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9. Role of Children'
s Hearing in Permanence Cases
Summary
9.1 The Group considered problems with the
current involvement of the children's hearing
1 system in permanence cases, in particular the
relationship with local authority planning and the
timing of the hearing's formal involvement.
9.2 The Group's major recommendations
are:
- there should be a formal requirement to
inform the hearing system of permanence planning by
the local authority at an earlier stage
(9.12)
- if a child has been looked after away from
home for a year the hearing should consider asking
local authorities about permanence planning at the
next review of the child's case (9.15)
- the provisions on providing advice from the
hearing to the court are reviewed in regard to who
has responsibility for each step, and to allow the
court to ask for updated advice from the hearing
(9.21)
- there should be nationally developed and
quality assured joint training and guidance
materials for key agencies, the hearing, social
work departments, safeguarders and others
(9.25)
- each hearing should, if possible, contain
one member from a previous hearing throughout the
progress through the system of a permanence case
(9.29)
Current law
9.3 The hearing has no power to make legal decisions
about the legal status of children. Its interventions,
through compulsory measures of supervision, are designed to
improve the current and prospective welfare of the child,
and the hearing must consider the child's welfare
throughout its life in making its decisions. Supervision
requirements need to be reviewed at least every year.
2 The hearing does not have a formal role in
long-term planning for a child, although good practice is
that at an early stage the local authority should provide
information about its long-term plans for the child, and
that the hearing should inquire about such planning.
9.4 Since the 1995 Act, the hearing does have a formal
role after a decision to apply for a freeing order,
adoption order, or Parental Responsibilities Order (
PRO) for a child on a supervision
requirement. The local authority must inform the principal
reporter of a decision to apply for one of these orders, or
to place the child for adoption. The principal reporter
will then arrange for a hearing to meet to review the
supervision requirement and prepare advice for the court.
The court must consider the advice of the hearing before
coming to a decision.
3
Problems with the current situation
9.5 The Group has heard evidence of dissatisfaction with
the current involvement of the hearing in permanence
proceedings. The formal need to involve the hearing is late
in the process, after a decision has been made to apply for
an order. The involvement of the hearing in long-term
planning prior to this point relies on good practice, and
may be patchy. The system has the potential to engender a
lack of trust between its various components. For example,
there might be a suspicion that some local authorities do
not expose to the hearing (and birth parents) their plans
to place a child for adoption until the freeing order has
actually been applied for and the adoption seems
inevitable. Similarly, the hearing can be suspected of
being reluctant to make difficult decisions about reducing
or terminating contact even after moves have started
towards freeing or adoption. Despite the anecdotal nature
of many of these criticisms, it is undeniable that the
current system could lead to many of these undesirable
situations, and it should therefore be improved.
9.6 Other problems identified with the current system
include:
- training of hearing members in the issues around
permanence;
- continuity of members of individual hearings and
consistency of decision making;
- the role of safeguarders in permanence cases;
and
- clarity and timeliness of communication between the
court and the hearing over advice.
Options for change
9.7 The Group considered a number of possible options
for changing the current system.
4 The most radical of these was to remove the
hearing system's current role in permanence, and leave
these matters solely with the Sheriff Court. Other
possibilities included:
- increased specialist training on permanence and
contact issues for all hearing members.
- developing a core of 'specialist' hearing members
so that one of them would form part of any hearing
dealing with a child for whom a local authority had
made a decision to seek permanence. There could be
peripatetic specialists.
- rules providing for definite continuity of hearing
members for any hearing dealing with a child for whom a
local authority has made a decision to seek
permanence.
Views from consultation
9.8 The consultation with young people explored their
experiences of the hearing system as well as their
experiences at court.
5 Of 78 young people who had attended a children's
hearing, 51 thought that they had been listened to and
their views taken into account. They expressed views about
the importance of being put at their ease by hearing
members and the difficulty that some young people find in
front of hearings, either because of the presence of birth
parents and other carers, or because of their experiences
with adults.
They took my opinion into consideration when I
expressed my concern about the level of contact with my
Mum. She wanted it increased and I did not. The panel
[hearing] listened to me and kept the contact the
same. (Young woman, 13 years)
I did not speak at the hearing because you always get
different panel members and I do not like talking about my
family to strangers. (Girl, 11 years)
…I found it hard with my birth and adoptive parents
because no matter what I said it was always going to hurt
one of them. (Girl, 12 years)
… for most of the folk that go to the children's panels
[hearing], a lot of their heads are messed up, and nobody
can make them understand… a lot of the time, I did not
trust adults, all the trust went away, I thought, 'No, you
are messing me about too much… (Young woman, 17
years)
One interesting comment was on times when hearings come
to conclusions that young people did not want at the time,
but later realise were in their best interests:
… sometimes they did not listen to me, but ... I wanted
things that was not best for me. …Now I realise and think,
they did want the best for me …I was wanting to go and stay
with my Mum. But my Mum was really messed up with drugs...
(but) I hated them for it. (Young woman, 17 years)
9.9 Of 22 young people who had attended court, 13
thought that they had been listened to, a lower proportion
than those attending a hearing but from a significantly
smaller sample. Again the approach and sincerity of the
court officials had been vital in their experience of
having their voices heard and engendering a security that
what they were saying was valued.
Recommendations for change
Improving the role of the hearing system in permanence
cases
9.10 The Group considered various options for improving
the current involvement of children's hearings in
permanence cases. The Group did not support the removal of
the hearing's formal role in permanence decisions. The
position before the 1995 Act was found to be unworkable,
as, in the absence of a formal role, difficulties developed
with adoption being mentioned in hearings, which
constrained unrealistically discussions in hearings that
were considering children unlikely to return home. The
Group therefore concluded that removing any formal role
would be a retrograde step and lead to a worse system. In
addition, the Group considered that the children's hearing
system is the specialist forum to consider the best
interests of children, and should have a role in permanence
decisions. Consultation with young people showed that they
generally felt hearings listened to their views. The
hearings system should therefore continue to have a role in
considering permanence plans for children. However, the
criticisms of the current system showed that the
status quo was not a desirable option either.
The Group recommends that the hearing system should
continue to be involved in permanence planning and decision
making for children, and this role should be
improved.
9.11 The Group considered that the current requirement
to involve the hearing formally in cases was too late in
this process. For the hearing to have full confidence in
the plan and for the local authority to benefit from the
hearing's advice, the permanence plan for a child should be
exposed at an earlier stage. To ensure consistency of
practice, there should be a formal trigger for this
process.
9.12
The Group recommends there should be a formal
requirement to inform the hearing system of permanence
planning by the local authority at an earlier
stage. This should ideally be when a looked after
child review has decided to proceed towards permanence, and
should, at the latest, be immediately after adoption or
permanence panel has made its recommendation. The Group
recognised that local authorities must be given time to
make decisions formally, and that informing a hearing
prematurely might not be helpful. However, sharing the
local authority's planning with the hearing as early as
possible avoids problems later.
9.13 The Group saw a number of advantages to earlier
discussion of permanence planning:
- the process could be made more open and transparent
for birth parents and also for hearing members.
- twin-tracking or concurrent planning could be
encouraged, in line with the recommendation of Phase I
of the review.
6
- the potential consequences of not complying with
any work in progress would be clear to birth
parents.
The overall effect should be that when the advice to the
sheriff is sought, the hearing is better informed about the
social work department's plans, and is able to make a
better informed recommendation to the court.
9.14 Procedurally, the requirement could be similar to
the current requirement for a local authority to inform the
principal reporter when a decision is taken to place a
child for adoption.
7 The hearing is being informed of the planning and
may offer its views but it should be emphasised that the
hearing is not being asked to approve or agree the local
authority plans, nor does the hearing have a veto on a
particular permanence plan within the authority, although
the local authority would be expected to take the hearing's
views into account.
9.15 The Group also believed that the hearing should
actively seek information about permanence planning for
children.
The Group recommends that, if a child has been
looked after away from home for a year, the hearing should
consider asking the local authority about permanence
planning at the next review of the child's
case.
9.16 It became clear in the Group's discussions and at
the conference held by the Group in November 2004, that
these recommendations represented current best practice
across Scotland. Implementation would put this best
practice on a formal and more consistent basis rather than
introduce a new hurdle or barrier to permanence
proceedings. The Group believes that this best practice has
the potential to reduce the total time taken on permanence
cases by increasing the hearing's knowledge of local
authority planning and transparency for birth parents, and
reducing the risk that there might be a disagreement,
requiring time to resolve later in the process. For the
children concerned this time could be critical.
Role of the adoption/permanence panel and the
court
9.17 The Group considered whether there was scope for
combining the roles of the hearing with that of the local
authority permanence or adoption panel. At the moment the
same case is considered by the panel, the hearing and the
court.
The Group recommends that the roles of both the
local authority adoption or permanence panel and the
children's hearing in permanence cases should be preserved
as they are valuable and distinctive. The panel
was an important part of rigorous local authority decision
making and the hearing provided a further level of
independent scrutiny of local authority internal decisions
through a community based forum for children's issues. In
matters as important as removing children permanently from
their families, it was vital to have a robust system that
examined each decision closely and openly, both to provide
justice for birth parents and confidence to the wider
public.
Communication between the adoption/permanence
panel and the hearing
9.18 The Group's work indicated that hearings
considering advice to a sheriff are not routinely made
aware of the preparatory work carried out by the local
authority in the looked after children review, and,
particularly, the discussion and conclusions of the
adoption panel. Indeed, it seemed that at least some
hearing members were unaware of the panel and its
function.
9.19 The Group recommends that reports from the
adoption/permanence panel to the hearing in considering
permanence cases should be improved and standardised. It
has devised a form to be used in presenting the proceedings
of the panel to the hearing.
8 The Group believes that better information about
the discussion at the panel will reassure hearings about
the consideration that has been given to a decision for
permanence.
Advice from the hearing to the court
9.20 The Group considered a number of issues around the
provision of advice from the hearing to the court. These
recommendations also apply to advice from hearings in
applications for the new Permanence Order.
9
9.21 Under the current provisions the local authorities
inform the principal reporter when a decision is made to
pursue adoption or freeing and the reporter then convenes a
hearing to provide advice to the court.
10 The court does not call for advice from the
hearing nor are there any explicit provisions allowing the
court to ask for further or updated advice.
The Group recommends that the provisions on
providing advice from the hearing to the court should be
reviewed in regard to who has responsibility for each step,
and to allow the court to ask for updated advice from the
hearing.
9.22 There have been difficulties over the need under
the statute for the hearing both to review the supervision
requirement and provide advice to the court.
11 The separate nature of the two tasks could lead
to confusion for the birth family and the hearing. This
might be resolved by having two separate hearings, or a two
part hearing. On the other hand the legislation made clear
that the review hearing was one process with two purposes:
to review the supervision requirement and provide advice to
the sheriff.
The Group recommends that the review and advice
hearing should remain one process but that better
information for all parties involved would address the
concerns that have been expressed.
9.23
The Group recommends that there should be a
standardised form for the hearing to provide advice to the
court. This should record clearly the hearing's
recommendation and the date of that advice.
12
National training
9.24 Permanence cases raise particularly difficult and
specialised issues for decision makers. There was
widespread acknowledgement that the training currently
given to hearing members in this field needed to be
improved. Hearing members do not need to become experts in
the all aspects of permanence - any more than they do in
other subjects with which they deal - but the training
should aim to equip hearing members to ask the right
questions that ensure the process is transparent and key
agencies are scrutinised effectively. Hearing members also
need to be clear about their own role in the process.
9.25
The Group recommends that there should be
nationally developed and quality assured joint training and
guidance material for key agencies: the hearing, social
work departments, safeguarders and others. Joint
training would enable social workers to identify what
information hearing members need to make an independent and
informed decision on behalf of the child in permanence
matters. This reinforces the principle of 'integrated' or
'collaborative' training, not simply joint training.
Hearing member attendance at the training should be
compulsory and it therefore needs to be nationally
implemented every two to three years.
Specialist hearing members and professional
advisers
9.26 The Group considered whether there should be
specialist hearing members or expert advisers to hearings
in permanence cases.
The Group did not support either of these
suggestions.
9.27 The Group concluded that the role of hearing
members was not to become specialists in particular fields
but to be properly informed and trained to scrutinize the
agencies' plans for the child. Specialism could lead to all
permanence cases being approached in the same way, rather
than the independent, community based scrutiny intended
from the hearing system. There would also be practical
issues in organising specialist hearing members either
locally or across Scotland.
9.28 Similarly, the Group believed that proper training
for hearing members and proper explanation of their plans
and reasons by local authorities was preferable to expert
advisers. Social workers should be able to explain the
process and the issues to parents and children; they should
therefore be able to make appropriate explanations to
hearing members.
Continuity of hearing members
9.29 Where permanence away from home is the plan for a
child, the case is likely to have some history within the
hearing system. In these circumstances it is desirable to
have some continuity in hearing members. This point also
came out of the consultation with young people.
The Group recommends that each hearing should, if
possible, contain one member from a previous hearing
throughout the progress through the system of a permanence
case. This is consistent with the Scottish
Executive's document
Best Practice for Panel Members agreed by all
partners and agencies, which recognises that continuity can
be appropriate. However, there are practical issues with
providing continuity of hearing members and the Group
recognises that it might not always be possible.
Review of the children's hearing
system
9.30 The Group is aware of the review of the hearing
system being carried out by the Scottish Executive. The
Group's emerging conclusions have also been fed into the
consultation process on the hearing review.
9.31 The Group's recommendations are consistent with the
outcome of the consultation on the first phase of the
hearings review. The first phase has shown general support
for the current children centred system with hearing
members recruited from local authorities. The consultation
also showed strong support for the current system of
general hearing members, and less support for specialist
hearings or hearing members.
9.32
The Group recommends that its recommendations on
the role of hearings in permanence cases should be taken
into account in the review of the hearing
system.
Prohibition on publication of proceedings at
children's hearings
9.33 The Group discussed the current prohibition on
publication of proceedings at children's hearings.
13 The section is intended to prevent publicity
about children's cases within the hearing system, but it
has given rise to long-running discussions as to whether it
also prohibits the publication of photographs of children
who are subject to supervision requirements and for whom
permanent carers or adopters are sought.
13 Adoption agencies in Scotland can be at a
disadvantage when trying to seek adopters for children as
agencies in England and Wales can use photographs. If
websites are introduced to find permanent carers, this
problem will increase.
9.34 Consultation responses indicated that clarification
would be welcomed, along with some provision allowing the
use of photographs, with or without parental consent.
9.35
The Group recommends that legislation should allow
publication of details about children by local authorities
and adoption agencies in planning for permanence.
The Group believed that parental consent should not be
required to use photographs for such purposes.
Recommendations of Chapter 9 - role of the children's hearing system in permanence
cases
62. The hearing system should continue to be
involved in permanence planning and decision making for
children, and this role should be improved.
(9.10)
63. There should be a formal requirement to
inform the hearing system of permanence planning by the
local authority at an earlier stage. (9.12)
64. If a child has been looked after away from
home for a year, the hearing should consider asking the
local authority about permanence planning at the next
review of the child's case. (9.15)
65. The roles of both the local authority
adoption or permanence panel and the children's hearing
in permanence cases should be preserved as they are
valuable and distinctive. (9.17)
66. Reports from the adoption/permanence panel
to the hearing in considering permanence cases should
be improved and standardised. (9.19)
67. The provisions on providing advice from the
hearing to the court should be reviewed in regard to
who has responsibility for each step, and to allow the
court to ask for updated advice from the hearing.
(9.21)
68. The review and advice hearing should remain
one process but that better information for all parties
involved would address the concerns that have been
expressed. (9.22)
69. There should be a standardised form for the
hearing to provide advice to the court. (9.23)
70. There should be nationally developed and
quality assured joint training and guidance materials
for key agencies, the hearing, social work departments,
safeguarders and others. (9.25)
71. Each hearing should, if possible, contain
one member from a previous hearing throughout the
progress through the system of a permanence case.
(9.29)
72. These recommendations on the role of
hearings in permanence cases should be taken into
account in the review of the hearing system.
(9.32)
73. Legislation should allow publication of
details about children by local authorities and
adoption agencies in planning for permanence.
(9.35)
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