The Children's Hearings System - Introduction
The Children's Hearings system is Scotland's unique system of combining welfare and justice for vulnerable and troubled children and young people from birth to their 16th birthday and in some specific cases to their 18th birthday. It has been operating for more than 30 years. Its formation stemmed from the work of Lord Kilbrandon, who found that whether young people had offended or been offended against, their needs were the same. He believed that in taking decisions about their future, the best interests of the child/young person must be the prime concern.
In the Children's Hearings system, decisions on what is best for the child are made by members of the children's panel, trained volunteers from the community. The Children's Hearings system helps children/young people who are vulnerable because they are experiencing, or are at risk of, for example:
- physical, sexual or emotional abuse
- parental neglect
- being out of control
- not going to school
- taking drugs or alcohol.
The system has had to adapt to changing social and political climates over the last 30 years. However, the fundamental principles on which it is based have been maintained.
History - The Milestones
The Children Act 1908 was the first legislation to recognise the need for juvenile offenders to be dealt with separately from adults. In Scotland the minimum age of criminal responsibility was seven years old and a child was classified as a juvenile up to the age of 17.
Following the recommendations of a committee appointed in 1925 under the Chairmanship of Sir George Morton to enquire into the treatment of young offenders and children requiring care or protection, the minimum age of criminal responsibility was raised to eight years in 1932.
The Morton Committee also recommended the transfer of jurisdiction of cases of children and young offenders to specially constituted justice of the peace juvenile courts. It was intended that cases would be considered by justices who, by knowledge and experience, were specially qualified to deal with these types of cases.
Between the 1930s and the 1960s most of Scotland's children were being dealt with in different types of courts, depending on where in the country they lived. There was a need for standardisation. There were considered to be basic difficulties in a model which tried to combine the processes of a criminal court with treatment of children who offended.
The Kilbrandon Committee
In May 1961, a committee was set up by the Secretary of State for Scotland under the chairmanship of Lord Kilbrandon, a senior Scottish judge. Other members of the committee were four justices of the peace, four lawyers, a chief constable, a head teacher, a psychiatrist and a probation officer.
The remit of the committee was: 'To consider the provisions of the law of Scotland relating to the treatment of juvenile delinquents and juveniles in need of care or protection or beyond parental control and, in particular, the constitution, powers and procedure of the courts dealing with such juveniles, and to report.'
The Committee reported in 1964. It found that children and young people appearing before the courts (whether they had committed offences or were in need of care or protection) had common needs for social and personal care. The Committee considered that the existing juvenile courts were unsuited to dealing with these problems because they had to combine the characteristics of a criminal court of law with those of a treatment agency. Separation of those functions was therefore recommended.
The establishment of the facts (where disputed) was to remain with the courts, but decisions on treatment were to be the responsibility of a new and unique kind of hearing. Today's Children's Hearings system flows from the recommendations in the Kilbrandon report.
The Kilbrandon Committee recommendations
The Kilbrandon Committee recommended that completely new arrangements were needed to deal with all children in need and that a special treatment agency, or 'juvenile panel', was necessary, which would be neither a court of law nor a local authority committee.
The panel would essentially be a lay body made up of people who either by knowledge or experience were considered to be specially qualified to consider children's problems. This was a model on which none of the then current systems of juvenile justice were based. Panel members would have powers of compulsory action and the power to modify or vary measures appropriate to the individual child.
What set apart the proposed panels from the juvenile courts of the time was how their powers would be exercised. The benchmark for action would be the child's need for special measures of education and training. The panel's jurisdiction would be founded on grounds where the basic facts were agreed or accepted, with disputed matters being referred to a Sheriff for adjudication.
The Crown would keep overriding discretion to prosecute in exceptionally serious matters such as murder or manslaughter. The current law reflects that recommendation by providing that no child under 16 shall be prosecuted for any offence "except on the instructions of the Lord Advocate".
The Committee also recommended the abolition of the minimum age of eight as the age from which a child might be held to be responsible for criminal actions. However, this minimum age still applies today.
It was recommended that panels should be appointed in each education area by the Sheriff and that panel members would receive appropriate instruction and training. Each local authority now has a children's panel, with panel members appointed by Scottish Ministers. The panel members have to undergo extensive training before they can sit on Hearings and this continues throughout their appointment.
It was recommended that the buildings used for hearing cases should be both physically separate from, and entirely unconnected with, the criminal courts and police stations. It was appreciated that the times that Hearings were held would be a matter for local arrangement. However, the Kilbrandon Committee hoped that, bearing in mind the benefits of having both parents attend, there would be evening Hearings and in some cases Saturday Hearings.
At present Hearings take place during the day, with occasional evening Hearings, but there are no longer Saturday Hearings. This is currently being reviewed.
Referrals to panels: the role of the Reporter
The Kilbrandon Committee proposed that referrals to the panel would be via an independent official, to be known as the Reporter. As this official would act as gatekeeper to the system, it was thought that Reporters should be competent to assess both the legal issues and also the wider question of public interest. A legal qualification, as well as a period of administrative experience relating to child welfare and the educational service, were considered relevant requirements. In addition to handling referrals, Reporters would have administrative responsibility for organising the panels' business, and would also act as clerks to the panels.
Reporters continue to be at the centre of the Hearings process. Following a referral they decide whether a Hearing should be arranged. They organise the Hearing and ensure that due process takes place. A legal qualification is not a requirement to becoming a Reporter, although many Reporters have a legal or social work background.
Implementing the recommendations
A White Paper Social Work and the Community produced in 1966 retained most of the core proposals of the Kilbrandon Committee and introduced the specific terms 'children's panels' and 'hearings' for the first time. The White Paper included a range of possible decisions (known as 'disposals') that would be available to Hearings. These included discharge of the case and home or residential supervision.
Significantly, the White Paper also linked juvenile justice to developments taking place in the organisation of social work. The aim was to create a new kind of social work department, bringing together the various specialised social work services - probation, the children's departments and welfare departments of councils - in order to provide an effective all-encompassing system.
The White Paper recommended that the newly organised social work departments should provide the supporting services necessary for the work of children's hearings. Statutory provision for the new system was made in the Social Work (Scotland) Act 1968.
On 15 April 1971 Children's Hearings took over from the courts most of the responsibility for dealing with children and young people under 16 who commit offences or are in need of care and protection.
The Legal Framework
Most of the legal provisions which govern the Children's Hearings system today are contained in the Children (Scotland) Act 1995 and the Children's Hearings (Scotland) Rules 1996.
The Children (Scotland) Act 1995 replaced most of the provisions in the Social Work (Scotland) Act 1968 Act which related to children. The 1995 Act's focus is on the needs of children and their families, and it also defines parents' rights and responsibilities in relation to children. It also introduced the concept of 'Relevant Person'*, a specific legal term, and described who are relevant people for the purposes of the Children's Hearings system.
While keeping and building on the fundamental philosophy of the Kilbrandon Report, the 1995 Act incorporates principles from the United Nations Convention on the Rights of the Child and applies them to the Children's Hearings system. The need to comply with articles in the European Convention on Human Rights was also taken account of.
* see Glossary of Terms Page 96 for a more detailed explanation
Key principles underpinning decision-making
The Children (Scotland) Act 1995 requires courts and Children's Hearings to bear in mind the following central principles in reaching decisions:
- the welfare of the child is the paramount consideration in decisions being made by courts and Children's Hearings (unless members of the public need to be protected from serious harm)
- no court should make an order relating to a child, and no Children's Hearing should make a supervision requirement, unless the court or Hearing considers that to do so would be better for the child than making no order or supervision requirement at all (this is known as the 'no order principle')
- children should be given an opportunity to express a view and, if they do so, consideration should be given to the child's views - children of 12 or over are presumed to be sufficiently mature to be able to form a view.
The Fundamental Principles of the Children's Hearings System
The Children's Hearings system was, from its start, underpinned by principles set out in the Kilbrandon Report. These brought together the law, expertise in providing child care and informed lay judgment in order to reach decisions on what care was needed in the best interests of individual children. The key principles are that children who offend and children against whom offences are committed should normally be dealt with in the same system - however children who commit very serious offences may be dealt with by the courts.
- The system is based on a concern for the welfare of the child, not punishment.
- While the child's needs are normally the benchmark for intervention, this does not mean ignoring deeds, as to do so would not be in the child's best interests.
- The gatekeeper to the system, the Reporter, gathers evidence to support specified reasons for referral to Hearings, known as 'grounds for referral', and also applies the benchmark of the need for compulsory intervention.
- Hearings are conducted in private but are open to prescribed public scrutiny.
- Decisions in Hearings are made by trained lay people, panel members, who represent a cross-section of the community.
- Children and parents have the right to accept or deny the grounds for referral, and disputed facts are dealt with by a Sheriff in court.
- Hearings consider the 'whole' child, that is the child in the context of his or her life.
- The style and setting of Hearings is relatively informal to encourage full and frank discussion while legal procedures are observed.
- Hearings should attempt to engage the co-operation of families in resolving problems.
- Parents are usually the best people to bring up their own children and should be encouraged and enabled to do so whenever possible.
- Hearings must seek, listen to and take account of the views of children and their parents in reaching decisions.
- Compulsory measures should be beneficial, with decisions taken by Children's Hearings being in the best interests of the individual child.
- Compulsory measures encompass protection, treatment, guidance and control.
- Children should remain in their own community wherever possible and service provision should be integrated.
- Other rights, such as the right to appeal and to review compulsory measures, are built in to the system.
THE CHILDREN'S HEARINGS PROCESS
There are four key stages in the Children's Hearings process:
- the Referral
- the Investigation
- the Hearing
- the Outcomes.
1. The Referral
Something has to happen in the child/young person's life to start the process. For example:
- he/she may be the victim of a crime or may have offended, or both
- he/she may not have been going to school
- his/her welfare may be at risk or they may have suffered abuse or neglect.
Any person or agency that has concerns about a child/young person can refer him/her to the Reporter. Most referrals are made by police or social work departments. A child/young person can contact the Reporter themselves, although this happens rarely.
Fact: In 2003-04, 45,793 children were referred to the Reporter. This represents just over 4% of Scotland's children.
Reasons why children/young people are referred to the Reporter
The Reporter will be contacted about children/young people for a number of different reasons. These are known as the 'grounds for referral'. There are 13 prescribed grounds which may indicate that a child/young person is in need of compulsory measures of supervision.
a) The child is beyond the control of any relevant person.
A relevant person has the responsibility to appropriately control, direct or guide a child's upbringing. This ground may be used when a child/young person is behaving in such a way that he/she does not respond to reasonable parental actions, for example when a child is running away or continually staying out until the early hours of the morning without their parents' consent.
b) The child is falling into bad associations or is exposed to moral danger.
The essential concept here is of a child being coerced, led astray, or otherwise exposed by another person to such matters as drugs, drink or sexual behaviour. It may refer to a child under eight years old (the age of criminal responsibility) who is involved in offences and cannot be charged with them.
c) The child is likely:
(i) to suffer unnecessarily; or
(ii) be impaired seriously in his/her health or development due to a lack of parental care. Generally, this refers to poor parenting over a period of time which may be due a variety of reasons, for example alcohol or drug misuse or ill health on the part of the person who has parental care of the child. It may also refer to children living in filthy conditions or being fed insufficiently. Lack of parental care might also result from relevant persons' low intelligence and lack of parenting skills rather than intentional behaviour and could also cover a parent's severe personality or mental health problems. Whatever the cause of the suffering or the impairment, it must be likely to continue and materially harm the child in the future.
d) The child is a child in respect of whom any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1995 (offences against children to which special provisions apply) has been committed.
This relates to children against whom offences have been committed. These include not only sexual offences, but also wilful assault, ill-treatment, neglect, exposure or abandonment in a manner likely to cause injury or unnecessary suffering. For this ground to be established it is not necessary for the perpetrator to have been convicted in a criminal court; merely that the offence is established by the Reporter to the civil court standard on the balance of probabilities.
e) The child is, or is likely to become, a member of the same household as a child in respect of whom any of the offences referred to in paragraph
(d) above has been committed.
This ground offers equal protection to all the children in the household. If one child in the household is a victim of an offence, then all the other children in that household may be referred to a Children's Hearing. It can be used to protect a new-born child joining the household.
f) The child is, or is likely to become, a member of the same household as a person who has committed any of the offences referred to in paragraph
This can be used to protect any child, from birth onwards, who becomes (or may become) a member of the same household as a Schedule 1 Offender.
g) The child is, or is likely to become, a member of the same household as a person in respect of whom an offence under sections 2A to 2C of the Sexual Offences (Scotland) Act 1976 (incest and intercourse with a child by step-parent or person in position of trust) has been committed by a member of that household.
This protects both boys and girls growing up in a household where someone has committed a particular sexual offence.
h) The child has failed to attend school regularly without reasonable excuse.
The child must be of school age. Reasonable excuses are defined in section 42 of the Education (Scotland) Act 1980 and refer to difficulties with travel arrangements, health problems or special circumstances acceptable to the education authority or a court. Exclusion due to a child's disruptive behaviour does not necessarily constitute a reasonable excuse for not attending school.
i) The child has committed an offence.
This ground applies only to children who are above the age of criminal responsibility (eight years old) who have committed offences. The Lord Advocate may decide that a child who has committed a very serious offence will be prosecuted in court, in the public interest. The Lord Advocate's Direction to Chief Constables details when a child must be jointly reported to the Procurator Fiscal and the Reporter. There is normally discussion between these officials prior to a decision being taken by the Procurator Fiscal.
j) The child has misused alcohol or any drug, whether or not a controlled drug within the meaning of the Misuse of Drugs Act 1971.
This brings Scots law into line with Article 33 of the UN Convention on the Rights of the Child, which expects member states to take appropriate measures to protect children from the illicit use of drugs.
k) The child has misused a volatile substance by deliberately inhaling its vapour, other than for medicinal purposes.
This covers solvent abuse and glue sniffing.
l) The child is being provided with accommodation by a local authority under section 25, or is the subject of a parental responsibilities order obtained under section 86 of this Act and, in either case, his behaviour is such that special measures are necessary for his adequate supervision in his interest or the interest of others.
This relates to children who are being looked after by the local authority who repeatedly abscond or endanger themselves or others by their behaviour. This might lead to considering whether secure accommodation (being temporarily held in locked facilities for their own safety or the safety of others) is needed.
m) The child is a child to whom subsection (2a) of the Antisocial Behaviour etc (Scotland) Act 2004 applies.
This relates to children who are subject to an antisocial behaviour order or an interim antisocial behaviour order where the Sheriff Court refers the case to a Children's Hearing.
2. The Investigation
The Reporter investigates the child/young person's case by asking for information from different sources - for example social workers, police, schools, or health and
voluntary organisations. The Reporter has statutory discretion in deciding the next step. He/she evaluates the information, and his/her decision is based on the answers to the following key questions:
- Is there sufficient, relevant evidence to support grounds for referral?
- Are compulsory measures of supervision necessary?
The Reporter has three possible decisions:
1. Not to arrange a Hearing. The Reporter might do this if, for example, it is the first referral and the child's circumstances are not a cause for concern. He/she will inform the child/young person and their family of the decision. However, the Reporter may take some informal action, which may include, for example, issuing advice or referring the child for a police warning.
2. To refer the child/young person and family for voluntary support from the local authority.The Reporter is aware of the support that the local authority is able to provide that will help the child/young person and their family. The Reporter will also know that the child/young person and his/her family have agreed to work with the local authority.
3. To arrange a Children's Hearing. The Reporter will do this if he/she thinks that supervision by the local authority on a compulsory basis is needed to help the child/young person and their family. Supervision may involve guidance, treatment or measures to control behaviour. This is discussed further on Page 91 under "What is a Supervision Requirement?"
Once the Reporter has referred a child/young person to a Children's Hearing, the decision making passes to the panel members at the Hearing.
Fact: In 2003-04, Reporters decided that in just over 11% of children referred, a Hearing would take place. Alternative action was taken in the majority of the remaining cases.
3. The Hearing
A Children's Hearing is a lay tribunal of three members. It must not be wholly male or female and should have a balance of age and experience. The purpose of a Children's Hearing is to decide whether compulsory supervision is needed for the child/young person.
The style and setting of the Hearing is relatively informal, to encourage full and frank discussion of the issues while legal procedures are followed. Usually everyone sits around the same table. The Hearing takes place in private, and will usually last between 45 minutes and an hour.
People who attend the Children's Hearing
The key people at the Children's Hearing are the child/young person and his/her family, the Reporter, the three panel members (one will chair the Hearing), a social worker and perhaps, if the child is of school age, a teacher.
There are other people who may also attend the Hearing. The child/young person and his/her family may bring a representative, who may be a friend, a relative or a solicitor. Other professionals who have some expertise that might be useful to the Hearing, such as an educational psychologist or a health visitor, may also be there. If the Hearing has appointed a Safeguarder or a Legal Representative for the child/young person, he/she will also attend. See Page 93 'Key People in the Children's Hearings System' for more information about Safeguarders and Legal Representatives.
What happens at a Children's Hearing?
Before the Hearing the panel members will receive copies of any reports requested by the Reporter. A report on the child/young person and his/her social background will be prepared, usually by a social worker from the local authority, and where appropriate the child's school will also provide a report. Medical, psychological or psychiatric reports may also be requested. Relevant persons and, where appropriate, children over 12 are provided with copies of these reports at the same time as panel members.
The Hearing can consider cases only where the child/young person and relevant persons accept the grounds for referral stated by the Reporter, or where they accept them in part and the Hearing considers it proper to proceed. The chair of the Hearing will put the grounds for referral to the child/young person and relevant persons, who have the right to either accept or deny them. Where the grounds for referral are not accepted or the child does not understand them, the Hearing can either discharge the referral or refer the case to the Sheriff Court to decide whether the grounds are established. If the Sheriff is satisfied that any of these grounds are established, he will remit the case to the Reporter to arrange another Hearing. This Hearing will consider the case and make a decision.
The panel members discuss the circumstances of the child/young person fully with him or her, the relevant persons and any representatives, the social worker and the teacher, if present. The panel members will seek the child/young person's views about the situation and any proposals put forward by the professionals at the Hearing. As the Hearing is concerned with the bigger picture and the long-term well being of the child/young person, the decision it takes will be based on his/her best interests. The panel members will consider the options in the light of the discussions and decide whether compulsory measures of supervision are necessary.
Each panel member will give their decision and reasons in front of everyone present. The chair will then summarise the Hearing's decision and the reasons for it, and explain to the child/young person and other relevant persons their right to appeal against the decision.
Throughout the Hearing the Reporter ensures due process and will keep a record of the proceedings. He/she can also give advice to the panel members on procedural issues and on the range of options available to them. The Reporter does not present or argue the case or advocate a particular outcome.
After the Hearing
Once the child/young person and relevant persons have left the room, the chair of the Hearing will write the Hearing's decision and reasons for the decision. The Reporter will arrange for a copy of these to be sent to the child/young person and other relevant persons.
4. The Outcome
The Hearing has several decisions it can choose from. The most common decisions are:
1. to discharge the referral because the panel members feel that compulsory supervision is not needed
2. to continue (defer) the Hearing to a later date for more information to help them to make an informed decision
3. to impose a Supervision Requirement on a child/young person with any conditions that they think are necessary
4. if the grounds for referral are not accepted, or the child cannot understand due to their age or ability, to send the case to the Sheriff Court for the Sheriff to decide whether the grounds are established. If any or all grounds are established, the case comes back to a Hearing.
What is a Supervision Requirement?
The most common outcome of a Hearing is a Supervision Requirement. This is a plan of work, support and services to help the child/young person. What is in the plan depends on the reasons why the child/young person is at the Hearing. Each plan is designed to meet the individual's needs and includes such measures taken for his or her protection, guidance, treatment or control as are necessary to promote his or her welfare. It is the whole local authority which carries the responsibility for implementing the Supervision Requirement and not just one department. Social work and education are usually the two main services that will be involved.
The Supervision Requirement might include conditions about where the child/young person is to live, for example whether he/she needs to live with foster carers or stay at a residential school or in secure accommodation. Most children/young people on Supervision Requirements remain at home. It might also include conditions about whom the child/young person may or may not have contact with and when, or that he/she must attend a programme which focuses on his/her behaviour and works to improve it.
The Supervision Requirement will last for as long as it is needed but it must be reviewed within a year at another Children's Hearing. The child/young person and/or the family may ask the Reporter to arrange a Children's Hearing to review the decision after three months. The local authority can ask for the Supervision Requirement to be reviewed at any time following the Hearing. A Review Hearing might be requested because the child/young person's situation has either improved or deteriorated.
At a Review Hearing, the Supervision Requirement may be continued as it is, changed or terminated.
Any decision that a Hearing takes is legally binding on the child/young person.
If the child/young person and/or other relevant persons do not agree with the decision of the Children's Hearing, they can appeal to the Sheriff Court but must do so within 21 days of the Hearing. Once an appeal is lodged it must be heard within 28 days.
Fact: On 30 June 2003, 10,488 of Scotland's children were subject to a Supervision Requirement.Key People in the Children's Hearings System
A number of different people, both professionals and volunteers, are involved in the Children's Hearings system.
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 or at risk. 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 Reporter is the "gatekeeper" of the system as he/she will investigate referrals of children/young people who are in trouble or at risk, deciding which children/young people should attend a Children's Hearing. He/she also invites all the necessary people to the Hearing and sends copies of the reports to those people.
The Reporter attends the Hearing and will send the child/young person and his/her family a copy of the Hearing's decision and reasons for it. The Reporter can also give advice to the panel members on procedural issues or the range of options available to them if they ask for it. The Reporter does not present the case to the Hearing and does not advocate any particular outcome.
The Reporter has two roles in court. He/she will lead evidence in court where the grounds for referral are disputed or not understood. The Reporter will also go to court if the child/young person and/or the relevant persons appeal against the Hearing's decision. The Reporter will assist the Sheriff to reach a well-informed decision in the child's interests generally by promoting the Hearing's decision.
There are Children's Reporters in every local authority area of Scotland and they work closely with their professional colleagues in education, social work, health and the voluntary sector.
The children's panel members are extensively vetted and highly trained volunteers from the local community who come from a variety of backgrounds. There are about 2,500 children's panel members throughout Scotland. The recruitment and selection of children's panel members takes place annually.
The initial period of appointment of a children's panel member is normally three years but appointments can be renewed and there is no statutory maximum period of service.
Children's panel members receive no payment, but may claim allowances for travel expenses and subsistence from the local authority. They are entitled to take time off work for panel duties, and are excused jury service both during their period of service and for a period after their panel membership ends.
A Children's Hearing is made up of three children's panel members (at least one of whom must be male and one female). Their role is to make the decisions at the Children's Hearing that are in the child/young person's best interests.
A social worker will contact the Reporter about any children/young people that he/she is concerned about and provide a report to help the Reporter to decide whether there needs to be a Children's Hearing. The social worker will also provide a social background report for the panel members and attend the Hearing to discuss this. If the panel members decide that compulsory measures of supervision are necessary, they will impose a Supervision Requirement. This will entail the local authority preparing a plan of work, support and services to help the child/young person. Although the responsibility for implementing a Supervision Requirement is the duty of the local authority, the main responsibility normally rests with the social work department.
The education staff of the local authority may make referrals to the Reporter, particularly in cases of children/young people failing to attend school or where a teacher has concerns about their general welfare. If a child/young person who is to appear at a Hearing is of school age, then the Reporter usually asks for a school report. This contains information on the educational performance and behaviour of the child in school and a record of attendance. Where possible, a teacher will attend the Children's Hearing to discuss the report and highlight any concerns that they may have.
The Children's Hearing might appoint an independent person called a Safeguarder to look after the child/young person's interests in the proceedings. The Safeguarder, who is independent of all agencies, is selected from various backgrounds - legal, social work or education - and must produce an independent written report for the Hearing. 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. Sometimes the child/young person may disagree with what the Safeguarder says. Once the hearing has made its final disposal (decision), and the appeal period is over, the Safeguarder has no further contact with the child.
A representative may attend the case if the child/young person or relevant persons wish. There can be a different representative for the child and relevant persons. The child/young person and relevant persons must still go to the Hearing, but their representative can assist them in the discussion at the Hearing. The representative can be a friend or relative or even a solicitor. However, unlike a Legal Representative (see next page), the representative is not appointed by a Hearing.
A Legal Representative, who is a solicitor with experience in representing children and young people, might be appointed by a Hearing to help the child/young person to take part in the Hearing. Also, if the Hearing is discussing whether a child/young person should be sent to secure accommodation (be temporarily held in locked facilities, for their own safety or the safety of others), or the child/young person is already in secure accommodation, a Legal Representative will be appointed.
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 promote the child's rights in the proceedings. Once the Hearing has made a decision and the appeal process has expired, the role of the Legal Representative ends. The difference between a Legal Representative and a Safeguarder is that the former does not need to consider the child's best interests, merely represent the child/young person's views.
A Sheriff is a judge who sits at the Sheriff Court. There are Sheriff Courts in every part of Scotland. If a child/young person or the family think that the grounds for referral are not correct, the Sheriff will decide whether or not the grounds are established (true). The Sheriff will do this usually by hearing evidence from the Reporter and from the child and family. The Sheriff only decides on the facts; he/she never decides what should happen to the child because this is always done by a Children's Hearing. So if the Sheriff thinks that grounds for referral are established, he/she will ask the Reporter to arrange another Children's Hearing.
Children's panel members are appointed by Scottish Ministers. Recommendations on appointment are provided by the Children's Panel Advisory Committees ( CPACs), which comprise both members appointed by Scottish Ministers and members nominated by local authorities. The Scottish Executive runs an annual national
children's panel recruitment campaign, provides national training for children's panel and CPAC members, funds the Scottish Children's Reporter Administration and deals with all legislative and policy matters relating to the Children's Hearings system.
Glossary of key terms
Children's Hearing: a lay tribunal made up of three panel members from the local authority children's panel, at least one of whom must be male and one female. The child must normally attend, usually along with his/her family ('family' can include carers or anyone responsible for looking after the child) and relevant professionals. The child and parents may take a representative to help them. Discussions are confidential but decisions are made in front of all of those present.
Children's panel: a group of volunteers appointed by Scottish Ministers following extensive vetting and training. Each of Scotland's 32 local authorities has a children's panel, which represents a cross-section of the local community. The panel is the collective name for panel members, and each local authority must keep a list of who is on the panel.
Disposal: the main decision of the Hearing. The most common disposal is a Supervision Requirement, which means that the child/young person is a 'looked-after' child of the local authority. This means the local authority must safeguard and promote the child's welfare and make services available for the child/young person. A Supervision Requirement can have any condition attached that the Hearing thinks will help the child/young person.
Ground for referral: the legal reason why a child/young person is referred to a Hearing. The grounds are set out in law and cover the general areas of concern. For example, the child may have been abused physically or sexually, played truant from school, offended, been a victim of an offence or bullying, misused drugs or alcohol, or been outwith parental control. There can be more than one ground for a child.
Referral: how a child/young person is brought to the notice of the Children's Hearings system. The child/young person may be referred to the Children's Reporter by anyone, but it is usually by the police or a social worker. A child/young person may refer themselves.
Review: a Supervision Requirement must be reviewed within a year, but the Hearing can set an early date for the review and a social worker can ask for a review at any time. The child/young person and/or his/her family can ask for a review after three months from the date of the Hearing.
Secure accommodation: locked facilities approved by the Scottish Executive which will meet the social, educational and health needs of young people when their liberty needs to be restricted, either for their own or for public safety.
Supervision: measures taken by the local authority for the protection, guidance, treatment or control of children or young people.
Supervision Requirement: a plan of work, support and services to assist a child/young person. Made by a Children's Hearing, the Supervision Requirement must be implemented by the local authority where the child/young person lives.