5 Attendance at Hearings
The law distinguishes between people who have a duty and obligation to attend the hearing and those whose attendance may be permitted by the chairing member of the hearing in consultation with the other two panel members. A third category exists which covers those people whose presence would be expected although they do not have a statutory duty to attend.
People who have a statutory right and duty to attend
The Act stipulates that a children's hearing consists of three members of the Children's Panel. (s 5)
It is the responsibility of the National Convener to ensure that the children's hearing includes both male and female members of the children's panel and so far as is practicable who live or work in the area of the local authority for the child. (s 6(3))
The National Convener may also select one member of the children's hearing to chair the hearing but if a person has not been appointed the hearing may select the chairing member. (s 6(4))
A children's hearing may make a request to the National Convener that one of the members of the children's hearing should be selected to be a member of the next children's hearing arranged in relation to the child where this arrangement is practicable. (Rule 3)
If panel members find on receiving papers for a hearing that they are acquainted with the child or a member of the family, this information should be disclosed to the Area Support Team ( AST). It is important not to presume that the child or family will not take issue with the situation and depending on the circumstances it may be that the panel member will be replaced for that hearing. This issue is not only about impartiality and the hearing being European Convention of Human Rights ( ECHR) compliant but also about possible embarrassment to the child/ family and panel member.
If a panel member recognises the family at the hearing, then he/she must declare this at the outset. The hearing should allow a brief adjournment so that the family may consider the matter in private. The views of the child and family should be taken into account. The hearing may proceed if it is absolutely necessary to safeguard the interests of the child, but the reasons should be recorded.
As there is the option to defer most hearings and set in place interim protective measures, it will be in very exceptional circumstances that the hearing must proceed, such as a second working day hearing. If a compulsory supervision order is in place and is due to expire, the children's hearing could defer the hearing and have an interim continuation in the meantime.
The National Convener will provide guidance to panel members on the practice to be adopted.
The child has a right as well as a duty to attend all stages of his or her hearing and must do so unless they have been excused. (s 78(1)(a); s 73(2;) s 79(4)(a))
However, a children's hearing or a pre-hearing panel may decide to release the child from this obligation to attend all or part of their hearing if they are satisfied that:
(a) The case involves an offence mentioned in Schedule 1 of the Criminal Procedure (Scotland) Act 1995 or the Sexual Offences (Scotland) Act 2009 and the attendance of the child at the hearing, or that part of a hearing, is not necessary for a fair hearing. (s73(3)(a))
(b) The attendance of the child at the hearing, or that part of the hearing, would place the child's physical, mental or moral wellbeing at risk. (s 73(3)(b))
(c) Taking account of the child's age and maturity, the child would not be capable of understanding what happens at the hearing. (s 73(3)(c))
If the hearing is a s 67 grounds hearing, the hearing can only excuse the child from attending while the grounds are being explained if it is satisfied, taking account of the child's age and maturity, the child would not be capable of understanding what happens at the hearing or that part of the hearing. (s 73(4))
Once a child/relevant person has been excused by a pre-hearing panel or children's hearing, that excusal lasts until a substantive decision has been made. However at each hearing, panel members should still consider whether the child or relevant person(s) should be there although they do not formally have to excuse them. The excusal cannot last past the substantive decision.
If a child does not turn up to a section 67 grounds hearing, the children's hearing can direct the reporter to arrange another section 67 grounds hearing or discharge the referral. If a relevant person does not attend a section 67 grounds hearing and has not been excused, the hearing could require another section 67 grounds hearing to take place only if necessary to prevent unfairness to the missing relevant person.
If the child is excused from attending the children's hearing or part of the hearing but expresses a wish to attend the children's hearing or part of that hearing, the reporter must take all reasonable steps to accommodate this by way of telephone, through video link or using any other method of communication. (Rule 19)
A person representing the child
A child has a right to be accompanied by a person who is there to assist them in the discussion of the case or in any issues arising from the discussion of the case either at the children's hearing or at a pre-hearing panel. The child can choose anyone to fulfil the role, i.e. a friend, a relative etc. (s 78(1)(b); Rule 11(1))
The right of the child to be represented does not affect the right of a child to legal assistance by a solicitor or counsel. This means that the child may have both a person there to assist in the discussion of the case and a solicitor. (Rule 11(2))
A relevant person in relation to the child
A relevant person has a statutory right and a duty to attend all stages of the hearing in relation to his or her child and must be notified that it is taking place. (s 78(1)(c))
Any relevant person in relation to a child who is notified that a children's hearing is to take place must attend that hearing unless they are excused from attending because
- it would be unreasonable to require their attendance for all or part of the hearing
- their attendance at all or part of the hearing is thought to be unnecessary for the proper consideration of the case. (s 74(3)(a)(b))
The reasons for reaching this decision should be clearly recorded in the record of proceedings. (s 74(2)(3))
Notwithstanding the above, a children's hearing can proceed with a hearing in the absence of a relevant person if they consider it appropriate to do so.
A relevant person may be excluded from any part or parts of the hearing for as long as it is in the interests of the child if the hearing is satisfied that
- the relevant person's presence is preventing the hearing from obtaining the views of the child. It may be that there is a conflict of interests, or the child will not talk in front of the relevant person, or it may be the situation is that the relevant person is answering on behalf of the child
- if his or her presence is causing or is likely to cause significant distress to the child. It may be that the child is or will be caused significantly upset by the presence of this person. Note the use of the word significant which indicates there is a high test to this criterion. (s76(1)(2))
It is considered best practice that the children's hearing on their own initiative makes the decision to exclude a relevant person or representative so as not to put pressure on the child or compromise the child. After the exclusion has ended, the chairing member must explain to the relevant person what has taken place in their absence unless non-disclosure has been agreed. (s 76(3)
The chairing member should ensure that the child understands that a summary will be given to the relevant persons when they return to the hearing. It is best practice to go through the summary with the child before the relevant person returns ensuring that everyone is clear that the agreed information will be relayed back.
A person representing a relevant person
A relevant person has the right to be accompanied at a children's hearing or pre-hearing panel by a representative to assist the relevant person in the discussion of the case or in any issues arising from the discussion of the case. (Rule 11 (1))
The right of the relevant person to be represented does not affect their right to legal assistance by a solicitor or counsel. This means that the relevant person may have both a person there to assist in the discussion of the case and a solicitor. (Rule 11 (2))
A person representing a relevant person has a right to attend unless that person has been excluded. (s 78(1)(d))
It should be noted that the Act states that a relevant person's representative can be excluded from the hearing on two occasions:
- if their presence is preventing the hearing from obtaining the child's views
- if their presence is causing, or is likely to cause, significant distress to the child.
It will be for the children's hearing to decide if either of these two circumstances apply and as such if they are satisfied, the hearing may exclude the representative from the hearing for as long as is necessary. After the exclusion has ended, the chairing member must explain to the representative what has taken place in their absence. (s 77)
The reporter has a duty to keep a record of the proceeding of the hearing and has a right to attend the children's hearing. (Rule 13)
The reporter has a role in supporting fair process without contributing or undermining the decision making function of the hearing. At every stage the reporter should be alert to any potential or actual procedural irregularities which might impact on the competency of the hearing process or decision. The reporter can clarify or offer a view to a hearing on any legal or procedural matter which has taken place or is about to take place in line with SCRA's practice instruction for reporters and bring them to the attention of the hearing. (s 78(1)(e))
Any appointed safeguarder
A safeguarder is appointed to safeguard the interests of the child in the proceedings and has a right to attend all stages of the children's hearing. Once a substantive decision has been reached by the hearing and any appeal process has been completed, the safeguarder has no further role and has no further right to attend review hearings unless reappointed for that specific purpose. Any paperwork provided to the safeguarder must be kept securely by that person and returned to the reporter at the end of the hearing. They must not cause or permit any information they have attained by their attendance at the children's hearing or pre-hearing panel to be disclosed except where it is permitted by the Act or Rules (s 78(1)(f))
A Member of the Administrative Justice Tribunals Council or the Scottish Committee of that Council
A member of the Administrative Justice Tribunal Council or the Scottish Committee of that Council has a right to be present throughout the hearing as an observer. (s 78(1)(g))
Any information or documents which the reporter makes available to the members of the hearing shall be given, on request, to the member of the Administrative Justice and Tribunals Council or the Scottish Committee of that Council on attending the hearing. These documents must be kept securely by that person and returned to the reporter at the end of the hearing. They must not cause or permit any information they have attained by their attendance at the children's hearing or pre-hearing panel to be disclosed except where it is permitted by the Act or Rules. (Rule 10)
A Member of the Area Support Team
The Act allows a member of the area support team to be present at a hearing as an observer. In practice, the member of the area support team in attendance is likely to be a panel practice adviser who will be observing panel member practice and performance. Any information or documents which the reporter makes available to the members of the hearing shall be given, on request, to the member of the AST on attending the hearing. These documents must be kept securely by that person and returned to the reporter at the end of the hearing. They must not cause or permit any information they have attained by their attendance at the children's hearing or pre-hearing panel to be disclosed except where it is permitted by the Act or Rules. (s 78(1)(h))
'Bona fide' representatives of a newspaper or news agency have a right to attend hearings as observers (s 78(1)(i))
The hearing may exclude a representative of the press if it is satisfied that:
- it is necessary to do so in order to obtain the views of the child or
- the presence of that person is causing or is likely to cause significant distress to the child.
It should be noted that to meet the second test, the distress must be 'significant.' (s78(1)(5))
When a representative of the press has been excluded, the chairing member may after the end of the exclusion, explain to that person the substance of what has taken place in their absence, if this is thought to be appropriate. (s78(1)(6)
The Act also stipulates the publishing restrictions which apply to hearings. No protected information about the hearing process can be published if it is intended to or is likely to identify a child or the address or school of that child.
However there are some exceptions to this. In certain specific circumstances,
- Scottish Ministers.
- A sheriff in proceedings.
- Court of Session in proceedings.
may either dispense with this prohibition or relax the prohibition, if it is in the interests of justice and is appropriate to do so. (s 182)
A police officer or a prison officer
A constable, prison officer or other person is authorised to attend if they have in their lawful custody a person who has a right to attend a pre-hearing panel or a children's hearing. (Rule 20(2)
People who may attend at the discretion of the chairing member
It should be noted that the chairing member must not grant permission for any person without a right to attend, if either the child or any relevant person objects to their attendance unless the chairing member considers it is necessary for the proper consideration of the case.
The chairing member is under an obligation to take all reasonable steps to keep the number of people attending the hearing to a minimum. (s 78(4))
There are various people who may attend children's hearings: those who attend as participants and those who attend as observers. The guiding principle in exercising this discretion is the numbers attending the hearing should be kept to a minimum,
always remembering that the essential character of the hearing is to be as informal as the circumstances permit allowing the child to actively contribute in a forum which is private and non intimidating.
In addition, when deciding whether to allow the attendance of participants, consideration has to be given to the question:
Is their presence necessary in order to obtain information to reach a decision in the child's best interests?
Are they there for observing for a specific purpose?
Proper consideration of the case
No other person may attend a children's hearing unless
- The person's attendance at the hearing is considered by the chairing member of the children's hearing to be necessary for the proper consideration of the case. This could involve someone who has an important contribution to make but has no entitlement to attend the hearing. (s78(2)(a))
- The person is granted permission to attend the hearing by the chairing member. This could involve an appropriate observer such as a trainee panel member, trainer, a trainee social worker etc. They would attend the hearing as an observer only.
- Any person who is authorised and required to attend by virtue of the Rules.
People who attend as participants
The social worker or a representative from the social work department in their absence will usually attend the children's hearing. The social worker will attend as a full participant as they are likely to have compiled the report and will speak to this information and what they are recommending for the child. Although with the G irfec agenda, the lead professional may be someone other than the social worker.
Other professionals working with the child
Also other professionals working closely with the child, for example, the health visitor, teacher, psychologist, etc may have prepared a report for the hearing and will usually be invited to attend the hearing. They do not have the right to attend the children's hearing may decide to restrict their attendance to the part of the hearing which deals with their own reports.
People who attend as observers
Trainee panel members and others
Trainee panel members observe children's hearings as part of the compulsory Pre-Service Induction. In practice they may be permitted to have sight of the paperwork from panel members directly before the children's hearing. The chairing member may also admit children's hearings training officers, social work students and people engaging in research relating to children who come to a hearing provided that the chairing member believes that the person has a legitimate interest or justification to attend. A member of SCRA will normally inform the panel members of who has been invited to attend the hearing and who has arrived. This enables the chairing member to check who is entitled to be present. (s 78(3))
Any decision about admitting observers (with no right to be present) into the hearing should take place:
- at the beginning of the hearing and outwith the presence of the observers
- before any discussion has taken place
- in consultation with the child and family.