Attendees and apologies
- Alistair Hogg, SCRA
- Bryan Evans, (present and will be going forward), Children 1st
- Annemarie Denny, East Ayrshire Advocacy Services (EAAS)
- Melissa Hunt, SCRA
- Mary Glasgow, Children 1st
- Irene Clark, Eart Ayrshire Advocacy Services (EAAS)
- James Cox, Professional Adviser (Social Work) to Scottish Government Child Protection unit.
- Morag Driscoll, Law Society of Scotland
Items and actions
Items and actions
This note provides an overview of the key discussion and action points from the Children’s Hearings Advocacy Expert Reference Group (ERG). This meeting focussed on the topic of sibling participation regarding contact matters within Children’s Hearings. New law and regulations, through section 14 of the Children (Scotland) Act 2020 and section 25 of the Children (Scotland) Act 2020 introduce a duty to consider contact (any regulated contact between child and brothers and sisters) when making compulsory measures and an opportunity for certain persons (brothers and sisters) to participate in Children’s Hearings without necessity of relevant person status or deemed relevant person status, and these changes made in Regulations (The Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Amendment Rules 2021 (legislation.gov.uk) will come into force on 26 July 2021. This meeting provided an opportunity for the ERG to discuss common themes and any potential concerns/conflicts ahead of the Regulations coming into force.
The meeting took place as a videoconference on 23 April 2021.
Welcome, introductions and apologies
Scottish Government (Pam) welcomed all members and made particular introductions for Jillian McFadyen from Partners in Advocacy (PiA), who attended for the first time to share particular practice experience / feedback as well as Tracey.
Pam also specifically acknowledged having Kate MacKinnon from Centre of Excellence for the Care and Protection of Children (CELCIS) at this meeting, as she has been given the task (under commission from Scottish Government) to lead engagement activities and the writing of a National Practice Guidance to accompany legislative changes designed to uphold the rights and to meet the needs of brothers and sisters of children with care experience. Specifically Section 13 of the Children (Scotland) 2020 Act and Looked After Children (Scotland) Amendment Regulations 2021.
Legislation overview – keeping brothers/sisters together, maintaining contact and considering their views
Changes are being made to Section 13 of the Children (Scotland) 2020 Act, and the Looked After Children (Scotland) Amendment Regulations 2021.
- there will be a duty on a local authority towards a child looked after by them to take steps to promote, on a regular basis, personal relations and direct contact between a child looked after by the local authority and the child’s brothers and sisters, as appear appropriate, having regard to the authority’s duty to safeguard and promote the child’s welfare
- there will be a duty on a local authority to establish the views of the child’s brothers and sisters, so far as is reasonably practicable before making any decision with respect to a child whom the authority is looking after, or proposing to look after
- there will be a duty to place brothers and sisters, where appropriate, with the same carer (foster carer or kinship carer), or in the same residential home, or place the brothers and sisters in homes which are near to each other (where this would better safeguard and promote the welfare of a child than a placement in the same home)
Legislative changes under sections 14 and 25 of the 2020 Act (as mentioned above under item 1) relate to the consideration of contact between brothers and sisters by Children’s Hearings and participation of brothers and sisters in Children’s Hearings are not within the scope of the Guidance being developed by CELCIS.
For these purposes the changes will be taken forward by Children’s Hearings Scotland (CHS) and the Scottish Children’s Reporter Administration (SCRA). The inputs at this meeting will provide input to SCRA and CHS who will need to develop any necessary procedural guidance and arrangements for ensuring sibling contact is considered within the Children’s Hearings.
We also want to make sure that if a sibling wants advocacy support to allow them to give their view on contact to the Hearing then we have a process in place to allow that to happen.
Action: CELCIS are keen to hear views from those working in the sector to contribute to the development of the guidance – an online survey is open until 30th April. There will be further engagement activity after this too.
Participation of brothers/sisters on issues relating to contact within children’s hearings and the role independent advocacy could provide – discussion by themes
For the meeting the Scottish Government provided a draft set of 10 themes, the list was by no means exhaustive nor definitive, but was provided to help the discussions. These are the key themes and points raised within the meeting:
Baseline / intelligence on likely uptake / budgetary resources
What do we know about likely demand? There’s no exact science to this – one of the crucial aspects is that local authorities inform the Reporter about siblings, through the duty placed on local authorities to gather views of siblings.
We need to take into account that:
- not every child going to a Hearing will have a sibling who wants their views on contact to be taken into account
- any sibling who wants to provide their view to the Hearing may not need or want the support of an advocacy worker – they may very well be able to articulate their wishes without this type of support
The various pieces of new legislation coming into force on 26 July 2021 place new duties on local authorities in relation to, amongst other things, obtaining the views of siblings and promoting contact with them, new duties on the reporter in relation to rights of participation in a Hearing, and new duties on the Children’s Hearing or Pre-Hearing Panel in relation to rights of participation and consideration of contact with siblings. These duties are distinct but overlap to some extent. SCRA recognises that the local authority will be a primary source of information for reporters and Hearings in relation to siblings and contact. The nature and format of the information provided by local authorities will have a significant impact on how effectively and efficiently the reporter can carry out some duties, and how Hearings conduct consideration of relevant issues.
SCRA suggested it might be possible to do a bit of case monitoring before the Regulations come into force to track possible numbers (although this would be based on the current criteria which is not the same as the criteria coming into force) – and then keep a regular track to follow advocacy need once the new regulations come into force.
For advocacy organisations, it was generally felt the ‘larger/more geographically spread’ organisations may find it a bit easier to manage staff more flexibly when currently siblings are referred in to the service. However it was also noted that even for the larger organisations, some increased capacity would likely be needed to manage any expanded provision to make an explicit offer to siblings.
Some early estimated data from the advocacy organisations under the national scheme provided some indications, with one of the larger orgs (PiA) noting that of 105 Referrals, 14% were part of a sibling group, and the most common of group size being two. Another smaller organisation Independent Advocacy Perth and Kinross (IAPK) also shared that from their cases around 14% involved siblings. The National Providers Network will investigate this further.
It was considered generally that the foundations are there to be able to provide advocacy to siblings via the national scheme but there is some fine tuning which will be needed to make sure the provision is in the right place and resourced.
Scottish Government (Tom) clarified there can be no new commitments involving resources made during pre-election period, any such decisions will be for the newly elected Government to make. That said, it was flagged that these new Regulations would likely add a resourcing pressure to our agreed budget. Once we better understand the likely implications and the new Government Ministers are agreed, we will need to share any advice and evidence of possible resourcing with them in due course.
Action: The National Providers Network will further explore any data they hold and practicalities at the next meeting on 6 May.
Conflict of interest
Children 1st have commissioned Susan Emsley to do work specifically looking at conflict of views and interests with regards to Safeguarders. This could include potential conflicts arising when Safeguarders are appointed to siblings’ cases. There is clearly differences around how safeguarders are appointed to cases i.e. by a Sheriff or Children’s Panel Member, than is the case for independent advocacy. It is possible that a safeguarder could argue for individuals’ best interests even when there are opposing views.
It was mentioned that conflict is not just about any issues for the child/siblings but also how other adults or professionals might perceive there to be a conflict that breaks trust.
Scottish Government (Tom) considered conflict to be manageable, the same organisation providing the advocacy to sibling/family groups shouldn’t raise a conflict but it could be best managed most likely by different practitioners supporting individuals. It was acknowledged that this could be an issue for smaller organisations and there was discussion around whether alternate provision processes might help. It is important to keep in mind that we all must think about how it feels first and foremost for the family.
An example from smaller organisations, CAPS Independent Advocacy (CAPS), was around having limited staff e.g. part time workers working different days. This means that potentially two siblings who want support could have a different worker but this becomes more complicated when the calls/contact comes through the office. The worker supporting another family member will need to handle these during the allocated workers non-working hours. Could this be perceived as a conflict and to mitigate this additional staff resource would be needed. Another, Borders Independent Advocacy Service (BIAS), explained that they have only one advocacy worker funded to deliver children’s advocacy, although other colleagues have also completed the training and could and would cover on a limited basis (e.g. leave), so if in all cases a separate worker was to work with a sibling they would absolutely under current set-up make referrals on to the alternate provider (CAPS).
(Barnardo’s and EAAS) It was mentioned that experience in practice in these things are tricky and often complicated but these aren’t new issues. Advocacy organisations are well practiced at working with these complexities with family groups. How the Children’s Hearings are managed e.g. sessions for full family or individuals will each require careful considerations to appropriately support people to share often differing views and mitigate conflict whether actual or perceived.
A point of clarification around each individual child having a separate Hearing was sought. SCRA confirmed that the Reporter will be considering many aspects when putting in place arrangements for Children’s Hearings e.g. ages of the child and siblings, interests, having the same relevant person’s etc. So it is absolutely right that family sessions happen when appropriate and time will be made to hear each child within the one session with the full family.
A suggestion was made by Who Cares? Scotland (WC?S) around exploring the use of alternate provider as a matter of course which may eliminate any conflict issues. The use of alternate was put in place for three particular reasons, choice, conflict and consistency. It hasn’t been used much up to now, so we could potentially rethink its use e.g. as first response for advocacy for siblings.
It was also commented that even for a ‘larger’ advocacy organisation (PiA) the funded and allocated resource for a particular area can be finite e.g. part-time/limited weekly hours. So managing referrals for sibling groups may need managing internally with capacity identified from elsewhere in the service. Whilst this has been easier to manage in a digital/virtual way of living, this will be more of a challenge again as travel/physical contact arrangements resume.
(IAPK) Also shared experience where the child had explicitly asked the advocacy worker to speak to their sibling so they can also have an advocate if they wanted. This was supported with comments that the advocacy and practices needs to be child directed/led.
Action: Children 1st will share output from work on matters around conflict.
Logistics / referral mechanisms
(WC?S) As with the design of the main children’s advocacy in Children’s Hearings scheme, we do not know what the likely demand could be, therefore making it tricky to prepare for what is to come. Siblings are to be invited to participate for the one issue of ‘contact’. We all need to think about how this right/offer, and advocacy is introduced to the child’s life when the issue to be discussed is not about them but about the interests of their brother/sister. What will be the appropriate pathways for this support?
(WC?S / Barnardo’s) Two advocacy organisations reflected that the process should start before the Hearing and a clear plan considered for the participation of siblings for matters related to contact - staying together/keeping in touch. The point of a looked after child review is likely to be the point where uptake and demand may be better explored.
Clarification was sought on whether there is a definition on sibling’s age attached to the right of participation on matters of contact. Scottish Government confirmed no age. The policy intention was much about placing the emphasis on those significant ongoing relations in a child’s life as they are growing up from childhood through adolescence. It aims to bridge any gaps that existed between the child, and only relevant persons. The systems need to be flexible to deal with the reality of family complexity.
(Social Work Scotland) Further clarification was sought on the definitions of siblings as practitioners will need to build confidence around their understanding and practices in ways of working with families with respect to sibling involvement. For example, shifts away from purely a biological interest where the child has had no sense of involvement with this person over a brother / sister relationship experienced with a foster cares child/family. CELCIS acknowledge this is something that has been raised with respect to the development of the practice guidance for professionals/social workers. It is an issue they want to get right and will aim to refine the definition of who should be recognised as a sibling in how children/young people experience different relationships – drawing from much of the evidence of what children and young people experience and want. It is unlikely to be absolutely clear cut as each child’s circumstances will differ. But it is hoped it can guide around what children/young people need and give some consistency for professionals to be following.
Advocacy organisations (Barnardo’s) mentioned that the eligibility/definitions that will be guiding the local authority/social workers duties as to the nature of relationships involving siblings will be important for the establishment of referral pathways into advocacy, as and when needed. On the nature of relationships, it was also commented by an advocacy organisation (WC?S) that the legacies will also be important to consider. Has the breakdown in ongoing relationships happened because of previous decisions and therefore mending these fractured relationships for improved outcomes in adulthood are equally as important. It was also commented (CAPS) that there is a reliance – not a legal duty - on social work to make most of the referrals to the advocacy organisations.
It was recognised that the success will be partly in a culture shift when these things are discussed and worked through in a well-planned way before a Hearing is being considered.
For social work/local authorities there are undoubtedly practice challenges, certainly around being ready within the timeframes for introduction. An important aspect will be around building confidence around the intentions of the policy and who is a sibling for roll-out, and will likely need a staged approach as it’s taken forward.
SCRA also commented that participation right being offered by the Reporter will be heavily reliant on the information social workers will provide to them – in order to identify the individuals who may meet the criteria to be offered participation rights. It is likely the notification template will be looked at and any revised version could include signposting to advocacy services/the children’s hearings advocacy website.
Considering practicalities for advocacy organisations, it was suggested (WC?S) the primary providers could on first principle manage the referrals in, following thresholds that would point to managing within the organisation ensuring separate meetings with individuals and/or separate workers for individuals, or referring on to alternate where a threshold is surpassed.
It was also commented (PiA) that practice has shown social workers in certain localities view that one advocacy worker should in all cases work with one family. Some examples of feedback included, feelings of too many adults involved with child for social workers to give information, and too much advocacy involvement for parents/carers also for them to manage. (SWS) It was counteracted with input that child’s needs should be paramount over any organisational needs. There remains work to be carried out with regards to advocacy where historically this has been ‘family lead’ rather than by individuals particularly children and some parts of practice may not have fully caught up with this shift in culture yet. This point was supported as one to take forward within comms and engagement work to be clear on the role of advocacy and clear up any misperceptions – relevant to managing conflict actual or perceived.
CHS added that Panel Members are guided to keep attendance to a minimum. Where siblings have a competing view and may be supported by one or separate advocacy workers it shouldn’t undermine the trust in relationship and this is something that is/can be supported in the training – looking at and managing the individual needs of the child.
SCRA also clarified that those who are offered participation rights and who choose to exercise these will be invited into the Hearing only for the relevant part of the discussion.
The idea of collective advocacy was also mentioned, but (WC?S) felt that this practice is more usual when bringing together people to discuss a common issue requiring change and the SIAA have a definition around this. It was felt advocacy for sibling groups could be problematic as a fit for this model of practice. However, the idea of a group style with advocacy working with more than one child in a sibling group may be worth understanding more before dismissal – it may help to explain the difference of this advocacy support being for a person (sibling) to give views only on one element ‘contact’ and as it relates to the subject child – and so not directly about them.
(Scottish Child Law Centre) In terms of solicitors, they are well versed in using professional knowledge when dealing with one or more family member and that individual solicitors would be well able to identify where a conflict of interest was arising. Some people’s views may change over time and where originally there was agreement might mean a potential conflict if someone changed their mind.
Action: Scottish Government will go back to the detail in the Policy Notes at the time of the Children (Scotland) Bill, as introduced in parliament 2019, and subsequent Regulations, to provide the group with an update on the definitions within and further explanation of what we were handling.
Action: SCRA to consider notification letters suitability for inviting siblings to participate in matter around contact and whether signposting to advocacy could be included.
Action: Scottish Government to consider targeted comms activity to support social work and wider professional understanding of the role and value of independent advocacy.
The meeting concluded as the discussion and participation had resulted in an over run of allocated time. Group members were encouraged to feed in any further views and reflection if they wished following the meeting. It was agreed that further work and thinking on this will be necessary over the next couple of months. A further meeting will be scheduled towards the end of May/early June to discuss the “brass tacks” of processes. Input from the National Provider Network will be crucial to the development of detailed procedures to take forward the sibling contact element of children’s Hearings. It was also recognised that it will be impossible to be totally prescriptive in any guidance agreed for advocacy providers as every child is an individual and their family circumstances are unique to them and must be fully considered before any action is taken.
Action: Scottish Government will facilitate further discussions working with the National Providers Network to develop understanding around demand/uptake to develop thinking around potential resourcing implications for advocacy organisations.
Action:Scottish Government will organise another ERG meeting late May/Early June to firm up a pathway for referral, processes to be introduced and followed, and agree a communications and engagement strategy to ensure advocacy providers are prepared for new activity when the law changes in July 2021.
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