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Getting it Right for Every Child
Consultation Pack on the Review of the Children's Hearings System

Section 2

Issues And Questions

Please record your responses to the questions below in the feedback booklet contained in this pack (Section 3: Your Response) or electronically by finding the feedback form atwww.childrens-hearings.co.uk. Further background information is available in this pack or on the website.

Introduction

Scottish Ministers are using this first phase of the Review to seek your views on three areas:

• the Outcomes that we are seeking to achieve;
• the Principles and objectives of the Children's Hearings system; and
• other Issues which need to be considered.

The second phase of the Review will then look at how to achieve the principles and outcomes agreed during this phase.

The Objectives Of The Children's Hearings System

Scottish Ministers want to use the review process to make sure that we have a Children's Hearings system which:

• delivers effective outcomes for children, brothers and sisters, families and communities
• leads to
• • protected, educated, healthier children
  • changed behaviour; safer communities
  • reduced offending
• quantifies and demonstrates results
• protects children's welfare by addressing their needs and challenging their deeds
• engages with the child and seeks the child's and parents' views
• respects children's rights
• is European Court of Human Rights/United Nations Charter compatible
• involves communities
• enjoys credibility among communities and professionals
• is efficient and as quick as possible
• ensures an integrated approach to service delivery
• operates effectively with other services (e.g. courts and child protection)
• is adequately resourced with clear accountability
• provides as consistent a service as possible across Scotland.

The Principles Of The Children's Hearings System

Scottish Ministers support the fundamental principles underlying the Hearings system, but want to look at whether they can be developed and improved. It is important that we confirm what those principles are, that they are understood and that you are happy to endorse them. We also wish to consider whether they can be enhanced.

We believe that the principles of the system are:

• that the child is at the centre of the system (i.e. that it is the future wellbeing of the child which is most important)
• that the process is integrated, independent and looks at the whole needs of the child (i.e. offending is considered alongside care and protection within a single process)
• that unacceptable behaviour and offending is addressed first and foremost through the Hearings system and that children should only be dealt with through the criminal justice system in exceptional circumstances
• that the system is locally-based and community-focused (panel members are drawn from, and represent, the local community)
• that where facts cannot be agreed, the Sheriff Court resolves these points, not the Hearing.

The discussion of the issues in the following section may develop these principles further.

Improving Outcomes

IMPROVING OUTCOMES: Working Better With Others

The Children's Hearings system relies on, and works alongside, a number of organisations and professionals, all of whom have differing roles and responsibilities for children. Examples are health visitors, child protection agencies and guidance teachers. The Review of the Children's Hearings system provides an opportunity to look at whether all children are getting the focus and attention they require. It also lets us look at the role of the Children's Hearings system and its boundaries with other organisations and consider whether it should take more of a lead in monitoring outcomes across all organisations.

The involvement of a child in the Hearings system will often start with their local authority Education or Social Work Department or local police force who may then involve the Children's Reporter. If necessary, a Children's Hearing will meet and reach a decision on what is needed. The local authority then has to implement any decision of a Children's Hearing and the Hearing will review progress. All stages may also involve health service agencies and health professionals, as well as a range of voluntary organisations. This forms a complex picture of many organisations all striving to work for the best outcome for children and their families.

The potential for gaps to open up or for confusion to develop, in terms of roles, responsibilities and when to take action, is high. The development of Children's Services Plans at a local level will provide a framework. But much more needs to happen. There are too many examples of children not getting the service they deserve or require, either because services are weak or because decisions on referrals are inappropriately made.

The second phase of the Review later this year will consider how the Children's Hearings system can work better with other organisations. What is needed now is a view on what outcomes we should expect for children and whether there is an enhanced role for the Children's Hearings system in delivering these outcomes.

In considering these issues, a few points should be remembered:

The Children's Hearings system starts when the child is referred to the Children's Reporter, who has to decide if a Children's Hearing has to be called. Most children do not end up at Hearings or under supervision. Support for them is taken forward with the agreement of the child and family as "voluntary action".

All other agencies work with the child and family on the basis of agreement. If organisations consider that the child can only be helped by compulsory measures, the Children's Hearings system or, in some cases, the courts have to be involved.

The Children's Hearing decides what action must be taken for the child. The local authority has legal duties to look after the child and to ensure that any plan agreed by the Children's Hearing is put into effect.

Because "voluntary action" can be taken either through the Children's Hearings system or by outside organisations, there is a degree of overlap. Scottish Ministers believe that there needs to be greater consistency of decision-making.

IMPROVING OUTCOMES: Defining Outcomes For Children

In the hierarchy of interventions in a child's life, a Children's Hearing is the most significant as it requires action in respect of the child, sometimes against the child's or family's wishes.

Other organisations will properly focus on their own objectives, for example the child's educational attainment, safety from harm and abuse, emotional wellbeing, the physical needs or health of the child, or stopping offending or drug misuse by the child.

A Children's Hearing's decision is based on the child's welfare. It therefore embraces the objectives of all the other organisations which may refer children to the Children's Hearings system. The Children's Hearing looks at the child and determines what has to be done to address the child's needs. There are therefore a number of desirable outcomes which Hearings might have in mind. These include good health, including sexual and mental health; educational outcomes in terms of attainment; children being free from drug and alcohol abuse; stopping offending. It is less clear what might be expected in terms of outcomes for pro-social behaviours or attitudes or "citizenship".

An aim might be for all children to live in an environment free from the danger of physical or sexual assault and where basic care in terms of shelter, food and clothing is guaranteed. It is unclear how outcomes in terms of emotional wellbeing might be defined, nor how they should be balanced against some of the more easily measured outcomes suggested here.

For teenagers we might expect them to be prepared for life after school age through preparation for employment. They should not suffer disproportionate unemployment or homelessness.

A good outcome for a child in the Children's Hearings system might be that there is a "reduction in the identified need and that the child no longer requires voluntary or compulsory action". This is an example of a general outcome which could apply to all organisations.

Single System

SINGLE SYSTEM: Generalist System

The Children's Hearings system operates on the basis that one system is best placed to consider all the needs of the child. The Kilbrandon Report found that many children who commit offences or who are in need of care and protection have common needs and characteristics. Also, in investigating the circumstances of a child's life, different issues may emerge which need to be addressed. Having a single system enables an overview to be taken and decisions to be reached without having to follow different procedures. This can be to the benefit of the child and family as, once they are referred, one process will take forward all issues. Drawbacks are that the system has to cope with a very wide range of issues: from adoption to non-attendance at school; from medical concerns to physical and sexual abuse. Cases can be very complex and time-consuming.

SINGLE SYSTEM: Specialisation

Children's Panel members must satisfactorily complete training before being allowed to sit on Children's Hearings. They also undergo further in-service training and information sessions to ensure that they are aware of latest developments and services which are available locally. This allows flexibility of approach in that any of the Children's Panel members can deal with any case coming before a Children's Hearing. However, for some cases such as those involving adoption, persistent offenders, serious child sexual abuse cases or mental health issues there are often complex issues which have to be discussed by Children's Panel members with the family. Training seeks to ensure that Children's Panel members are aware of the issues which are important and require special attention. There could be benefit to the child if certain Panel members specialised in specific types of issues so that one of the Panel members on the Hearing had appropriate skills. There would be issues of capacity and scheduling to be considered. However, your views would be welcomed on whether, under the single system approach, there could be some specialisation.

SINGLE SYSTEM: Links With Child Protection

Currently there are around 8,000 child protection enquiries each year. The advantage of the child protection mechanisms are that they can be quick and directly involve those agencies that have a contribution to make to protecting or caring for a child. However, it is a voluntary system which cannot compel parents or a child to accept any decision or take appropriate action. Where parents or children do not comply or co-operate a referral can be made to the Children's Reporter.

The Children's Hearings system is based in law and had 27,000 children referred on welfare grounds last year (2002-03). The advantages of the Hearings system are that it observes process, recognises the rights of the children and families, requires action to be taken by the child and the local authority, has a formal appeal process, allows legal representation in certain circumstances and it has a formal statutory obligation to focus on the child's interests. The disadvantages are that the statutory procedures, which in some cases may operate quickly within 48 hours if necessary, can take time.

Some referrals to the Reporter will cover the same children as those involved in child protection processes. There is no evidence that certain types of suspected abuse always generate one sort of referral or the other. Some on the child protection register are also on supervision through Children's Hearings for the same abuse or neglect; others are not.

Current arrangements for referrals, assessment and provision of reports for Hearings or Child Protection Case Conferences suggest some duplication of effort and staff resource. It is also not always clear that children who should be referred to the Reporter are being referred.

SINGLE SYSTEM: Evaluation

The Children's Hearings system at present reviews the child's progress up to the point where a supervision requirement is no longer considered necessary (which may be after several months or years). From that point on the Children's Hearings system does not follow up the child's progress. That responsibility is left to the organisations which may have continuing contact with the child. The only overview of the effectiveness of the Children's Hearings system and other interventions is when a child is referred back to the system.

Also, where a child has been referred and does not go to a Children's Hearing, the Reporter does not follow up the child's progress. Where the child is involved with other organisations, that responsibility is left up to them and there is no overview of the intervention in the child's life.

As well as evaluating the impact of interventions on children and young people, it is also important that Reporters and Children's Panels evaluate their own general effectiveness.

On 22 March the First Minister announced a new inspection system for children's services led by HM Inspectorate of Education. One of the areas which the new system will be looking at is the extent to which Hearings decisions are implemented.

The Hearings System And Parents

THE HEARINGS SYSTEM AND PARENTS: Planned Changes

The Antisocial Behaviour etc. (Scotland) Bill contains proposals which offer a new power both to the Children's Reporter and to individual Children's Hearings. The Bill proposes that the Principal Reporter be given the power to ask the courts to introduce a Parenting Order for those parents whose actions or failure to exercise their responsibilities contribute to the antisocial behaviour of their children. An application for a Parenting Order may also be made where the parents are failing to protect the child or act in a way that puts the child's welfare at risk. Children's Hearings will be able to request that the Principal Reporter consider making an application on any of these grounds.

As discussed in the previous paragraphs, the Children's Hearings system is a single forum for looking at the child. Experience shows that many of the problems facing children stem from family circumstances or poor parenting. The Kilbrandon Report rejected fining parents as an option for the Children's Hearings system. It looked at and recommended a number of mechanisms for engaging the parent in the development of the child, including social education of the parent. It also recommended that in certain circumstances parents be required to place a security (find caution) and then act constructively to support the child. This recommendation was not followed through.

An issue for this Review is whether Children's Hearings should have more direct influence over parents by requiring them to do certain activities. These might include attending courses on anger management, health education, managing discipline, setting parameters, drug and alcohol misuse or abuse, or ensuring that the child is taken to school each day.

THE HEARINGS SYSTEM AND PARENTS: Influence Over Parents?

One option would be to give Children's Hearings direct powers over parents to require them to observe their parental responsibilities in order to promote the welfare of the child. The Children's Hearing would then become a tribunal directly affecting parental rights and responsibilities.

A change of this sort raises the question of how a Hearing would respond if a parent failed to comply. Under current powers a Children's Hearing would review the case and seek to amend the support and intervention to address the reason why the parent was not participating. To give Children's Hearings penalty powers for breach by a parent of any order would represent a major change in the nature of the Hearings system and the way it operates. It might lead to a requirement for legal representation for all those whose rights are directly affected, and could also have significant resource implications for the Hearings system and local authorities, with the Reporter or a particular Hearing requiring more information on parents.

This would mark a significant departure from the current system, even though the focus would still be on the welfare interests of the child.

THE HEARINGS SYSTEM AND PARENTS: Family Hearings?

Another option is to consider "family hearings". This would move away from the child focus of the Children's Hearings and require Panel members to look at the interests of the parents and the child's brothers and sisters as well. Under the current system, the welfare of the child is paramount, which means that, in taking any decision, a Children's Hearing must place the welfare of the child above all other concerns unless members of the public have to be protected from serious harm.

Under a "family hearings system" a Hearing would have to balance the various interests of all members of the family: brothers and sisters, children and parents, and reach a view on what had to be done for each individual for the benefit of the family. The Hearing might still have the child's welfare as the main, but not over-riding, interest. The protection of members of the public from serious harm would remain the other key consideration.

This is a much more radical option. It would require Children's Hearings to balance and prioritise a wider and more complex set of interests. This would develop the Children's Hearings system away from the fundamental principles but still have the improvement of the child's life as one of its objectives. It might also mean more people attending Hearings with more legal representatives. The focus and nature of the discussions in the Hearings might shift from the child to balancing the various interests of the family members.

A wider range of disposals might be needed to meet the needs of each family. This change would also have resource implications for the Reporter and for local authorities, in the preparation for a Hearing and in the implementation of disposals and supervision requirements after a Hearing.

Your views on whether a change to family hearings of this sort should be considered further would be welcomed.

Hearings And The Community

COMMUNITY: Engagement With Young People And The Community

The Hearings system is based in local communities. Hearings are held locally. Panel members are selected from within the local area and they consider the needs of local children and communities.

However, because of the need for confidentiality and the personal nature of the discussions, there is little information or direct accountability from those within the system to the community itself. Nor is there a direct way for communities to make their needs and wishes known to those operating the Hearings system.

COMMUNITY: Community Involvement

Panel members are recruited to local Children's Panels following public recruitment. Panel members must have links with the community where they sit, either because they live or work there or because they know the area well. While every effort is made to ensure wide representation of the community, this may not always be achieved, although over time panel members have become more representative of society as a whole. There may be other ways of including community groups or representatives in the Children's Hearings system that increases the sense of local involvement.

Those who become Panel members may previously have been involved in the system. If they have offended in the past and their offending history is particularly serious, recent, or continuing it is unlikely that they will be appointed.

COMMUNITY: Involvement Of Young People

Currently the involvement of young people is restricted to participation as the individual child for whom services are being considered or their appointment as panel members if they are over 18 years old. Some young people will take part in training arranged for panel members to give a youth perspective. Overall, young people are not well represented in, or involved in, the system.

The question arises as to how to ensure services are relevant to young people. It helps to have feedback from them about effectiveness, methods of delivery and how services respond to young people's aims and values. It might also be possible to involve young people to a greater extent in decision making, the design and specification of services or in sharing information about services and results of the system. If this involvement were only to extend to those young people who have previously been to a Hearing, there is a risk they may feel stigmatised rather than empowered by their identification with a wider role.

Issues For Consideration In Phase 2

Phase 2 will need to address issues such as:

• how to make the system work more effectively
• more integrated working (role of education; health; voluntary sector)
• routine monitoring and feedback on services
• measuring the agreed outcomes for children
• legal representation (ECHR/child advocacy/role of safeguarders)
• process issues (procedures at Hearings/timing of proof hearings in court/business meetings)
• structural and administrative issues (more flexible training and recruitment; joint training; boundaries defined in legislation; age limits for panel members; involvement of young people/communities)
• legislative issues (e.g. are the grounds for referral still the right ones to ensure that children are properly protected?)
• support for volunteers (e.g. fees/allowances/support services)
• specialisation within hearings (e.g. specialist training/use of experts)
• resources for effective implementation.

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