Definition of child ( s 199)
A child for the purposes of a hearing is a person who is:
- A person under 16 years of age.
- A person who is of school age and has been referred to a hearing on the ground that he or she has failed to attend regularly at school.
- A person who becomes 16 years of age while an investigation by the reporter is taking place but before a decision has been made.
- A person who becomes 16 years of age and a compulsory supervision order is in force in respect of that person until they are 18.
- A person who becomes 16 years of age and a compulsory supervision order is made in respect of a person on or after their 16 th birthday until they are 18.
A child includes any person whose case has been remitted by the court under the Criminal Procedure (Scotland) Act 1995 until either:
a. A children's hearing or the sheriff has discharged the case.
b. A compulsory supervision order made in respect of the child is terminated.
c. The person becomes 18 years of age.
In summary, a child for the purposes of a children's hearing is someone who was under 16 at the point of referral to the children's reporter even if the first hearing does not take place until after the 16 th birthday. It also includes a child over the age of 16 if remitted from court or is subject to an existing compulsory supervision order until either the compulsory supervision order is terminated or until that person becomes 18 years of age.
Definition of relevant person
In everyday language we speak about children's parents. The terminology 'relevant person' was introduced by the Children (Scotland) Act 1995 and continues today in the Children's Hearings (Scotland) Act 2011. This does not mean 'relevant' in the way the term is commonly understood but is a specific legal term. The plural is relevant persons, not relevant people. In terms of the legislation, a 'relevant' person for the purposes of a hearing is:
- Parents, married or otherwise, including adoptive parents (except where the responsibilities and rights have been removed by an order of court).
- Any person who has parental responsibilities and rights as defined in s 200 of the Act (except where the responsibilities and rights have been removed by an order of court).
- Any person who has (or has recently had) a significant involvement in the upbringing of the child.
There are basically two distinct categories of relevant persons: a person who is automatically a relevant person and a person who is a 'deemed' relevant person.
Decisions in relation to who is automatically a relevant person will be made by the reporter prior to the hearing when considering who to notify and invite. Panel members in the context of a pre-hearing panel (or at the beginning of a children's hearing if there has not been enough time to arrange a pre-hearing panel) will be asked to make determination on the following;
- whether a person has a significant involvement in the upbringing of the child or
- whether a person recently had a significant involvement in the upbringing of the child.
If either the pre-hearing panel or children's hearing consider that the person meets either of the criteria, then they must deem that person to be relevant.
Deemed relevant person status
The child, relevant person or the individual who believes that they should be deemed to be a relevant person can ask the reporter to arrange a pre-hearing panel to determine the matter.
Also the reporter may have information to the effect that a certain individual who has no statutory right to be present at the children's hearing, may have or recently has had significant involvement in the upbringing of the child. In these circumstances the reporter themselves can refer the matter to a pre-hearing panel for a decision.
Only a pre-hearing panel, or a hearing if there has been no time to arrange a pre-hearing panel, can deem someone a relevant person. The reporter is not empowered to do this.
If an individual makes a request to be deemed as a relevant person and there is sufficient time for the reporter to convene a pre-hearing panel, the pre-hearing panel will determine this matter.
If, however, the request is made and there is not enough time to arrange a pre-hearing panel, the children's hearing can make the decision but only at the very start of the hearing before any other matter has been decided upon.
If during the course of a children's hearing, an individual requests that they be deemed to be a relevant person, the hearing may make a determination on the matter if everyone is present and agrees to the hearing making the decision.
If the individual is granted deemed relevant person status, they have all the duties and rights in connection to that child and these last until such time that the status is removed.
It is important to note that deemed relevant person status is distinct from any other relevant person status. The decision about whether a person is deemed to be relevant is based upon the facts and the circumstances of the case at that time and is capable of change in the future. A future children's hearing may decide to remove the person's status.
The person requesting deemed relevant person status should advance arguments to support their application and panel members should confine their discussion to this question alone.
It is important to remember that:
- only a pre-hearing panel or a children's hearing can 'deem' a relevant person
- only a children's hearing can remove the 'deemed' relevant person status.
Review of deemed relevant person status
Deemed relevant person status is not permanent. When a decision has been made to deem someone to be a relevant person, a subsequent hearing may review the situation. When a hearing reviews a CSO in relation to a child and decides to continue or vary the CSO, at the conclusion of the hearing they may also consider whether a person should continue to be deemed a relevant person. If the hearing considers that the person no longer has significant involvement in the upbringing of the child or has not recently had significant involvement in the upbringing of the child, they may make a determination that the person is no longer to be deemed a relevant person.
There are however, appeal rights. The individual who has had the status removed, the child and the relevant person may appeal individually or jointly against this determination within seven days to the sheriff court. Notwithstanding the determination of the deemed relevant person status, the individual continues to have a right of appeal against the actual decision of the children's hearing in relation to the continuation, continuation and variation or variation of the CSO.
Significant involvement in the upbringing of the child
Before a decision can be made to deem a person to be a relevant person, the pre-hearing panel or children's hearing must be satisfied that the individual can demonstrate either that they have or that they have had recent significant involvement in the upbringing of the child.
The test for significant involvement is a high one. Whilst many people could claim that they have (or recently have had) significant involvement in the upbringing of the child, a person who is likely to meet this test will be able to demonstrate they have been involved in how the child is being brought up in terms of the core decisions in relation to the child's life. This would include being involved in the day to day decision making for a child: decisions about where the child lives, where the child goes to school and decisions about medical treatment for the child.
It would not be sufficiently proved if the person was solely involved in care arrangements for the child. If the test for significant involvement is applied in this way, it would exclude the person who looks after the child after school but may include a member of the extended family who recently had the care of the child in the absence of the child's parents for a significant period of time. It would also exclude a professional worker who could claim to have a significant involvement in the upbringing of the child but apart from their professional role and remit would not be involved in the child's life.