Publication - Publication

Review of Children (Scotland) Act 1995 consultation: analysis

Published: 22 May 2019
Directorate:
Legal Services (Solicitor to the Scottish Government)
Part of:
Law and order
ISBN:
9781787818163

This report provides an analysis of the consultation responses from the consultation on the Review of the Children (Scotland) Act 1995.

209 page PDF

1.1 MB

209 page PDF

1.1 MB

Contents
Review of Children (Scotland) Act 1995 consultation: analysis
14 Children's Hearings

209 page PDF

1.1 MB

14 Children’s Hearings

14.1.1 As part of the consultation, four questions were asked about the processes involved in Children’s Hearings. These covered appeals by the Principal Reporter in respect of deemed relevant person status, modernising the system through enhanced technologies, giving local authorities the right to receive reports in advance, and the banning of personal cross examination of vulnerable witnesses and children.

14.2 Appeals by the Principal Reporter

14.2.1 ‘Deemed relevant person’ status is decided at a pre-hearing panel or Children’s Hearing. Such status is granted if the person has or recently had ‘a significant involvement in the upbringing of a child’, and allows that person to be involved in proceedings and to receive relevant information and reports.

14.2.2 Currently, Section 160 of the Children’s Hearings (Scotland) Act 2011 allows for the individual requesting deemed relevant person status, the child, a relevant person in relation to the child, or a combination of these persons to appeal a decision relating to deemed relevant person status.  The Principal Reporter is not currently allowed to appeal the decision of a sheriff in an appeal against deemed relevant person status.

Q48. Do you think the Principal Reporter should be given the right to appeal against a Sheriff’s decision in relation to deemed relevant person status?

Number Percentage
Yes 112 44%
No 34 13%
No response 108 43%
Total 254 100%

14.2.3 Over two fifths (44%) of respondents agreed that the Principal Reporter should be given the right to appeal in these circumstances, while 13% disagreed.  The remaining 43% did not provide a quantitative response.  

Support for Principal Reporter to have Right of Appeal

14.2.4 A third of those who commented in favour of allowing Principal Reporters to appeal a Sheriff’s decision on relevant person status stated that it was in the interests of the child for this to be allowed:

“In the interest of justice we feel that the Principal Reporter should be given right to appeal particularly if they feel there has been error in law. To allow this to go unchallenged is detrimental to the interests of the child”.  (Local Authority)

14.2.5 Indeed, several organisations felt that reporters were likely to hold more information than the Sheriff in respect of the issues surrounding deemed relevant person status:

“The Sheriff is only adjudicating, the Principal Reporter is aware of the characteristics and nuances of all parties.”  (Family Support Organisation)

14.2.6 Several organisations noted, however, that whilst supportive of the proposal, they were aware that appeals by Principal Reporters could create further stress for the family and create further delays in decision making.

14.2.7 Four respondents commented that giving this power of appeal to the Principal Reporter would take the onus off other parties to question a Sheriff’s decision on deemed relevant status, not least if those other parties are unsure of their right to appeal:

“… other relevant persons, i.e. parents or the child, may not be aware that they can do this, or how to do this, therefore giving this right to the Principal Reporter provides an extra safeguard.”  (Legal Profession)

14.2.8 From a legal standpoint, a few respondents questioned why, when the original legislation was drawn up, Principal Reporters were not included as having the right to appeal this decision when they had the right to appeal other decisions.

14.2.9 Although not directly related to the consultation question, a few respondents (two individuals and two organisations) suggested that the test for ‘relevant person’ status was ambiguous/subjective.  It allowed scope for inconsistency in decision making, and was too restrictive in terms of allowing input from others who were close to the child/family and could input relevant information to cases.  One family support organisation felt the definition of ‘relevant person’ needed to be clarified, while one children’s organisation suggested the legal test regarding ‘significant involvement’ should be reviewed.

No Right of Appeal for Principal Reporters

14.2.10 Of those who disagreed with the proposal to allow Principal Reporters to appeal a Sheriff’s decision on relevant person status, several individuals and one legal organisation commented that powers were already in place to question relevant person status:

“The Principal Reporter already has the right to convene a Pre-Hearing Panel at any time to consider a person’s relevant person status (where they consider the person may no longer meet the test). The 2011 Act also provides for constant review of deemed relevant person status. All relevant persons have a right to appeal such a decision, as does the child. This gives a number of checks and balances on such decisions.”  (Legal Profession)

14.2.11 A few respondents commented that Principal Reporters have no locus to appeal such a decision, since their role is an administrative and impartial one:

“I struggle to see what locus the reporter has to appeal the decision. The decision is part of the process and this distinguishes it from most other decisions the reporter can appeal against, which are substantive decisions.”  (Individual)

“That is not the job of the Principal Reporter. This would result in them being brought into the decision-making process, which would result in the removal of the all-important impartiality of the Reporter’s position.”  (Individual)

14.2.12 Two respondents also suggested that the Principal Reporter may be biased and may not necessarily protect the child’s best interests.  Two others noted that further delays that would result from such a proposal.

14.3 Modernising the Children’s Hearing System

14.3.1 The consultation document noted that the Children’s Hearings System Digital Strategy aims to improve meaningful participation in children’s hearings through, for example, remote-link, pre-recorded views and other digital tools.  The main consultation document sought views on the appropriateness of further modernisation.  

Q49. Should changes be made which will allow further modernisation of the Children’s Hearings System through enhanced use of available technology?

Number Percentage
Yes 146 57%
No 14 6%
No response 94 37%
Total 254 100%

14.3.2 Over half (57%) of the respondents were in favour of changes being made in relation to the use of technology in the Children’s Hearing System, while only 6% were unsupportive.  The remaining 37% did not provide a response. 

Support for Further Modernisation

14.3.3 Of those in favour of further modernisation, it was generally acknowledged that children and young people today are technologically advanced and would probably be able and willing to adapt to such changes with ease:

“The digital world is central to most activities, communication, information etc. for children and young people. Such developments would support choice, access and participation and promote safety and wellbeing… [and] would offer a real opportunity to genuinely listen to the concerns many children and young people have about attendance in person at Hearings and help perhaps to alleviate the anxiety, stress and distress this can cause.”  (Local Authority)

14.3.4 However, despite the endorsement of the proposals for modernisation, several respondents raised a note of caution about technology undermining the basic tenets of the Children’s Hearings system:

“… this would need to be managed very carefully for example to ensure that children are being given the opportunity to continue to attend in person should they wish… Essentially the hearing in person should remain the ‘norm’ with these other facilities being available where appropriate.”  (Individual)

“… the fundamental position [is] that the Children’s Hearing makes the ‘best’ decisions if everyone can be involved in the same discussion, in the same place and at the same time.”  (Public Body)

14.3.5 In this regard, a few respondents raised the question of modernisation being a means to a more expedient end:

“… it needs to be properly resourced and alternatives to appearing in person should only be used when it is the child’s choice and not for expediency or cost reasons.”  (Children’s Organisation)

“Any modernisation… should be undertaken for the primary purpose of improving its support to children and not simply to reduce costs, or improve efficiency for staff.”  (Children’s Organisation)

14.3.6 One of the key provisos of modernisation through technology was the issue around confidentiality and data protection: “… security would be of paramount importance in terms of the technology being used.”  (Legal Profession)

14.3.7 The main reason for supporting the proposal was because of the potential benefits to children and their families (including those with learning or other disabilities). These benefits can be separated out into ‘offering opportunities’ and ‘avoiding difficulties’.

Offering Opportunities

14.3.8 Being able to participate remotely (both for children and families) in a hearing offered several advantages, pending - as some respondents mentioned - any implementation of the Barnahus[7] system in Scotland.  In particular, the child would feel safer in more relaxed surroundings:

“Often children are not brought to hearings as there is a fear they may be distressed or upset by the hearing process itself. Participation by remote link may therefore be a very good way to ensure that the panel members and hearing participants can see the child and speak to the child but without the child having to be in the hearing room itself.”  (Legal Profession)

14.3.9 Many respondents felt that this would enable better involvement and engagement for all concerned, and that children and young people could be better prepared and would be better able to express their views.  A few respondents also highlighted the importance of video links for people with learning disabilities or those with additional support needs, but on the understanding that advocates could be present with those individuals at the time of the remote hearing, and that documents be provided to them in advance to reduce potential stress on the day.  It was also suggested that the ability to participate remotely would be of benefit to those who perhaps live or work remotely to the location of the court proceedings, or for those only required to attend part(s) of the hearing.

Avoiding Difficulties

14.3.10 One of the most commonly cited reasons for further modernisation through remote-link technology was the fact that children (and indeed related persons) would be able to avoid the stress of meeting a potential ‘adversary’ or ‘abuser’, either by participating from a remote site, or having another party participate from a remote site:

“Such technology would also facilitate other participants to attend via video link… for example an abusive parent… allowing the child to feel safer attending in person.”  (Children’s Organisation)

14.3.11 Children and their families would also avoid potentially long journeys to attend in person at a Hearing, and thereby reduce the travel costs involved.  Several people also mentioned the loss of schooling for children, since most hearings are held during school hours.

14.3.12 In addition to the benefits for the child and family, improved technology could be used to aid training and review of practice within the Children’s Hearings system.  Technology could also be used to prepare children in advance of a hearing, for example, through the use of Apps (e.g., MOMO[8]), VR headsets[9], and SMART boards.  More generally, a few people suggested that papers for hearings could also be sent electronically and that greater use could be made of e-mail.

14.3.13 However, it was also mentioned by one organisation that, despite technological improvement, current practice within the Children’s Hearings system needed to change as well:

“[T]he greater use of technology… should not detract from efforts to improve practice, which we are advised at times can be poor and inconsistent. It would be naïve to assume that the implementation of new technology will be a catalyst for improved practice.”  (Children’s Organisation)

Concerns with the Proposal

14.3.14 Only 8 respondents disagreed with the proposed modernisation of the system and a further two respondents who did not answer the quantitative question commented that the proposal would ‘remove’ the child from the centre and from the decision makers.

14.3.15 Three of those who disagreed with the proposal commented that the technology might fail or be vulnerable to ‘attack’.  Two others thought the costs would be prohibitive.  Other concerns included that research would have to be done first on the potential of technology, that traditional methods of meeting together ensure the ‘bigger picture’ is seen and that it helps to see the child/parent in person.  One final respondent suggested that such technology (i.e. remote links) should only be used in certain circumstances, such as in domestic abuse cases.

14.4 Providing Reports to Local Authorities in Advance

14.4.1 Current legislation provides for parties to the proceedings to be given relevant reports in advance of a Children’s Hearing, for example Sheriffs, SCRA Reporters, solicitors and panel members, but social workers are not party to the proceedings under the Children’s Hearing’s (Scotland) Act 2011.  As such, the main consultation sought views on whether reports should be provided to local authorities in advance of Children’s Hearings in line with other participants.

Q50. Should safeguarder reports and other independent reports be provided to local authorities in advance of Children’s Hearings in line with other participants?

Number Percentage
Yes 127 50%
No 24 9%
No response 103 41%
Total 254 100%

14.4.2 Half (50%) of all respondents agreed that reports should be provided to local authorities in advance of Children’s Hearings, while 9% disagreed.  The remaining 41% did not provide a quantitative response.

14.4.3 The majority of supportive responses could be categorised under two main reasons: for procedural efficiency and for enhanced decision making.

Procedural Efficiency

14.4.4 More than half of the comments supporting this consultation question related to the need for a clear and transparent process, and one which avoids conflict or delay within hearings.  The most common reason given for allowing local authorities to have sight of the full report before the hearing was to enable social workers to prepare the child’s plan in advance.  Fifteen respondents highlighted this rationale, as per the consultation document:

“There are clear benefits to the local authority being in receipt of all information in advance, in order to put plans in place.”  (Children’s Organisation)

“The local authority… the ‘implementation authority’… should be provided with safeguarder and other reports in advance of Children’s Hearings in order that it can consider in furtherance of its duties to the relevant child how in advance of Hearings it might implement any recommendations that might be made and contribute to discussions about such recommendations from a position of knowledge.”  (Legal Profession)

14.4.5 Many respondents commented on the need for transparency, fairness and consistency in approach, which would result from local authorities being provided with reports in advance:

“We favour an approach that promotes openness in advance of hearings… to produce better outcomes for children. It engenders trust between professionals and minimises the element of surprise at a hearing.”  (Legal Profession)

14.4.6 This ‘element of surprise’ is one which can be inferred to put social workers at a disadvantage in respect of future planning in the interests of the child, as one respondent highlighted:

“As far as possible, the hearing should not be the place to hear about new or different information but should be the forum by which there is co-production in the examining of the issues.”  (Public Body)

14.4.7 One other respondent pointed out that, although not legally stipulated that reports can be shared with, for example, social workers, safeguarders “in practice currently have discretion’ to do so” (Individual), and evidence from the recent report on the Role of the Safeguarder[10] suggests that other relevant persons (e.g. solicitors or parents) may give the safeguarder’s report to the social worker concerned.  Certainly, several respondents (primarily organisations) agreed that allowing local authorities to see reports in advance would help avoid conflict or disagreements at hearings - especially in front of the child, and would also help avoid deferments or delays:

“… matters which are perhaps more contentious could be discussed or ironed out before the hearing and don’t need to be dealt with in front of the child… It would also likely have the effect of minimising delay in that matters won’t have to be continued for consideration of the report [by the local authority].”  (Local Authority)

14.4.8 Finally, although one children’s organisation cited the concerns of looked after children and young people that safeguarder reports should not be shared unnecessarily with local authorities, a few respondents agreed that reports should be shared with local authorities if the child in person is informed and gives permission.  Two other respondents suggested that such reports would also be lodged in the child’s Social Work file, which would be useful for future reference.

Enhanced Decision Making

14.4.9 The second key point to emerge from responses supporting the sharing of safeguarder and other reports was that decisions would be better informed, that information sharing is important to producing a balanced decision, that time would be saved, and that outcomes would be in the better interests of the child:

“There have been occasions where Social Workers have learned of new information discussed at a children’s hearing that have had a bearing on their report and recommendation. It is frustrating that Social Workers are putting significant energies into work that is being undermined due to the lack of sharing of information.”  (Local Authority)

14.4.10 Of the 24 respondents who disagreed with the consultation question, 13 gave a qualitative response.  The vast majority of these responses related to the question of whether sharing full information with local authorities would be necessary, given how sensitive that information might be.  Most respondents who disagreed with sharing full reports suggested that only the recommendation of safeguarder and other reports was essential for social workers:

“We do not believe there is any need for these reports, which contain significant and sensitive personal information, to be provided to local authorities as a general rule. The representatives of the local authority have no rights engaged or at issue in a hearing… Safeguarder Practice standards and guidance make it clear that it is best practice for safeguarders to share their recommendations with the local authorities and families in advance of any hearing. There is no need for the whole report to be disclosed to the local authority.”  (Legal Profession)

14.4.11 Two individuals suggested that sharing full reports would only alienate parties further, notably parents, and potentially create additional conflict.  One further individual commented that the independence of safeguarders would be undermined or diluted by sharing their reports, not least if such reports were shared with social workers ahead of parents and other relevant persons.

14.4.12 Finally, one respondent could see both sides of the argument in respect of the proposal:

“We can see the practical value of this. It would certainly save time and lead to quicker determinations... However, the safeguarder and other persons who provide independent reports do so to assist the children’s hearing, not to assist the local authority… [which] is not a ‘party’ to the decisions made by the children’s hearing.”  (Children’s Organisation)

14.5 Banning Personal Cross Examination of Vulnerable Witnesses

14.5.1 The final question in this part of the consultation related to the possible banning of the personal cross examination of vulnerable witnesses (including children) in applications to the Sheriff to determine grounds of referral to a Children’s Hearing or in appeals to the Sheriff against decisions made at hearings.  For example, a party to the proceedings can seek to personally question a child or other vulnerable witness in circumstances where, for example, that party is alleged to have committed a sexual or violent offence against the witness.

Q51. Should personal cross examination of vulnerable witnesses, including children, be banned in certain 2011 Act proceedings?

Number Percentage
Yes 106 42%
No 39 15%
No response 109 43%
Total 254 100%

14.5.2 Two in five (42%) respondents were in favour of banning personal cross examination of vulnerable witnesses, while 15% of respondents were not.  The remaining 43% provided no response.

Support for Banning Personal Cross Examination

14.5.3 Of those who agreed with this proposal, many felt that banning personal cross examination would reduce the trauma for the child/vulnerable adult, not least if that child/vulnerable adult was scared by, and/or a victim of, the person doing the cross examining:

“It seems to be odd that a person alleged to have neglected a child or to have abused them should have the opportunity to personally cross examine them given that this could be extremely traumatic and inappropriate for the child or indeed another vulnerable person.”  (Individual)

14.5.4 Many respondents suggested that vulnerable witnesses needed to be protected, irrespective of whether in criminal courts or children’s hearings, and that it was in the child’s best interests that personal cross examination be banned, as it is in criminal proceedings:

“A lot of work has happened in recent years in relation to the evidence of vulnerable witnesses… this work is all helping to shift the culture and practice in criminal trials, but Children’s Hearings proofs involve some of the most vulnerable children (and adults) in our society… [Organisation name] is asking for the same or similar provisions to be introduced into proof proceedings… and civil proceedings.”  (Public Body)

“It is abhorrent that children recognised as vulnerable witnesses, taking part in a hearing which [claims] to hold their interests central, should have fewer rights than child witnesses in criminal cases.”  (Domestic Abuse Support Service)

14.5.5 Several respondents suggested that the same arguments applied to those given in response to the earlier section on vulnerable witnesses within the consultation, including mention by one children’s organisation that SCRA and the Scottish Government recommended in a joint paper in 2016 that:

“the Rules be amended to prohibit (unless exceptional circumstances apply) personal examination of child and vulnerable witnesses in proceedings under parts 10 and 15 of the Children’s Hearings (Scotland) Act 2011.”  (Children’s Organisation).

14.5.6 Finally, many respondents who favoured the proposal noted that legal representation would need to be available for those banned from such cross examination.  This issue was also raised by a few respondents who disagreed with the proposed ban on personal cross examination, noting that those banned would need the provision of legal aid and a lawyer.

Support to Retain Personal Cross Examination

14.5.7 Those who were against the proposed ban felt that it could further alienate children or one of the parents, that cross examination was an important arm of justice and that there were ways to deal with sensitivity or vulnerability through the use of pre-recorded evidence or having hearings conducted in a therapeutic environment.

14.5.8 Respondents who did not answer the quantitative question, but made a comment, suggested that, as above, legal aid and/or legal representation would need to be available to the person seeking to cross examine a vulnerable witness/child, that evidence needs to be adequately tested in the interests of justice and that:

“a distinction should be drawn between cases where there should be a mandatory prohibition of personal examination and cases where this should be discretionary.”  (Legal Profession).


Contact

Email: family.law@gov.scot