At the outset of the COVID-19 pandemic, the Coronavirus (Scotland) Act 2020 emergency legislation relaxed certain requirements in the Children's Hearings (Scotland) 2011 Act ('the 2011 Act'), including in relation to section 6(3):
"(3)The National Convener must ensure that the children's hearing—
(a)includes both male and female members of the Children's Panel, and
(b)so far as practicable, consists only of members of the Children's Panel who live or work in the area of the local authority which is the relevant local authority for the child to whom the hearing relates."
The relaxation was to insert "so far as practicable" in sub-section (3)(a). This meant where hearings with both male and female members could not practicably be arranged, because of the pandemic restricting volunteers' availability, sometimes at very short notice, the hearing could still be lawfully convened and make decisions in relation to children to support them and keep them safe. This allowed hearings and pre-hearing panels which otherwise could not have been lawfully convened to go ahead, taking legal measures to keep children safe and protect their rights.
The flexibilities of the emergency legislation were expired on 30 September 2021. At that time, the temporary measures were considered no longer appropriate or proportionate. The decision to expire children's hearings provisions, rather than to extend or suspend them, was taken following discussion with core system partners including the Children's Hearings Scotland and the Scottish Children's Reporter Administration.
When the emergency flexibilities were first adopted in April 2020, it was agreed that they should only be used where justifiable, and only remain in place for as long as they were demonstrably necessary. See attached for agreed principles:
The use of the flexibility was limited to where that was necessary. It was used 415 times between May 2020 and September 2021 (a relatively small proportion of hearings - over 16,000 hearings were held during 2020-21, and thousands more held April to September 2021). Normally, outwith the COVID-19 pandemic, around 30,000 hearings are held per year.
Children's Hearings Scotland (CHS) have identified that the ongoing pressures associated with COVID-19 on the availability of male panel members, as well as their ability to recruit suitable new male volunteers, have posed significant issues with their ability to comply with strict and inflexible gender balance requirements of section 6(3)(a) of the 2011 Act, and of Part 2, Rule 3(2) of the Children's Hearings (Scotland) Act 2011 (Rules of Procedure in Children's Hearings) 2013 ("the Rules"). Despite a focused effort to recruit more males able to satisfy the requirements of the role, these problems are going to persist.
Projecting forward into later 2022, CHS forecast being unable to satisfy their section 6(3)(a) requirements on some occasions. Prior to their latest recruitment campaign in early 2022, CHS established that 452 male panel members needed to be brought into service this year. While the campaign specifically targeted males, CHS received only 268 suitable applications from males. Of that 268 figure, 106 males are anticipated to complete in-service training.
While CHS will continue to look at measures to increase the recruitment of men, these low numbers, coupled with an anticipated increase in current panel members choosing not to accept reappointment at the end of their 3-year terms this year, have combined to introduce fragility into the sustainability of the volunteer tribunal element of the hearings service.
Area Support Teams (local volunteer managers) report an over-reliance on small clusters of males - with some male panel members bearing an unhealthy burden of service on multiple hearings – well beyond the usual expectation of 1-2 sessions per month.
As well as concentrating expectations and practice experience in this small group, there is a consequential further risk that these overworked volunteers will either leave the service due to burn-out, or stay on due to their outstanding individual dedication to their role, but become less effective in discharging it due to tiredness and overwork. Critically, this is assessed as posing potential risk to the quality of discussion and decision-making for children and families supported by the system.
If there remains no flexibility in the gender balance requirements, CHS advise that hearings will not be able to be lawfully convened in some cases from late 2022. This puts the resilience of the hearing system at risk and could lead to delayed or deferred hearings for vulnerable children, contrary to their interests, and may put some children at risk.
Alternatively, if a hearing were to be convened, in exceptional circumstances due to the risk to a child, with a 'single gender hearing' in breach of the legal requirement for mixed gender, that hearing's decision – however sound otherwise – would be open to challenge. Again, this would not be in the best interests of the children affected.
The National Convener remains committed to diversity in the recruitment of panel members and in relation to the composition of individual hearings. If this flexibility were introduced, it still requires the National Convener to ensure that there are both male and female members unless this is not practicable. In practice, it would only be where efforts to ensure a mixed gender hearing had been unsuccessful, that a hearing could still be lawfully convened.
The Scottish Government therefore considers change is necessary to allow hearings to be lawfully convened where, due to a combination of current circumstances including recovery from the pandemic, it is not practicable to convene a children's hearing with a mixed gender panel. Whilst this proposed change amends provisions that have been in place in the same or similar form for many years, in practice it is introducing a flexibility only where a mixed gender panel cannot practicably be arranged. We anticipate that this flexibility will be utilised on a limited basis.
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