5 The Hearing - the middle
Once the beginning of the hearing has been dealt with and any new grounds put have been accepted, the hearing can progress to consider the reports and discuss with all present what decision is in the child's best interests.
The chairing member should start by going over the main points to be raised during the hearing (this will be based on the agenda set before the hearing) and ask the child, family or any others in attendance at the hearing if there are any additional issues they think should be included. It is good practice for the chairing member to note down the points raised as this will reassure the family that their points will be covered. The chairing member had a duty to give the substance of the reports to those present.
The Act emphasises the need to ensure that the views of the child are fully reflected in reports. The child should be asked if the reports have incorporated and reflect their views. If they do not, some time will have to be given to ascertaining the child's views before entering into the discussion of the case.
The main skills required during this part of the hearing are communication and teamwork. Although the chairing member has some duties in the middle stage of the hearing, many of the legal obligations during this part are for the hearing as a whole. This is when the three panel members should be operating as a team, sharing the load and working together to address all relevant issues that are raised. While the chairing member 'holds the reins' each panel member makes a contribution and plays an important part in ensuring that the hearing is productive. There are a number of things which need to be borne in mind:
- Structuring the hearing through use of the identified issues as an agenda.
- Keeping the hearing on track and ensuring it does not drag on unnecessarily or keep going over the same ground. Panel members must remember that they need sufficient and relevant information to reach a decision. This can sometimes be difficult to achieve if a family member has issues that they keep returning to.
- Summarising at various points lets people know what stage has been reached. This should include the main points discussed; points agreed on, points not agreed on and still in dispute and the views of the child, family members and professionals.
- Making sure everyone is given the opportunity to have their say. This may mean excluding the relevant person/s and their representative to leave to allow the hearing to obtain the views of the child. If the hearing wish to ascertain whether there is anyone in particular who the child may wish to stay with him or her in the hearing, it would be appropriate to ask all persons to leave and then when they are out of the room, to ask the child who he or she would like to be asked to return.
- Involving all three panel members.
- Checking that the child or relevant person understands what is happening and what is being said.
- Prior to the hearing coming to a decision, asking the child and any relevant persons if they have any final comments to make. This is important not only because of fairness but if there is an appeal, the reporter will be able to state that the child and relevant persons had a final opportunity to raise any point they wanted the hearing to consider.
Hearings often centre on situations of conflict. Individuals and families will be coping with the background tensions that are certainly not lessened by the stress of coming to a hearing. Though it is valuable to know people's true feelings, a hearing dominated by uncontrolled outbursts of aggression and emotion is unlikely to fulfil its primary aim of making the best possible decision about a child's life.
Strategies to avoid conflict
The following list offers some practical strategies for panel members which may help to reduce this kind of destructive conflict to a minimum:
- Prepare thoroughly in advance and be familiar with all the details of the case, especially names and relationships. Getting these wrong can be very off putting for the child and their family.
- Check the physical surroundings. Are there enough chairs? Are there toys/colouring books and crayons in the hearing room in case small children get bored? Are there tissues in case someone gets upset?
- Keep to time if at all possible. Nothing increases tension more than being kept waiting. If the previous hearing has overrun, an apology should be given to the next family.
- Consider changing the chairing member. It may be helpful to have a panel member who has met the family before chair the hearing. Panel members need to weigh up the possibilities always remembering that despite the best of planning arrangements, things sometimes do not go to plan!
- Limit the number in the room. There is a legal obligation on the chairing member that the number of people present is kept to a minimum.
- Set the tone. How the child and family are welcomed into the hearing and how introductions are made are crucial to how the hearing develops.
- Be confident of the procedures to be employed and the options available. If the case is confusing, re-read the paperwork and try to clarify what has happened when. A feeling that the panel members know what they are doing, with the chairing member firmly in control will communicate itself to other people present and help them to settle down.
- Watch the body language. People struggling to control themselves will often give clear physical signs before bursting into a rage or breaking down in tears.
- Do not preach to parents. Although the child's problems may be caused by their actions, attitudes or behaviour, they are likely to feel antagonised and act aggressively if they think that panel members are telling them what to do. Panel members should try to focus the discussion on the child.
- If a relevant person is obviously under the influence of drink or drugs and are in no fit state to participate in the hearing in a meaningful manner, there is the option to defer making a decision.
- Acknowledge distress. If someone is very distressed panel members should not ignore it but make it clear they recognise the reasons why. Make an offer to take a short break to allow them time to recover their composure.
- Keep calm! No matter how nervous and stressed panel members are feeling they should remember it is much worse for the child and family.
Strategies for coping with distress
Despite all sensible precautions and planned tactics, conflict will occasionally flare up between individuals. This may not necessarily be a bad thing. It allows people to let off steam and express their true feelings. However, panel members need to be prepared for the unexpected and develop some strategies for managing conflict. Many of these are to do with good communication skills and are described in more detail in that section. In summary, they involve repeating messages quietly and calmly, being empathetic and understanding yet assertive and keeping control.
Some of the following ideas may be useful in certain particular circumstances:
- The broken record. One of the panel member's most important
tasks and legal obligations is to get across clearly to families
what is happening, what stage of the process they are at and what
options are available. When people are distressed, they are often
unable to take in what is being said to them on a rational level.
This situation may call for a great deal of persistence by panel
members in getting their message across. One way of doing this is
to repeat the message quietly and calmly until it has been
e.g. to a parent who is still
denying the grounds which have been established in court.
- Chairing member: As you are aware, we are here to discuss Tommy's case and to decide what course of action is necessary for Tommy in light of the grounds which were established in court last week
- Relevant person: But that's ridiculous... none of those things ever happened.....
- Chairing member: I hear what you are saying but from the point of view of this children's hearing, we have to consider the case on the basis of these established grounds. These grounds were established at court and remitted to this hearing by a sheriff and we must proceed on this basis.
- Parent: What's the point of talking about them when they are not true?
- Chairing member: The grounds were established at court last week. The hearing must now decide what we need to set in place for Tommy in light of these established grounds which we will use as a basis for discussion. ...
- The important thing for panel members here is to hold their ground and to go on repeating the message and move the situation on from this.
- Turn down the volume. This is a technique to respond to loudness and aggression by deliberately speaking in a quiet manner. It is hoped that this method will have a calming effect, causing the angry person to moderate their tone.
- The understanding referee. If a family member indulges in a
violent outburst, it will be necessary for a panel member to
intervene to stop it after the person has let off steam. This may
call for a firm interruption by the panel member, if necessary
backed up by the other two, but it is likely to be more effective
if it shows some understand of the point of view expressed.
- 'We all understand why Ian's behaviour makes you so angry, but we will get further if we try to talk about it a bit more calmly......'
- 'I see that you do not agree with what is being said by the social worker but in order to make a decision we need to listen to everybody's viewpoint before making a decision...'
- 'Anyone might be expected to be upset and angry with what happened to you but shouting and swearing isn't the way to help us understand what should happen next and how we can help you...'
- Keeping cool. It is essential for panel members not to be drawn into any situations that might arise. Becoming involved in a heated argument with anyone at the hearing will not be productive. This will mean that you cannot react to extreme provocation.
- Supporting the child. Witnessing conflict between the parents is distressing for the child and if the hearing becomes too difficult, the panel members may decide to adjourn the hearing to allow everyone to calm down, carefully explaining what has happened and why. When the hearing is reconvened and the circumstances arise again, the hearing could exclude the relevant persons if they are causing significant distress to the child or if their behaviours pose a health and safety risk, the reporter may call the police.
- Knowing their powers. If all the techniques for defusing
aggression fail and the situation deteriorates completely, the
hearing has the authority to take firm action: ask the aggressive
person to leave the hearing room.
- The hearing may decide to:
- adjourn the hearing if the atmosphere is becoming very heated, tense or distressing
- it can be good idea to suggest a break in the hope that everyone will calm down and return in a more amenable frame of mind
- or defer the hearing to another day
- The hearing may decide to:
- Although incidents where real emergency occurs and physical violence takes place in the hearing room are very rare, the reporter has a health and safety responsibility to all in the hearing and may summon the police if the situation gets out hand.
European Convention on Human Rights ( ECHR) challenges
What if ECHR issues are raised in the hearing?
There have been fewer challenges in hearings than were anticipated but it is still important for panel members to know how to respond to a challenge if one is raised:
(a) Consider the issue which has been raised and record your decision and reasons.
(b) If the concerns relates to how the child or family has been treated up to that point in the hearing, then the panel members must consider whether they have acted in a manner compatible with ECHR:
- If the answer is 'yes' then the chairing member of the hearing should indicate that the hearing is operating in accordance with the Children's Hearings (Scotland) Act 2011, the rules and best practice guidance.
- If the answer is 'no', the hearing should clarify the concern and try to address it.
- If the hearing cannot agree on the appropriate course of action then the hearing should defer reaching a decision to another date and consider is any decision needs to be taken in the interim to protect the child and as a matter of urgency.
- If the hearing agrees to proceed and the complainant continues to hold the view that their rights have been infringed, the chairing member must advise the complainant of their right of appeal.
Whatever happens, panel members must listen to what is said and record the comments as a postscript to the reasons for the decision. The reporter will take their own notes about any legal challenge.
Where the concern relates to the procedures and the legislation within which the children's hearing is operating, the chairing member should indicate that the hearing is operating in accordance with the Children's Hearings (Scotland) Act 2011, the Rules and best practice guidance. If there is an ECHR issue it may be appealed. Meantime the hearing will consider the welfare and needs of the child and proceed to make a decision. Pending any appeal, the decision of the hearing will stay in force unless another hearing subsequently suspends the compulsory supervision order.
Where an alleged breach is the responsibility of others ( e.g. failure on the part of the authority to follow key procedures or to provide essential services to the detriment of the child's basic rights), the hearing should consider whether the breach has a direct bearing on the substance of the discussion in relation to the child.
- If the answer is 'yes', the hearing then has to consider the alleged breach along with all other relevant factors which have a bearing on the interests of the child.
The hearing must record its reasons for whatever decision it takes. The hearing may proceed to reach a decision.
- If the hearing considers that the alleged breach is fundamental to a hearings consideration and if deferring or postponing the consideration of the case might be in the child's best interests, the hearing may take this course of action in order to allow the breach to be addressed and allow for additional supports to be made available to the hearing.