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5 - Further issues for consideration

Introduction

5.1 The consultation on Getting it right for every child - Proposals for action brought forward a wide range of ideas and issues. The majority of these have been reflected in provisions included in the draft Bill, but others could be included in the Bill.

5.2 In addition a number of further issues have developed since the publication of the proposals for action in 2005. These are:

• Changes arising from the Vulnerable Witnesses (Scotland) Act 2004
• Engaging with young people involved in offending
• Changes to the Scottish Children's Reporter Administration and procedural changes to the Children's Hearing system

5.3 We also wish to consult further on support arrangements for panel members in view of the mixed response to the proposals.

5.4 The Scottish Executive is committed to promoting and supporting the rights of children and to reflecting the provisions of the UN Convention on the Rights of the Child in the development of policy and legislation. We want to ensure that the draft Bill promotes and supports the rights of children, and this chapter discusses rights issues in the draft Bill.

5.5 The Scottish Executive is committed to equality of opportunity for all. This chapter also includes a discussion of our proposals to promote equality in the draft Bill.

5.6 In addition, there may be issues around information sharing between agencies. While information sharing for child protection is covered by the Protection for Vulnerable Groups Bill, currently before the Scottish Parliament, it may be that further provision on information sharing is required.

5.7 The definition of child 'in need' set out in the Children (Scotland) Act 1995 may require updating and clarification. We wish to consult stakeholders on whether any change is necessary.

5.8 This chapter discusses these issues and invites comments on whether the additional measures discussed below should be developed for inclusion in the Bill.

Changes arising from the Vulnerable Witnesses (Scotland) Act 2004

5.9 The Vulnerable Witnesses (Scotland) Act 2004 ("the 2004 Act") provides for a number of special measures and other provisions to assist vulnerable witnesses to give their evidence. Part 2 of the Act applies these to civil proceedings including children's hearings court proceedings. The 2004 Act was commenced in relation to children's hearings court proceedings in respect of child witnesses from April 2005 and in respect of adult vulnerable witnesses from April 2006 (with the exception of the special measure of taking evidence by a commissioner which was only partially implemented from November 2005 for child witnesses and April 2006 for adult vulnerable witnesses).

5.10 Experience in implementing the Act has brought to light a number of issues which we would now like to take the opportunity to rectify through the Children's Services (Scotland) Bill. We anticipate using the bill in the following 7 areas:

• Section 16(a) of the 2004 Act has the effect that where the vulnerable witness who is to give evidence in children's hearings court proceedings is also party to the proceedings (because the child is also the subject of those proceedings or the vulnerable witness is also a relevant person and therefore party to the proceedings) sections 12 and 13 of the Act are to be read as though references to "party citing or intending to cite the witness" were references to the vulnerable witness. This puts the onus on the child or other vulnerable witness or their representatives to complete, lodge and intimate the child witness notice or vulnerable witness application rather than the party actually citing the witness. The effect of this wording is unintended as it places an onus on the vulnerable witness to lodge a child witness notice or vulnerable witness application. In cases where the child witness who is to give evidence is the subject of proceedings or a person who is party to the proceedings, we wish to make it clear that where the Children's Reporter is the party citing or intending to cite the vulnerable witness, the Reporter is able to lodge the child witness notice or vulnerable witness application.
• Section 68A of the Children (Scotland) Act 1995 ("the 1995 Act") (as inserted by section 23 of the 2004 Act) provides for restrictions on evidence in certain cases involving sexual abuse. We wish to ensure that taking evidence by a commissioner is recognised as an integral part of Children's Hearings court proceedings and that the protections in section 68A apply to the taking of evidence by a commissioner in Children's Hearings court proceedings. This will cover both child and adult vulnerable witnesses in such proceedings.
• Section 68A of the 1995 Act relating to restrictions on evidence in certain cases involving sexual abuse (and the exceptions to these restrictions in section 68B) does not extend to appeals under section 51 of that Act against the decision of a children's hearing or a sheriff. We wish this to apply in such circumstances.
• In addition we would like section 68A to apply where evidence (which tends to show that a witness is not of good character etc.) is presented to the court in the form of hearsay.
• The protection offered by section 68A should be extended to offence-based referrals. These are set out in paragraphs 1 or 4 of Schedule 1 to the Criminal Procedure (Scotland) Act 1995 and cover any other offence in that Schedule where there is a substantial sexual element in the alleged commission of the offence.
• Also we would want the protection afforded by section 68A to be extended to cover the situation in which the child who is the subject of an offence-based application is a witness in the proceedings.
• At present, in criminal proceedings, one of the special measures in the 2004 Act allows prior statements to be admitted as evidence in chief without being adopted by the witness. This special measure is not available in civil proceedings or children's hearings court proceedings because hearsay evidence under the terms of the Civil Evidence (Scotland) Act 1988 is permitted. However, it is not normally permitted in criminal proceedings and because the criminal rules of evidence would apply in children's hearings court proceedings dealing with offences committed by a child, hearsay evidence could not be admitted in such circumstances. We wish to remedy that in respect of vulnerable witnesses in children's hearings court proceedings relating to offence cases by allowing prior evidence given by a vulnerable witness to be used as evidence in chief in such proceedings. In line with the special measure which is currently available in criminal proceedings witnesses using this special measure would still be subject to cross-examination and re-examination.

5.11 We would welcome the views of correspondents on these proposals.

Engaging with young people involved in offending

5.12 A small number of young people who offend in either a serious or persistent way will not engage voluntarily with services. When a young person's behaviour is causing serious concern and they are posing a risk to themselves or others, action must be taken. We must ensure that it is clear that engagement with interventions put in place to change behaviour is not optional. Disorderly or offending behaviour is unacceptable and must change.

5.13 To make this happen, all agencies must ensure their services are of high quality and can respond to a wide range of abilities and needs. Young people should be in no doubt that, although services are there to help them they will be expected to participate and compulsion will be pursued if they do not respond. We must be clear that changing unacceptable behaviour is not optional.

5.14 For the small group of young people who continue to pose a risk to themselves or others, and who cannot or will not engage with services who are working to change their behaviour, we wish to explore further options to compel them to change their behaviour.

5.15 Those young people who are under the supervision of the Children's hearings system already have a requirement to comply. However, for those young people who are no longer under the supervision of a Children's hearing, after age 16 or 18, and who continue to offend and/or pose a risk to themselves or others, there is currently no mechanism to compel them to engage with services unless they offend again.

5.16 The gap which needs to be filled is for those who continue to cause concern, but refuse to engage with services after their supervision requirement is terminated. If there is no locus to intervene where they continue to pose a risk to themselves or others, we are missing an opportunity to reduce the number of victims of crime and the negative impacts that continued offending, including the impact of custody, have on the future life chances of young people.

5.17 To secure continued support and intervention for young people involved in offending we would like to know:

• How can we best ensure that we continue to support young people involved in offending to make the transition into positive adulthood?
• How could we formalise systems to ensure that this happens?
• How best do we respond to the concerns of our communities in dealing with the problem of persistent offending by young people?
• What, if any, legislative requirements would be required to deliver this?

Changes to the Scottish Children's Reporter Administration and procedural changes to the Children's Hearing system

5.18 The draft Bill proposed changes to the Scottish Children's Reporter Administration and some procedural changes to the Children's Hearings system. These are:

• Removal of the Principal Reporter from the Administration (Board) of the Scottish Children's Reporter Administration.
• Simplification of the different warrant provisions available to Children's Hearings in the Children (Scotland) Act 1995.

5.19 Since 2000, one element of the Scottish Executive's corporate governance policy is that a Non Departmental Public Body's ( NDPB) Chief Executive should not be a member of the Board. This is intended to provide both parties with a clear demarcation between their respective executive and non executive roles. The Scottish Children's Reporter Administration is a Non-Departmental Public Body sponsored by the Scottish Executive Education Department under the terms of the founding legislation (see below) and an administratively agreed Management Statement and Financial Memorandum. We have therefore introduced this proposal to amend the Local Government etc (Scotland) Act 1994 ("the Act") to remove the Principal Reporter as a member of the Board of the Scottish Children's Reporter Administration.

5.20 Section 11 of the draft Bill proposes changes to schedule 12 to the Local Government (Scotland) Act 1994 to remove the Principal Reporter from the Administration (Board) of the Scottish Children's Reporter Administration. We would welcome correspondent's views on this proposal.

5.21 At present, if a children's hearing is unable to dispose of a case and considers it necessary to detain a child in a place of safety, the appropriate provision under which to grant a warrant is generally determined by the reason why the hearing is unable to dispose of the case. The appropriate provision may therefore vary at subsequent hearings. The reason for a hearing being unable to dispose of a case will often not be known in advance of the hearing.

5.22 The current warrant provisions are complex and can be difficult to manage. Getting it right for every child provides an opportunity to simplify the structure of the warrant provisions and ensure that no child in need of detention in a place of safety is disadvantaged because of technicalities around which warrant provision the hearing relied upon.

5.23 Section 20 of the draft Bill contains proposals to amend the warrant provisions in the Children (Scotland) Act 1995. We would welcome correspondents' views on this proposed simplification of warrant procedure.

Children's rights

5.24 The Scottish Executive is committed to promoting and supporting the rights of children and to reflecting the provisions of the UN Convention on the Rights of the Child in the development of policy and legislation.

5.25 There is much in the draft Bill and the Getting it right for every child that will help promote children's rights. For example, section 3 of the draft Bill provides for consideration of children's views which reflects Article 12 of the UN Convention - promoting the voice of the child.

5.26 To ensure that we are effectively promoting and supporting the rights of children, we would like to know:

• Will the Bill as drafted improve children's rights in Scotland?
• Should we also consider a general duty on agencies working to meet the needs of children to also promote and support the rights of children?

Equality and Equal Opportunities

Introduction

5.27 The Scottish Executive is committed to equality of opportunity for all regardless of race, religion or belief, disability, sexual orientation, age or gender, language, social origin or political opinion.

5.28 The terms of the Scotland Act 1998 mean that that the Scottish Parliament can encourage equal opportunities, and in particular, the observance of the equal opportunity requirements.

5.29 The Scottish Parliament can also impose duties on Scottish public authorities to make arrangements to ensure that functions are carried out with due regard to the need to meet the requirement of the law for the time being relating to equal opportunities.

5.30 These two powers allow the Scottish Parliament, for example, to develop schemes to secure better provision of services to groups who may be the subject of discrimination or to legislate to require certain public authorities and office-holders to have due regard to the equal opportunity requirements

5.31 The Scottish Executive also has a number of legislative duties to promote equality contained in UK legislation. These duties are:

• Promotion of race equality (Race Relations Amendment Act 2000)
• Promotion of disability equality (Disability Discrimination Act 2005)
• Promotion of gender equality (Equality Act 2006)

Children

5.32 All of the policies and legislation outlined in the draft Bill are addressed specifically to the care and protection of children. In the legislation we work with a definition of children of age up to 18. Children's Hearings normally deal with children up to 16 years old, but they can deal with children up to 17 years old. Generally, the child must be referred to a Hearing which takes place before the child is 16. There are exceptions. A child can remain subject to supervision until their 18th birthday, but not beyond.

How are we delivering equality in the draft Bill?

5.33 Getting it right for every child is designed to deliver services that focus on the needs of the child, whatever they may be. This moves away from a 'one-size fits all' approach to children's services. We intend that this goes a long way to delivering equality of positive outcome for as many different children as possible.

5.34 The draft Bill contains a section on equal opportunities (In part 1 of the draft Bill) designed to deliver working by children's services agencies.

5.35 We would welcome respondents' views on whether anything in the draft Bill will have a differential impact on equality communities.

Support arrangements for panel members

5.36 As noted in chapter 4, the consultation paper proposed improvements in, and modernisation of, the arrangements for the recruitment, training, support and monitoring of Panel Members through the establishment of either a single national body or a local authority regional structure.

5.37 There were mixed views amongst respondents about this proposal. Just over 40% of all respondents state that they would be in favour of the establishment of a national body to manage the support arrangements for Children's Panels. A further 27% of respondents favoured the establishment of a regional structure. However, a substantial minority of respondents favoured the retention of the status quo with individual local authorities maintaining their role in providing support to Children's Panels in their areas, even though this was not an option presented.

5.38 Given this range of opinion, we wish to consult further on this issue. Ministers are keen to fit proposals with public sector reform and respond to the concerns expressed by volunteers that they need more consistent support while maintaining local links and knowledge of those undertaking the functions of panel members and children's panel advisory committee members. The Scottish Executive is currently in discussion with the Convention of Scottish Local Authorities ( CoSLA) and other key stakeholders on potential approaches to modernising support arrangements within the Children's Hearings system. We will publish a separate discussion paper on this issue at a later date. This will be available for consultation and comment early in the New Year, well before any legislative proposals are presented to the Scottish Parliament.

Information sharing amongst agencies

5.39 Proposals for legislation where information sharing is required to protect a child have been introduced in the Protection of Vulnerable Groups (Scotland) Bill, currently before Parliament. This work above is all proceeding under current legislation. If further provision for information sharing is necessary to deliver the Getting it right for every child agenda then this will be considered for introduction with the Getting it right legislation.

5.40 Through the Getting it right for every child pathfinder projects we are developing a child's record. This will have the capacity to share information between agencies according to agreed information sharing protocols. The project includes the identification of the core data every agency will need to collect and the data standards for data collection so that information can be shared. Where agencies are working together, there will be a single multi-agency assessment and plan. Agencies will be able to share information horizontally across children's services and vertically from children's services to adult services. The information will follow the child and young person as they move from childhood to adulthood where this is appropriate. Our aim is at every stage to secure consent from children and families to share information where necessary.

5.41 An early 'prototype' of the record will be available from April 2007 and from that point agencies will be able to alter their own information system according to the data requirements and standards set out to accompany the prototype.

5.42 Additionally, we expect that by the end of 2007, for every child who appears at a Hearing there will be an inter-agency plan. The plans will follow the young person as they move into adulthood. The roll out of this development from early next year will be accompanied by guidance and training.

5.43 Any information sharing provisions would be dependent on the confidence of young people, families and professionals in the use of information, and the impact of any lack of confidence on the willingness to use services. We will work with young people, patient and professional groups to find acceptable approaches to the use of information and confidentiality would strengthen this section.

5.44 We would welcome the views of correspondents on these issues.

Definition of a child 'in need' in the Children (Scotland) Act 1995

5.45 The Children (Scotland) Act 1995 in section 93(4) defines a child 'in need', for the purposes of that legislation, as:

(a) being "in need", is to his being in need of care and attention because -

(i) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development unless there are provided for him, under or by virtue of this Part, services of a local authority;

(ii) his health or development is likely significantly to be impaired, or further impaired, unless such services are so provided;

(iii) he is disabled; or

(iv) he is affected adversely by the disability of any other persons in his family.

5.46 This definition affects the following parts of the Children (Scotland) Act 1995:

• Section 22 - Promotion of welfare of children in need
• Section 23 - Children affected by disability
• Section 24 - Assessment of ability of carers to provide care for disabled children
• Section 24A - Duty of local authority to provide information to carer of disabled child
• Section 27 - Day care for pre-school and other children

5.47 Given the approaches to the needs of children set out in Part 1 of this draft Bill, we would be grateful for the views of respondents to this consultation on whether amending the definition of a child 'in need' would be helpful to the aims of Getting it right for every child.

5.48 The revised definition of children's needs establishes a bridge between the needs of children to achieve positive outcomes in their lives and the recognition that some children's lives have deficits which indicate a greater obligation on agencies to act. The action should help not only to prevent this child's situation worsening but also wherever possible to achieve more positive outcomes for the child.

5.49 The core ethos of Getting it right for every child is for agencies to get on and act to help children wherever possible as soon as is appropriate, based not on the categorisation of children but on their needs.

5.50 In view of this we are interested in whether the definition of children "in need" could or should be more closely aligned with the recognition of needs as set out in the Bill. The Bill will place obligations on all agencies to be alert to and act on children's needs as best they can. Given these duties and the expanded definition of "need" is there a requirement to have a separate definition of "in need"?

5.51 We believe that rationalisation of definitions would both avoid confusion and require those working with children to focus more on the needs of children and action to address them rather than whether they fit a category.

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