid by the Scottish Executive via the local authority. Each authority maintains a list of legal representatives who must be legally qualified with a current practising certificate and be one of the following:

Safeguarder ( see above)

Curator ad litem

A curator ad litem has a similar role to a safeguarder but is only appointed in cases that involve court. He or she must act independently and represent the interests of the child. A sheriff may appoint either a curator ad litem or a safeguarder at proof hearings or at appeals. A curator appointed by a court would not have the right to attend a children's hearing (neither would a safeguarder appointed by the court).

Reporting officer

A reporting officer is appointed by the court to report to the court. In adoption cases the role is defined by statute and is to ascertain whether the person whose consent is required gives that consent. In other cases a reporting officer would be asked to report to the court either on the general circumstances of the child's case or on something more specific such as contact.

Children's Hearings Representative Group (CHRG)

This is a consultative body, formed in 1983, which allows discussion on all matters relevant to the children's hearings system. It has representatives from:

The Group normally meets twice a year and is usually chaired by a member of staff from C&YPG.

The Council on Tribunals

The Council on Tribunals is an independent body, established by Act of Parliament in 1958, whose functions include keeping under review the large number of different kinds of tribunals which have been placed under its general supervision. In exercising this watch-dog function, a member of the Scottish Committee of the Council has an absolute right, under the Children (Scotland) Act 1995, to observe a children's hearing and to read the papers.

3 THE PROFESSIONALS WHO SERVE THE SYSTEM

Children's Reporters

The children's reporter is an officer of the Scottish Children's Reporter Administration (SCRA), a national body with a statutory function to deal with children in trouble. The reporter is independent from all other agencies and has absolute discretion in decision making. The Principal Reporter, as professional head of SCRA, carries overall responsibility for reporters' decision-making. The management of the service is overseen by a board whose members are appointed by Scottish Ministers. The SCRA has its headquarters in Stirling and Reporter Managers, based in different parts of Scotland, have a responsibility for a geographical area of the country. Working under them are authority reporters with teams of reporters and support staff as required.

Qualifications

No qualifications are specified for the job but in practice, most reporters have qualifications and experience in either law or social work. They also need a working knowledge of the law relating to the children's hearings system and an understanding of child development and welfare.

Referrals

Reporters have several duties laid down by law. They receive referrals from any source about children who it is believed may be in need of compulsory measures of supervision (legal intervention in their lives). Although most referrals are received from the police, social work departments and schools, they are also received from parents, neighbours and children themselves. All are given the same level of consideration. There must be reasons, specified in the law, why a child may be in need of compulsory measures of supervision. They are called grounds for referral. ( For details see Law and Procedure).

Investigation

When a referral has been received, the reporter is under a legal duty to carry out an investigation. The extent and type of investigation is for the reporter to decide. This may involve obtaining reports from a child's school, social work services and, if necessary, other agencies who may have knowledge of the child or the child's family such as doctors, psychologists, health visitors etc.

The investigation normally takes five or six weeks but can take longer in certain circumstances. Reporters welcome the assistance of children and parents in this process. ( See appendix for the codes of practice which govern the referral and decision making processes.)

At the beginning of the investigation the reporter normally asks the local authority for an Initial Enquiry Report (IER). This includes the following:

• child's name, address and date of birth
• reason for report request
• whether child and or family are currently known to social work services
• if so the basis of the contact including duration and details
• comments/issues
• advice on whether further action/enquiry is considered appropriate.

If the reporter feels that further information is required he or she may ask for an Initial Assessment Report which includes information under the following headings.

• Child's name, date of birth, gender, address and school attended.
• Basis of report - level of contact including external / other agencies
• Family composition
• Family details: brief background - duration of marriage/relationships; any moves of address: any particular issues, especially around child's health and developmental history
• Circumstances of referral: child and family's response to this; any concerns surrounding this
• School issues: attendance; behaviour; attainment; parental contact from child and family's point of view
• Significant issues for child/ family: supports, involvement in activities, any risk factors, family functioning. Contact with other agencies.
• Child and family's view of current needs and the best way forward.
• Conclusion: recommending no further action/ full assessment/ advice, voluntary support.

The reporter's decision

The reporter is required to make one of three decisions:

• not to proceed further with the referral (approximately 65% of referrals)
• to refer the child and family to the local authority to make arrangements for advice, guidance and assistance on a voluntary basis (approximately 10% of referrals)
• to refer a child to a children's hearing for consideration and determination (approximately 25% of referrals).

Hearings

The reporter can only refer a child to a hearing if he or she is satisfied that there is sufficient information to support the grounds for referral and considers that compulsory measures of supervision in the form of protection, guidance, treatment or control are necessary. At a hearing the reporter will keep notes on the hearing, complete relevant forms and will advise panel members if requested on points of law and procedural matters when appropriate. After the hearing is over the reporter will inform all relevant agencies of the decision of the hearing and provide a copy of the decision and reasons for it to the child and relevant persons. If a child or relevant person wishes to appeal against the decision of the hearing the local authority will advise them on how to do this.

If the reporter arranges a hearing her or she will request a Social Background Report (SBR) from social work services. This includes information on the following.

• Name, date of birth, gender, address and religion of the child and school attended
• Reason for report request
• Basis of report (level of contact):
  • number of home visits
  • which family members seen
  • reference to reports compiled by other professionals
  • information obtained from other professionals/agencies
• Family composition
• Financial situation
• Other agencies involved
• Matters of concern
• Elements of a comprehensive assessment:
  • what is the nature of the concern and how is this manifested?
  • emotional and physical development of the child
  • education
  • family composition and family history; including information about any absent
    parent(s)
  • relationship with significant adults
  • individual profile of the parents/carers
  • child and family's view of current needs and way forward
• Conclusion and recommendations.

Panel members and relevant persons must receive this report along with any grounds for referral and any safeguarder's report at least three days in advance of the hearing. All children receive grounds for referral and children over 12 will normally receive copies of reports and children under 12 may receive them, subject to certain safeguards.

The reporter in court

The reporter may attend court for two reasons:

1. When the grounds for referral are denied or not understood and the hearing directs the reporter to make an application for proof, the reporter has to conduct the case in the sheriff court by presenting evidence and calling witnesses.

2. If the child and / or relevant person appeal against the decision of the hearing, the reporter assists the sheriff by presenting the hearing's decision and reasons.

The Police

If the police arrest a child under 16 for any reason and believe the case needs further consideration, they will refer that child to the reporter. If the police receive notification of a child who has been abused or may need protection from harm, they may remove a child temporarily to a place of safety. This is normally done in co-operation with the local authority, who will then refer the child to the reporter to arrange a children's hearing.

If the police decide to refer a child to the reporter, they must provide the legal evidence which will uphold the grounds for referral. They may also provide a brief report which may include information about the child's family background.

Each police force, through its Community Involvement branches, deal with issues relating to young people who offend. Their aim is the prevention of delinquency by intervention and diversion at an early stage.

Young people involved in offending or whose personal safety is at risk are likely to come first to the attention of a police officer on the beat e.g. young people wandering late at night, experimenting with drugs or alcohol, and mixing with known trouble makers. The officer notifies the Community Involvement Branch after giving the young person an informal warning. If more action is required a police officer may have contact with the young person and the family to give advice about where the family might go for help.

Police warning

A child may be eligible for a formal police warning where:

• the crime or offence is not serious enough to warrant referral to the procurator fiscal
• referral to the reporter is likely to result in a 'no further action' decision
• the child has not been formally warned on more than one occasion
• the crime or offence is admitted and the child and parents agree to co-operate.

The children's reporter may also refer a child for a police warning.

The child and parents are requested to attend at a police station in connection with the charge. The child is seen by a designated police officer, in the presence of a parent, and is asked if he or she admits the charge. If responsibility is denied or disputed the report is usually forwarded to the reporter for any action he or she may care to take. If the child admits responsibility the police officer will administer a formal warning. Discretion is used in the selection of cases for warnings, based on the criteria described above.

Child protection

In recognition of the need for close co-operation in cases of physical and sexual abuse where a crime may have been committed against a child, a joint investigation is carried out by police and social work staff. Some areas have special child protection units which are jointly staffed by police and social workers, but all areas have police staff who work particularly in areas of domestic violence and child protection. Police officers involved in this work do not normally wear uniforms.

Procurator Fiscal

The procurator fiscal is a legal officer who performs the functions of public prosecutor.

Authority to prosecute and policy

The general rule for prosecutors is that criminal proceedings should not be taken against a child under 16 unless there are compelling reasons in the public interest for doing so. The presumption is in favour of such cases being dealt with by the reporter in terms of the Children (Scotland) Act 1995. However, the Criminal Procedure (Scotland) Act 1995 s42(1) allows prosecution of children under 16 in certain cases and The Lord Advocate is entitled to issue general rules as to the categories of offences which should be considered for prosecution in the ordinary criminal courts.

Offences which are to be reported to the procurator fiscal

The categories of offences which are to be reported to procurators fiscal with a view to possible prosecution are:

• Category 1:very serious offences e.g. treason, murder, rape, assault and robbery using firearms
• Category 2: offences alleged to have been committed by children aged 15 years or over which in the event of conviction oblige or permit a court to order disqualification from driving
• Category 3: offences alleged to have been committed by children over the age of 16 and under 18 years who are subject to a supervision requirement of a children's hearing.

However any case may be reported to the procurators fiscal if the police are of the opinion that for special reasons, which must be stated, prosecution might be considered. With the exception of very serious crimes the procurator fiscal has a discretion to pass such cases to the reporter. Only the Lord Advocate can authorise criminal proceedings against a child under 16. However, if this does occur and even if the criminal court does find a child guilty, it may still refer to a hearing for advice on how the child might be treated, or indeed for disposal.

Prosecution options

Prosecution options are age dependent but for children the general options are as follows:

• no proceedings
• warning
• diversion
• fixed fine
• proceeding (but no child in District Court).

Diversion from prosecution

Various options exist for the procurator fiscal to divert the accused from prosecution:

• deferred prosecution model
• reparation and mediation.
• referral to social services or mental health services.

Courts

It is important to remember that one of the prime aims of the hearings system is to remove children from the formality of the court setting. The separation of proof from disposal allows the hearing to concentrate upon deciding on appropriate measures to promote the welfare of the child. However the children's hearings system is part of Scotland's justice system and there is an inter-relationship between the hearings system and the courts at various times and for a number of different purposes.

All criminal prosecution in Scotland is the responsibility of the Lord Advocate, through the Crown Office in Edinburgh. The Lord Advocate is normally represented in the High Court of Justiciary by the Solicitor General (his or her depute) and by the advocates depute, advocates who join the Crown Office for a period of time. The senior advocate-depute is known as the Home Depute. In the Sheriff Court, prosecutions are brought by procurators fiscal, acting on behalf of the Lord Advocate.

Scottish Courts operate at three levels:

The District Court

This court has only criminal jurisdiction and deals with relatively minor offences such as minor assault, breach of the peace and petty theft, including shop lifting. It also deals with minor road traffic offences. The case is presented by the procurator fiscal and heard by a lay justice of the peace, with a legally qualified clerk in attendance. The district court does not have jurisdiction over children under the age of sixteen.

If a sheriff is not available to consider an application for a child protection order, a justice of the peace (who is authorised to sign warrants) may, if satisfied that the conditions for making a child protection order exist, authorise a temporary warrant to hold a child for twenty-four hours in a place of safety until the matter can be brought before a sheriff.

The Sheriff Court

Sheriff courts are presided over by legally qualified sheriffs who exercise both criminal and civil jurisdiction. Sheriffs have been either advocates or solicitors and each of the six sheriffdoms is presided over by a sheriff principal.

(a) Civil jurisdiction

The majority of civil actions are raised in the sheriff court. Most divorce cases are heard in the sheriff court and undefended actions may be dealt with on affidavit evidence without personal attendance. Where there are children of the marriage sheriffs will decide on issues relating to residence and contact. A sheriff, in considering cases relating to separation, divorce, parental responsibilities and rights and freeing for adoption or adoption, or the securing of a child's attendance at school, can refer the child or children to the reporter if he or she thinks the child may require compulsory measures of supervision. The reporter investigates in the normal way but the grounds will be deemed to have been established if the reporter takes the case to a hearing.

Referrals from children's hearings to the sheriff are civil proceedings although it is recognised by the courts that they fall into a special category of their own. Cases are heard in private and many sheriffs do not wear formal court dress and may sit at a table in the well of the court, or in chambers, with the child and others who are present.

If grounds for referral are referred to the sheriff court for proof the case must be started within 28 days of the application. In an offence case, the grounds must be proved beyond reasonable doubt. In all other cases a different standard of proof (on the balance of probabilities) applies. The family are entitled to legal representation if they wish and they may be eligible for legal aid.

If a child, relevant person or safeguarder (on behalf of the child) appeal to the sheriff against a decision of the hearing the appeal must be lodged initially in writing to the sheriff clerk within 21 days of the decision being made and the reporter then has to provide all the appropriate papers to the sheriff. The appeal is heard in private and again the family is entitled to legal representation and may be eligible for legal aid.

The law allows various legal actions to be taken by the sheriff to protect children. These include child protection orders, child assessment orders and exclusion orders. ( For more information see Law and Procedure.)

There is a right of appeal from the sheriff's decision on a point of law to the sheriff principal or to the Court of Session. The sheriff may appoint a curator ad litem or a safeguarder to look after the child's interests and parents and children may apply for legal aid.

(b) Criminal jurisdiction

Most of the less serious cases of crime are dealt with in the sheriff court. Where the sheriff deals with a case on his own, summary procedure is followed. Under solemn procedure the sheriff sits with a fifteen person jury and has much wider powers of sentence.

Only the procurator fiscal can decide if a trial will proceed on summary or solemn procedure. In the majority of cases when a young person appears in the sheriff court he or she will be dealt with by summary procedure. In certain circumstances the sheriff may, or must, refer the cases to hearings for advice. ( See Law and Procedure)

Sheriffs may deal with criminal cases where children are alleged to have been harmed or abused by someone. Although grounds for referral may have been established on the standard of the balance of probability, the sheriff must apply the criminal standard of beyond reasonable doubt in dealing with the alleged abuser; in terms of Scots law this requires corroborative evidence and hearsay evidence is not admissible. For this reason there are comparatively few successful prosecutions but the child can still be protected by the children's hearings system.

The High Court of Justiciary/ Court of Session

(a) Civil jurisdiction

The Court of Session exercises civil jurisdiction as a court of first instance and also as an appeal court. It hears appeals of decisions by a single judge of the Court of Session or by a sheriff. As an appeal court, a minimum of three judges sit together. Although appeals to the House of Lords may be allowed, this does not apply to appeals from children's hearings. The Court sits in Edinburgh. Although most cases relate to matters like contract, debts, damages and property matters, the judges may also consider matters relating to divorce or aliment.

Appeals relating to children's hearings are taken against a sheriff's decision (or sheriff principal's decision on appeal) on a point of law or in respect of any irregularity in the conduct of the case.

(b) Criminal jurisdiction

The High Court of Justiciary is the supreme criminal court in Scotland. There is no appeal in criminal cases to the House of Lords. The Court sits in Edinburgh and other towns or cities in Scotland when it goes on circuit; there is a permanent circuit sitting in Glasgow. As in solemn procedure a judge sits with a fifteen person jury. Appeals which may arise out of the district court, sheriff court or High Court are normally held by a bench of three judges sitting as the Court of Criminal Appeal. All appeal cases are heard in Edinburgh. There is no jury in appeals.

The High Court deals with the most serious crimes. It has exclusive jursidiction for murder, treason, incest and rape and also deals with other cases which, in the opinion of the Lord Advocate, may merit a sentence of more than three years' imprisonment which is the maximum penalty of the sheriff court.

When children are prosecuted in the High Court, the Court may, but need not, refer the case to a children's hearing for advice or remit it to a hearing for disposal following a plea or finding of guilt. The only exception is murder which has a mandatory sentence of detention.

Social Workers

Although the responsibility for implementing supervision is the duty of the local authority, the main responsibility normally rests with social work services. Social workers provide a link within the system between referral and disposal and between the child, the hearing and the community in general. They have a statutory duty to provide reports for hearings and to implement supervision requirements. Often this function is difficult to carry out in practice: for instance, in writing reports social workers may experience some degree of conflict between providing the best information for the panel members while still continuing to maintain the trust of the child and the rest of the family. They are also able to refer children to the reporter and call for a review of the supervision requirement.

Preparation of a background report for the hearing

An important task is the preparation of a social background report. When a reporter decides to refer a child to a hearing the local authority is asked to provide a report and is legally obliged to do so. A social worker will meet with the child and family and other significant people as required, in order to gather information. The report is the main source of information for panel members and contains details about the child's background and difficulties. The social worker who provided the report generally attends the hearing along with the child and family. If something prevents him or her from doing so then another social worker will be in attendance.

The content of a social background report should follow the guidelines issued by SCRA described earlier. Information and views need to be put together from all those who are involved with the child. Where the child and family are already receiving support from the social work service, an assessment will be required of how far that support is being effective and what changes to the level and type of support appear to be needed.

Further information

Sometimes hearings are continued for further information because panel members do not consider that the assessment provided by the social worker is full enough to enable them to make their decision regarding the future care of the child. This assessment is usually carried out with the child remaining at home. Whatever method of assessment is used, the objective will be to obtain a fuller understanding of the child and his or her circumstances, to identify the factors that may be amenable to change and to indicate possible methods of achieving such change.

When panel members have continued the hearing for further information it may be that the child appears to have such major difficulties in home and school that a placement outwith the home may be required as may assessment in a residential setting.

Education staff

The education service of the local authority may make referrals to the reporter, particularly in cases of children failing to attend school. If a child who is to appear at a hearing is of school age, then the reporter usually asks for a school report, providing a form for this purpose. This contains information on the educational performance and behaviour of the child in school and a record of attendance. Sometimes a representative from the school will attend the hearing but there is no obligation for them to do so. As part of a supervision requirement a hearing may attach a condition that the child receive a particular education service that the authority has to offer.

In some areas additional services provided by education departments include school based social workers and educational welfare officers.

School reports

In secondary schools the person with special responsibility for preparing a report is the child's guidance teacher who will collect the material from other members of staff. In primary schools, reports are usually completed by the head teacher in consultation with the class teacher.

Educational psychologist

The education services of the local authority have a responsibility to provide a school psychological service. Their work covers everything to do with children, their development, progress and 'educational career'. They also have a statutory duty with regard to 'additional support needs' children in the assessment of their educational needs to allow the child to get the best out of the system and to attain their full potential.

Educational psychologists work with children, their families and teachers where a child is displaying behavioural problems which cannot be easily managed in the school, or where the child has a learning difficulty. Educational psychologists may provide reports and make recommendations to the hearing. They also provide support and advice to school staff in their work with children. They will see a child individually with parental agreement. In some areas, rather than working directly with the schools, psychologists provide a consultancy service to schools within the local authority area.

Medical staff

In cases of child abuse or neglect, general practitioners and consultants will provide reports to the reporter to support the grounds for referral and sometimes will also provide reports to the hearing. They can appear as witnesses in court should the grounds for referral go to the sheriff for proof. The health visitor too may have valuable information to offer and may in certain circumstances attend a hearing.

Psychiatrists are medically qualified doctors who specialise in mental illness or mental disability. Clinical psychologists are part of the mental health team. They are 'problem solvers' who use their skills to help individuals or families with problems such as phobias, anxieties, depression, learning difficulties, conduct disorders and neurological disorders.

As part of an assessment, a hearing may request that a child be seen by a medical practitioner, specialist paediatric consultant, a clinical psychologist, or in certain cases by a psychiatrist. In exceptional circumstances assessment might involve a period of time in a psychiatric establishment run by the health service. If necessary, a health service resource may be required as part of a supervision requirement.

« Previous | Contents | Next »