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Chapter 6 - OTHER ISSUES RAISED IN THE CONSULTATION RESPONSES
Introduction
This chapter provides information about comments made on issues which go beyond the questions asked in the Draft Children's Services (Scotland) Bill consultation.
Often, these issues are raised in only one or two consultation responses.
Considering the views of children
Section 3 of the draft Bill ("Considering the views of children") was specifically mentioned in 15 out of 227 responses.
The draft Bill contained the following on considering the views of children:
"(3)(1) Every relevant agency is to seek to secure effective means for ascertaining (and recording) the views -
(a) of children,
(b) in relation to children, of relevant persons
(3)(2) Every relevant agency, in taking any material decision as regards a child's well-being -
(a) must have regard to such relevant views -
(i) of the child, and
(ii) in relation to the child, of a relevant person,
(b) may have regard to such relevant views of any other person
(3)(3) When acting under subsection (2)(a)(i), the relevant agency must take account of the age, maturity and capacity of the child.
(3)(4) A child of 12 or more years of age is presumed to be of sufficient maturity and age to form views."
In general, respondents who commented had suggestions to improve the section. However, one individual respondent did not believe that services would work in this way and commented:
"It occurs to me that some children whose views are to be considered by the various agencies may not understand that they are taking part in a cosmetic exercise."
I CAN, the children's communication charity, raised issues in respect of communication difficulties. They said the following in terms of grounds for referral, but which appears to have wider applicability:
"… it is important to establish throughout these processes that there are a number of children and young people with speech, language and communication difficulties who will struggle to understand the words, phrases, sentences or questions being used, have difficulty expressing themselves and find it problematic understanding the consequences of the process they are part of.
"It is now widely accepted that as many as 10 per cent of all children and young people have some level of communication disability. Communication difficulties are a feature central to and common across most areas of disability and additional support needs."
Down's Syndrome Scotland provided comment on the wording of the section:
"'Have regard' are words open to misinterpretation. You can hear what a child has said but not necessarily act on it. Whilst we must take into consideration the safety and well being of children in regard to their views, we must also demonstrate that their views have been listened to by maintaining open dialogue with the child or young person concerned, to demonstrate that their views are valid and where possible acted on."
Highland Children's Forum also had some concerns about the proposed legislation:
"Need to say something more about views of the child - it is not enough to say it should be done - need some indication of how, when, why so that it is not just tokenism."
Children 1st suggested a change to the approach set out in the draft Bill:
"We therefore urge the Executive to require agencies to carry out all of their activities around promoting the well-being of children and individual children in full discussion and cooperation with the children themselves and their families. Currently, Section 3 includes a duty to consider 'relevant views' of the child and 'relevant others' 'as may be reasonably ascertained'. This should be removed and instead, there should be a duty on agencies to inform children and families and cooperate with them in decision-making around the identification of a child's needs, and in creating the joint plans and taking action to meet those needs. There should also be a duty to seek and take account of their views in decision-making about services to promote the wellbeing (and rights …) of children in general."
Save the Children also supported a change in the proposed duty:
"Save the Children believes that this duty should go further to ensure that in addition to listening to children, agencies are under a legal duty to give 'due weight' to those views, as set out in article 12 of the UNCRC."
Children in Scotland noted that this section may lead to the need for additional resources:
"What neither the Bill nor the GIRFEC materials takes into account is that meaningfully involving children and young people in decision-making rarely is a quick, easy, cheap or simple process.
"… Accordingly, we recommend that the Bill itself, as well as supplementary guidance and GIRFEC implementation plans make provision for a major investment both in training for children and adults involved with children's services and in the collection and sharing of best practice on consultation and participation."
Presumption of maturity
Issues with regard to the age of presumption of maturity of children, which was mentioned in section 3 of the draft Bill, were raised in 11 out of 227 responses.
On the age of maturity of children, respondents commented on the apparent presumption of the age of 12 set out in section 3(4) of the draft Bill which states:
"3(4) A child of 12 or more years of age is presumed to be of sufficient maturity and age to form views."
Highland Children's Forum said:
"Dangerous to suggest 12 as a chronological age - some folk will adhere to it like glue and read it as a statutory age limit. It should be based on understanding - i.e. has someone taken the time to ensure the child understands properly what is being asked - then listened carefully to the response and along with the expertise of others made a weighed and balanced decision in the child's best interests. Always explain to the child/ YP how their views have contributed to the thinking and the decision making process."
The response from North Ayrshire Council Integrated Children's Services Planning sets out the apparent presumption in the proposed legislation:
"There should be a definition of the child in regard to age range in terms of seeking views. While 12 is mentioned, it is noted that
e.g. sheriffs and the Children's Hearing will take the views of younger children in some instances. Twelve years should not act as a barrier and staff should have the capability to seek those views which are integral to the decision making process (this is reinforced in the Children (Scotland) Act 1995 and UNCRC)."
A number of respondents commented on the definition of children in Part 1 of the draft Bill, which includes all children under the age of 18. The Scottish Child Law Centre response reflected some of these views:
"Section 21(3) defines children as persons under 18. SCLC therefore recommends that in order to be in line with the United Nations Convention on the Rights of the Child that the children's hearing system is extended to be inclusive of all children until they are 18 years. This would address the issues raised in the UNCRC report regarding the number of children under the age of 18 being kept in custody. At the very least, procurators fiscal should be able to make referrals to the children's hearing system in relation to children under 18 years."
Community Nursing Review
Community nursing, and the Community Nursing Review in particular, was raised in 10 out of the 227 responses to the consultation. The key thrust of these discussions was reflected in the submission from the Royal College of Nursing Scotland who stated:
"… the Bill highlights the need for significant investment in learning and development across the children's workforce. We would also welcome the opportunity to contribute to further discussions regarding the likely implications for children's well-being and children's services of the future community nursing roles identified in the Scottish Executive's 2006 'Review of nursing in the community'."
This was built on by the Scottish Association of Community Child Health who stated:
"It would also be important that in the current review of nursing services in the community that the training of nursing staff (previously designated as Health Visitors, and school nurses) were carefully examined, to ensure that in future as exists now there is a body of well trained nurses with expertise in children and family problems. It would be very detrimental if these specialist skills were lost in the development of a generic community nurse role."
Assessment and fit with Integrated Assessment Framework?
A number of respondents commented on the practicalities of assessment and the link between the draft Children's Services (Scotland) Bill and the Integrated Assessment Framework previously supported by the Executive. The issue was raised in 18 out of 226 responses.
Scottish Attachment in Action felt that the Integrated Assessment Framework was helpful in supporting relationships between children and their carers. They said:
"The Integrated Assessment Framework already in place acknowledges the vital nature of the interaction between children, their carers and the environment in meeting children's needs."
Other respondents were less clear as to how the draft Bill fitted with the development of the Integrated Assessment Framework. As an example, Shetland Children and Young People's Planning Group said:
"We have concerns about the current complexity of assessments and plans and feel that the proposed Bill does not clarify this process. At present Shetland, along with many other local authorities, is in the final stages of developing an Integrated Assessment Framework. It is unclear how this fits with Community Support Plans under the new Additional Support for Learning legislation. There is also the guidelines for the preparing of care plans and reviews for Looked after Children and the need to produce comprehensive assessments in situations where there are child protection concerns. We hoped that the draft Bill would provide some clarity and vision about how this would fit together - one assessment and one plan should be the aim. We feel that it is not always fully understood that we are often talking about the same children - who have additional support needs, may be at risk and may become looked after children."
Some concern was expressed by a few respondents as to how the Integrated Assessment Framework would work without technological support. North Ayrshire Council Integrated Children's Services Planning said:
"While the [Integrated Assessment Framework] has the potential to reduce bureaucracy, the lack of an IT solution potentially may mean an increase in paperwork."
There were other questions about the impact of assessment. In their response, the Child Health Commissioners' group commented:
"Child Health Commissioners are keen to ensure that the consequences of assessment, in identifying additional needs are addressed through consideration of the resource implications for the Bill."
The Royal College of Paediatrics and Child Health (Scotland) commented about the complexity of assessment:
" RCPCH Scotland supports the proposed development of an integrated single shared assessment across children's services and sees this as an opportunity to integrate all of the processes that work for children across children's services …
"Implementation will be a complex task … we are particularly worried about the ability for IT systems to 'speak to each other' and issues around confidentiality will need to be well established through the pathfinder sites."
Children's Panel and Panel members issues
General issues of concern specifically to the Children's Panel and panel members were mentioned in 16 out of 226 consultation responses.
Section 10 of the draft Bill proposed removing the restrictions that are currently in place on panel members sitting outwith their own areas.
In addition, the consultation paper also stated that there would be a separate consultation on support arrangements for the Children's Hearing system.
SCRA and others supported the proposal to remove restrictions on panel members sitting outwith their own areas. SCRA stated:
"1. SCRA believes that the link between Panel Members and the local community is an important strength of the Hearings System and should be retained so far as is practically possible.
2. The requirement that there be at least one Panel Member from the local area will ensure that there is some local link, while allowing for practical difficulties with finding sufficient Panel Members to be addressed where necessary.
3. SCRA suggests that proposed legislation states a clear expectation that the use of Panel Members from outwith the local community area is the exception rather than the rule."
East Renfrewshire Community Health and Care Partnership built on this last point:
"… it is very important that Children's Panel members should always predominantly serve in their own local authority area whenever possible and that those involved in appointing panel members act on that basis in terms of recruitment."
Orkney Children's Panel Advisory Committee noted concern:
"The concept of panel members moving from area to area is also inappropriate for an island community. (What happened to the Kilbrandon principle of local people being best for local problems by the by?)"
These concerns were echoed by one individual respondent, who stated:
"I would withdraw as a volunteer if I had to travel outwith the existing area because I simply would not have the time and I would need more time off work."
City of Edinburgh Children's Panel felt that the proposal to only have a requirement for one member to be local was not acceptable. They said:
"We suggest that each panel should consist of two local members, not one member as currently proposed. The proposal would undermine the concept of community involvement in the Children's Panel system."
East Renfrewshire CPAC suggested:
"… there is no need for the proposed 10(4)(a). East Renfrewshire CPAC would rather see the present concurrent scheme rules simplified, which would surely not be difficult. It is further suggested that there should always be a minimum of 2 (not 1) Panel members from the area in which a Hearing is constituted unless there are exceptional reasons for not being able to provide this."
West Lothian Children's Panel Advisory Committee also commented on the additional issue of the provision of panel member's addresses. They said:
"West Lothian Council, along with a number of other local authorities, provide a list of panel members' names, but list their addresses as shown as care of the local authority. We feel that there are inherent health and safety risks associated with the publication of panel members' home addresses and the issue is of some controversy between local authorities and some external organisations and has been the subject of freedom of information enquiries across Scotland."
While not raised in the draft Bill, the issue of consistency of panel members was also raised in a couple of responses. Quarriers said:
"We would strongly recommend that more consideration is given to ensuring consistency of panel members, particularly the chair of the panel. Evidence from children and young people indicates that it is extremely difficult to be faced with a continuously changing group of panel members, and this greatly reduces the effectiveness of the system."
Aberdeenshire Children's Panel did not agree, feeling to do so would be practically difficult:
"Continuity of panel members is an area for concern, in that we feel the logistics of implementing this is impossible. Having one member as a continuing member is something we do on occasions. It cannot be done over a diet of say three hearings in a session. This has not been thought through and possibly can only be identified by the personnel who rota the sessions."
East Renfrewshire Children's Panel Advisory Committee felt that:
"In the CPAC's experience this [greater continuity of panel members] is not always welcomed by families, and can also sometimes be difficult for Panel Members. The CPAC would suggest that if families ask for a measure of continuity, the Reporter and Panel Chair should try to accommodate it, but there should be no compulsory system."
On support arrangements for panel members, Alan D Miller felt that there was uncertainty about the way forward and in his response stated:
"May I suggest that this uncertainty exists due to a widespread and fundamental role Hearings fulfil? Great emphasis is usually placed on the fact that Panel members are volunteers. This is undeniable. But it is equally undeniable, though little heeded, that the Children's Hearing is a tribunal and that it fulfils a judicial role."
Mr Miller goes on to add:
"The actions required are clear:
- Panels must have an internal leadership structure capable of setting standards and managing performance. … Children's Panels must be re-constituted on a national basis under the leadership of a full-time President with a sufficient number of deputy presidents and of support staff …
- The judicial nature of the Hearings' role must be clearly understood and explained to both new and existing members …
- The current monitoring role carried out by CPACs must be replaced by powers for the President to manage performance … The current CPAC monitoring role represents a structural fault line. It is no wonder that it also produces so many tensions and conflict points in practice.
- … the opportunity must be taken to establish a simple and fair payment system for Panel Members."
Placing a Child in Secure Accommodation
The issue of placing a child in secure accommodation was commented on in 16 out of 226 consultation responses.
The draft Bill proposed a change to the responsibilities of the Chief Social Work Officer or the person in charge of a residential establishment in section 70(9A) of the Children (Scotland) Act 1995. The draft Bill says:
"(19) In section 70 (supervision requirement) of the Principal Act, in paragraph (a) of subsection (9A), the words from ', during' to the end are repealed."
This would have the effect of changing the Children (Scotland) Act 1995 to read:
"70 (9A) The powers are-
(a) that the children's hearing may specify in the supervision requirement that the child shall be liable to be placed and kept in secure accommodation in a residential establishment specified, under subsection (3)(a) above, in the requirement, during such period of the person in charge of that establishment, until the agreement of the Chief Social Work officer of the relevant local authority, considers necessary;"
This proposed change raised a number of concerns, primarily from councils and organisations like ADSW. However, the Scottish Commissioner for Children and Young People spoke for many of the respondents who discussed the issue when she commented:
"I am very concerned about section 19, which removes the discretion currently afforded to limit the detention of a child who is subject to a secure provision to such times as are considered necessary. I understand that there are some concerns about secure authorisations not being implemented, however the amendment suggested is too radical and disproportionate. Article 37(b) of the UNCRC says that any detention of a child must be 'a measure of last resort and for the shortest appropriate period of time'. It is my view that the removal of discretion represents a breach of this article and is a retrograde step in terms of improving children's rights."
City of Edinburgh Council commented:
"We are extremely concerned that section 19 contains proposals that remove the responsibility of the local authority Chief Social Work Officer for implementing secure authorisations made by a Children's Hearing.
"We firmly believe that the Chief Social Work Officer is far better placed than Children's Panel members in deciding whether to implement a secure order, particularly when this decision often involves balancing limited secure bed availability against the risks of harm to and from individual children. We are concerned that the proposed amendments will result in children who actually present lesser levels of risk being provided with a secure placement over children who present higher levels of risk.
"In existing legislation the Chief Social Work Officer requires to agree to a child being kept in a secure establishment for only as long as they deem necessary. A direct consequence of removing the current duties of the Chief Social Work Officer will be that more young people are held in secure establishments inappropriately and for longer periods than is necessary."
SCRA commented:
" SCRA fully supports the principle that Hearings' decisions about children who are deemed to be in need of secure accommodation should be implemented. …
" SCRA is concerned that removal of discretion from the chief social worker or head of a residential establishment after the initial placement in secure accommodation will in fact prejudice the child by not allowing flexibility to respond to the child's needs or behaviour. …
" SCRA wishes to highlight that the larger issue remains one of availability of secure placements - something that this proposal cannot address."
A small number of other respondents who commented took a different view. East Renfrewshire Community Health and Care Partnership reported:
"With this proposal the young people did not think social work management should be able to block a recommendation for a secure order."
The Children's Hearings Training Unit supported this and said:
"Secure authorisation changed by removal of discretion of chief social work officer and head of establishment: has been misused by 'screening' groups to subvert hearings' decisions so very welcome but appears not to have been picked up for warrants with condition of secure."
Other issues of relevance
A number of other issues were raised, often by single correspondents. These are set out in the following paragraphs.
Children 1st (and others) raised a point about transition to adult services. They said:
"One of the major areas where agencies struggle to work together for the good of young people is when they are moving on from children's services to adult services. Many young people find that the services that they have come to rely upon are no longer available due to their age changing, even when their needs remain the same. For example, children leaving foster care need agencies to work together to help them to access many different types of adult services such as housing services. Disabled young people find that the services from health and education that they have been relying upon suddenly stop when they leave school or move from children to adult health services. Children who have suffered from abuse suddenly find that at 18 years old, they can no longer get support from an abuse recovery service for children but there is no other service available in its place. We therefore strongly urge the Executive to place duties on agencies to cooperate to help a young person's transition to adulthood.
A number of respondents mentioned addressing the compliance of parents.
"The responsibility of parents to engage with agencies who are offering/providing support for their child. Too often help is delayed or cannot be delivered because parents refuse to engage. Recourse through the Children's Hearings system is too lengthy and time consuming. The issue of non-compliance by parents requires to be addressed."
[East Renfrewshire Education Authority]
Other respondents made specific suggestions about use of parenting orders or hearings being able to make parenting orders or place compulsion on parents.
A large number of respondents questioned the clarity of links to other legislation and planning processes. Falkirk Children's Commission set out their interpretation of the issues:
"There is a lack of clarity as to how the legislation related to processes which primarily focus on children in need/vulnerable children relates to the national overall strategic direction for services for all children as indicated in 'Getting it Right for Every Child'.
"… There is then a further query as to how the inspection framework related to Children's Services is linked to this legislation. The proposed legislation is very much based on a deficit model and this again is in conflict with what seemed to be broader strategic aspirations in the original document and are inconsistent with the inspection framework.
"The proposed legislation gives no indication of how the connections between GIRFEC and Additional Support for Learning Act will be co-ordinated. The document clearly demonstrates that these two aspects relating to often the same population of children are driven by different government departments and this is likely to result in conflict between requirements for plans for individual children. There needs to be an increased clarity and improved requirements contained within different legislation."
The Scottish Safeguarders Association commented on the future of safeguarders:
"It is gratifying to note that SEED has at last accepted that safeguarders and legal representatives are not interchangeable but fulfil different functions and it is equally welcome that this difference has been recognised in Sect 41A97) of the draft Bill.
"… It is frustrating to find that despite dialogue with SEED over a number of years, which has consistently reinforced and highlighted the essential differences between the two roles, SEED still seems to link advocacy to safeguarding. This is clearly wrong in that to advocate a child's views the child must be able to give some sort of coherent instruction, which may or may not represent the child's best interests.
"… this Association cannot accept that safeguarding can or should be left in limbo for the next 5 years or so …
"Perhaps this can best be pursued by allowing the review of safeguarding to proceed in parallel with the other aspects of the review. Safeguarders have already been marking time awaiting a promised review for a number of years and this Association does not feel that further delay is helpful."
Education Otherwise raised the question of home education and how that fitted within the proposed framework of action to improve a child's well-being. They said:
"[Education Otherwise's] concern is how to ensure that all the safeguards and joined up information that the Scottish Executive are striving to achieve in the bill do not make it even harder for families … to find their solutions for their children in home education, when home education in those cases would be 'getting it right' for those children and a practical example of how 'one size does not fit all'."
Suggestions for change to current legislation
A number of respondents provided a list of issues which they felt could improve current legislation or could support additional positive change for children's services. These suggestions are listed below.
The Children's Hearings Training Unit suggested the following:
- Business meeting procedure
- Duty of Children's Hearing chairman to outline procedure if appeal lodged to ask for a Hearing to consider suspending supervision requirement.
- Tighten up on late reports
- Tighten s71(1) duty on local authorities to implement hearings' decisions: apply sanctions
The Scottish Child Law Centre suggested these changes:
"The Children (Scotland) Act 1995 does not specify timescales within which specific parts of the process must be complete. SCLC is of the view that to improve the efficiency of the system the following should be included:
a. In section 56(2) it is stated that the local authority shall supply a report. We would propose that all relevant agencies are included within this section and that reports should be submitted within a period of 25 days from request.
b. SCLC proposes that section 41 is amended to state that when a children's hearing is continued for the purposes of obtaining a safeguarder's report the continued hearing takes place within a period of six weeks. This would attempt to prevent delays in the preparation of the safeguarder's report."
The Scottish Children's Reporter Administration listed the following additional suggestions:
- The need for an overarching description of the role of the Principal Reporter
- The need to define the role of parents in meeting their child's needs
- Definition of 'relevant persons' within the Children (Scotland) Act 1995
- Sharing of information/reports between professionals making recommendation to a Children's Hearing (e.g. safeguarders and social workers).
- Court arrangements/procedures for the management of Children's Hearings court proceedings
- Correction of errors in the Children's Hearings statutory forms
- Amendment to the reciprocal arrangements for the transfer of orders between Scotland, England, Wales and Northern Ireland
- Amendment of section 51(7) of the Children (Scotland) Act 1995 to ensure that this section only applies to the frivolous appellant
- Amendment to rule 6(2) of the Children's Hearing Rules to add to the types of Hearing where less than seven days notice can be given
- Amendment to section 63(5)(b) of the Children (Scotland) Act 1995 to remove Hearings' direction to the Principal Reporter to bring grounds
- Amendment to allow the sheriff to hear an appeal that has been lodged late
- Consideration of a provision that allows for the recognition of judgements/findings in care proceedings in other jurisdictions
The British Association for Adoption and Fostering Scotland provided the following suggestions:
"Provisions allowing for supervision requirements to continue when terminated with the granting of adoption and permanence orders, which are then appealed. This is an area of practical difficulty which was not addressed in the Adoption and Children (Scotland) Act 2007 but which could be helped by amendment of the hearing system provisions. … This would be in line with the position when an appeal is taken against a supervision requirement, which then continues in place pending that appeal unless specifically suspended by the hearing.
"Interface between supervision requirements and permanence orders. The matter of ranking between these two public law orders was not satisfactorily dealt with in the 2007 Act. However, it may be too early to make changes to that Act about this matter when it is not yet in force."
Other comments
In addition to all the comments mentioned in this chapter, a number of respondents made points which were based on erroneous interpretation of the draft Bill or associated commentary. These have not been repeated in this analysis. As is noted in the previous chapter, the wording or complexity of the Bill document and associated questions may have caused some confusion and misunderstanding.
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