2 Fundamental Principles of the Act
There are three child centred principles which are fundamental to the children's hearing system and apply when either a pre-hearing panel or a children's hearing is coming to a decision about a child. They are contained in s 25 - 28 of the Act.
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 to protect the public from serious harm. Even then the child's welfare remains the primary concern.
- Give the child an opportunity to indicate whether they wish 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. A child over the age of twelve is presumed to have sufficient maturity to express a view but this is not to say that younger children are not capable of forming and expressing a view.
- Only make or vary an order or grant a warrant if the children's hearing considers it would be better for the child than not to do so - the beneficial principle.
It is important to remember that whilst children of twelve and over are presumed to have sufficient maturity to form and express an opinion, children under the age of twelve should also be asked if they wish to express a view and if they do, this information should be considered when reaching a decision. There are references throughout both the Act and the Rules about the importance of seeking the child's views and there is also an obligation on panel members to ask the child whether the paperwork made available to the hearing accurately reflects their views. If the child does confirm their views have been accurately reflected, the hearing must take these views into consideration whilst discussing the case and when they reach a decision.
If, however, the child confirms that the reports do not accurately reflect their views, the chairing member must try to clarify what the child's views are at the hearing. Panel members should be aware that whilst there is a duty on panel members to seek and consider the child's views, there is no obligation on the child to express a view.
The fundamental principles noted above also apply to courts as well as hearings and a sheriff has a duty to have regard to these principles when considering any matter in relation to issuing any order or warrant in relation to a child.
Throughout the Act mention is frequently made of 'protection, guidance, treatment and control'. Panel members should be mindful of these criteria when considering whether the child is in need of a compulsory supervision order and what form of support is required to safeguard and promote the welfare of the child not only for the present time but throughout their childhood.
Throughout the Act, there are references to the Principal Reporter. In practice the Principal Reporter's powers and duties are delegated to other reporters and staff employed by the Scottish Children's Reporter Administration, SCRA. (See Volume 2 - Roles, Responsibilities and Resources)