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PART TWO: POLICY AND LEGISLATIVE CHANGES
New statutory system on the legal representation of children:
Legal representation is considered necessary where a children's hearing is giving active consideration to placing a child in secure accommodation and/or complex legal issues are at play.
The current interim scheme, which was introduced in 2002, is based on legal aid arrangements for court settings and is rather basic which has given rise to some concerns about both access and quality.
At present, legal representatives are drawn from members of the panels of Safeguarders and Curators ad Litem and Reporting Officers. As set out above, we are proposing that Panels of Safeguarders should be subsumed within the new national body. It is therefore necessary to consider how legal representation should be supported in a permanent scheme.
Researchers are currently examining the experience of the current system of legal representation by the users of these services - children, families, solicitors, panel members and reporters. This research will report in Autumn 2008 and will inform further consideration as to how legal representation can most effectively be supported in the context of the Children's Hearings system.
We believe the nature of the legal representative's role at hearings should reflect particular circumstances and needs of children as clients of legal representation. The nature of a children's hearing is fundamentally different to a court. We suggest that the role of the legal representative is similarly different. One option might be to develop a bespoke code of practice for legal representatives acting on behalf of children and young people at children's hearings. Such a code would need to be approved by the Law Society of Scotland. We will consider this matter further in the light of responses to this consultation, and the outcome of the research referred to above.
Q9. We invite views on the best way to provide an appropriate, statutory scheme for legal representation of children and young people (in the circumstances specified above) who are involved in the Children's Hearings system.
Withholding information provided by the child
The rights of parents and others involved in a children's hearing to full information about a child has led to the disclosure of information that may place children at risk. At present, where a child passes on a view or shares information with the children's Reporter or the children's hearing, the full substance of the communication must be shared with the parents.
Previous consultation on the Children's Services (Scotland) Bill contained a proposal to legislate to enable children's hearings and Reporters to withhold information provided by the child when they considered its release would place a child at risk. Almost 90% of respondents expressed support for this proposal. A similarly high proportion of respondents stated that they felt the proposal would meet the objectives.
The Scottish Government proposes to bring forward such a provision in draft legislation
Q10. What are your views on this proposal?
Streamlining the establishment of the grounds for referral
At present where a child is too young, not sufficiently mature or does not understand the grounds for referral, but the parents accept them, it is necessary for a proof hearing to be arranged at the Sheriff Court. Procedurally, this must be preceded by a children's hearing.
We consider this process causes unnecessary delay. Once again, consultation on the Children's Services (Scotland) Bill proposed a solution to streamline the establishment of the grounds for referral. This received widespread support with 86% of respondents in favour of the proposal.
The Scottish Government proposes to bring forward such a provision in its draft legislation.
Q11. What are your views on this proposal?
Procedural Changes to the Children's Hearings system
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.
The current warrant provisions are complex and can be difficult to manage. The proposed reforms provide 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. We therefore propose to bring forward amended warrant provisions.
We also propose to bring forward another change which was consulted on in the draft Children's Services (Scotland) Bill. This is in relation to section 63 of the Children (Scotland) Act 1995.
At present, where a child has been detained by the police in a place of safety and it is decided charges are not to be proceeded through the court, the Principal Reporter must on the same day as the information is received decide whether compulsory measures of supervision are required (and if so arrange a hearing to take place within 3 days). A difficulty arises if the Principal Reporter does not have sufficient information to take an informed decision at that time. In that case, the default position is the child is released with no further possibility of a hearing.
It is therefore proposed that the Principal Reporter should be able to release the child from detention in the place of safety while being able to continue to investigate matters and to decide (under s56 of the Children (Scotland) Act 1995) at a later date whether to arrange a hearing.
The Scottish Government proposes to bring forward such a provision in its draft legislation.
Q12. Do you agree these are areas which should be addressed?
Papers for children
In the S Case, the Court considered that children should have a fettered right of access to reports. The Principal Reporter gave an assurance that a scheme would be promoted to enable this to happen. However, while an administrative based scheme has been promoted, children still have no statutory right of access to the reports - unlike parents. We propose to remedy this in our draft legislation.
Q13. Do you agree that the Scottish Government should bring forward such a provision in the draft Bill?
Other legislative implications
A raft of primary and secondary legislation would require significant amendment including the Children (Scotland) Act 1995, the Local Government etc. (Scotland) Act 1994, the Criminal Procedure (Scotland) Act 1995, the Children's Hearings (Scotland) Rules 1996, the Children's Hearings (Legal Representations) (Scotland) Rules 2002, and the Panels of Persons to Safeguard the Interests of Children (Scotland) Regulations 2001.
Q14. Are there any other issues which you think might be addressed in the reform programme or proposed legislation?
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