3 The Professionals Who Serve the System
The children's reporter is an officer of the Scottish Children's Reporter Administration ( SCRA), a national body with a statutory function to deal with children in need of care and protection and children who commit offences. The reporter is independent from all other agencies and has absolute discretion in decision making. The Principal Reporter, as professional head of SCRA, carries overall responsibility for reporters' decision-making. The management of the service is overseen by a board whose members are appointed by Scottish Ministers. The SCRA has its headquarters in Stirling. Senior Operational Managers have responsibility for geographical areas of the country. Working under them in nine localities are teams of locality reporter managers, reporters, assistant reporters and support staff as required.
The nine localities are: Highlands & Islands, North Strathclyde, Glasgow, Grampian, South East Scotland, Tayside & Fife, Ayrshire, Central and Lanarkshire/Dumfries & Galloway.
No specific qualifications are set out in law for the job but in practice, most reporters have qualifications and experience in either law or social work. They also need a working knowledge of the law relating to the children's hearings system and an understanding of child development and welfare.
Reporters have several duties laid down by law. They receive information from any source "referrals" about children
(a) who the referrer considers are in need of guidance, treatment, control or protection, and
(b) in respect of whom it might be necessary for a compulsory supervision order ( CSO) to be made (legal intervention in their lives).
Although most referrals are received from the police, social work departments and schools, they are also received from parents, neighbours and children themselves. All are given the same level of consideration.
Investigation and Decision-making by the Reporter
When information is received by the reporter, s/he must determine:
(a) whether a "section 67 ground" applies in relation to the child. The "section 67 grounds" are set out in law: they are categories of reasons why a child may be on need of a CSO (for further details see Law and Procedure); and
(b) if so, whether the reporter considers that it is necessary for a CSO to be made in respect of the child.
In order to make a decision, the reporter may make any further investigation relating to the child s/he thinks necessary. The extent and type of investigation is for the reporter to decide. This may involve obtaining reports from a child's school, social work services and, if necessary, other agencies who may have knowledge of the child or the child's family such as doctors, psychologists, health visitors etc.
The investigation normally takes five or six weeks but can take longer in certain circumstances. Reporters welcome the assistance of children and parents in this process.
The level of reporter's investigation will depend on several factors, including the extent of concern about the child, and the effectiveness of voluntary cooperation both currently and in the past. For the purposes of the reporter's investigation, there are three categories of report, namely IER (Initial Enquiry Report), IAR (Initial Assessment Report) and SBR (Social Background Report), in increasing level of depth of assessment. Where there are a number of agencies involved in relation to a child in need, the GIRFEC approach is underpinning a move towards the Integrated Assessment Framework ( IAF) incorporating the Child's Plan. The Child's Plan is for any child or young person where there is a concern or where assessments show that the child may need additional supports so that positive outcomes can be achieved.
The Reporter's Decision
The reporter is required to make one of three decisions:
- not to proceed further with the referral
- to refer the child and family to the local authority to make arrangements for advice, guidance and assistance on a voluntary basis
- to refer a child to a children's hearing for the purpose of deciding whether a CSO to be made for that child.
At a hearing the reporter will keep notes a record of the hearing's decision, complete relevant forms and will support fair process. The reporter will carry out the fair process duty by expressing to the hearing a view and reasons for that view both on procedural and human rights issues, if and when these arise. However, the reporter in carrying out his/her role will seek to maintain the independence and impartiality of the children's hearing.
After the hearing is over the reporter will inform all relevant agencies of the decision of the hearing and provide a copy of the decision and reasons for it to the child and relevant persons. Children and relevant persons have a right to appeal against the decision of the hearing.
If the reporter arranges a hearing and if s/he does not already have a report from the local authority, or the reporter wishes additional information s/he will, at that point, request a report from the local authority. The report for the hearing will be an in-depth assessment, underpinned by the principles set out in the IAF, and incorporating a Child's Plan.
Panel members and relevant persons must receive this report along with any section 67 grounds and any safeguarder's report at least three days in advance of the hearing. All children receive section 67 grounds and children over 12 will normally receive copies of reports and children under 12 may receive them, subject to certain safeguards.
The Reporter in Court
The reporter may attend court for two reasons:
1. When the section 67 grounds are denied or not understood and the hearing directs the reporter to make an application for proof, the reporter has to conduct the case in the sheriff court by presenting evidence and calling witnesses.
2. If the child and/or relevant person appeal against the decision of the hearing, the reporter's role is to assist the court to reach a well-informed decision in the child's interest and also to promote the children's hearing as the appropriate decision-making forum.
If the police arrest a child under 16 for any reason and believe the case needs further consideration, they will refer that child to the reporter. If the police receive notification of a child who has been abused or may need protection from harm, they may remove a child temporarily to a place of safety. This is normally done in co-operation with the local authority, which will then refer the child to the reporter to arrange a children's hearing.
If the police decide to refer a child to the reporter, they must provide the legal evidence which will uphold the section 67 grounds. They will also provide a brief report in the form of a Child Concern Form which includes information about the child's family background.
Each police force, through its Juvenile Liaison Officers in conjunction with multi-agency Community Safety Units, deals with issues relating to young people who offend. Their aim is the prevention of offending by intervention and diversion at an early stage.
Young people involved in offending or whose personal safety is at risk are likely to come first to the attention of a uniformed police officer on the beat e.g. young people wandering late at night, experimenting with drugs or alcohol, and mixing with known trouble makers. Where no criminal offence has occurred, the officer notifies the Juvenile Liaison Officer by means of a referral after giving the young person an informal warning in the presence of their parent or guardian. If more action is required, a community police officer may be tasked to make contact with the young person and the family to give advice about where the family might go for help. Where a criminal offence has taken place and the child is aged 8 years or over, the police are bound to formally charge the young person in the presence of their parent or guardian, and the circumstances are reported to the Juvenile Liaison Officer for consideration.
A child may be eligible for a formal police warning where:
- the crime or offence is not serious enough to warrant referral to the Procurator Fiscal
- referral to the reporter is likely to result in a 'no further action' decision
- the child has not been formally warned on more than one occasion
- the crime or offence is admitted and the child and parents agree to co-operate.
The children's reporter may also refer a child for a police warning.
Although formal police warnings can be carried out by a uniformed officer of Inspector rank or above, they are now more commonly performed by community police officers who have been specially trained in restorative justice. Restorative justice warnings are only conducted where the child has admitted the crime or offence, although it is not essential that the child should have expressed regret or remorse for their actions. The aim of the warning is to cause the young person to realise the harm their actions have caused and the impact their behaviour has had on the victim. Sometimes victims can request to be present at these warnings so that they may express their feelings on the crime or offence directly to the young person. If responsibility for the crime or offence is denied or disputed, the report is usually forwarded to the reporter for any action he or she may care to take.
In recognition of the need for close co-operation in cases of physical and sexual abuse or severe neglect where a crime may have been committed against a child, a joint investigation is carried out by police and social work staff. Some areas have special child protection units which are jointly staffed by police and social workers, but all areas have police officers who work particularly in the fields of domestic violence and child and vulnerable adult protection. Police officers involved in this work are typically detectives and do not wear uniforms.
The procurator fiscal is a legal officer who performs the functions of public prosecutor.
The Crown Office and Procurator Fiscal Service ( COPFS) is responsible for the prosecution of crime in Scotland, the investigation of sudden or suspicious deaths and complaints against the police.
Authority To Prosecute And Policy
The general rule for prosecutors is that criminal proceedings should not be taken against a child under 16 unless there are compelling reasons in the public interest for doing so.
The presumption is in favour of such cases being dealt with by the reporter in terms of the Children's Hearings (Scotland) Act 2011. The Criminal Justice and Licensing (Scotland) Act 2010, section 52 raised the age of criminal prosecution from 8 to 12 in Scotland.
However, the net result of the legislation means that children can continue to be charged with an offence from the age of 8, but that until they become 12 they can only be dealt with through the children's hearings system regardless of age.
Section 80 of the Criminal Justice Act 2010 allows the retention of DNA for children who have had offence ground accepted or established at a children's hearing where the offence fits within a list prescribed by regulation. That list refers mainly to serious sexual or violent offending and is likely to impact upon a very small number of children.
Details are given in the Legislation and Procedure section of Volume 1 of the Training Resource Manual.
Under section 187 and 188 of the Children's Hearings (Scotland) Act 2011, appearances at children's hearings for offending will be classified as an alternative to prosecution and such offending will not be retained within the criminal history for any lengthy period of time unless it falls within a list of prescribed offences.
Details are given in Volume 1 - Legislation and Procedure of this Training Resource Manual.
It is important to remember that one of the prime aims of the children's hearings system is to remove children from the formality of the court setting. The separation of proof from disposal allows the hearing to concentrate upon deciding on appropriate measures to promote the welfare of the child. However the children's hearings system is part of Scotland's justice system and there is an inter-relationship between the children's hearings system and the courts at various times and for a number of different purposes.
All criminal prosecution in Scotland is the responsibility of the Lord Advocate, through the Crown Office in Edinburgh. The Lord Advocate is normally represented in the High Court of Justiciary by the Solicitor General (his or her depute) and by the advocates depute, advocates who join the Crown Office for a period of time. The senior advocate-depute is known as the Home Depute. In the Sheriff Court, prosecutions are brought by procurators fiscal, acting on behalf of the Lord Advocate.
Scottish Courts operate at three levels:
The District Court
This court has only criminal jurisdiction and deals with relatively minor offences such as minor assault, breach of the peace and petty theft, including shop lifting. It also deals with minor road traffic offences. The case is presented by the procurator fiscal and heard by a lay justice of the peace, with a legally qualified clerk in attendance. The district court does not have jurisdiction over children under the age of sixteen.
If a sheriff is not available to consider an application for a child protection order, a justice of the peace (who is authorised to sign warrants) may, if satisfied that the conditions for making a child protection order exist, authorise a temporary warrant to hold a child for twenty-four hours in a place of safety until the matter can be brought before a sheriff.
The Sheriff Court
Sheriff courts are presided over by legally qualified sheriffs who exercise both criminal and civil jurisdiction. Sheriffs have been either advocates or solicitors and each of the six sheriffdoms is presided over by a sheriff principal.
(A) Civil Jurisdiction
The majority of civil actions are raised in the sheriff court. Most divorce cases are heard in the sheriff court and undefended actions may be dealt with on affidavit evidence without personal attendance. Where there are children of the marriage sheriffs will decide on issues relating to residence and contact. A sheriff, in considering cases relating to separation, divorce, parental responsibilities and rights and permanence orders with authority for adoption or adoption, or the securing of a child's attendance at school, can refer the child or children to the reporter if he or she thinks the child may require compulsory supervision. The reporter investigates in the normal way but the grounds will be deemed to have been established if the reporter takes the case to a hearing.
Referrals from children's hearings to the sheriff are civil proceedings although it is recognised by the courts that they fall into a special category of their own. Cases are heard in private and many sheriffs do not wear formal court dress and may sit at a table in the well of the court, or in chambers, with the child and others who are present.
If section 67 grounds are referred to the sheriff court for proof the case must be started within 28 days of the application. In an offence case, the grounds must be proved beyond reasonable doubt. In all other cases a different standard of proof (on the balance of probabilities) applies. The family are entitled to legal assistance if they wish and they may be eligible for legal aid.
If a child, relevant person or safeguarder appeal to the sheriff against a decision of the hearing the appeal must be lodged initially in writing to the sheriff clerk within 21 days of the decision being made and the reporter then has to provide all the appropriate papers to the sheriff. The appeal is heard in private and again the family is entitled to legal assistance and may be eligible for legal aid.
The law allows various legal actions to be taken by the sheriff to protect children. These include child protection orders, child assessment orders and exclusion orders. (For more information see Legislation and Procedure.)
There is a right of appeal from the sheriff's decision on a point of law to the sheriff principal or to the Court of Session. The sheriff may appoint a curator ad litem or a safeguarder to look after the child's interests and parents and children may apply for legal assistance.
(B) Criminal Jurisdiction
Most of the less serious cases of crime are dealt with in the sheriff court. Where the sheriff deals with a case on his own, summary procedure is followed. Under solemn procedure the sheriff sits with a fifteen person jury and has much wider powers of sentence.
Only the procurator fiscal can decide if a trial will proceed on summary or solemn procedure. In the majority of cases when a young person appears in the sheriff court he or she will be dealt with by summary procedure. In certain circumstances the sheriff may, or must, refer the cases to hearings for advice. (See Legislation and Procedure)
Sheriffs may deal with criminal cases where children are alleged to have been harmed or abused by someone. Although section 67 grounds may have been established on the standard of the balance of probability, the sheriff must apply the criminal standard of beyond reasonable doubt in dealing with the alleged abuser; in terms of Scots Law this requires corroborative evidence and hearsay evidence is not admissible. For this reason there are comparatively few successful prosecutions but the child can still be protected by the children's hearings system.
The High Court of Justiciary / Court of Session
(a) Civil Jurisdiction
The Court of Session exercises civil jurisdiction as a court of first instance and also as an appeal court. It hears appeals of decisions by a single judge of the Court of Session or by a sheriff. As an appeal court, a minimum of three judges sit together. Although appeals to the House of Lords may be allowed, this does not apply to appeals from children's hearings. The Court sits in Edinburgh. Although most cases relate to matters like contract, debts, damages and property matters, the judges may also consider matters relating to divorce or aliment.
Appeals relating to children's hearings are taken against a sheriff's decision - or conduct of the case.
(b) Criminal Jurisdiction
The High Court of Justiciary is the supreme criminal court in Scotland. There is no appeal in criminal cases to the House of Lords. The Court sits in Edinburgh and other towns or cities in Scotland when it goes on circuit; there is a permanent circuit sitting in Glasgow. As in solemn procedure a judge sits with a fifteen person jury. Appeals which may arise out of the district court, sheriff court or High Court are normally held by a bench of three judges sitting as the Court of Criminal Appeal. All appeal cases are heard in Edinburgh. There is no jury in appeals.
The High Court deals with the most serious crimes. It has exclusive jurisdiction for murder, treason, incest and rape and also deals with other cases which, in the opinion of the Lord Advocate, may merit a sentence of more than three years imprisonment which is the maximum penalty of the sheriff court.
When children are prosecuted in the High Court, the Court may, but need not, refer the case to a children's hearing for advice or remit it to a hearing for disposal following a plea or finding of guilt. The only exception is murder which has a mandatory sentence of detention.
Although the responsibility for implementing compulsory supervision is the duty of the local authority, the main responsibility normally rests with social work services. Social workers provide a link within the system between referral and disposal and between the child, the hearing and the community in general. They have a statutory duty to provide reports for hearings and to implement compulsory supervision orders. Often this function is difficult to carry out in practice: for instance, in writing reports social workers may experience some degree of conflict between providing the best information for the panel members while still continuing to maintain the trust of the child and the rest of the family. They are also able to refer children to the reporter and call for a review of the compulsory supervision order.
Preparation of a Background Report for the Hearing
An important task is the preparation of a social background report. When a reporter decides to refer a child to a hearing the local authority is asked to provide a report and is legally obliged to do so. A social worker will meet with the child and family and other significant people as required, in order to gather information. The report is the main source of information for panel members and contains details about the child's background and difficulties. The social worker who provided the report generally attends the hearing along with the child and family. If something prevents him or her from doing so then another social worker will be in attendance.
The content of a social background report should follow the guidelines issued by SCRA described earlier under the children's reporter section. Information and views need to be put together from all those who are involved with the child and also include the child's view. Where the child and family are already receiving support from the social work service, an assessment will be required of how far that support is being effective and what changes to the level and type of support appear to be needed.
Sometimes hearings are continued for further information because panel members do not consider that the assessment provided by the social worker is full enough to enable them to make their decision regarding the future care of the child. This assessment is usually carried out with the child remaining at home. Whatever method of assessment is used, the objective will be to obtain a fuller understanding of the child and his or her circumstances, to identify the factors that may be amenable to change and to indicate possible methods of achieving such change.
When panel members have continued the hearing for further information it may be that the child appears to have such major difficulties in home and school that a placement outwith the home may be required as may assessment in a residential setting.
A multi-agency Child's Plan is required when a child needs support from two or more agencies and a significant level of intervention and co-ordination of effort is required. It will be initiated when a child requires enhanced or specialist support.
If a child requires extended support it will be matter of judgement between the professionals involved at a multi-agency meeting if a child's plan is required and a lead professional agreed. Normally any child receiving universal or additional support would not be the subject of a Child's Plan and therefore there would be no need for a Lead Professional.
The education service of the local authority, after exhausting their own school based solutions, including referral to their Area Attendance Group, may make referrals to the reporter, particularly in cases of children failing to attend school. If a child who is to appear at a hearing is of school age, then the reporter usually asks for a school report, providing a form for this purpose. This contains information on the educational performance and behaviour of the child in school and a record of attendance. Sometimes a representative from the school will attend the hearing but there is no obligation for them to do so. As part of a compulsory supervision order a hearing may attach a condition that the child receives a particular education service that the authority has to offer.
In some areas additional services provided by education departments include school based social workers and educational welfare officers.
In secondary schools the person with special responsibility for preparing a report for a hearing is the child's guidance or pupil/student support teacher who will collect the material from other members of staff. In primary schools, reports are usually completed by the head teacher in consultation with the class teacher.
Further information on the Scottish schools curriculum "Curriculum for Excellence" and "additional support needs" can be found in the "Child, Family and Society" section of this volume of the Training Resource Manual.
The education services of the local authority have a responsibility to provide a school psychological service. Their work covers everything to do with children, their development, and progress and .educational career. They also have a statutory duty with regard to "additional support needs" children in the assessment of their educational needs to allow the child to get the best out of the system and to attain their full potential.
Educational psychologists work with children, their families and teachers where a child is displaying behavioural problems which cannot be easily managed in the school, or where the child has a learning difficulty. Educational psychologists may provide reports and make recommendations to the hearing. They also provide support and advice to school staff in their work with children. They will see a child individually with parental agreement. In some areas, rather than working directly with the schools, psychologists provide a consultancy service to schools within the local authority area.
In cases of child abuse or neglect, general practitioners and consultants will provide reports to the reporter to support the section 67 grounds and sometimes will also provide reports to the hearing. They can appear as witnesses in court should the section 67 grounds go to the sheriff for proof. The health visitor too may have valuable information to offer and may in certain circumstances attend a hearing.
Psychiatrists are medically qualified doctors who specialise in mental illness or mental disability. Clinical psychologists are part of the mental health team. They are problem solvers who use their skills to help individuals or families with problems such as phobias, anxieties, depression, learning difficulties, conduct disorders and neurological disorders.
As part of an assessment, a hearing may request that a child be seen by a medical practitioner, specialist paediatric consultant, a clinical psychologist, or in certain cases by a psychiatrist. In exceptional circumstances assessment might involve a period of time in a psychiatric establishment run by the health service. If necessary, a health service resource may be required as part of a compulsory supervision order.
Child Adolescence Mental Health Service ( CAMHS)
CAMHS provides psychological, medical and psychosocial assessment and treatment for young people with mental health problems. CAMHS aims to promote optimal health and prevent relapse by offering a range of individual, family, systemic and group approaches. CAMHS teams also offer professional consultation services.
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