Section 17 Step by Step Procedures - Children's Hearings
These procedures are a combination of legislation and best practice.
Rule 7(1) of the Children's Hearings (Scotland) Act 2011 (Rules of Procedure in Children's Hearings) Rules 2013
"The procedure at any children's hearing or pre-hearing panel required to be held by virtue of the Act or any other enactment unless provided for under the Act or Rules, is to be determined by the chairing member"
The Children's Hearing (Scotland) Act 2011 requires that the welfare of the child must be the paramount consideration of a children's hearing or pre-hearing panel, unless members of the public are to be protected from serious harm and then the welfare of the child is the primary consideration rather than the paramount one.
BEFORE THE HEARING
- Arrive at least fifteen minutes before the session begins.
- Check the list of those who are present - who should be present; who is present; any observers; safeguarder; solicitors.
- Check the purpose of the hearing and possible options.
- Check the papers - do you all the same information; late reports- what are the options open to you? Has the child been sent the reports? Are the child's views reflected throughout the reports? Are there any problems anticipated?
- Identify the broad issues to be discussed- topic only not substance- agree a list of issues; decide, if appropriate, who will chair the hearing; check who may wish to raise a particular topic initially.
- Has any information been withheld?
- Consider whether there might is a need to be a review of deemed relevant person status at the end of the hearing.
- Is there any non - disclosure of information in force?
AT THE BEGINNING OF THE HEARING
The Chairing Member
1. Takes all reasonable steps to ensure that the number of people present at the same time is kept to a minimum.
2. Welcomes everyone; introduces him/herself and the other two panel members; explains their role within the hearing; asks people present to introduce themselves; takes a decision on whether any other person not notified or invited should be allowed into the hearing.
3. Checks the status of those present and their entitlement, or otherwise, to be present.
4. Checks with the child/relevant person if they have any objection to an observer being allowed in.
The hearing must be satisfied
5. If a relevant person is not present, that their presence is not necessary or that it would be unreasonable to expect them to attend.
6. If a child is not present that:
- the case relates to an offence mentioned in Schedule 1 of the Criminal Procedure (Scotland) Act 1995 and the attendance of the child at the hearing is not necessary for a fair hearing.
- the attendance of the child at the hearing would place the child's physical, mental or moral welfare at risk.
- taking account of the child's age and maturity, the child would not be capable of understanding what happens at the hearing.
At a grounds hearing, the child can only be excused from attending during the explanation of the grounds, if the hearing is satisfied, taking account of the child's age and maturity, that the child would not be capable of understanding the explanation.
Any excusal cannot last beyond the substantive decision.
A grounds hearing can only be rearranged if the child does not attend and has not been excused. If the grounds are accepted the hearing can after discussion, if necessary, defer making a substantive decision.
The hearing can decide not to proceed if the relevant person is not present.
The Chairing Member
7. Asks the child how old they are. If the child is not present or cannot understand the question, the hearing makes a determination as to their age.
8. Explains the purpose of the hearing to the child and relevant persons.
9. Ascertains that the child, each relevant person and any safeguarder has received all the relevant information and documents required to be received by the Rules and within the required timescales.
10. Confirms whether the child, each relevant person and any safeguarder has had the opportunity to read and consider these reports and whether these have been understood by the child and each relevant person.
11. If there has been a request prior to a hearing for information in a report to be withheld, 'a non-disclosure request', the hearing should consider this first. If it is a grounds hearing, the request should be considered immediately after the grounds have been explained and before any discussion.
12. If a request for non-disclosure is made during a hearing, the hearing must exclude the person it has been asked not to give the information to and consider the request. Once a decision has been made the person who has been excluded should be invited to return and advised of the hearing's decision. If the decision is not to withhold the information, the children's hearing must give the person who has been excluded the information.
The Chairing Member
13. Explains the statement of grounds to the child and relevant person.
Where necessary or appropriate the grounds may be read as written but should then be explained.
14. Ascertains whether the child and each relevant person:
- understands the statement of grounds
- accepts them in whole or as amended.
15. If the grounds are not accepted or understood, decides whether they wish to discharge the referral or send the grounds for proof.
If the grounds are sent for proof, considers where the child should live meantime and whether an interim compulsory supervision order is necessary. An interim compulsory supervision order can allow the child to stay at home, in a named place or unnamed place of safety.
16. If the grounds are accepted in whole or as amended, the hearing proceeds to discuss the case.
The facts in the statement of grounds which are not accepted may be deleted or amended and the hearing would proceed to discuss the accepted statement of grounds.
If grounds not accepted are sent to proof, the hearing should not consider the accepted grounds but should consider whether an interim compulsory supervision order is necessary as a matter of urgent necessity.
The Chairing Member
17. If the grounds are sent for proof:
- explains the purpose of the proof hearing
- explains the child's right and obligation to attend
- advises the child and relevant persons that they may wish to consult a solicitor and may be entitled to legal aid.
THE MIDDLE OF THE HEARING
The Chairing Member
18. Informs the child and any relevant person(s) present of the substance of all relevant reports or document as long as disclosure would not be likely to cause significant harm to the child.
19. Asks the child whether the papers accurately reflect the views they have expressed- unless the chairing member considers it in appropriate given the child's age and maturity. If the child confirms that the reports do not accurately reflect the child's view the chairing member must endeavour to clarify the child's view.
20. The hearing must at some stage, explicitly consider the appointment of a safeguarder and note the decision with reasons in the final written statement of reasons.
21. Takes all reasonable steps to obtain the views of the child, each relevant person and any safeguarder in relation to:
- any report, document or matter being considered by the hearing
- what measures, if any, would be in the best interests of the child.
22. May invite others present to express their views on, or provide any other information relevant to anything being considered by the hearing.
The discussion of issues in reports should be covered by the panel members working as a team.
23. Discusses the circumstances relating to the grounds.
Checks the information in the reports through discussion and questioning of report writers and others present. Checks the understanding of information discussed.
24. Provides the child with an opportunity to express his/her views and have regard to the views expressed. Children of twelve or over are presumed to be of sufficient age and maturity to form a view, but that does not mean that children under 12 should be presumed to have nothing valuable to contribute.
25. May consider, whether in order to obtain the views of the child, it is necessary to exclude certain parties from part or parts of the hearing. Exclusion of any party who has a right to be present must be done for the following reasons:
- Exclusion is necessary to enable the hearing to ascertain the view of the child.
- Their presence is causing, or is likely to cause, the child significant distress.
Children, their representatives and safeguarders cannot be excluded.
26. Explains -
- To the persons being excluded why the exclusion is considered to be necessary.
- To any excluded relevant persons that any discussion in their absence will be outlined to them when they return.
- To the child that the hearing will need to disclose to the relevant person(s) what was discussed in the relevant person's absence. A summary of what will be said should be given to the child prior to the return of the relevant person(s) (subject to any non-disclosure decision).
27. If the relevant persons or their representatives are excluded from the hearing, on their return, the chairing member must disclose what has taken place (subject to any non- disclosure decision).
If members of the press are excluded, the chairing member may disclose the substance of what has taken place in their absence.
A decision to exclude any person should be noted in the written statement of decision and reasons.
28. Summarises the discussion at appropriate points and gives an overall summary before the hearing reaches its decision.
29. A children's hearing may recommend that:
- To allow the child or any relevant person to participate effectively in the hearing it is necessary that the child or relevant person be represented by a solicitor or counsel.
- It is unlikely the child or relevant person will arrange to be represented be a solicitor or counsel.
The hearing should then defer making a substantive decision and require the reporter, as soon as possible, to notify the Scottish Legal Aid Board of the decision, the reasons for that decision and the name and address of the child or relevant person.
30. If considering making a compulsory supervision order with a condition of residence other than with a relevant person, the hearing must have received a report with recommendations on the needs of the child and on the suitability to meet those needs of the place or places where the child is to stay and the suitability of the person(s) who will have charge of or control over the child and confirmation that regulation 3 and 4 of the Looked After Children (Scotland) Regulations 2009 have been complied with in compiling the report.
31. If making, continuing or varying a compulsory supervision order, the hearing must consider if a direction regulating contact is required and may consider if other measures are necessary- e.g. non-disclosure of address, medical treatment.
32. A hearing may, if satisfied that the criteria are met, authorise secure accommodation but MUST consider alternative options first.
THE END OF THE HEARING
33. Each panel member gives his/her decision and the reasons for the decision.
The Chairing Member
34. Confirms and explains the decision of the hearing and confirms the reasons for the decision.
35. Informs the child, relevant person and any safeguarder of their right of appeal.
- In the case of a child protection order second working day hearing, informs the child and relevant persons that they may apply to the sheriff within 2 working days to have the order or a direction set aside or varied.
- In the case of an interim compulsory supervision order, informs the child and relevant person that any appeal lodged will be heard within three days of the appeal being lodged.
- Advises the child and/or relevant persons that if they wish to appeal or to make an application in relation to a Child Protection Order that they should seek legal advice and that the child will be and the relevant person may be entitled to legal aid.
- Advises the child/relevant person that if there is secure authorisation they can appeal against the authorisation and the implementation/non implementation of the authorisation or the removal of the child from secure accommodation.
36. Where the decision is to make a compulsory supervision order or terminate, vary or continue a compulsory supervision order, informs the child, relevant person and any safeguarder of the right to seek a suspension of the hearing's decision once the appeal has been lodged.
37. The hearing may, in suitable circumstances, consider setting a date or period for review of the compulsory supervision order.
- Must set a review date or period for review if they issue a movement restriction condition.
38. If advice is being given about plans for permanence or adoption, the hearing should indicate the nature of that advice- whether or not they support the local authority's plans. The hearing must also review the compulsory supervision order.
39. If the hearing is giving advice to a court in a case where the child has pled guilty to or been convicted of an offence, they should explain what their advice is but that the court may not follow that advice.
The Chairing Member
40. Informs the child and relevant persons of their right to request a review hearing after three months and that the local authority may request a review at any time. A compulsory supervision order ( CSO) should last only as long as is necessary. If no review is called, the CSO lasts for a maximum of one year, although the reporter will arrange a review before the CSO lapses.
41. Informs the child and relevant persons if there is an authorisation for secure accommodation, that there will be a review within three months.
42. Informs the child and relevant persons that they will receive a copy of the decision and reasons in writing from the reporter (within 5 working days if practicable)
REVIEW OF RELEVANT PERSON STATUS
43. Once a decision has been made in relation to a compulsory supervision order, if it appears that someone with deemed relevant person status no longer has significant involvement in the upbringing of the child, the hearing must review whether that person should continue to be a relevant person. There is a right of appeal against this decision.
44. The chairing member then closes the proceedings in an appropriate manner.
AFTER THE HEARING
The Chairing Member
45. Invites the child and relevant person to stay while the reporter completes the paperwork. Once the reporter has completed the forms and handed them to the chairing member, the reporter, child and any relevant person leaves the room.
46. Makes or causes to be made, a report of the decision and a statement in writing of the reasons for the decision.
- Including all decisions made throughout the hearing and any minority decisions and reasons
- It is best practice for this to be undertaken by the hearing members working as a team
47. Signs the report and statement of reasons and any order.
48. The chairing member and other hearing members return all papers to the reporter and any notes for destruction.