« Previous | Contents | Next »
Listen
PART ONE: STRUCTURAL CHANGE, A NATIONAL BODY
Background
On 18 January 2008, the Scottish Government announced a radical proposal to create a single body to undertake the functions currently delivered by the Scottish Children's Reporter Administration, the Children's Panels and the Children's Panel Advisory Committees ( CPACs). We also intend to bring the Panels of Safeguarders within the ambit of the new body. At the time of this announcement, which received widespread support from key stakeholders, Ministers made clear their continuing commitment to local delivery of Children's Hearings.
Following this announcement, the Scottish Government embarked on a programme of bilateral meetings with key stakeholders to develop its thinking on the broad thrust of the reforms and to firm up the more detailed proposals contained in this document. An important aspect of these discussions has been the exploration of the respective roles of the Scottish Government and of local government.
The Role of the Scottish Government
In order to ensure the decision-makers are independent from Government, the new national body will be a Non-Departmental Public Body ( NDPB). The Scottish Government will therefore have responsibility for setting the strategic direction of this body, for providing resources and for the sponsorship of the body through a set of corporate governance arrangements, e.g. agreeing organisational objectives and outcomes. The Government will also be responsible for making appointments to the Board of the new body through the Public Appointments process.
In light of the establishment of the national body the Scottish Government will cease to be directly involved in the recruitment and appointment of Panel members and in national recruitment campaigns.
Q1. What is your opinion on these proposals for Government's role in the future?
The Role of Local Government
Local government will continue to have two key roles to play. As now, local government will be responsible for giving effect to the decisions made by a children's hearing. This will involve delivering or securing services to children and families focussed on meeting the needs of each child and working with children and their families to address and resolve problems. It will be essential for the different parts of local government to work effectively together, and to work with other agencies in order to deliver the decisions of the hearings and provide children and families with the necessary support and assistance.
Local government already has a role in relation to promoting the Children's Hearings system to local communities, raising public awareness and understanding, and stimulating interest amongst local people in volunteering as Panel members. We propose that this should become a more substantial focus of local authority activity, in partnership with local Reporters and with the new national body.
We think that the community planning and Children's Services planning arrangements provide an ideal forum for drawing together the bodies and individuals with key contributions to make to ensuring the effectiveness of the Children's Hearings system locally. We see local partnership between the various players as being a key component in ensuring the needs of vulnerable children are met.
In light of the establishment of the national body to ensure appropriate consistency within the Children's Hearings system, we propose that local authorities should no longer be responsible for the provision of in-service training to volunteer Panel members nor for the setting and payment of volunteers' expenses. All of these functions will become the responsibility of the national body.
Local authorities will retain responsibility for giving effect to Panel decisions, and we propose that they should have an enhanced role in promoting the Children's Hearings system locally, and in developing effective partnerships to meet the needs of vulnerable children locally.
Q2. What is your opinion on the proposals for local government's role?
The New Body - The Children's Hearings Agency
We propose that a new body, provisionally to be called the Scottish Children's Hearings Agency, should be set up to facilitate the functions of the Principal Reporter, the Children's Panel, Safeguarders and possibly legal representation of children appearing at hearings.
This will involve the provision of accommodation for children's hearings throughout the country; employment of staff, including office-holders; "backroom" functions such as HR, finance, IT, and planning; the recruitment, training and monitoring of Panel members; and quality assurance of Panel decision-making. The new body will be a Non-Departmental Public Body ( NDPB) and will employ staff, including the office-holders on terms and conditions to be approved by the Scottish Government.
The body will be overseen by a Board whose members will be appointed by Scottish Ministers through the Public Appointments process. It is suggested that the Board should have a Chair and Deputy Chair and between 5 and 8 other members. Specific legislative provision will be required to ensure that the Board of the new body has no influence over the decision-making functions of the Principal Reporter, children's panel or Safeguarders. This point is addressed in greater detail below.
Q3. We invite views on the nature, functions and title of the new body.
Independence of Functions and ECHR Compliance
In creating the new body it will be essential that the current independence of the decision-making functions (currently exercised initially by the Principal Reporter and local Reporters as authorised by the Principal Reporter, and at the hearings themselves by Panel members) is secured within the new arrangements. This is one element in ensuring the continuing compatibility of the Children's Hearings system with the provisions of ECHR.
This requires consideration of the individual functions undertaken by the existing bodies and exploration of how these might be appropriately delivered through the new national body. In broad terms, we think it will be necessary to secure appropriate separation of the functions and responsibilities of Reporters (including the Principal Reporter and local Reporters); of the members of the Children's Panel (the volunteers); the proposed President of the Panel; all appointments, training and quality assurance functions in relation to the Panel; and of the appointments and functions of Safeguarders and legal representatives.
Similar issues were addressed in the Local Government etc. (Scotland) Act 1994, which established the SCRA. Section 128(8) of that Act states that
"Nothing in this section or any other provision of this Act shall be taken as authorising the Administration [ SCRA] to direct or guide the Principal Reporter in the performance of his functions under the Children (Scotland) Act 1995 and any other enactment conferring functions upon him."
This offers a model for addressing through legislation the issue of separation of functions and independence.
These separations will require to be reflected legislatively, structurally and in the performance of day-to-day responsibilities. In our discussions to date with stakeholders we have described the necessary separation as "firewalls", and will continue to use this term for the sake of simplicity.
The Scottish Government will give further consideration to this issue in the light of consultation responses which will be essential as we move, in due course, to more detailed consideration of the business model to be implemented within the new body to ensure ECHR compliance.
Q4. Do you have any thoughts on how the necessary separation ("firewalls") can be achieved in the structure and day-to-day business of the new body?
The Chief Executive Officer ( CEO)
This post will be the chief operating officer of the Scottish Children's Hearings Agency, and will have overall responsibility for the efficient operation of the new body in the exercise of all its administrative functions e.g. HR, finance, procurement, legal services and IT functions, throughout Scotland. The CEO will be responsible for the staff carrying out these functions within the new body, and will be accountable to the Board of the Scottish Children's Hearings Agency. The CEO will have no authority in relation to the exercise of the professional responsibilities of the Principal Reporter nor will the CEO have any authority in respect of the exercise of the functions proposed for the new post of President of the Children's Panel.
Q5. What are your views on the proposed role and functions of the Chief Executive Officer?
Principal Reporter and Reporters
The Principal Reporter will be employed by the Board of the new body, and will continue to have statutory decision-making functions as currently defined in the Children (Scotland) Act 1995 and the Criminal Procedure (Scotland) Act 1995. As at present, the Principal Reporter (and such senior Reporter staff as may be designated) will continue to have a right of appeal to Scottish Ministers in the event of the post holder being dismissed from employment by the Board.
The role of the Children's Reporter, acting under the authority of the Principal Reporter, is to investigate a child's circumstances following a referral by any individual. In the light of that investigation the Reporter must decide whether there may be a need for a compulsory intervention in the child's life. If so, the Reporter will refer the matter on to a children's hearing.
Reporters currently make decisions about the scheduling of hearings, including the number of cases to be heard. The Reporter is required by law to take a note of proceedings of a hearing, covering a range of matters specified in the 1996 Rules. This note is intended to assist the Reporter in the event of an appeal. The Reporter will act at Court in the event of grounds being denied or an appeal being made.
Over time, the practice has evolved of the reporter also offering legal and/or procedural advice at a hearing, following his or her determination that a referral is appropriate. This role is not set out in the 1995 Act.
The proposed reforms provide an opportunity to re-examine aspects of the current role of the Reporter and to consider how to make best use of the special expertise of Reporters and to ensure appropriate separation of functions.
Some commentators have expressed concerns about the current practice of the Reporter offering legal or procedural advice at a hearing, and have suggested that this practice may not provide sufficient separation of functions in the light of ECHR provisions. In essence, they suggest that since the Reporter is responsible for deciding whether a child should be referred to a hearing, he or she should not be able to offer legal or procedural advice to the Panel members at that hearing. As noted above, this role is not enshrined in legislation but has evolved over time.
The Scottish Government believes that the current arrangements conform with the requirements of ECHR. However, given such concerns and the fact that the structural changes we are proposing would bring Reporters and Panel members together in a single organisation, this is an important opportunity to consider how the proposed structures can address these concerns and minimise any future risk of challenge to the Children's Hearings system on that basis.
The Scottish Government will give further consideration to this issue in the light of consultation responses which will be essential as we move, in due course, to more detailed consideration to ensure ECHR compliance.
In particular, in moving forward with the reforms, it seems clear that, in order to protect the independence of advice and support given to children and families, the role currently fulfilled by Reporters during different elements of a hearing require to be separated both in terms of practice and accountability.
This could be achieved by separating out the tasks currently undertaken by Reporters prior to, during and after a hearing. Two separate teams of Reporters could be established through legislation. One team would deal solely with determining the need for referral to a hearing and appeals to the Court (accountable to the Principal Reporter) and the other team would solely provide legal or procedural advice at hearings (accountable to the President of the Children's Panel).
Another option would be to clarify simply in law that Reporters should not provide legal or procedural advice and leave it for Panels to make other local arrangements for the provision of this function. We think this would lead to differential and inconsistent practices developing at hearings, which would run counter to the spirit of the rest of our proposed reforms. As a result, we do not support this option.
Q6. We invite comment on the options outlined above. Do you have any other suggestions about how the concerns about separation of functions might be addressed? Are there other functions which need to be re-considered or re-allocated?
President of the Children's Panel
We propose to establish a new post - the President of the Children's Panel - to be employed by the Board of the new body. We propose that the President should be responsible for: the recruitment, appointment and training of Panel members; for quality assuring the decision-making function of Panels; and for setting the level and ensuring payment of Panel members' expenses. These responsibilities are currently assigned variously to Scottish Ministers, local authorities and CPACs.
We see these as key functions in securing a more equitable and consistent national approach to the exercise of Panel responsibilities.
The President of the Children's Panel would also be responsible for removing Panel members, but only with the consent of the Lord President of the Court of Session.
We propose that the President should also be responsible for securing local arrangements for the Panel member rota (a role currently undertaken by the Chair of the Children's Panel). This will require the appointment of local co-ordinators or team leaders, appointed by, and accountable to, the President.
New powers would be needed to permit the President to specify "best practice" and to determine the content of training.
Q7. What are your views on these proposals?
Safeguarders
The role of the Safeguarder is to act in the child's best interests. This role will be unchanged. A Safeguarder may be appointed for a child by a children's hearing, or by a Sheriff in hearings-related court cases.
Safeguarders provide children's hearings and courts with an independent assessment of what is in the child's best interests. On average, around 1 child in 5 attending a hearing receives the services of a Safeguarder. The Scottish Government considers that Safeguarders are an integral and key element of the Children's Hearings system. We therefore propose to bring Safeguarders within the ambit of the national body.
Safeguarders are currently appointed to local Panels by the local authority - with cases being allocated following decisions made by children's hearings or Sheriffs. Training is available for Safeguarders (pre- and in-service). However no provision currently exists to agree remuneration and best practice nationally, to deal with complaints or to monitor performance.
We propose to create a single panel of Safeguarders - to be employed by the Board of the new body - under the discrete management of an employee appointed for that purpose.
Although they would constitute a single, national panel, we propose that individual Safeguarders should be able to indicate the local areas where they are willing to accept appointments.
A single national panel of Safeguarders would require the creation of a discrete element within the new national body in order to secure the necessary degree of independence for the function. This arm of the national body would be responsible for recruiting individuals as Safeguarders and for training, allocating cases, remuneration, setting and defining "best practice" as well as monitoring performance.
Sheriffs and children's hearings would remain free to choose whether to appoint a Safeguarder, as is currently the case .
Q8. What are your views of these proposals?
« Previous | Contents | Next »