The Panel Members Role
A panel member's primary role is to make a decision about whether or not a child requires compulsory supervision. The elements of these measures are protection, treatment, guidance and control or a combination of some or all of them. The aim of a hearing's decision is to intervene positively in a child's life in order to change the circumstances for the better. Hearings have extensive powers which may have far reaching implications for and consequences on the life of a child and his or her family. The decision making task is therefore complex and difficult; with the authority to make such decisions comes the responsibility to treat families with dignity and respect and to ensure their rights are protected as far as possible.
Principles for decision-making
The principles of the children's hearings system, set out in the section on History and Principles, provides an underlying philosophy for hearings decisions. In addition, the principles of the Children's Hearings (Scotland) Act 2011, establish a broad framework for most of the decisions made by pre-hearing panels and hearings:
- The need to safeguard and promote the welfare of the child throughout their childhood as the paramount consideration except when to protect the public from serious harm.
- The child's views must be sought and if expressed, taken into account when reaching a decision.
- The beneficial principle - children's hearings should only make on order if it would be better for the child than not making an order.
Further themes should also be considered
- every child has a right to be treated as an individual
- every child has the right to be protected from all forms of abuse, neglect and exploitation
- parents should normally be responsible for a child's upbringing and every effort should be made to preserve the family unit provided it is not to the detriment of the child
- regard should be paid to a child's religious persuasion, racial origin and cultural and linguistic background and any disability
- any intervention by a public authority in a child's life must be proportionate and properly justified and should be supported by services from all relevant agencies working together.
Protection of the public
Although the child's welfare must normally be the paramount consideration for hearings and courts, the Act nevertheless allows this principle to be waived if there is a serious threat to public safety. (s 26)
This decision, which for example could allow a child to be kept in secure accommodation, carries with it a high test and should not be taken lightly. The criteria is met only if a case can be made "for the purpose of protecting members of the public from serious harm (whether physical or not),…"
If a child is to be deprived of their liberty, in order to protect the public, a hearing must ensure that the child's rights are fully protected. Legal Aid for a solicitor to offer legal assistance to the child will be automatically available.
Non-Disclosure of Information Request
A children's hearing does not need to disclose information to a person about the child if the disclosure of the information to the person would likely cause significant harm to the child. However the following information cannot be withheld:
- the statement of grounds
- a copy of a remit by the court for a criminal matter
- a copy of requirement under the Antisocial Behaviour Act
- order or warrant to which the child is subject. (s 178; Rule 84)
A non-disclosure request must state
- the parts of the document which should not be disclosed
- why this information should not be disclosed
- the person/s who should not have this information
- the reasons why the person/s should not have this information.
Where a children's hearing has been arranged and a non-disclosure request is received by the reporter from a report writer or the reporter considers that there is information contained in the report or document which should be withheld; the reporter must refer the matter to the children's hearing for determination. For further information refer to Section 9 of the Legislation and Procedure Handbook. (Rule 85)