| The Children’s Hearing
system represents one of the radical changes initiated by the Social Work (Scotland) Act
1968. On the 15 April 1971 the Hearings took over from the courts most of the
responsibility for dealing with children under 16 who commit offences or who are in need
of care or protection. The principles underlying the system were recommended by the
Committee on Children and Young Persons (The Kilbrandon Committee) which reported in 1964.
The Committee found that children appearing before the courts whether they had committed
offences or were in need of care or protection had common needs for social and personal
care. The Committee considered that the Juvenile Courts were unsuited for dealing with
these problems because they had to combine the characteristics of a criminal court of law
with those of a treatment agency. Separation of those functions was therefore recommended;
the establishment of the facts where disputed was to remain with the courts, but decisions
on treatment were to be the responsibility of a new and unique kind of Hearing. |
| The grounds on which a child
may be brought before a Children’s Hearing are set down in the Children (Scotland)
Act 1995. These grounds include the child who is beyond the control of parents or other
relevant person; is exposed to moral danger; is likely to suffer unnecessarily or serious
impairment to health or development through lack of parental care; is the victim of an
offence including physical injury or sexual abuse; is failing to attend school; is
indulging in solvent abuse; is misusing alcohol or drugs; or has committed an offence.
(The full list is given in section 52 of the Act. Reproduced as Appendix
A). |
| Children under 16 are only
considered for prosecution in court where serious offences such as murder or assault to
the danger of life are in question or where they are involved in offences where
disqualification from driving is possible. However, in cases of this kind it is by no
means automatic that prosecution will occur, and where the public interest allows,
children in these categories are referred to the Reporter by the Procurator-Fiscal for
decision on referral to a Children’s Hearing. Where children are prosecuted in court,
the court may refer their case to a Children’s Hearing for advice on the best method
of dealing with them, and the court on receipt of that advice or in certain cases without
seeking advice first, may remit the child’s case for disposal by a Children’s
Hearing. |
|
| THE REPORTER |
| The Reporter who is employed by the Scottish Children's Reporter Administration (SCRA) is the official
to whom all referrals must be made regarding children who may be deemed to need compulsory
measures of supervision. The main source of referrals is the police but other agencies
such as social work or education and indeed any member of the public may refer a child to
the Reporter. |
| The Reporter then has a duty
to make an initial investigation before deciding what action, if any, is necessary in the
child’s interests. Firstly the Reporter must consider the sufficiency of evidence
with regard to the grounds for referral and thereafter decide whether there is a
prima-facie case for seeking compulsory measures of supervision. |
The Reporter is given a
statutory discretion in deciding the next step in the procedure and may:
- Decide that no further action is required.
The child and parent or other relevant person are then informed of the decision. It is not
unusual in offence cases for the Reporter to convey this decision in person when the child
my be warned about his future behaviour.
- Refer the child to the local authority with
the request that the social work department arrange for such advice, guidance and
assistance as may be appropriate for the child on an informal basis.
- Arrange to bring the child to a
Children’s Hearing because in his view the child is in need of compulsory measures of
supervision.
|
|
| CHILDREN’S PANELS |
| Members of the
Children’s Panel volunteer to serve and come from a wide range of occupations,
neighbourhood, and income groups. All have experience of and interest in children and the
ability to communicate with them and their families. There is an approximate balance
between men and women; panel members are recruited between the ages of 18 and 60, and most
panel members range from age 18 to age 59. Members are carefully prepared for their
task through initial training programmes and have continuing opportunities during their
period of service to develop their knowledge and skills and attend in-service training
courses. |
| People are appointed or
re-appointed to panels by the Secretary of State for Scotland. The task of selection is
the responsibility of the Children’s Panel Advisory Committee (CPAC) for the local
authority area. The selection procedure adopted by the CPAC involves application forms,
interviews and group discussions. The initial period of appointment for a panel member is
up to 5 years and is renewable on the recommendation of the CPAC. Over the country as a
whole there are over 2,000 panel members. |
|
| CHILDREN’S HEARINGS |
| The Children’s Hearing
is a lay tribunal composed of 3 members including male and female members charged with
making decisions on the needs of children. |
| The Children’s Hearing
can consider cases only where the child and his parents or other relevant person accept
the grounds for referral stated by the Reporter, or where they accept them in part and the
Hearing considers it proper to proceed. Where the grounds for referral are not accepted or
the child does not understand them the Hearing must (unless it decides to discharge the
referral) direct to the Reporter to apply to the Sheriff to decide whether the grounds are
established. If the Sheriff is satisfied that any of these grounds are established, he
remits the case to the Reporter to make arrangements for a Children’s Hearing. In
certain specified circumstances a child may be detained in a place of safety as defined in
the Children (Scotland) Act 1995 by warrant pending a decision of a Children’s
Hearing for a period not exceeding 22 days in the first instance. |
| The Hearing, or the Sheriff
in certain court proceedings may appoint a person known as a Safeguarder to protect the
child’s interest. |
|
| ATTENDANCE AT
CHILDREN’S HEARING |
| A Hearing is usually held at
a place in the child’s home area. The layout of the room where the Hearing takes
place is informal with the participants generally sitting around a table. Normally, the
child must attend. The child has the right to attend all stages of their own hearing. The
Hearing may, however, suggest that the child need not attend certain parts of the hearing
or even the whole proceedings – for example, if matters might arise that could cause
distress. It is important that both the child’s parents or other relevant person
should be present when the Hearing considers his or her problem so that they can take part
in the discussion and help the Hearing to reach a decision. Their attendance is compulsory
by law, and failure to appear may result in prosecution and a fine. The parents or other
relevant person my take a representative to help them at the Hearing or each may choose a
separate representative. The child also has the right to choose a representative but this
does not exempt either parents or the child from attending the Hearing. The parents or
other relevant person, and their representatives, can be excluded from any part of the
hearing for the views of the child to be obtained or if the child may be distressed by
their presence. However, the chairman of the hearing must explain what has taken place in
their absence. |
| Although proceedings at
Children’s Hearings are private, the press is entitled to attend the Hearing but may
be asked to leave the room if the hearing consider it necessary for them to do so to
obtain the views of the child or where the child may be distressed by their presence. In
any subsequent account of the proceedings the press is not permitted to disclose the
identity of the child. Other persons may also be present, with the approval of the
Chairman of the Hearing. No one is admitted unless he has a legitimate concern in the case
or with the panel system. The Hearing is, therefore, a small gathering able to proceed in
an informal way and to give the child and his parents the confidence to take a full part
in the discussion. |
| The Hearing’s task is to
decide on the measures of supervision which are in the best interests of the child. It
receives a report on the child and his social background from the Social Work Department
of the local authority and where appropriate a report from the child’s school.
Medical, psychological or psychiatric reports may also be requested. Parents are provided
with copies of these reports. The hearing discusses the situation fully with the parents,
child and any representatives, the social worker and the teacher, if present. As the
Hearing is concerned with the wider picture and the long-term wellbeing of the child, the
measures which it decides on will be based on the best interests of the child. They may
not appear to relate directly to the offences that were the immediate cause of his
appearance. For example, the Hearing may decide that a child who has committed a
relatively serious offence should not be removed from home, because his difficulties may
be adequately dealt with and his need for supervision adequately met within the treatment
resources available in his home area; whereas a child who has come to the Hearing’s
attention because of a relatively minor offence may be placed away from home for a time if
it appears that his home background is a major cause of his difficulties and the Hearing
consider that removal from home would be in his best interest. |
|
| SUPERVSION REQUIREMENTS |
| If the Children’s
Hearing thinks compulsory measures of supervision are appropriate it will impose a
supervision requirement which may be renewed until the child becomes 18. In most cases the
child will continue to live at home but will be under the supervision of a social worker.
In some cases the Hearing will decide that the child should live away from his home with
relatives or foster parents, or in one of several establishments managed by local
authority or voluntary organisations, such as Children’s homes or other residential
schools. A Hearing does not have power to fine the child or his parents. All decisions
made by Hearings are legally binding on the child. |
|
| APPEALS |
| The child or his parents may
appeal to the Sheriff against the decision of a Hearing, but must do so within 21 days.
Once an appeal is lodged it must be heard within 28 days. Any Safeguarder who has been
appointed also has the same right of appeal against the decision of a Hearing. Thereafter
on a point of law only, Sheriffs’ decision may be appealed to The Sheriff Principal
or the Court of Session. |
|
| LEGAL ADVICE AND LEGAL AID |
| Legal advice is available free or at
reduced cost under the Legal Advice and Assistance Scheme to inform a child or his parents
about their rights at the Hearing and to advise about acceptance of the ground for
referral. Legal aid is not available for representation at the Hearing, but may be
obtained for appearances in the Sheriff Court either when the case has been referred for
establishment of the facts or in appeal cases. |
|
| REVIEW HEARING |
| The hearing may suggest a review date. A
supervision requirement lapses after a year unless it is reviewed earlier. At a Review
Hearing, which is attended by the parents or other relevant person and normally the child,
the supervision requirement may be discharged, continued or altered. A child or his
parents or other relevant person may request the review after 3 months. The social work
department may recommend a review at any time. The Reporter has a duty to arrange Review
Hearings. |
|
| RESOURCES |
| Responsibility rests with local
authorities for the provision of the appropriate facilities for the assessment and
supervision of children and for carrying out the supervision requirements made by
Hearings. Responsibility for providing training for panel members is shared between local
authorities and central government. |
|
| RESEARCH AND STATISTICS |
| The Children’s Hearing system has
been the subject of a considerable body of research, most of it carried out by researchers
based at Scottish Universities, sometimes with the support of funds from other countries.
A review of research has also been published. A number of other significant studies have
been published. |
| Detailed references to major publications
will be found in the section on further reading (Appendix B).
The reading list also contains references to the Statistical Bulletins on the Hearings
system, published by Social Work Services Group. |
|
|
| APPENDIX A |
| Grounds for Referral of Children to
Reporter and to Children’s Hearing |
| Occasions for referring a child to the
Reporter. |
| A child may be in need of compulsory
measures of supervision if any of the following conditions is satisfied with respect to
him (Section 52(2) of The Children (Scotland) Act 1995). |
- is beyond control of any relevant person;
- is falling into bad associations or is
exposed to moral danger;
- is likely –
- to suffer unnecessarily; or
- be impaired seriously in his health or
development,
due to a lack of parental care;
- is a child in respect of whom any of the
offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1975 has been
committed;
- is, or is likely to become, a member of the
same household as a child in respect of whom any offences mentioned in Schedule 1 to the
Criminal Procedure (Scotland) Act 1975 has been committed;
- is, or is likely to become, a member of the
same household as a person who has committed any of the offences mentioned in Schedule 1
to the Criminal Procedure (Scotland) Act 1975;
- is, or is likely to become, a member of the
same household as a person in respect of whom an offence under Section 2A to 2C of the
Sexual Offences (Scotland) Act 1976 (incest and intercourse with a child by a step-parent
or person in position of trust) has been committed by a member of that household;
- has failed to attend school regularly
without reasonable excuse;
- has committed an offence;
- has misused alcohol or any drug, whether or
not a controlled drug within the meaning of the Misuse of Drugs Act 1971;
- has misused a volatile substance by
deliberately inhaling it vapour, other than for medical purpose;
- is being provided with accommodation by a
local authority under Section 25, or is the subject of a parental responsibilities order
obtained under Section 86 of the Act and, in either case, his behaviour is such that
special measures are necessary for his adequate supervision in his interest or the
interest of others.
|
|
| APPENDIX B |
| Further Reading |
- The Kilbrandon Report: Report on the
Committee on Children and Young Persons, Scotland (1964), Cmnd. 3065, HMSO
- Children (Scotland) Act 1995
- Bruce M., and Spencer, J: Face-to-Face
with Families, Loanhead, Midlothian, Macdonald Publishers 1976
- J H Curran; The Children’s Hearing
System: A Review of Research, Edinburgh, HMSO 1977.
- Morris, Allison and McIsaac, M: Juvenile
Justice, London, Heineman Education Press 1978
- Parsloe, Phyllida: Juvenile Justice in
Britain and the United States, London. Routledge and Kegan Paul 1978
- Martin, F M Fox, S and Murray, K: Children
Out-of-Court, Edinburgh. Scottish Academic Press 1981
- Social Work Services Group: Children and
the Hearings: A Longitudinal Study of Children Referred to Reporters, 1981
- Asquith Stewart: Children and Justice,
Edinburgh, Edinburgh University Press 1982
- Martin, F M and Murray, K (Eds): Social
Services in Scotland, Edinburgh, Scottish Academic Press, 1988
- D J Cowperthwaite: Emergence of the
Scottish Children’s Hearings System, Institute of Criminal Justice, University of
Southampton, 1988
- Moore, G: A Guide to the Children’s
Hearings, Edinburgh, W Green and Son, 1989.
- Social Work Services Group: Statistical
Bulletins: (Published Annually):
- Referrals of Children to Reporters and
Children’s Hearings
- Children in Care or Under Supervision.
|
