Section 14 Essential Information
THE FUNDAMENTAL PRINCIPLES
A pre-hearing panel or children's hearing must:
- Have regard to the need to safeguard and promote the welfare of the child throughout the child's childhood as their paramount consideration. The one exception to this being when it is necessary that a decision is made for the purposes of protecting the public from serious harm - the paramount principle.
- Give the child an opportunity to indicate whether the child wishes to express a view, and if they do, give them the opportunity to do so and have regard to any views expressed by the child - the views of the child.
- Make, continue or vary any order or grant a warrant only if the children's hearing considers it would be better for the child than not to do so - the beneficial principle.
CRITERIA FOR DECISION MAKING
Throughout the Act mention is frequently made of:
Panel members need to consider which one or more of these areas is in point when making a decision about the child.
DEFINITION OF CHILD
A child for the purposes of a children's hearing is someone who was under 16 at the point of referral to the children's reporter even if the first hearing does not take place until after the 16 th birthday. It also includes a child over the age of 16 if remitted from court or is subject to an existing compulsory supervision order until either the compulsory supervision order is terminated or until that person becomes 18 years of age.
DEFINITION OF RELEVANT PERSON IN RELATION TO CHILD
- Parents (married or otherwise) including adoptive parents unless responsibilities and rights have been removed by an order of court.
- Any person who has parental responsibilities and rights under s 200.
- Any person who has (or has recently had) a significant involvement in the upbringing of the child.
EXCUSING THE CHILD FROM ATTENDANCE AT A CHILDRENS HEARING
A child may be excused from attending a children's hearing if:
- The case involves an offence mentioned in Schedule 1 of the Criminal Procedure (Scotland) Act 1995 or the Sexual Offences (Scotland) Act 2009, parts 1, 4 and 5.
- The attendance of the child at the hearing would place the child's physical, mental or moral wellbeing at risk.
- Taking account of the child's age and maturity, the child would not be capable of understanding what happens at the hearing.
EXCUSING A CHILD FROM ATTENDANCE AT A SECTION 67 GROUNDS HEARING
If the pre-hearing panel are considering whether to excuse the child from attending a section 67 grounds hearing, the child can only be excused while the grounds are being explained if they are satisfied that taking account of the child's age and maturity, the child would not be capable of understanding the explanation.
A grounds hearing can require the reporter to arrange another grounds hearing if the child or relevant person fails to attend and has not been excused.
EXCUSING A RELEVANT PERSON FROM ATTENDANCE AT A CHILDRENS HEARING
A relevant person in relation to the child may be excused from attending the children's hearing if:
- it would be unreasonable to require their attendance for all or part of the hearing or
- their attendance at all or part of the hearing is thought to be unnecessary for the proper consideration of the case.
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.
EXCLUDING A RELEVANT PERSON AND/OR THEIR REPRESENTATIVE
A relevant person and/or a relevant person's representative 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:
- their presence is preventing the hearing from obtaining the views of the child.
- his or her presence is causing or is likely to cause significant distress to the child. (s 76(1)(2))
CRITERIA FOR CHILD PROTECTION ORDER
A local authority can apply for a child protection order if they have reasonable grounds to suspect that:
- the child has been, or is being, treated in such a way that the child is suffering or is likely to suffer significant harm
- the child has been, or is being, neglected and as a result of the neglect the child is suffering or is likely to suffer significant harm
- the child will be treated or neglected in such a way that it is likely to cause significant harm to the child. (s 38)
Working days are every day except
- a Saturday
- a Sunday
- 25 December
- 26 December
- 1 January
- 2 January
NON-DISCLOSURE OF INFORMATION
A children's hearing does not need to disclose information about the child to a person or child if the disclosure of the information to the person or child would be likely to 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 a requirement under the Anti Social Behaviour Act
- order or warrant to which the child is subject.
SECURE AND MRC CRITERIA
- That the child has previously absconded and is likely to abscond again and, if the child were to abscond, it is likely that the child's physical, mental or moral welfare would be at risk. or
- That the child is likely to engage in self harming conduct. or
- That the child is likely to cause injury to another person.
- Secure authorisation is necessary.
The child will have a close connection with a person if
- The child is a member of the same household as the person. or
- The child is not a member of the same household but has significant contact with the person.
In order for a person to make the case that they have had a 'significant involvement in the upbringing of the child', they should be able to evidence that they have more than a day to day caring role for the child and have been actively involved and consulted in fundamental decision making that affect the child's life. i. e. decisions about where the child should reside, educational and medical matters.
DEEMING AN INDIVIDUAL TO BE A RELEVANT PERSON
A pre-hearing panel must deem an individual to be a relevant person if that person
- Has significant involvement in the upbringing of the child
- Has recently had significant involvement in the upbringing of the child
AUTOMATIC LEGAL ASSISTANCE FOR CHILDREN
A child will automatically be eligible for legal assistance in the following circumstances:
- Application to vary or terminate a Child Protection Order ( CPO).
- Second working day hearings.
- Custody hearings - when a child has been detained by police.
- Any hearing considering secure authorisation in relation to a child.
A children's hearing may recommend that:
- To allow the child or relevant person to participate effectively in the hearing it is necessary that the child or relevant person be represented by a solicitor or counsel. and
- It is unlikely that the child or relevant person will arrange to be represented by a solicitor or counsel.
The children's hearing should defer making a decision and require the reporter as soon as possible to notify the Scottish Legal Aid Board ( SLAB) of the decision, the reasons for it and the name and address of the child and or any relevant person in relation to the child.
Every CSO will contain a standard measure that the local authority supervises the child and that the child accepts that supervision. Panel members can add further specific measures to an order in the best interests of the child including requirements, directions, conditions and authorisations.
These measures can be categorised as follows:
- Child's place of residence
- Medical or other examination of the child
- Medical or other treatment of the child
- Local authority carry out specified duties in relation to the child
- The child complies with any condition
- Restrict the child's liberty whilst residing in a specific place
- Regulating contact between the child and a specified person/s
- Disclosure of the address of the child
- Movement restriction condition
- Secure accommodation