Publication - Advice and guidance

Children's hearings training resource manual: volume 1

Published: 26 Apr 2013

Volume 1 contains the Children's Hearings (Scotland) Act 2011 and new rules regarding legislation and procedures.

515 page PDF

2.9 MB

515 page PDF

2.9 MB

Contents
Children's hearings training resource manual: volume 1
3 Appeals against a children's hearing

515 page PDF

2.9 MB

3 Appeals against a children's hearing

It is a fundamental principle of the hearings system that decisions made by hearings should be open to challenge and ultimately, the scrutiny of the court. An appeal can be lodged if:

  • the child
  • relevant person in relation to the child or
  • safeguarder appointed by the hearing (s 154(2))

considers that the decision is not justified.

Appeals may be made separately or jointly but in any event must be made within 21 days of the date of the hearing to the sheriff clerk. (s 154(4/5))

The decisions which can be appealed are wide ranging and include

  • A decision to make, vary or continue a compulsory supervision order.
  • A decision to terminate a compulsory supervision order.
  • A decision to make an interim compulsory supervision order.
  • A decision to make an interim variation of a compulsory supervision order.
  • A decision to make a medical examination order.
  • A decision to grant a warrant to secure the child's attendance at a hearing
  • A decision to discharge a referral. (s 154(3))

Some of the decisions mentioned above may mean that immediate action in relation to the child needs to be taken or there is to be a restriction of the child's liberty. As such there are special arrangements for any appeal of these decisions to be heard more quickly. These appeals must be both heard and disposed of before the expiry of 3 days after the appeal was lodged in court. (s 157(2))

Those decisions attracting the expedited arrangements are:

  • A compulsory supervision order including a secure authorisation or a movement restriction condition.
  • An interim compulsory supervision order.
  • An interim variation of a compulsory supervision order.
  • A medical examination order.
  • A warrant to secure the child's attendance at a hearing (s 157(1))

If an appeal is not disposed of before the expiry of 3 days, the authorisation, condition, order, variation or warrant will cease to have effect. (s 157(3))

OTHER APPEALS

Appeals against relevant person determination (s 160)

An appeal may be lodged in respect of a determination

  • to deem or
  • not to deem a person to be a relevant person.

or a determination of a review children's hearing that an individual

  • continues to be deemed or
  • is no longer deemed to be a relevant person.

An appeal can be made by the individual, the child or another relevant person in relation to the child. An appeal can also be submitted jointly by any of these persons. The appeal must be made within 7 days beginning of the day on which the determination was made and must be heard within 3 days of being lodged. (s 160(6))

Appeal against a decision affecting contact or permanence order (s 161)

An appeal can be made by an individual who is not a relevant person but has contact with a child and a decision has been made in relation to the child in terms of a contact order, a permanence order which specifies contact.

The appeal must be made within 21 days of when the decision was made at a hearing. The appeal must be heard and disposed of within 3 days after lodgement.

Appeal to sheriff against decision to implement secure accommodation authorisation (s 162)

A child or a relevant person, individually or jointly, may appeal against an order or warrant which includes authorisation for secure accommodation.

The appeal may be based on a decision to:

  • Implement the authorisation.
  • Not to implement the authorisation.
  • To remove the child from secure accommodation.

Procedure at an appeal (s 15)

The reporter must lodge with the sheriff clerk all the information that the hearing considered, the decision of the children's hearing and the reasons for it and the record of proceedings outlining who was in attendance etc. The appeal against the decision of the children's hearing is not heard in open court i.e. only parties to the proceedings, their representatives and the sheriff and court staff will be present.

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. (s 31)

The sheriff hearing the appeal has the power to examine all reports provided for the hearing and the record of proceedings completed in relation to that hearing. He may hear evidence from a number of people including the child, relevant person, the reporter or the writer of any reports or indeed any other person he considers necessary including the person in charge of secure accommodation and the chief social work officer if the appeal relates to a decision regarding secure accommodation authorisation. (s 155(5))

The sheriff has additional powers to require any person to give a report to the sheriff for the purpose of assisting the sheriff in his decision-making. (s 155(6))

Possible decisions by the sheriff hearing an appeal (s 156)

The sheriff has a full range of information he can rely on in order to a make a decision. He has all the paperwork that the children's hearing had access to: in addition to this the sheriff can hear evidence from a range of people, may call for additional reports and will hear submissions from the appellant/s and the reporter.

When the sheriff has decided that the appeal has not been upheld, he must confirm the decision of the children's hearing and if he is satisfied that the circumstances of the child have changed since the time of the hearing he may do one or more of the following:

  • require the reporter to arrange a children's hearing
  • continue, vary or terminate any order, interim variation or warrant in effect
  • discharge the child from any further hearing and terminate any order or warrant in force
  • make an interim compulsory supervision order or an interim variation of a compulsory supervision order
  • grant a warrant to secure attendance.

If the sheriff decides that the appeal should be upheld, he must recall any warrant to secure attendance if one is in force, terminate any existing interim compulsory supervision order or medical examination order and may do one or more of the following:

  • require the reporter to arrange a children's hearing.
  • continue, vary or terminate any order, interim variation or warrant in effect
  • discharge the child from any further hearing and terminate any order or warrant in force
  • make an interim compulsory supervision order or an interim variation of a compulsory supervision order
  • grant a warrant to secure attendance.

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 warrant if the sheriff considered it is more beneficial to the child to do so. (s 29)

Frivolous and vexatious appeals (s 159)

As the child and the relevant persons have the right to call a review of the compulsory supervision order after three months and have the right of appeal after every dispositive hearing, sometimes a pattern can develop of appeals being lodged for spurious reasons. As such, the sheriff has the power to order that the appellant must obtain leave from the sheriff to appeal against a decision of a children's hearing for a 12 month period.

Other Appeals

Appeals can be made against the decision of a sheriff to the Sheriff Principal or Court of Session.

Rights of Appeal against Hearings Decisions

Appeal against

People with a right to appeal

Time in which to appeal

s154

decision of a hearing to;

  • make, vary or continue a CSO

  • discharge a referral

  • terminate a CSO

child

relevant person

safeguarder

21 days

s154 / 157

decision of a hearing to;

  • make an ICSO

  • make an interim variation of a CSO

  • make a MEO

  • grant a warrant to secure attendance

  • make a CSO with Secure Authorisation or MRC

child

relevant person

safeguarder

21 days

(Must be disposed of within 3 days.)

s160

relevant person determination

  • the individual in question

  • child

  • relevant person

7 days

(Must be disposed of within 3 days counting the day of lodgement as Day 1)

s161

decision on review of a contact direction

person not a relevant person with;

  • a contact order in force

  • a permanence order in force

21 days

(Must be disposed of within 3 days counting the day of lodgement as Day 1)

s162

decisions relating to implementation of secure accommodation authorisation;

  • to implement authorisation

  • not to implement authorisation

  • to remove the child from secure

child & 1 or more relevant person

2 or more relevant persons

a relevant person on their own

21 days

(Specified in secure accommodation regs.)


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