Guidance on Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007

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ANNEX D: PO/CHILDREN'S HEARING INTERFACE

This process applies when there is a pending court application for

  • any permanence order;
  • any variation of a permanence order; and
  • any amendment of a permanence order.

When there is a pending court application in one of these cases, a children's hearing cannot vary an existing SR or make a new one without the permission of the court dealing with the application, s.96(2) and (3).

This is true even if everyone agrees with the variation/new SR.

Stage 1 Children's Hearing want to

  • vary a child's existing SR; or
  • make a new SR for a child who is not already on a SR

Hearing prepares a s.95 Report, saying what it wants to do, and why, and the hearing is continued

Stage 2 Reporter sends the s.95 Report to the court dealing with the

PO/ PO variation

Should be a timescale for this in the amended Children's Hearing Rules - 7 days

Stage 3 Sheriff clerk intimates report to all parties to the PO court application and to all "relevant persons".

They all have 7 days to respond to the court and a Form is provided.

Stage 4 After 7days, the court

(a) decides to allow the variation of SR/new order and "refer" to the hearing or

(b) decides not to allow the variation of SR/new order and not 'refer' to the hearing or

(c) fixes a court hearing about the proposal or

(d) makes any other order appropriate for the "expeditious progress of the case"

Stage 4A If the court decides (c), to fix a court hearing

This must be within 7 days of that decision.

The sheriff clerk intimates this court hearing to

  1. parties to the application for PO/ PO variation ; and
  2. anyone who has lodged a Form of Response ; and
  3. any "relevant person" not included in the above ; and
  4. anyone else the court thinks is appropriate .

Stage 4B At the hearing the court may

  • make decision ( a), to allow the variation/new SR and "refer" or
  • make decision ( b), not to allow the variation/new SR and not to "refer"

or

  • continue the hearing for no more than 14 days.

Stage 4C At any continued hearing, the court may

  • make decision ( a), to allow the variation/new SR and "refer" or
  • make decision ( b), not to allow the variation/new SR and not to "refer" or
  • continue the hearing again for no more than 14 days.

Stage 4D At any 2 nd continued hearing, court must make its final decision.

Stage 5 After court has made its final make decision

This will be either

(a) to allow the variation of SR/new order and 'refer' to the hearing or

(b) not to allow the variation of SR/new order and not 'refer' to the hearing.)

the Sheriff clerk sends a copy of the court's decision to the reporter.

There is a Form for this in the court rules. It makes it clear that either the decision is to "refer" in terms of s.96(3); or the decision is not to refer, because the court does not agree with the children's hearing.

Stage 6 Reporter fixes a hearing

To take place within 7 days of receiving the decision

- the time depends on the Children's Hearing Rules as amended in due course

Stage 7 Children's Hearing

Panel members make a decision reflecting the court's decision.

If the court has 'referred' the matter, then the hearing may vary the SR (or make a new SR) as it wanted to do.

If the court has decided not to 'refer' the matter back, then the hearing cannot do what it wanted to do. If it wanted to vary the SR, this will not be possible and the SR will simply be continued. If it wanted to make a new SR, it will not be able to do so.

References:

  1. The relevant sections of the 2007 Act are ss.95 and 96.
  2. For information about what has to be in s.95 reports from children's hearings, see the Adoption and Children (Scotland) Act 2007 (Supervision Requirement Reports in Applications for Permanence Orders) Regulations 2009, SSI 2009/169.
  3. For the sheriff court procedure, see r.51 of the sheriff court rules and Forms 23 to 25 of the Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009, SSI 2009/284.
  4. For the Court of Session procedure, see r.67.43 of the RCS and Forms 67.43-A, 67.43-B and 67.43-Cof the Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Act of Sederunt (Rules of the Court of Session Amendment No.7) (Adoption and Children (Scotland) Act 2007) 2009, SSI 2009/283, the Court of Session Rules.