6 Beginning the Hearing
A panel member should prepare thoroughly on their own in advance of the hearing. In the discussion before the hearing, panel members should only consider procedural issues - not those of substance. This is dealt with in the section entitled ' The Panel Member at the Hearing.'
The opening stages of the hearing set the tone for what follows. A range of legal duties fall upon the chairing member but the other two panel members can make a contribution with a pleasant greeting and active listening. If the opening stage is handled poorly, the quality of the whole hearing may be affected and it may affect how the child and relevant person/s participate in the hearing.
When a family comes into the hearing room, the chairing member should introduce him or herself and the others present, at the same time explaining each person's function. The reporter should make their own introductions.
The chairing member must check the age of the child to find out if the child is a child within the meaning of the legislation. However, the chairing member is not under an obligation to ask the child's age if they consider that the child would not be able to understand the question. (s 124)
The reporter is obliged to keep a record of the hearing which will include the addresses of the child and the relevant persons although hearing members must be alert to whether a non-disclosure provision applies. (Rule 13)
If the child is not present
The child has a right to attend any children's hearing held in relation to their situation. If a pre-hearing panel had been arranged in advance of the children's hearing, all panel members will have been given paperwork detailing what determinations were made particularly in relation to whether the child had been excused from attending the children's hearing. The determination of a pre-hearing panel in relation to this matter stands. If a children's hearing decide that they do not want to make a decision without the child being present they must defer the hearing for the child to attend the next hearing.
If the child has been correctly notified, has not been excused from attending the hearing and there is no other reason known why the child has not attended the hearing , the children's hearing may ask the reporter to consider making an application for a warrant to secure the child's attendance. On cause shown by the reporter, the hearing may issue a warrant to secure the child's attendance at the hearing. This warrant grants the power to the police to uplift the child and bring them to the children's hearing and is a decision which should not be taken lightly. (s 123)
If the relevant person is not present
A relevant person has a right to attend any children's hearing held in relation to their child. If a pre-hearing panel had been arranged in advance of the children's hearing, all panel members will have been given paperwork detailing what determinations were made particularly in relation to whether the relevant person has been excused from attending the children's hearing. The determination of a pre-hearing panel in relation to this matter stands. If a children's hearing decide that they do not want to make a decision without the relevant being present they must defer the hearing for the relevant person to attend the next hearing. Panel members would need to consider whether it is in the best interests of the child to do so, remembering that a relevant person cannot be compelled to attend a hearing.
Panel members must weigh up carefully the risks of delay against the value of a decision without the benefit of the relevant person's view of the situation. Relevant persons are entitled to appeal against the decision of the hearing even if not present at the hearing. A relevant person who has been notified of a hearing and fails to attend for no good reason may be prosecuted and fined in Court. (s 74(4))
If for whatever reason a relevant person is not present, there is provision within the Act for the children's hearing to proceed without him or her if it considers it appropriate to do so. If the relevant person is not present, the hearing may wish to ask the reporter or any other person present if they are aware of any reasons why the relevant person is not in attendance. (s 75(1)(2))
Explaining the purpose of the hearing
The chairing member has a duty to explain the purpose of the hearing before the hearing considers the case.
Obviously such an explanation will vary depending on the circumstances. A child and family appearing before a hearing for the first time will need more of an explanation and if it is a very young child then any explanation must be in language that can be easily understood. The substance of the explanation would be that it is the duty of the hearing to decide if a compulsory supervision order is required for the appropriate protection, guidance, treatment or control of the child according to the circumstances which face him or her.
It is good practice that any explanation should include:
- What a hearing is.
- What format it will take.
- The purpose of this particular hearing.
- Why the child and the relevant persons have been asked to attend.
- What reports have been received and will be used as a basis for discussion.
- That the views of the child are particularly important.
- That the child's welfare will be the hearings paramount consideration in reaching a decision.
- They should question anything they disagree with or don't understand.
- They should feel free to fully participate in the discussion.
Appointment of a safeguarder s 30
In any case the panel members must consider whether they should appoint a safeguarder to safeguard the interests of the child if one has not already been appointed. The hearing may appoint a safeguarder at any time when they are deciding matters in relation to a child but for clarity and openness, it is useful to introduce the subject in the early stages of the hearing so that the child and family are clear that the panel is actively considering the matter throughout the course of the discussions.
If the hearing decides to make an appointment they must record the appointment and give reasons for reaching this decision so that the safeguarder knows what remit they have in relation to which matters the hearing wishes them to consider. If a decision is made not to appoint a safeguarder the reason for not appointing should also be recorded as this is an issue which may be raised in appeals.
When a safeguarder is appointed by a children's hearing or a pre-hearing panel, the reporter must inform the safeguarder of the date, time and place of the next children's hearing. The safeguarder will be given the same reports and information that the panel members were given in addition to the record of proceedings which sets out their remit and a copy of the decisions and the reasons for this decision as soon as practicable and no later than 7 days before the hearing (Rule 56(2) (b))
The safeguarder must prepare a report or an interim report within 35 days of his/her appointment and give a copy of this report to the reporter. (Rule 56(5))
Where an interim report is submitted to the reporter, in addition to the interim report the safeguarder must also provide the reporter with (Rule 56(6))
- A statement explaining why an interim report was produced instead of a full report.
- Details of what further investigations or information being sought by the safeguarder.
- An estimate of how much more time the safeguarder needs to complete the report .
On receipt of any report or interim safeguarder report, the reporter must arrange a children's hearing as soon as practicable to decide whether to make or review a compulsory supervision order in relation to the child. (Rule 57(1))
A safeguarder is not required to prepare a report if appointed
- By a pre-hearing panel before a grounds hearing.
- In certain emergency type situations. (Rule 56(4))
- Appointed by the sheriff.
The safeguarder has a duty to keep securely any information or documents which the reporter makes available and must return these 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 9)
The safeguarder has the right of appeal in their own right against a decision of a children's hearing.
Explaining the statement of grounds
If following a referral, a decision is taken by the reporter to refer a child to a children's hearing, the reporter must prepare a statement of grounds including reference about
- which of the s 67 grounds apply
- the facts on which this is based (s 89)
At the opening of a children's hearing, the chairing member must explain to the child and each relevant person each s67 ground specified in the statement of grounds and ask them whether they accept each ground. (s 90)
A s67 ground must be accepted or established before a hearing can go on to consider the child's case. It is therefore crucial that the s67 ground and the supporting statement of grounds are communicated effectively and accurately, as the child and each relevant person must be asked whether they accept them. Panel members must give time to the process and ensure that the children and relevant persons are given a genuine option to accept or deny the ground as well as to check their understanding.
The chairing member's explanation should enable the child and the relevant person/s to give a definite answer, without entering into discussion and without putting anyone under pressure to accept.
Section 67 Grounds accepted
If the child and the relevant person accept each s 67 ground or at least one of the s67 grounds, if they consider it appropriate to do so, the hearing may
- make a decision about whether a compulsory supervision order is required
- defer making a decision about a compulsory supervision order until a subsequent hearing. (s 91)
Where the child is not subject to a compulsory supervision order and a hearing has deferred making a decision, they may, if the child's circumstances require it, make an interim compulsory supervision order as a matter of urgency for the protection, guidance, treatment and control of the child or a medical examination order if they feel that it is necessary to do so for the purposes of obtaining any further information or investigation.
Where the child is subject to a compulsory supervision order, the hearing can make an interim variation of a compulsory supervision order as a matter of urgency. (s 92)
Grounds not accepted
If at least one of the s67 grounds is accepted but the hearing do not feel that it is appropriate to make a decision in relation to that ground alone or none of the s67 grounds are accepted, the hearing has two options:
1. the grounds hearing must either direct the reporter to make an application to the sheriff for a determination. This is generally referred to as 'sending the grounds for proof'
2. they may discharge the referral. (s 93)
If the grounds hearing directs the reporter to make an application to the sheriff for determination the chairing member must explain the purpose of the application to the child and any relevant person and inform the child that he/she is obliged to attend the hearing at court unless excused. (s93(4))
The grounds hearing may issue an interim compulsory supervision order (but not the authority for any specified medical or other examination) if they consider that it is necessary to do so for the child's protection, guidance, treatment or control. (s93(5&6))
Child or relevant person unable to understand grounds
Where the grounds hearing is to take place and the hearing is satisfied that the child or a relevant person:
- Would not be able to understand the explanation given to them.
- Has not understood the explanation given to them.
In relation to the grounds, the grounds hearing must either direct the reporter to make an application to the sheriff court for determination or discharge the referral.
If the grounds hearing directs the reporter to make an application to the sheriff for determination the chairing member must, so far as possible, explain the purpose of the application to the child and any relevant person and inform the child that he/she is obliged to attend the hearing at court unless excused. (s 94)
The grounds hearing may issue an interim compulsory supervision order (but not the authority for any specified medical or other examination) if they consider that it is necessary to do so for the child's protection, guidance, treatment or control.
If a child fails to attend a grounds hearing and was not excused from attending the hearing, the grounds hearing may require the Principal Reporter to arrange another hearing for the same purpose. (s 95)
Grounds referred to the Sheriff for proof
Where either a children's hearing has made a decision to refer a case to the Sheriff for proof because
- the s67 grounds have not been accepted
- child or the relevant person would not be able to understand an explanation of the s67 grounds
- child or relevant person has not understood the explanation given
The sheriff has a duty to consider the appointment of a safeguarder where one has not been appointed by the hearing. If the sheriff does appoint a safeguarder, the decision must be recorded and reasons given. The safeguarder appointed by the sheriff is to be treated as a safeguarder appointed by the hearing for all other purposes. (s 31)
The application must be heard not later than 28 days after the day on which it was lodged but the hearing does not need to be concluded in that period. (s 101(2))
The application before the Sheriff is not to be heard in open court which means that the child and relevant persons are offered a degree of privacy in the proceedings. (s 101(3))
The standard of proof for an offence committed by a child is the criminal one. i.e. beyond reasonable doubt. For all other grounds proof is to the civil standard being the balance of probabilities. (s 102(3))
A child must attend at court for the hearing of his/her application unless he/she is excused from doing so by the Sheriff. (s 103(2))
The Sheriff may excuse the child from attending all or part of their application if (s.103)
- the section 67 ground is in relation to a Schedule 1 offence or sexual offence ground
- if the attendance of the child at the hearing or part of the hearing would place the child's physical, mental or moral welfare at risk
- if the child would be unable to understand what happens at the hearing of the application. (s 103(3))
The child may attend the hearing of their application even if they have been excused from doing so by the Sheriff. (s103(4))
If the child is not excused from attending their application but does not attend, the Sheriff may issue a warrant to secure the child's attendance
- if the hearing is to be continued to another day
- the Sheriff considers that they will not attend on that day (s 103(5-7))
Both the child and any relevant person may be represented at the hearing of the application by another person but that person need not be a solicitor or advocate. (s 104)
Where the sheriff decides that:
- one or more of the section 67 grounds are established
- one or more of the section 67 grounds were accepted at the children's hearing.
the Sheriff must direct the reporter to arrange a children's hearing to decide whether to make a compulsory supervision order.
In any other case, the sheriff must dismiss the application and discharge the referral. (s 108)
Once grounds are established by a sheriff, hearings can proceed to decide if a compulsory supervision order is required for the child without entering into dispute over contested matters.
Sheriff's powers to issue an ICSO
After an application for proof has been concluded and the child is to be referred back to a children's hearing, the sheriff may issue an interim compulsory supervision order if the child is not subject to a compulsory supervision order and the sheriff is satisfied that:
- there is a need for protection, guidance, treatment or control of the child and
- It is necessary as a matter of urgency. (s 100 &109)
If the sheriff's ICSO requires the child to reside at a place of safety, a children's hearing must be held, within 3 days beginning with the day the child begins to reside at the place of safety. The sheriff in considering the making of certain orders and warrants, must only make, vary, continue or extend the order or interim variation or grant a warrant if the sheriff considered is more beneficial to the child to do so. (s 29)
Section 67 Grounds accepted
If the section 67 grounds are accepted, the hearing may proceed to consider the case.
The children's hearing cannot proceed if:
- The child or any relevant person does not accept the grounds.
- The child or relevant person does not understand the grounds or is incapable of understanding the grounds.
The hearing's options are to either discharge the referral or direct the reporter to make an application to court for determination.
The hearing can proceed if:
- The child and any relevant persons accept the grounds.
- The child and any relevant person accepts the statement of grounds in part.
The hearing options are to proceed on the accepted grounds either in whole or in part, discharging the ground not accepted or discharge the case.
The children's hearing can amend or delete the statement of grounds as appropriate.
When sending a case to the sheriff for determination the chairing member must:
- Inform the child and relevant person of the purpose of the application.
- Inform the child he or she has a right to be present at the hearing in front of the sheriff and is under an obligation to be present unless excused by the sheriff from attending.