3 The Reporters Decisions
The reporter's decision is based on the answers to the following questions:
- Is there sufficient, relevant evidence to support at least one of the section 67 grounds?
and if so
- Whether the reporter considers that it is necessary that a compulsory supervision order should be made (or renewed) in respect of the child.
The reporter has three possible options when reaching a decision about the referral.
1. Take no further action on the referral (s 68(3)(a))
If the reporter considers that none of the section 67 grounds apply in relation to the child or it is not necessary for a compulsory supervision order to be made, he must make a decision to take no further action.
This does not necessarily mean that nothing has been done. The reporter may have written to the family or indeed met them to discuss the referral. The child may have been diverted to another agency for mediation or reparation if the referral was an offence. Also, the police may have agreed to administer a restorative police warning. The reporter must write to the child and his family to inform them of their decision.
2. To refer the case for advice, guidance and assistance (s 68(5)(a)(b))
If the reporter considers that none of the section 67 grounds apply and that a compulsory supervision order is not necessary, there is the option to refer for advice, guidance and assistance. In relation to these situations, the child and/or the family may be willing to accept advice, guidance and assistance on a voluntary basis and the reporter can refer them to the local authority for this to be provided.
What is important is that the support is offered to the family and accepted by them as an appropriate way forward to deal with the situation and as such no compulsion is necessary. In most circumstances the support will be provided by the local authority but it may also be provided by any person or body specified by Scottish Ministers to provide this service. (s 68(5))
If a reporter decides to take no action in relation to a referral or refers the child to the local authority for advice, guidance and assistance, he/she cannot subsequently refer the child solely on the basis of information already considered. (s 68(6))
3. Arrange a children's hearing (s 69(2))
If the reporter considers that there is enough evidence to prove at least one of the section 67 grounds and that a compulsory supervision order may be required then he/she must arrange a children's hearing.
It is important to remember that once the reporter has referred a child to a hearing, that is the end of their decision making process in regard to the referral. The process of decision making then passes to the children's hearing who will look at the situation anew and will make a decision in relation to the child completely independently. The children's hearing may decide that a compulsory supervision order is not necessary. This process of separation of the decision making process by the reporter, the children's hearing and the courts is one of the fundamental principles of the children's hearings system. It protects the rights of children and relevant persons by a series of checks and balances.
Notification of a children's hearing
When the reporter has reached a decision to refer the child to a children's hearing, they must then make arrangements for the children's hearing to take place so that a decision can be made by a hearing about whether a compulsory supervision order is necessary.
- Require the local authority to provide a report to the hearing on the child's background and circumstances if they have not already done so. (s 69)
- Give the child and any relevant person, notice in writing of the date, time and place of the hearing no later than 7 days before the intended date of the hearing. (Rule 22)
- Give to the members of the hearing notification of the date, place and time of the hearing wherever practicable 7 days before but no later than 3 days before the intended date of the children's hearing. (Rule 25)
- Give to the child, relevant person and any appointed safeguarder the following paperwork: a copy of any relevant requirement made by the sheriff in relation to an appeal, a copy of the report or interim report prepared by the safeguarder, a copy of any report made by the local authority, a copy of the views of the child and a copy of any other report or document which is material to the hearing's consideration wherever practicable 7 days before but no later than 3 days before the intended date of the children's hearing. (Rule 27)
- Give to the members of the hearing a copy of the statement of grounds wherever practicable 7 days before but no later than 3 days before the children's hearing. (Rule 28)
- Any person who appears to the reporter to have (or recently has had) significant involvement in the upbringing of the child is also entitled to information confirming the right to require a pre-hearing panel or a children's hearing to determine whether they should be deemed to be a relevant person. (Rule 24)
Other information to be provided
The reporter must also give to the child and each relevant person in relation to the child
- Information relating to the availability of legal advice to the child and the relevant person.
- Confirmation of the child's duty to attend the hearing.
- Confirmation of the relevant person's duty to attend the hearing.
- Confirmation of the child and relevant person's right to request a pre-hearing panel or children's hearing to determine whether a person should be deemed to be a relevant person, whether the child or relevant person should be excused from the hearing or whether a hearing is likely to make an order including secure authorisation.
- Information about the ways in which a child may express his views to the children's hearing.
- Confirmation of the right of the child and each relevant person to give any report or other documentation to the children's hearing or pre-hearing panel. (Rule 23)
Where the child or the relevant person wish to submit any report or document to the children's hearing, they must give this to the reporter as far as is practicable, 4 days before the date of the hearing. (Rule 26(1))
When the reporter has received any report or document from the child or relevant person, he should make this available to the child, relevant person, any appointed safeguarder and the three panel members no later than 3 days before the hearing. (Rule 26(2))
Where the reporter obtains any information (including the views of the child) or document, the reporter must give the information or copy of the report to parties before the beginning of the hearing. (Rule 26(3))
Documentation for section 67 grounds hearing
Where a section 67 grounds hearing has been arranged, in addition to the information noted above, the child, each relevant person in relation to the child and any appointed safeguarder, must receive no later than 7 days before the hearing
- a copy of the section 67 grounds
- a copy of any requirement made by the sheriff in relation to the determination of an appeal
- information relating to the retention of their DNA in certain circumstances.
This will enable everyone to consider the information, prepare for the hearing and seek legal advice if they wish to do so. Any appointed safeguarder has the right to receive a copy of the grounds and a copy of any requirement made by the sheriff in relation to the determination of an appeal but will not receive information relating to the retention of the child's DNA.
The reporter must also give the child, each relevant person and any appointed safeguarder no later than 3 days before the hearing.
- a copy of any available report or interim report prepared by the safeguarder
- a copy of the report provided by the local authority
- a copy of any views of the child given either to the reporter or any other person
- a copy of any report or document which would be material to the children's hearings consideration of the case (Rule 27)
Where the reporter obtains information including the views of the child or any document which is material to the hearing's consideration of the case, the reporter must provide this information to parties as soon as possible before the beginning of the children's hearing. (Rule 26(3))
Documentation for children's hearing
Where any document or report is given to members of the children's hearing or pre-hearing panel, the person who has prepared that document has a duty to ensure that it contains any views that the child has expressed to them. (Rule 8)
Provision of paperwork for children
The reporter is under a duty to notify the child of the date, time and place of the children's hearing or pre-hearing panel and to provide the child with any information, confirmation, report or documents. However, the reporter, taking into account the child's age and maturity, need not notify the child or provide paperwork if they consider that the child would not be able to understand.
The contents of the documents must be kept strictly confidential by panel members.
They are responsible for keeping the papers safe and must not discuss any information concerning cases outside the hearing. No matter how complex, disturbing or perplexing the problems are, panel members must respect confidentiality and must not discuss the case with their families, close friends or any other person. Reports should not be highlighted or defaced- these same reports may be used again if a hearing is deferred. The documentation must be kept securely in the panel member's possession and returned to the reporter at the end of the pre-hearing panel or children's hearing. (Rule 5(1)/(2))
To help with their preparation, panel members may make some personal notes but these should be brief and hand-written not more than one A4 page. All personal notes should be handed to the reporter at the end of the hearing or pre-hearing panel so that they can be destroyed. Computers or laptops should not be used to record information.