Children's hearings training resource manual: volume 1
Volume 1 contains the Children's Hearings (Scotland) Act 2011 and new rules regarding legislation and procedures.
7 Consideration of the Case
The children's hearing must consider the grounds, any remit and any reports which have been made available to them, particularly the local authority report on the child and his or her social background. Reports come in a variety of forms and in many areas panel members will receive one report containing a single integrated assessment on the child drawn from a number of professionals involved in the child's case. On other occasions panel members may receive individual reports from social work, health and education which will detail the agencies' involvement with the child.
If the reports which have been provided to panel members, the child and relevant persons have not been received at least three days before the hearing, panel members must consider whether it is absolutely essential to proceed with the hearing. It may be essential to proceed if it is an emergency hearing or if the child would be at risk if the panel deferred the hearing or if an interim compulsory supervision order or compulsory supervision order was about to lapse and would expire unless a decision was taken. In the absence such a necessity to proceed the children's hearing should normally be deferred although the hearing can make an interim decision if necessary.
The substance of the reports
The chairing member has a duty to inform the child and any relevant person of the substance of the reports. The information disclosed should cover the core issues which are material to the consideration of the case and which may have a bearing on the decision to be made.
There are various reasons for this:
- To make clear to the child, relevant persons and others present what the hearing considers as the main issues to be discussed.
- The child may not have received a copy and should be made aware of what is written about his or her circumstances.
- A child and or relevant person might not be able to read.
- The child and any relevant person may not want to read the reports.
- The child and any relevant person may have read the reports but not have understood what was written.
- The child and any relevant person should be able to give their opinions about the contents of the report and to challenge any possible inaccuracies.
- Other professionals at the hearing may not have seen each others' reports.
It is a general principle that the child should be given the opportunity to express their views before the hearing takes place so that these views can be incorporated in the reports which the hearing will consider. As such, the chairing member also has a duty to ask the child whether the documents provided accurately reflect any views expressed by the child. The exception to this is when the chairing member considers it would not be appropriate to do so given the age and maturity of the child. (s.121)
Discussion of the case
It is the duty of the hearing to involve the child, any relevant person and representatives, any appointed safeguarder, in the discussion in order to obtain their views on what arrangements would be in the child's best interests. Best practice also dictates that panel members should discuss the arrangements to be made with the social worker and any other present who can make relevant contributions. A decision should not be made on an issue which has not been discussed.
Non-disclosure of information
A children's hearing does not need to disclose information to a person if the disclosure of that information is likely to cause the child significant harm. The test for this is a high one in that if the information is disclosed the harm to the child would be significant in nature and therefore likely only to arise in exceptional circumstances.
This could involve:
- withholding an explanation of what has taken place when the children's hearing has spoken to the child on their own
- information about the child's case
- other information provided for the hearing
- the reasons for the decision. (s 178)
Although extreme care would need to be taken about with holding reasons for the decision. For more information, refer to Non Disclosure of Information at page 375.
Adjourning the hearing
If some temporary problem arises which prevents panel members from reaching a decision on the case being considered, it is possible to adjourn the hearing to allow the immediate problem to be resolved.
This might be for example:
- A child or a family member being upset or distressed.
- Someone at the hearing feeling temporarily unwell.
- Someone who should be attending is delayed.
- Panel members wish to seek some other information which could affect their decision.
Depending on the situation, the chairing member of the hearing will judge whether an adjournment could be beneficial and for how long this should be. It might simply be a matter of waiting a few minutes for everyone to calm themselves or a longer time may be required. It is competent to adjourn the hearing until any time later the same day. The adjourned hearing must be constituted in the same way. i. e. the same three panel members must be present at the adjourned hearing or else it would be incompetent. If the hearing cannot restart on the same day then the hearing must be defer making a decision until a subsequent hearing.
Views of the child
The reporter when notifying the child of the hearing will let him or her know that he or she is entitled to express his or her views. Children are given an "All about me" form which enables them to have their say about a number of relevant questions. There is also additional space for the child to add any additional comments which they might want to express.
The hearing must give the child an opportunity to indicate whether he or she wishes to express any views and if this is the case, ensure that the child has an opportunity to do so.
If necessary, in order to obtain the views of the child, or if the presence of a particular person or persons is causing significant distress to the child, the hearing may exclude a relevant person, or persons and /or their representatives from any part of the hearing for as long as is necessary in the interests of the child. This decision should be taken by the hearing and the responsibility should not be placed on the child. (s 76/77)
After the exclusion has ended, the chairing member of the hearing must explain to the relevant person(s) and/or representative of the relevant person(s) what has taken place in their absence. Best practice would promote discussing and agreeing the nature of the feedback with the child before parties have returned to the room although it is very important that all substantive matters are relayed to the excluded person.
A representative of the press or a news agency may also be excluded from the hearing if it is necessary to obtain the views of the child or if that person is causing or is likely to cause the child significant distress. When this exclusion has ended the chairing member may explain what the substance of what has happened in the person's absence if it is appropriate to do so. (s 78(5))
The chairing member of the children's hearing must ask the child (taking into account the age and maturity of the child) whether the reports and documents provided to the child accurately reflect the child's views. It would be best practice to do this at the beginning of the hearing so that if the report and documents do not accurately reflect the child's views that this can be remedied during the course of the hearing by questioning and discussion. (s 121)
Generally speaking, a child aged twelve or over is presumed to be of sufficient age and maturity to form a view but children under the age of twelve should also be given the opportunity to express their views. Indeed some children over the age of twelve may not be mature enough for a variety of reasons to do so including the fact that they may have learning difficulties. (s 27)
A hearing must:
- give a child the opportunity to indicate whether he/she wishes to express a views
- listen to those views
- have due regard to them.
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