4 Communicating with Children
The Children's Hearings (Scotland) Act 2011 reinforces the right of children to be consulted about decisions in their lives, in keeping with Article 12 of the UN Convention. In making decisions about children, hearings must go through four specific stages:
1. Ask the child whether the reports accurately reflect the views they have expressed
2. Give the child an opportunity to indicate whether he or she wishes to express any views to the hearing,
3. If so, give the child an opportunity to express them,
4. Have regard to the views expressed by the child.
In doing this, panel members must take account of the age and
maturity of the child;
There is a presumption that a child of twelve years of age or more will be mature enough to form a view. However this does not mean that the views of children below this age should be ignored. Even very young children can make important contributions to hearings if encouraged to do so in appropriate ways. The Rules also allow the child to express their views in writing or on audio or video recordings.
Though hearings will not always make the decision that the child wants, the child's views must always be an important factor contributing to the decision. Conversely, panel members must respect the right of children not to express views.
"I felt they kind of listened." Lottie 7
Children's Experiences of Hearings
Panel members often find children reluctant to talk at hearings. Many children find panel members scary, and preoccupied. Various research studies have shown that almost all children and young persons who have had some experience of children's hearings have found them scary unless they were too young to understand what was going on. Older children describe being 'nervous' because:
"It's frightening to have to go and talk in front of lots of people." (Thirteen year old boy)
"They are all strangers. I don't know them, but they know all about you." (Thirteen year old girl)
As young people become more familiar with the system over time, exposure to it becomes less nerve wracking:
"The first and second time I found it hard to speak. Then I found it easier at panels after that."
Children and young people's experience varied. Those who had positive experiences commented that:
"It's not too bad"
"You think everyone will shout at you but they don't. They act normal."
"They were listening (you could tell they were listening) because of the way they were answering back"
Those who had more negative experiences commented that panel members were not really listening to them because:
"They shuffled papers... while I was speaking."
"They didn't look at you."
"They wanted me to talk about my mother but she was sitting there right beside me. How could I do that? It was so embarrassing."
"You can't tell what they are saying because they use a lot of long words, like jargon."
CHILD'S STAGE OF DEVELOPMENT
A child's age may have a bearing on their understanding about what is taking place at a hearing. However, age itself may not give a clear indication of what stage the child has reached. Some background knowledge of child development will give some indication about how children of particular ages are likely to respond in hearings. There are no hard and fast rules and there is no way that a child's or a young person's developmental level can be assessed in the few minutes available in a hearing, but it is useful to operate from some basic knowledge of children's thought processes, needs and likely reactions at different stages.
Language is shaped by experience. Children pick up the words in their vocabularies first from what they see, hear and experience around them and then from listening to how those words are put together in sentences. Children learn, for instance, from the people around them what the function of a question is. 'Do you want another biscuit?' is probably a request for information; 'Do you want to get hit?' probably is not. Children learn how they are expected to talk to adults and other children. Not all families put the same value on words and how they should be used.
Young children need to feel it is safe and appropriate to talk. With pre-school children, there is obviously a need to concentrate on using simple language: it' s no good asking a five-year-old who has been battering his little sister what he understands by 'sibling rivalry'. Children of this age group think in a very concrete way, with themselves at the centre of their world, surrounded by their immediate family. They are mainly conscious of actions; they can recall facts and events and can express clear feelings. They tend to react spontaneously but have a short concentration span. This has implications for the kind of questions to ask 'Who takes you to school in the morning?' 'What do you do when your mum and dad are arguing?' It may be helpful to start with an easy, introductory question and then expand it in greater depth: 'Tell me what you do at playtime' 'What happens when the other boys take your ball?'
Young children can easily cope with what? who? where? questions seeking factual answers. When? is harder as they have a hazy idea about time. They find why? more difficult as they don't understand the notion of cause and effect - that one thing was actually the result of another. Also why? is often associated with blame and scolding - 'Why on earth did you leave your bike out in the rain?' A child under eight is unlikely to be able to identify shame and guilt. They see this more as a function of getting caught - the presence of a disapproving adult rather than an emotion arising in themselves.
They understand and can express basic feelings - happy, sad, scared, and angry. As early as three to four, children learn to mask real feelings as they become aware of what is expected and approved of. At around six they begin to realise that it is possible to feel one way and act another, that they can intentionally deceive if they have reason to do so, either in self-protection (not to get into trouble) or to protect someone else from distress. If their own survival depends on these skills, they can acquire them much earlier. This can be important for children in families where abuse is taking place who may want to avoid giving answers in hearings.
From a very early age, certainly by the start of primary school, children become skilled at testing adults' likely reactions before committing themselves to an answer. Most children will look for approval and panel members need to be able to reassure them that it is safe and appropriate to talk. Though they have developed in understanding and ability to express themselves, children of this age still regard themselves as powerless in comparison to grown-ups. It is important to know that the child has understood what he or she has been asked.
Young children rarely ask questions or request more information when they don't understand what is being asked of them. They are more likely to try to give some sort of answer in order to please a persistent questioner, but they may in fact not have understood the question at all. In fact most children when asked the question 'do you understand?' will answer 'yes' even if they don't understand what has been asked of them. This has particular implications for the chairing member of a hearing putting section 67 grounds. Panel members must find ways of checking that children have really understood, for example getting child to repeat in his own words what the section 67 grounds are. Some children are reprimanded if they say 'no'. Parents and adults may say to them 'don't say no to me' so they are afraid of answering any question with a negative. It is important to aim for simplicity and clarity, using simple words and short sentences and to have one idea per question or sentence.
"The whole thing was boring- boooooooooooooooring." Olly, 10
"Sometimes I say I understand when I don't, just for them to be quiet." Gemma 12
In the teenage years, children learn to think out issues and to express more complicated feelings and ideas. They begin to judge adults and compare them with others. They may suffer embarrassment because of some aspect of their parents' behaviour. They are self-conscious and searching for their own identity in relation to people around them. They become interested in emotions and abstract issues - life, death, love, sex - and will discuss these with their contemporaries, but many have great difficulty in talking about their feelings with or in front of their parents, let alone during a hearing.
Teenagers will react very negatively to being patronised. This age group may find difficulty in speaking out in front of their parents, especially about problems which are personal to them. Panel members should try to explain why they want to know the answers to their questions. Young people should be given the chance to say what they want and in some way set their own agenda.
"I don't feel they listened to me at all! Everything I said they were speaking over me, or speaking to the social workers about everything… there were so many adults there, they all got spoke to then I got spoke to last. It was "So Clair, what do you think of this?" Clair 15
"Often they're talking to your key worker, not us- they should be talking to us" Eddy 15
COMMUNICATION IN THE HEARING
The purpose of communication in a children's hearing is for panel members to gather information in order to make a decision on what is in the best interests of the child.
In order to secure a child's participation in a hearing it is important that he or she knows what is going on. Clear and concise explanations are essential to achieving this. They are important for the following reasons:
- to make clear from the beginning that the child's contribution is important
- to let the child know the subject of each part of the discussion and why issues are being discussed
- they alert the child to when topics are changing
- panel members can check on the child's understanding of the words being used
- they allow panel members to frame statements in terms of the child's experience
- panel members can check for miscommunication on the part of the child and on the child's understanding of language and expression.
Children's Strategies for Dealing with Hearings
Children have been observed to adopt a number of strategies.
- Act normally (This is most likely to be the case when dealing with younger children aged five and under who have little understanding of what a hearing is about).
- Engage in dialogue with panel members (Some children, once they have got over their nervousness, respond to panel members' attempts to engage them in discussion about their future and participate as best they can).
- Tell panel members what they think the hearing want to hear, rather than expressing their own views.
- Rely on an adult to express their views for them. Where a child trusts the social worker or another adult to express his or her point of view, the young person's position should not be prejudiced by the lack of participation.
- Try to make themselves invisible. In many cases children and young people feel embarrassed to be in the company of adults at a hearing and long to get it over with. Sitting slouched in their seat, their body language and demeanour signal their desire to be anywhere but at the hearing.
- Disengage from proceedings. In some cases young people attempt to retain control over their situation in a hearing through defiance. They refuse to acknowledge panel members. authority over their person. They may shout and swear at the panel members and even storm out of the hearing room.
Various strategies may be used to support and encourage children and young people in the setting of a hearing. Some of these involve using the legal powers outlined in the section on Legislation and Procedure.
- Sometimes one panel member will strike up an instant rapport with a child. It may be best to let them continue, even if it means that member does most of the talking.
- The child can bring a representative who may help him or her to talk. This may be a lawyer or a trusted adult.
- Young people can be helped to write a letter for the hearing or to complete the form entitled 'All About Me' which is sent to them by the reporter. This allows them to identify the issues they think are important and can provide a useful starting point for discussion. They may also be encouraged to use video or audio tapes. However they need to know in advance that any report they provide will automatically be sent to relevant persons as well as to the panel members and that tapes will be played at the hearing.
- A safeguarder can be appointed by a hearing or a pre-hearing panel. Their report must be submitted within 35 days of their appointment, If they are unable to provide the report within the timescales an interim report may be submitted
- Where a Pre-hearing panel has decided that in order for the child or any relevant person to participate effectively in the children's hearing it is necessary for the child and relevant person to be legally assisted and it is unlikely that the child or relevant person will arrange to be legally assisted, the reporter must notify the Scottish Legal Aid Board of the hearing's decision and reasons and give them the name and address of the child or relevant person
- A children's hearing may decide that in order for the child or relevant person to participate effectively in the hearing it is necessary that the child or relevant person be legally assisted; and it is unlikely the child or relevant person will arrange to be legally assisted. In this circumstance the hearing will defer making a substantive decision and direct the reporter to notify the Scottish Legal Aid Board of the decision and reasons and the name and address of the child or relevant person. Legal Aid will automatically be available to children at second working day hearings, custody hearings, and any hearing considering secure accommodation.
- Panel members may consider whether in order to obtain the views of the child it is necessary to exclude some people from part or parts of the hearing. Exclusion of any person must be because it is necessary to enable the hearing to ascertain the views of the child, and/ or their presence is causing, or is likely to cause the child significant distress. On their return the chairing member must disclose what has taken place.
- Similarly, if members of the press are present, they may be excluded if their
presence is considered to be causing or likely to cause significant distress or inhibiting for the child. In this case panel members may, but are not obliged to, inform them of the substance of what has taken place in their absence.
WHAT IF THEY JUST WON'T TALK?
Panel members can point out that they are there to listen to the child's views to help them come to a decision. However, panel members should beware of being too persistent. Children may eventually give some kind of an answer just to bring the questioning to an end, even if it is not true or they have not understood the question.
Panel members should not feel they have failed because they have not succeeded in getting the child or young person to talk. If a child decides to remain silent that is their right and choice.
A CHECKLIST FOR CHILD-FRIENDLY LANGUAGE
Panel members should ask themselves the following questions about their use of words:
- did I use easy words instead of hard words?
- did I use specific names and places instead of pronouns and adverbs?
- did I break long sentences/questions into shorter ones that had one main idea in each?
- did I avoid legal words and phrases? Was I alert to my use of words that mean one thing in everyday life but something else in law?
- did I avoid using negatives if I could?
- was I careful about the 'Why?' and 'How?' questions? In addition, to ensure that they are keeping in step with the child, panel members should ask themselves:
- did I make it clear at the beginning that the child's contributions, comments and questions were important?
- did I let the child know what each subject of discussion was, and why we were discussing it?
- did I frame my questions in terms of the child's experience?
- did I run a check on the child's understanding of my language and explanations?
- did I allow sufficient time for the child to process my questions and explanations?
- when I shifted topics, did I alert the child to the fact that I was going to do so?
Things to Remember
Panel members should:
- listen to the child's language - they should try to make their language fit the child's level of understanding
- keep in mind that experience shapes language use and understanding - every child is unique
- listen to their own language and questions
- be alert to the fact that young children both use and interpret language very literally
- not take for granted that they know what the child means, or that the child knows what they mean
- keep whatever they say short and simple.
CHILDREN'S PARTICIPATION IN HEARINGS
The Ladder of Participation as described by Hart in a UNICEF commissioned Essay called " Children's Participation: from Tokenism to Citizenship (1992)" offers a way of thinking about the participation of children and young people in hearings. There are eight rungs on the ladder starting at the bottom with manipulation and ending at the top with Child-initiated, shared decisions with adults.
Ladder of Participation
The bottom three rungs of manipulation, decoration and tokenism involve very limited participation. Children are "manipulated" when they are involved in promoting an issue, but have no understanding of it. E.g. when a child is told that they know they have to go to school by law. Hence they do not understand their involvement. Similarly, "decoration" involves children to bolster an issue.
" Tokenism" takes place when children are apparently given a voice, but in fact they have little or no choice about the subject or the style of communicating it, and little or no opportunity to form their own opinions. This can take place when a child is told at the beginning of a hearing that it is 'their' hearing and they are the most important person there, but then the discussion ranges between the relevant persons and the professionals and the child is not fully involved. The remaining five rungs of the ladder represent increasing levels of participation.
There are a number of important requirements for a hearing to be fully participatory:
- The children understand the intention of the project (i.e. the hearing).
- They know who made the decisions concerning their involvement and why.
- They have a meaningful rather than decorative or token role.
- They buy into the aims for the hearing after the purpose of the hearing was made clear to them.
Children can be assigned but informed where the aims of a project (i.e. the hearing) remain defined by adults and children are given specific roles in the project and understand their tasks and the aim of the project.
Children can also be consulted and informed where a project (i.e. the hearing) is designed and run by adults, but children understand the process and their opinions are treated seriously.
The three highest levels of participation are the most difficult to achieve partly because of the responsibilities of adults and partly because of the tendency of adults to take directive roles. These levels involve situations where decisions are genuinely shared with children.
(adapted from 'Children's Participation: from Tokenism to Citizenship', Hart (1992))
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