2 The Organisation of the Children's Hearings System
Scottish Ministers are responsible for the operation of the system, for appointing board members of Children's Hearings Scotland ( CHS) and the Scottish Children's Reporter's Administration ( SCRA), and approving the appointment of the National Convener.
In general Scottish Ministers have the power to make rules governing the arrangements for and procedures at children's hearings and related proceedings. Scottish Ministers seek to put in place a structure which supports the independence of decision-makers in the children's hearings system while enabling Scottish Ministers to set broad strategic objectives.
Care and Justice Division - Scottish Government
The Care and Justice Division is based at the Scottish Government at Victoria Quay in Leith and it is to the Children's Hearings Team that Scottish Ministers delegate the operational and sponsorship responsibility for the running and monitoring of the system.
The staff in that team are administrative civil servants and are closely involved with policy and governance of the children's hearings system, sponsoring both CHS and SCRA. In addition they are responsible for preparing instructions for the drafting of legal rules for hearings, making recommendations on how to operate changes in legislation and providing general advice on the children's hearings system in the context of children's services and related policy networks.
The branch's policy responsibilities require them to work with a range of interests on children's and mothers' health, parenting, pre-school education and play, youth justice, looked after children, and social services issues.
The wider Directorate's central purpose is to improve the life chances of children and young people by working across government and with delivery partners to support the delivery of effective, child centred services that prevent adverse outcomes and provide early and effective support to pregnant women, children and their families; and to develop the capacity and leadership needed to improve outcomes for users of social services. Their focus is on delivering better outcomes for children, young people and families at risk and through promoting and supporting children's rights.
The emphasis placed by Scottish Ministers on prevention, early years and early intervention, based around the Getting it right for every child ( GIRFEC) approach drive the priorities of the Directorate.
The Care Inspectorate - (Social Care and Social Work Improvement Scotland)
The Care Inspectorate is the everyday name for the independent scrutiny and improvement body for care and children's services. They have a key role in improving services for adults and children across Scotland by regulating and inspecting care services and carrying out social work and child protection inspections. http://www.scswis.com/
The National Convener
The National Convener is the principal officer of Children's Hearings Scotland, and will operate independently to ensure that statutory functions around those aspects of the work of the children's hearings system relating to the children's panel are carried out to a high standard.
The National Convener is required to provide independent and consistent national leadership and ensure that children and young people who attend children's hearings receive consistently high quality decisions which deliver improved outcomes for them.
The 2011 Act provides for appointments of five years. The National Convener has responsibility for the support, selection and training of panel members using nationally agreed standards in the 'National Standards for Scotland's Children's Panel.'
He/she also has the responsibility for the development and implementation of a framework of quality assurance of panel member performance against the "Revised Competence Framework for chairing members and members of children's hearings".
The National Convener provides leadership and direction for the Children's Panel and works with partners in the system and reaches agreement with them on how best to continuously improve the Children's Panel to achieve best outcomes for children.
The National Convener is also responsible for the previous functions of Scottish Ministers in the appointment of members to the national panel and in running a national training programme.
The National Convener has the responsibility for ensuring that independent and reliable advice is available to every hearing when it is required.
The National Convener advocates for the work of the Children's Panel and has in place arrangements for the accountability of panel members and area support teams ( ASTs). This helps allow objective analysis of the effectiveness of the system in improving outcomes for children, and helps ensure that all children, no matter where they live, receive the same standard of service from the system.
The 2011 Act provides Scottish Ministers with the power to remove or transfer functions of the National Convener and to specify the manner or period within which a function has to be performed. This power will not be used to influence individual decision-making by the National Convener. The power gives the Parliament the opportunity to consider proposals for organisational changes and respond quickly to issues such as duplication, bureaucracy and overlap without having to wait for a slot in the primary legislative programme. It allows Parliament to make adjustments to the role of the National Convener subject to Parliamentary scrutiny and Parliamentary approval.
Children's Hearings Scotland ( CHS)
In order to ensure that services continue to be delivered locally but to National Standards, thereby improving consistency, standards and effectiveness of hearings a new national body, Children's Hearings Scotland, was established to support the national Children's Panel and provide assistance to the National Convener.
Children's Hearings Scotland was established in July 2011 as a non-departmental public body ( NDPB) to ensure that the governance structure is publicly accountable for achieving improvements in the children's hearings system. CHS is overseen by a Chair and Board of 5 members, appointed by the Scottish Ministers through the public appointments process. There will be a principal officer, the National Convener.
The key function of Children's Hearings Scotland is to support the National Convener to carry out his/her statutory independent functions without influencing his/her professional judgements on the standards that are applicable in hearings and how these should be implemented and monitored. Children's Hearings Scotland's board will have responsibility for ensuring that the business of the National Convener is managed effectively and efficiently.
Children's Hearings Scotland may not interfere with the functions of the Children's Panel. This is similar to the relationship between the Principal Reporter and SCRA and is necessary to ensure that the appropriate independence is observed.
Schedule 1 to the Act provides for the board of Children's Hearings Scotland to employ staff, including the office-holders, on terms and conditions which are approved by Scottish Ministers. Children's Hearings Scotland also has back-office functions such as human resources, finance, IT, procurement etc.
In the exercise of its statutory powers and functions Children's Hearings Scotland is required to co-operate with SCRA, the National Convener and the Principal Reporter where there is no conflict of interest.
Children's Hearings Training
The statutory duty for training panel members and others will pass to the National Convener after September 2013.
Until then the statutory duty for training panel members, Area Support Team members and Safeguarders rests with Scottish Ministers who exercise their discretionary power to assist training by financing the provision of Children's Hearings Training Units in four universities (Aberdeen, Queen Margaret, Glasgow and St Andrews). Each unit is headed by a Children's Hearings Training Officer.
Training involves a combination of discussions, group work, lectures, reading, visits to observe resources and children's hearings, and meetings with people who work within the children's hearings system.
The broad aims of training are to help participants to discover the ways in which they can turn their experience into informed practice and to give them the necessary knowledge and skills to help them to fulfil their statutory roles
Area Support Teams ( ASTs)
Area Support Teams are there to provide standardised local support for panel members and maintain appropriate links with local authorities.
Schedule 1 to the Children's Hearings (Scotland) Act 2011 provides for the functions formerly carried out by Children's Panel Advisory Committees ( CPACs) and local panel chairs to be carried out by the National Convener.
The National Convener may delegate functions to Area Support Teams to maintain links with local communities and provide local support for panel members.
There is a statutory duty for the National Convener to obtain the consent of local authorities on the establishment of Area Support Teams in relation to their location and functions. Local authorities will also be able to nominate people as members of Area Support Teams. This will help facilitate continuous engagement between the National Convener and CHS, local authorities, panel members and SCRA. Area Support Teams to be staffed by a combination of paid staff and volunteers which mirrors previous arrangements whereby CPACs were supported by local authority clerks. The aim has been to secure the best advantages to the children's hearings system in retaining the experience, knowledge and commitment of volunteers within a more structured system of standardisation.
The main responsibility for the recruitment of panel members is delegated to the Area Support Teams. An AST is responsible for each of the local authorities in Scotland although a number of local authorities are covered by multi-authority ASTs. AST members attend hearings to monitor the performance of panel members, discuss practice and performance matters and identify any training or support needs.
Each AST member receives notes of guidance from the National Convener / CHS on aspects of their role. They also expected to undertake training before taking up their duties and on an ongoing basis as required. The selection of panel members to sit on individual hearings has been delegated by the National Convener to the appropriate Area Support Team. This will help ensure against any risk that the National Convener may seek to influence the performance of members through rota management of panel members for hearings.
Panel Member Representatives (successor roles to authority chairs etc.)
Panel member representatives on the ASTs are responsible for providing pastoral support to panel member colleagues but should not deal with complaints.
It is important that they avoid being compromised if they are simultaneously required to perform the roles of manager of a complaint process and the provider of pastoral support to the panel member about whom, or by whom, a complaint has been made.
The pastoral role to be undertaken by identified AST members would require that they get to know and be known to, their panel members.
There is clearly a limit to the number of panel members that they will be expected to support reasonably well.
For the Area Support Teams which consist of more than one local authority area, an adequate number of panel members should be appointed for each constituent authority. This helps to ensure that a proper network of support is available and that the issues arising within each constituent authority could be fully and equitably represented at AST level. It would also ensure the effective local delivery of panel support.
The Children's Panel
A single national Children's Panel has been established for Scotland to help ensure that processes and systems are operated to a consistently high standard in every children's hearing in Scotland, while allowing for local delivery of services.
A children's hearing is a lay tribunal of three panel members recruited from within the local community in which the hearing sits. It must not be wholly male or female and aims to have a balance of age and life experience. The hearing considers the circumstances which have led to a child being referred to it and makes decisions on how vulnerable children and young people can be supported. Decisions by children's hearings must be taken in the best interests of the child.
The Act provides for the National Convener to appoint panel members to a single national Children's Panel and to ensure that hearings continue to operate locally, comprising 3 members of the local community wherever that is practicable, and that they maintain a gender balance.
The Act provides for the appointment and re-appointment of panel members to be carried out by the National Convener for a period of three years. The National Convener will re-appoint members to the national panel, on the basis of them having met conditions of re-appointment set out by the National Convener. This will achieve nationwide consistency in expectations of panel members in view of the major role they play in supporting vulnerable children and young people.
The power to remove panel members is vested in the National Convener subject to the consent of the Lord President, and is restricted to conduct and capability grounds, including failure to comply with training requirements.
The Act transferred responsibility for the payment of panel members' expenses from Scottish Ministers and local authorities to the National Convener. Expense rates previously varied across the country. The National Convener put in place a single national scheme which will ensure standardised amounts and ensure timely payments.
There are about 2,500 panel members throughout Scotland. There is no statutory maximum period of service. The AST has an important role to play in seeking a balance between the need to maintain a core of experience in any panel and the need to bring in new members.
Being a children's panel member is an unpaid appointment, but panel members do receive allowances for travel expenses and subsistence from CHS. Panel members are entitled to take time off work for panel duties and are excused from jury service during their period of service and for a period after their panel membership ends. Loss of earnings are paid, where appropriate.
Appointment as a panel member is conditional on satisfactory completion of the pre-service (Induction 1) training programme. Panel members must also complete the course of new member training (Induction 2 and 3) which includes specialist training for chairing hearings.
In-service training continues throughout membership of the panel.
The Children's Panel members will be reinforced in their status as members of a tribunal, and they will be consistently prepared and supported to take independent decisions in the best interests of each child.
Because of the responsibilities that panel members carry and the influence and impact that they can have on the lives of vulnerable people, they must also meet particular value requirements. As well as being skilled and knowledgeable they must treat people with respect and be honest, open and reliable. They must also be self aware and critically reflective.
The following standards apply to panel members completing pre-service training. Before beginning to serve on children's hearings they should be able to meet the following competences:
- have an appropriate level of knowledge of the law, procedure and best practice in children's hearings
- ensure and promote equal treatment for all involved in children's hearings
- ensure effective and purposeful communication at a children's hearing
- ensure a fair and effective hearing
- ensure that all the relevant issues are addressed by obtaining and managing information
- ensure a proper assessment of the child's needs, identification of relevant resources, effective deliberation and reasoned decisions for future care of child
- ensure that children's hearings are compliant with the European Convention on Human Rights, the United Nations Convention on the Rights of the Child and any other relevant legislation
The following additional competences apply to panel members completing chairing training.
Before beginning to chair children's hearings they should be able to:
- possess sufficient knowledge and understanding of the legislation and best practice relevant to children's hearings
- communicate effectively and purposefully
- manage the hearing in a manner that enables participation by all those present
- manage the hearing effectively
- conduct the hearing to encompass all relevant issues
- involve all members in deliberations and decision making
More detail is in "Revised Competence Framework for chairing members and members of Children's Hearings".
Local authorities' role will be to achieve productive and professional partnership working between the Children's Panel and local authorities and maintain the link between panel members and the communities in which they live and work. There will be continued involvement of local authorities in children's panel support. While responsibility for maintaining and managing the Children's Panel moved to the National Convener and Children's Hearings Scotland, it places responsibilities on local authorities for supporting the work of hearings, implementing and funding decisions made by them and for providing practical local support to panel members through involvement with area support teams.
The National Convener may require local authorities to report on their response to decisions made by children's hearings, and that the National Convener should convey this information to panel members. At present, panel members rarely know what happens after they make a compulsory supervision order. Having this information will allow them to better understand what types of supervision have proved effective and which in turn could help inform future decision-making and thus achieve better outcomes for children. This feedback loop will also allow the National Convener to identify areas of good practice around the country which can be shared more widely.
The Act contemplates ongoing close interaction between the National Convener and local authorities and for local authorities to continue to provide local support for the children's hearings system such as office space, clerical support and advice etc.
Section 32 of the Children's Hearings (Scotland) Act 2011 provided that Scottish Ministers must establish and maintain a panel of persons (to be known as the Safeguarders Panel) from which any appointment of a safeguarder is made. It also provided that Scottish Ministers may enter into arrangements (contractual or otherwise) to comply with the requirements to maintain and establish the panel.
The Children's Hearings Team worked with procurement colleagues on the specification of the contract to manage and operate the National Safeguarders Panel. The contract was signed in March 2012 with Children 1 st who were contracted to assist Scottish Ministers with the management and operation of the National Safeguarders panel from 1 April 2012.
The role for Children 1 st will include recruitment and selection, training, managing appointments, complaints and monitoring performance
A new set of regulations known as the Children's Hearings (Scotland) Act 2011 (Safeguarders Panel) Regulations 2012 ( SSI 2012 No. 54) came into force from 26 March 2012 and these form the legislative framework that Children 1 st will operate.
They replaced The Panels of Persons to Safeguard the Interests of Children (Scotland) Regulations 2001 (made under the Children (Scotland) Act 1995 Act) which were repealed.
Safeguarders are independent of all agencies and are selected from various backgrounds - lawyers, social workers and ex-panel members or people who have had some experience of working with children in other capacities. The role of the safeguarder is to prepare a report to assist a children's hearing or court in reaching a decision in a child's best interests. The safeguarder has a 35 day time period in which to produce the report requested. If they are unable to provide a full report to the children's hearing within this timescale, they must as a minimum provide and interim report stating why they were unable to provide a full report, what other matters still require to be investigated and how long they will need to do this.
A hearing or a court may appoint a safeguarder if satisfied that it is necessary to safeguard the interests of the child in the proceedings. The safeguarder must produce an independent written report for the hearing. He or she may interview the child, members of the family and any other person who may provide information. In addition, a safeguarder may have access to records held by professionals. The contents of a safeguarder's report are not defined in law but there is an expectation that it will reflect interviews with the child, family and any other significant people; put forward the views of the child, identify relevant issues and make a recommendation based on the best interests of the child. If appointed by a court a safeguarder may become a party to the proceedings.
Safeguarders are expected to attend hearings, not to speak for the child, although they may present the child's views, but to represent his or her best interests. This may sometimes mean making a recommendation to the hearing with which the child does not agree. Once the hearing has made its final disposal, and the appeal period is over, the safeguarder has no further contact with the child.
Safeguarders have the right to:
- receive copies of the papers which were considered by the hearing which made the appointment and any subsequent hearings during the period of appointment
- receive copies of the reasons for the decision to appoint a safeguarder
- be present at all stages of the hearing
- be informed of the decision and reasons of the final hearing and to be given a copy of those reasons in writing.
- appeal against the decision of the hearing on behalf of the child, or at the child's request, (but not if older child likes the decision and the safeguarder does not)
- have their views considered in advice and warrant hearings.
- appeal in their own right against the decision of the hearing
Legal Assistance for a Child and Relevant Person(s)
Legal representatives are replaced in the 2011 Act by Legal Assistance (the child and relevant person's solicitor).
The hearing will not appoint but will give advice to the child and relevant person to contact a solicitor and will write in their decision and reasons that such advice had been given.
The Scottish Legal Aid Board ( SLAB) will provide best practice and a code of practice. "Children's Legal Assistance" will be made available automatically in the following circumstances:
- Proceedings before a sheriff for variation or termination of a child protection order
- The hearing following the making of a child protection order (2 nd working day)
- Hearings at which secure accommodation is to be discussed
- Hearings held because child apprehended by police.
For other children's hearings legal assistance for the child and relevant persons may be available, as it may be in proceedings before a sheriff and in appeals. Eligibility for children's legal assistance for the child or legal assistance for relevant persons in these circumstances will be determined by SLAB.
The tests for eligibility are reasonableness in the circumstances; avoiding undue hardship; and best interests of the child.
ABWOR (Assistance by way of representation) is available for all hearings (subject to firms being registered with SLAB as eligible to provide children's legal assistance and SLAB Code of Practice)
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