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Chapter Four: Making Children's Hearings work

4.1 This chapter reviews the findings of the consultation exercise in relation to ensuring that the most effective means of intervention is used in all circumstances and that a referral to a Children's Hearing is reserved for those children who have significant needs and for whom compulsion is likely to be necessary. In particular it looks at:

• Grounds for referral to the Children's Hearing system.
• Action Plans and implementation.
• The frequency and timing of Children's Hearings.
• Adaptations to the procedures of the Hearings system.

Grounds for referral to the Children's Hearings system

4.2 The consultation paper proposed a number of changes in relation to referrals to Children's Hearings. The specific proposal were:

• Proposal 7 Referral to the Children's Hearings system should meet two tests - significant need and compulsion.
• Proposal 8 Indicators of significant need to include a pattern of behaviour which gives rise to concern.
• Proposal 17 Procedures to streamline the establishments of grounds for referral where the child is too young, not sufficiently mature or not able to understand the grounds.

Proposal Seven: Referral to the Children's Hearings system should meet significant need and compulsion tests

4.3 The consultation paper stated that agencies should reserve referral to Children's Hearings for those children with significant need and for whom compulsion is likely to be necessary. This was supported by research evidence that suggests that formal measures put in place to tackle low-level risk offending or low-level concerns about children's welfare can sometimes be counter productive.

4.4 Almost two-thirds of respondents (66%) supported the proposal, compared to 12.8% who did not. A further 21% of respondents neither agreed nor disagreed. Of those respondents who answered the second part of the question, 67% agreed that the proposal would meet the stated objectives.

4.5 Almost 40% of respondents offered suggestions as to further or different measures that might be required. The main suggestions and comments made by respondents are described in detail below.

4.6 The participants in the focus groups for children and young people organised by Children in Scotland agreed that children and young people should only go to a Hearing if there was a very serious problem either with their behaviour or with their family. However, there was a strong consensus that the definition of a serious problem would be dependent on each individual child or young person and their specific circumstances.

4.7 The most frequently cited reasons for agreeing with the proposal were that it would ensure that those children most in need would be prioritised and that the Hearing system should be a last resort. Local Authorities and Social Work Departments were clearest in their support for the proposal, commenting that this proposal reinforced the principle of minimum intervention as well as ensuring that scarce resources would be used effectively.

4.8 Angus Council was typical in their response, suggesting that this proposal would offer the possibility of more focused and targeted use of the Children's Hearings System. Other organisations argued that the emphasis on significant need and the need for compulsion would emphasise a proportional intervention and getting children and young people into services and not processes.

4.9 CPACs, Panels and individual Panel Members were most likely to suggest that the proposal describes the system as it currently operates, some stating that this is "close to current practice" or "this is how the system should operate".

4.10 Those respondents who disagreed with the proposal did so for three main reasons. In the first instance there was a concern that Hearings might in the future only deal with compulsion and would therefore be concerned only with discipline and coercion rather than the welfare and protection of children and young people. One CPAC commented that:

"… the Hearing would become a forum of last resort, possibly resulting in a one-sided perspective of the Hearings system."

4.11 The second most frequently cited reason was that by stipulating that referral should have to meet the two tests of significant need and compulsion, the threshold for access to the system was being set too high. As a consequence, particular concerns were raised by voluntary organisations working with children, CPACs and Panels that children failing to meet the criteria would fall outside the system and fail to access services.

4.12 The third main reason given for disagreeing with the proposal is that it potentially pre-empts a Hearing's decision. CPACs, Panels, Panel Members and organisations working directly with children argued that only Hearings should decide on whether compulsion is necessary. One CPAC commented that: "this is the job and responsibility of the Children's Hearing" while, Save the Children, for example, argued that compulsion should only be decided by the Panel and Children 1st stated that "compulsion is a disposal and not grounds for a referral".

4.13 Concerns were expressed by all respondent groups that the indicators of need should be clear and give robust guidance on definitions and situations that would trigger a referral to the Children's Hearing. For example, South Lanarkshire Council argue that there is a need to clarify what is meant by 'significant need' and argues that:

"While risks and need overlap they are different concepts and changing the wording is not going to resolve this."

4.14 Panel Members and CPACs in particular were concerned that without clear guidance there would be too much variation across the country. One Panel stated that "significant is not quantifiable" while another suggested that:

"… greater definition is required around what can be deemed 'significant' and at what stage does this indicate the need for compulsion to be considered."

4.15 A minority of respondents made suggestions about further or different measures required. These included:

• Ensuring that the needs of children with lower level needs were addressed by other agencies. For example, diverting children to a restorative justice scheme.
• Making greater use of family group meetings and mediation to divert people away from the Hearings system.
• Ensuring that where agencies are not able to agree whether or not the child meets the criteria that they are referred back to the Panel.

Proposal Eight: Pattern of behaviour as an indicator of significant need

4.16 Under current legislation a specific incident or risk to the child may trigger a referral to the Reporter. However, where a pattern of behaviour causes concern and the individual incident on its own does not merit referral, the underlying need may not be addressed. The consultation paper proposed rewriting the grounds for referral to the Reporter so that significant need will be defined by reference to a list of incidents as indicators of need. This would allow action to be taken over behaviour which may not be significant in itself, but as part of a pattern of behaviour gives rise to concern. This pattern of behaviour may indicate a need for compulsory measures of supervision.

4.17 A significant majority of respondents (79%) supported this proposal. A similar proportion of respondents thought that the proposed action would meet the stated objectives. A small minority of respondents (17%) suggested further or different measures are required to meet the stated objectives.

4.18 Support for the proposal was widespread across individual Panel Members, CPACs, Local Authorities and organisations working directly with children. Respondents welcome the move away from incidents to behaviour as an effective way of meeting the needs of the child before a serious incident or offence takes place. The Scottish Association of Children's Panels, for example, suggests that the proposed changes offer the opportunity for early intervention. Local Authorities in particular welcome the emphasis on patterns of behaviour when assessing a child's needs.

4.19 Those respondents who disagreed with the proposal did so because they were concerned that waiting for a pattern of behaviour to emerge may hinder early and more appropriate intervention. For example one Panel Member commented that:

"a … single incident may be an indication of need ... so, in effect, may be grounds for referral."

4.20 A substantial number of respondents suggest that there is a need for further clarification of the key terms contained in the proposal and the mechanisms for collecting information on patterns of behaviour. Respondents, such as NCH, ACPOS and Children 1st, suggest that there is a need for clearer definitions of what constitutes a 'pattern of behaviour' and guidance on who would monitor patterns of behaviour.

4.21 Local Authorities and professionals involved in the Children's Hearings system identified the need for agencies not only to keep robust records but also to share this information. According to the Association of Directors of Social Work ( ADSW) the key challenge associated with accepting this proposal will be:

"… improved information sharing between and across services and agencies would identify at the earliest opportunity the existence of significant need or issues that over time constitute a concerning pattern of behaviour."

4.22 Other respondents suggested that agencies will have to develop good links and recording system and particular reference was made to a 'Vulnerability Procedures' tool currently used by Glasgow City Council to help identify levels of vulnerability.

Proposal Seventeen: Procedures to streamline the establishment of grounds for referral

4.23 The consultation paper states that procedures will be introduced to streamline the establishment of grounds for referral where the child is too young, not sufficiently mature or not able to understand the grounds, but the parents accept them.

4.24 The vast majority of respondents (86%) were in favour of the proposal, in comparison with only 5% who disagreed and 9% who neither agreed not disagreed.

4.25 A similarity high proportion of respondents (86%) thought that the proposed action would meet the stated objectives, however, a quarter of respondents made suggestions about further or different measures that might be required.

4.26 There was widespread agreement across all groups of respondents that anything that expedites procedures for children is to be welcomed and that the current system subjects children and families to unnecessary delays. One CPAC commented:

"Parents of young children too often come to the Hearing all ready to get together with the Panel and put things right. Then the Hearing says: 'Sorry, it's got to go to the Sheriff for proof'. That is a let down. Justice delayed is justice denied."

4.27 However, there was a similar widespread concern that these changes should not compromise the rights of the child.

4.28 Local Authorities and national and voluntary organisations working with, or representing, children all stressed the importance of the use of advocates and Safeguarders to protect the interests of the child. Children 1st, for example, stated that there must not be:

"... any less accountability in law, and it must be the case that all grounds and the evidence to support them are able to be tested properly in court."

4.29 Those people and organisations with direct involvement with the Hearing system want to maintain the option of referring to the Sheriff. SCRA were happy with the proposal to streamline the system but still want the grounds to be referred to the Sheriff for independent consideration but within tighter timescales than exist currently.

Action plans and implementation

4.30 The consultation paper made a number of recommendations in relation to the implementation of actions and Action Plans. Specifically, these were:

• Proposal 9: Responsibility to implement any Action Plan agreed at a Hearing.
• Proposal 10: Power of the Reporter to refer cases to agencies to act on the Action Plan and to seek reports on progress and reviews as necessary.
• Proposal 11: Ability of a Hearing to make an interim supervision requirement.
• Proposal 15: Children's Hearings need to be satisfied that Action Plans are realistic and likely to be effective and that all available measures to control behaviour have been considered.

Proposal Nine: Responsibility to implement any action plan agreed at a Hearing

4.31 The consultation document states that any supervision requirement will be based on the action plan agreed for the child and that the action plan will set out the needs, the action required to address these needs, who is going to make sure action is taken and the key milestones.

4.32 It also stated that action plan should set out contingency measures and that the Children's Hearing will have the power to amend the action plan and set the review date, based on expected milestones. Any agency identified in a supervision requirement as being responsible for action will be accountable for making sure that action is taken.

4.33 Over 80% of all respondents agreed with this proposal with only 7% in clear disagreement. A third of respondents made suggestions for further or additional action required.

4.34 The vast majority of respondents expressed support for the proposal in terms of its potential role in addressing a perceived weakness in the Hearing system, namely that agencies not doing what has been specified by the Panel. The strongest support for this proposal came from individual Panel Members who felt that they were at present 'toothless' in the face of local authority inaction. There was also support for this proposal from Panels, summed up by one Panel which stated that:

"… recommendations made by Hearings should be implemented and all conditions only amended by a Hearing …"

4.35 Other respondents who supported the proposal did so because they thought that since agencies had assisted in the development of action plans it was right that they should adhere to them. However, a significant number of respondents in support of the proposal voiced concerns about its implications. Their concerns can be summarised as follows:

• That there should be some flexibility in terms of local authorities and social work departments having emergency powers to amend supervision orders if required.
• That Panel Members may make decisions that have serious resource implications for local authorities that they are unable to meet.

There was a strong sense from individual respondents, Local Authorities, social work departments and other agencies that the success or failure of action plans depends fundamentally on the availability of resources rather than on any unwillingness of the part of agencies to implement the decisions of the Hearing. As one typical response stated "actions happen where resources are available". There was also some acknowledgement on the part of Panels and CPACs that actions are largely determined by the resources available. A typical response from one CPAC argued that:

"Where Social Work Department are not implementing supervision requirements, this is not a thing that they are doing wilfully. Rather this reflects that some Social Work Departments are simply struggling to cope with the associated resource implications."

4.36 A number of individual respondents and organisations sought clarification on the formal mechanisms for monitoring compliance by agencies and the process for feeding back on actions taken.

4.37 Local Authorities were most likely to disagree with the proposal. Concerns were expressed about Panel Members making decisions without any regard to budgets or how spend in one area might impact on services available to others. COSLA expressed concern over the implications of the proposal, namely that external agencies would become accountable to the Hearing for their actions. According to COSLA this might mean that:

"… the role of the Chief Social Work Office is being undermined … as well as the council's accountability for the services they deliver and how they deploy their resources …"

4.38 Where alternative or additional measures were suggested, they tended to centre on providing additional support and training to Panel Members to help inform the decisions taken. Suggestions included ensuring that the Panel seeks the advice of relevant professionals on all available options before making their final decision.

Proposal Ten: Power of the Reporter to refer cases to agencies to act on the action plan and to seek reports on progress and reviews

4.39 The consultation paper proposed that the Children's Reporter should decide if a Children's Hearing is held or not. If a child's needs are not seen to be significant or compulsion is not required the proposal specifies that it will be for agencies other than the Reporter or the Hearing to take forward an action plan.

4.40 The majority of respondents (71%) agreed with the proposal compared to 13% who were in clear disagreement. A similar proportion of respondents said they felt the proposal would meet the stated objectives but almost 30% of respondents suggested further or different measures that they felt were required.

4.41 Supporters of the proposal suggest that it will be a way of ensuring that all children, not just those with significant needs or requiring compulsion, will be able to access the services they require. Individual Panel Members, Panels and CPACs were strongest in their support of the proposal, arguing that it will strengthen the existing system and ensure that children are not overlooked. For example, one Panel commented that it is "… vital that the child does not get lost in the system or enter it too late." while one CPAC welcomed the proposal as it "will give the Reporter some key leverage with regard to other agencies".

4.42 Support was also evident amongst national and voluntary organisations, especially those working with or for children. Children 1st for example, suggested that this would be a way to "compel services to act" and Quarriers echoed the thoughts of the Panels, seeing this as a means of accessing services and support.

4.43 Panel Members also indicated that this would be a way to ensure that only the most serious cases come to Hearings and that by raising the threshold this proposal would "add weight" to the role of Hearings.

4.44 Opposition to the proposal was strongest amongst Local Authorities and council services. Their opposition to the proposal was founded on two main grounds:

• That Reporters would effectively be managing local government services if they were empowered to seek reports on progress and reviews. COSLA described this situation as "unacceptable to local government".
• That there is no necessity for the Reporter to take this role on. The ADSW argued that if the situation does not require compulsion, the Reporter has no locus. This view was repeated in the responses from a number of local authorities and individual social work and children and families departments. For example, both the City of Edinburgh Council's Children and Families Department and Angus Council suggested that without the need for compulsion the Reporter has no jurisdiction.

4.45 Concerns about the implications of this proposal went beyond local authorities and were shared by some voluntary and national organisations as well as CPACs and Panels. Uppermost in respondent's minds was the need for clarification of the proposed monitoring and review process and the powers of the Reporter. In its response, SCRA stated that:

"… if the Reporter retains a monitoring role without a clear enforcement process or powers, the monitoring role will have questionable effect on outcomes."

4.46 One CPAC stated that clear guidance was required from SCRA about:

"… what circumstances those powers should be exercised so that there is consistency and no dubiety over a definition of 'necessary'."

4.47 Other respondents, such as West Lothian Council, were reluctant to comment, saying that they would need further clarification of the Reporters power to refer cases for action and receive progress reports. A number of Local Authorities expressed concern over who would monitor the actions of the Reporter and who would have ultimate power to make things happen.

4.48 More fundamental concerns were expressed by a minority of Panel Members, Panels and CPACs that the proposal could erode the function of Children's Hearings. One Panel Member argued that "the only way to say if an action plan has been met is within the Hearings setting". A number of Panels also suggested in their responses that if the proposal was implemented the Reporter could effectively become a "one-person Hearing" and in effect be perceived as acting as "judge and jury".

Proposal Eleven: Ability of a Hearing to make an interim supervision requirement

4.49 The consultation paper proposed that pending the implementation of the proposed integrated action plans, the Children's Hearings should have the power to make an interim supervision requirement to ensure that action is taken. This could occur at any point from the Hearings first meeting with the child until a final decision is taken in respect of the referral of that child.

4.50 A majority of respondents (78%) were in favour of this proposal, with only 12.5% against and 9.5% neither in agreement or disagreement. A similarly high proportion of respondents said they felt that the proposal would meet the stated objectives, however, about a quarter of respondents made suggestions for further or different measures which they felt were required.

4.51 There was strong support for this proposal because it was seen as a means of taking care of the child, pending further information and the production of a full action plan. CPACs, individual Panel Members and Panels were overwhelmingly in favour of the proposal. As one respondent commented it would "… prevent a child drifting without support until a final decision is made …". One CPAC describing it as "an excellent idea and long overdue". One Panel welcomed the proposal and argued that this proposal would offer protection for vulnerable children.

4.52 Support for the proposal also came from local authorities, national and voluntary organisations. Aberdeen City Council's Children and Families Department and Renfrew Council were in favour of the proposal because it has the potential to protect vulnerable children and COSLA commented that "if it speeds up the process then it is to be commended".

4.53 However, more cautious support was offered from others. Barnardo's, for example, suggest that interim supervision requirements should be the exception rather than the rule and that an action plan should be in place prior to a Hearing that this should form the basis on any decision for the need (or not) for compulsion.

4.54 Opposition to the proposal was based on two points of principle. First, in such situations it is unlikely that there would sufficient information or adequate reports to make an interim supervision order. A significant minority of Panels and CPACs were concerned that decision might be made before all the facts were available and that it would be better to get the grounds for referral through the courts faster than make, what might turn out to be, a poor decision. One CPAC suggested that this proposal:

"… could lead to prejudging a child's circumstances prior to adequate information being made available to the Panel …".

4.55 The Scottish Association of Children's Panels argued strongly that:

"… if there is not enough evidence to make a substantive decision, how can we impose compulsory measures even temporarily?".

4.56 The second main reason for opposition to the proposal came from voluntary organisations working for or with children and local authorities departments with direct responsibility for children. Many of these respondents were concerned that this proposal was contrary to due legal process and could result in failure to provide the right to a fair Hearing. For example, Aberdeen Council Children and Families Department argued that a child has:

"… a right to have evidence of offending established in court prior to any decision being made ...".

Stirling Social Work Department stated that this proposal:

"… suggests a notion of guilt event before grounds can be established …".

The SCRA and the Scottish Legal Aid Board represent the views of many other national organisations by expressing the opinion that any decision made must be subject to review and legal challenge.

4.57 A number of respondents asked for further clarification about the criteria for making interim supervision requirements. Glasgow City Council and Fife Council, for example, wanted to be reassured that supervision requirements would be time limited and reviewed at regular intervals. A number of respondents were not convinced that the new measures were required and felt that the current system was adequate. The SCRA, for example, was unsure whether this system would replace the current system of warrants.

Proposal Fifteen: Children's Hearings need to be satisfied that action plans are realistic, likely to be effective and that all available measures to control behaviour have been considered

4.58 The consultation paper proposed to strengthen the Hearing system by ensuring that Hearings are satisfied that the action plans presented to them are realistic and likely to be effective and also by ensuring that the full range of available measures to control behaviour have been considered.

4.59 A considerable majority of respondents (82%), were in agreement with this proposal, with only 9% opposed and 9% neither agreeing nor disagreeing. Almost one in five respondents offered alternative or further measures that they felt would help achieve the objectives outlined in the consultation paper.

4.60 A wide cross-section of respondents were in favour of this proposal, including local authorities, CPACs, Panels and individual Panel Members. The main reason for support of the proposal was a strong belief that it would be in the best interests of the child and build upon the current system, which to a certain extent already fulfils this function.

4.61 Respondents supporting the proposal recognised the need for additional support and training for Panel Members to inform them about the full range of measures to control behaviour as well as to ensure that that they have the necessary skills to fully scrutinise action plans.

4.62 Local authorities and voluntary organisations working with or for children were the most likely to oppose the proposal or have considerable reservations. Their main concern is that the proposal places too much emphasis on children with offending behaviour and on punitive measures of intervention. NCH and Barnardo's both suggested that the proposal represents an attempt to balance controlling and punishing with care and that the use of control should "be the exception rather than the rule".

4.63 COSLA suggested that this proposal would alter the ethos of the Hearing system which should be about early intervention and measures to change behaviour. These views were echoed by a range of local authorities, including Clackmannanshire Council which suggested that the proposal "imports aspects of the adult criminal justice approach into childcare" and by Angus Council which argued that Hearings would be required to "consider a controlling agenda".

4.64 A minority of CPACs agreed with local authorities and voluntary organisations that too much emphasis was being placed on measures of control when most cases appearing before the Hearings were concerned with care and protection. A number of respondents such as the Scottish Child Law Centre argued that the issue is "not just about available measures of control but rather support".

4.65 One CPAC commented that:

"… we strongly disapprove of the implication that action plans are about controlling behaviour rather than addressing the needs of the child …".

A number of respondents such as the Scottish Child Law Centre argued that the issue is "not just about available measures of control but rather support".

The frequency and timing of Children's Hearings

4.66 The consultation paper made two specific proposals to consider the frequency and timing of Hearings, these were:

• Proposal 12: The frequency of Review Hearings can be determined according to the child's needs and the 'persistence' of the child's behaviour or needs.
• Proposal 13: Children whose behaviour or attendance at school is a cause for concern, should not be taken out of school to attend Children's Hearings.

There should be greater flexibility in the timing of Children's Hearings to meet the needs of children and families.

Proposal Twelve: The frequency of Hearings

4.67 A majority of respondents (80%) supported the proposal, with only 8% disagreeing. A quarter of all respondents suggested further or different measures that they felt would help achieve the objectives outlined in the consultation paper.

4.68 Supporters indicated that the proposal reflects current good practice and that frequency of Review Hearings should indeed be determined by need. Panels and individual Panel Members suggested that the persistence test should help strengthen the review system and to ensure that more cases come back for review and not just those where there has been a serious incident.

4.69 A number of reservations were expressed about how the system would work in practice and these can be summarised as follows:

• Who defines persistence? Both the SCRA and Barnardo's suggested that the criteria requires further clarification.
• There is already the opportunity for the Reporter, the child, the parents and social work to call for a review, so is this proposal actually necessary?
• The proposal would put additional pressure on the existing Hearing system and, clog up the system with persistent offenders.

4.70 Opposition to the proposal was based on the perception that increasing the number of reviews will not alter behaviour and that the Hearing system will become a series of potentially punitive reviews. According to West Dunbartonshire Council there is a danger of the system:

"... being used as a threat against young people, rather than a good planning tool …".

4.71 SCRA makes the point that sufficient time needs to be left in between reviews for service interventions and support to have an impact and for the underlying causes of poor behaviour to be addressed.

4.72 All of the children and young people that participated in the events facilitated by Children in Scotland said that they felt that Hearings should happen more frequently if children and young people keep getting into trouble or need more help. The general reason given for this was that it would help make decisions that would improve the situation.

4.73 Overall there was a sense amongst many respondents that what is important is effective engagement with children and their carers rather than the frequency at which reviews take place.

Proposal Thirteen: Timing of Hearings

4.74 An overwhelming majority of respondents were in favour of this proposal (82%) as opposed to 9% who were against and a further 9% who were neither in clear agreement or disagreement.

4.75 The children and young people who participated in the Children in Scotland consultation events had mixed feelings about the timing of Hearings. Some felt that they should be held during school hours as it would give them an opportunity to miss lessons. However, others wanted Hearings to have Hearings held outwith school hours as it would increase their privacy and they would not have to tell their friends where they have been.

4.76 There were two main reasons why respondents supported this proposal. In the first instance, a wide cross-section of respondents suggested that the proposal emphasised the importance of attendance at school. Such views were strongly expressed by organisations working with or for children, such as Save the Children and Children in Scotland. Youthlink argued that "missing school gives out the wrong message". The views of many Panel Members were expressed by one who commented that:

"… removing a child from school could have the effect of reinforcing their attitude of the unimportance of school …".

4.77 A number of local authorities, including Renfrewshire and East Ayrshire Councils thought the principle should be extended to all children and not just those with poor attendance records.

4.78 There were mixed responses from Panels and CPACs, some of whom took the view that it is reasonable for parents and children to be asked to attend a formal meeting at a time that is convenient to the Panel, while others argued a child or young person "loses nothing by missing half a day".

4.79 The minority of respondents who disagreed with the proposal did so because they believed that the children targeted by this proposal were less likely to be in school and, therefore, taking them out of school was simply not an issue.

4.80 Supporters of the proposal along with those who had some reservations recognised the need to be flexible with regard to the timing of Hearings. The City of Edinburgh Council, for example, suggested that if there was cause for concern and significant need then "an hour or two out of the school week is not inappropriate".

4.81 Panel Members, Panels and representatives of professional organisations were the most likely to raise some issues of a practical nature regarding the implementation of the proposal. The Professional Association of Teachers supported the proposal but stated that there would be a problem in releasing staff to attend a Hearing during the day.

4.82 Panel Members were particularly concerned with the difficulties of getting teachers and social workers to attend out-of-hours services. They also suggested that evening and weekend Hearings would present difficulties for Panel Members themselves.

4.83 A number of suggestions were made about how to address these problems outlined above. These included:

• Operating a 'duty officer' system amongst teaching staff and social work staff to ensure attendance at Hearings.
• Compensating professional for attending out-of-hours meetings.
• Reviewing the contracts and terms and conditions of all agencies servicing the Hearing to ensure attendance.

Adapting procedures

4.84 The consultation document made two recommendations for adapting procedures:

• Proposal 14: Ability of Children's Hearing to adapt its procedures.
• Proposal 18: Greater continuity of Panel Members from one Children's Hearing to another.

Proposal Fourteen: Ability of Children's Hearing to adapt its procedures

4.85 A majority of respondents disagree with the proposal (51%) with just 40% in agreement.

4.86 Supporters of the proposal welcome anything that empowers the Hearing to bring about change for the child. A number of individual Panel Members commented that that it is good to have a range of options when dealing with a child.

4.87 Opposition to the proposal is strongest amongst those working for children or with direct involvement in the Hearing system. Respondents did not oppose the notion of children accepting responsibility for their actions or even having to explain their behaviour. Panel Members, Panels and CPACs all suggest that this is what happens at present. The opposition to this proposal stems principally from the suggestion that community representatives and victims might be invited to sit in on the Hearing.

4.88 Opposition amongst Panels and CPACs is based on two main concerns. In the first instance, there is confusion about who would represent 'the community', with many respondents arguing that the community is already represented by Panel Members. Secondly, Panels and CPACs believe that introducing victims and others into the process would fundamentally change the Hearings system. According to one CPAC there would be a "shift in the focus of the system from the child to the victim", while another commented that "the child may end up being a victim themselves".

4.89 Many respondents argue that the Hearing is not the appropriate forum for work with the community or victims. Those organisations specialising in restorative justice and victim support ( SACRO and Victim Support Scotland) argue that such work needs to be carried out as part of an independent service and subject to appropriate safeguards and supports. Local authorities, voluntary and national organisations were all strongly of the view that a Hearing is not an appropriate forum for this type of work. East Lothian Council, for example, states that therapeutic and restorative justice work "can and should take place outside the Hearing". South Lanarkshire Council expressed similar concerns in its submission and argue that the proposal is:

"… potentially confusing restorative justice and intervention with the decision making part of a Hearing. This will not address victim issues and apart from anything else, young people who offend are often, or have been, victims themselves."

4.90 Other respondents suggest that the presence of community representatives and victims is not in the best interests of the child as it could lead to confrontation and a potential breach of confidentiality. The Scottish Association of Children's Panels echoes the thoughts of others when it says that the number of people "should be kept to a minimum".

4.91 Local authorities and those agencies working with or for children expressed concern that this proposal seems to apply principally to children who have offended rather than those in need of care and protection. Glasgow City Council for example argue that the proposed changes could be viewed as "punitive rather than helpful".

4.92 Opponents of the proposal describe it as "poor and confusing" and this appears to be reflected in the fact that the opposition to the proposal focuses almost exclusively on the suggestions relating to the presence of community representatives and victims.

4.93 Respondents gave consideration to a range of alternatives to the participation of community representatives and victims at a Hearing. These included Panels referring children to a restorative justice scheme and having written reports from victims or community representatives available to Panel Members.

4.94 A large majority of the children and young people who participated in the focus groups facilitated by Children in Scotland felt that whilst it may be beneficial for children and young people to explain their actions to the victims of their behaviour, it should not be part of the formal Hearing process. The participants felt that if this proposal were adopted it would act to further distress the child or young person and make the experience of attending a Hearing even more "daunting". As one young person stated:

"It's private, it's about you and not someone else ... it's meant to be about you moving on and making decisions about the future."

Proposal Eighteen: Greater continuity of Panel Members from one Children's Hearing to another

4.95 The consultation paper suggests that it would be beneficial if there was some continuity of Panel Members from one Children's Hearing to another.

4.96 A majority of respondents (71%) were in favour of this proposal, compared to 21% who were opposed. A further 8% neither agreed or disagreed with the proposal.

4.97 Support for this proposal suggests that respondents perceive that there would be clear benefits in achieving some continuity of Panel Members from one Hearing to another. Individual Panel Members suggest that children will benefit from "seeing a familiar face" and that Panel Members will benefit from a "deeper understanding of the family or child's situation".

4.98 There is broad support for the proposal from local authorities and organisations working with and for children. Children in Scotland, for instance, believe that this measure will improve "consistency and insight into the needs of the child", while Barnardo's state that it could lead to "better informed decisions".

4.99 Supporters and those with reservations about the proposal also acknowledge that the proposal will be difficult to achieve in practice, given that Panel Members are volunteers. A number of respondents are also keen to protect the interests of the child and that there should be the opportunity for children and their families to object to continuing presence of Panel Members if they feel it is adversely affecting their case.

4.100 Concerns about the proposal principally came from CPACs, Panels and Panel Members who believe that it will be difficult to achieve in practice, with Panel commenting that it would "… be impossible to administer …". Concerns were also expressed about Members becoming too involved in cases and Panels warned that care should be taken to avoid ownership of particular cases. CPACs and Panels were also clear that there are certain advantages to having new members of the Panel. One CPAC commented that achieving continuity should not be.

"… at the expense of ensuring that some 'new minds' are available that might possibly resolve issues that defeated a previous Hearing …"

4.101 The children and young people who participated in the consultation events organised by Children in Scotland said that they could feel intimidated by Panel Members. They felt that the proposal to have greater continuity of Panel Members from one Children's Hearing to another would help make young people feel more confident and comfortable when taking part in a Hearing. One participant with experience of being through the Hearing system said:

"If you were comfortable with the people on the Panel it would help you to give your views."

4.102 The children and young people said they felt that the situation could be improved by having:

• A friend with them at the Hearing.
• An opportunity to meet Panel Members before a Hearing.
• The same Panel Members at each Hearing.

Key Findings

• There is strong support for a more focussed and targeted approach to referrals to Children's Hearings. There are, however, some concerns that the proposals would result in too much emphasis being placed on the offending at the expense of looking at the wider welfare of children and young people.
• Many respondents have asked for greater clarification about the definition and interpretation of key terms such as "significant need" and a "pattern of behaviour".
• A significant number of respondents have suggested that setting the threshold for referral to a Children's Hearing too high could result in some children or young people not receiving the support they require. Similarly a number of respondents voice concerns that waiting for a pattern of behaviour to be identified could mean that any intervention could come too late or make it more difficult to change behaviour.
• Some respondents note that establishing a pattern of behaviour rather than a single incident will require greater sharing of information between organisations and agencies and that significant barriers will need to be overcome to make this happen in practice.
• There are some concerns that care needs to be taken to ensure that any proposals to streamline the referral process do not undermine the rights of the child and do not impact on the need to maintain the principles of natural justice.
• Statutory organisations are concerned about the accountability for agreeing and implementing Action Plans and the potential resource implications of having such plans "imposed" upon them.
• A substantial number of respondents express some caution over the use of Interim Supervision Orders and are keen to ensure that such orders are not made without sufficient background information being made available to Panel Members.
• A large number of respondents have called for greater clarity about the use of the persistence test and expressed fears that overuse could result in an increased number of Hearings that would place considerable strain on the resources of both Panel Members and professionals that are expected to attend Hearings.
• A number of respondents have also raised concerns that convening Hearings too frequently could undermine attempts to provide support to children or young people as many interventions may take some time to prove their effectiveness in terms of changing behaviours.
• While there is considerable support for the principle of not having Hearings during school hours a large number of respondents have raised practical concerns particularly in relation to the availability of professionals to attend 'out-of-hours' Hearings.
• There is strong opposition to the suggestion that community representatives or victims should have a role to play in the formal Hearings proceedings.
• There is strong support for the principle of attempting to have more continuity of Panel Members between Hearings dealing with the same child or young person. However, it is also clear that there will be significant logistical barriers that will need to be overcome to achieve this objective.

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