Children's Hearings redesign consultation response from SASW

1. Proposal 

Views are invited on the principles that should underpin a redesigned children’s hearings system and whether it is necessary for these to be enshrined in legislation.

Questions: 

• What principles should underpin a redesigned children’s hearings system and why?

The Kilbrandon principles that underpin the Hearings System remain relevant today, along with the principles outlined in the UNCRC. These place children’s rights at the centre of processes and decision making in relation to children and young people and promotes a proportionate response to children and young people and their families. 

While the hearings system at its core should be inquisitorial in nature, there are points in the process that have the potential to be adversarial, however adversarial does not mean the process should be conflict driven or accusatory. 

• What would be the advantages and disadvantages of enshrining overarching principles in legislation?

Enshrining the principles of an inquisitorial approach may cause confusion and uncertainty for professionals in situations where a more adversarial approach is needed eg in establishing grounds. While the intent to lower the stress and distress experienced by families and professionals in children’s hearings is an important one, it is our belief that legislation is not the best vehicle to achieve this. It may be more appropriate to provide practice guidance to all professionals involved in the process and to strengthen the role of the Chair to ensure relevant matters are raised in a respectful manner where all parties can be heard.

1. Before a Children’s Hearing 

This section of the consultation paper considers measures relating to the processes before a children’s hearing, including the use of certain forms of language, who can attend a hearing, and how the Scottish Government can support system actors to improve levels of participation and engagement with children.

1. Statutory Referral Criteria

In Chapter 3, the Hearings for Children report recommended that “Changes to the statutory referral criteria and to updating and modernising the language of ‘protection, guidance, treatment or control’ in section 60(2) of the 2011 Act must be considered.”  The report goes on to state that “referral processes should be underpinned by the key principles of rights-based proportionality, consistency, and timeliness”.

Section 60 of the 2011 Act states:

60        Local authority's duty to provide information to Principal Reporter

(1) If a local authority considers that it is likely that subsection (2) applies in relation to a child in its area, it must make all necessary inquiries into the child's circumstances.

(2) This subsection applies where the local authority considers—

(a)that the child is in need of protection, guidance, treatment or control, and

(b)that it might be necessary for a compulsory supervision order to be made in relation to the child.

(3) Where subsection (2) applies in relation to a child the local authority must give any information that it has about the child to the Principal Reporter.

The Hearings for Children report highlights the terms “treatment” and “control” as being in need of modernisation and recommended that the legal implications of removing this language should be explored. The report proposed that the referral criteria could be amended to:

(a) The child or young person is in need of safety, protection, care, guidance or support (Clearly specify which is needed); and 

(b) Compulsory intervention is likely to be needed (With clear rationale why necessary); and 

(c) Only refer if proportionate and timely to do so (With clear rationale why now)

The language used in the children’s hearings system, and in connected systems, professions and disciplines can have a profound effect on children and young people. 

The Scottish Government is supportive of the ongoing work to promote the common use of accessible and sensitive language across the children’s hearings system.[12] The Scottish Government’s ambition is that everyone within the redesigned children’s hearings system is able to recognise the power of language, and this must extend, appropriately, to the language used in the legislation which governs the system. However, the Scottish Government have concerns that these proposed changes could have significant consequences across practice, case law and legislation, so it would be wrong to drive through change without a strong evidence base to indicate that particular changes are necessary. The Scottish Government are therefore interested in respondents’ views on whether the existing criteria need to be updated in the way suggested by the report, and why.

Questions:

• What elements of language in the existing referral criteria need to be updated, if any?
• ‘control’?
• ‘treatment’?
• other?

Language is important in work with children and young people, and the terms control and treatment can be seen to be pejorative and value laden.  The powers available to the Children’s Hearing, however, include the restriction of liberty (control) and the potential to impose medical treatment on children and young people and this needs to be reflected in the referral criteria to support and promote children’s rights. The hearing is a legal tribunal making significant decisions that impact the lives of children, young people and their families. The referral criteria therefore need to reflect the range of concerns professionals have for the children they serve and the range of potential outcomes of such a referral being made. While the use of “treatment” and “control” do not reflect current understanding of and focus on children’s needs and may need amended, any amendments need to avoid unintended consequences, eg creating confusion about the nature and extent of powers available to the Hearing and possible outcomes for children and their families. Terms such as safety, protection, care, guidance or requiring support may more accurately reflect the needs of children referred to the Hearing. 

• Do you support the proposed referral criteria from the Hearings for Children report? 

The proposed referral criteria are largely appropriate. Social workers are ideally placed to explain why a referral is proportionate and timely, and families have the right to know why a referral has been made at the point it has been. This referral criteria may support families in accepting the reasons for referral and give clarity where the need for referral is disputed.

• What are the advantages or disadvantages of the proposed draft referral criteria? The proposed draft criteria may give clarity for families and professionals referring to the Hearings system and may support planning with families where it is anticipated that referral may be required. For example, in enabling professionals to evidence the work that has been done prior to referral while evidencing why referral is now required.

• Do you have any other comments about potential changes to the referral criteria?

• Do you support the proposal to change the applicable referral test that compulsory supervision ‘might be necessary’ to it being ‘likely to be needed’?
  1. Before the Hearing – Relevant Persons

The referral test of “might be necessary” more accurately reflects current referrals to SCRA, in that out of 10,197 referrals, only 2,238 resulted in a hearing where a Compulsory Supervision Order was made. The referral test of “likely to be needed” could be seen to prejudge the outcome of the referral process. Families often say they feel the outcome of meetings and processes are already decided beforehand. This wording would potentially compound that feeling while also deterring professionals or members of the public from referring families who need intervention because they themselves are unsure about whether compulsory measures are likely. 

Chapter 8 of the Hearings for Children report makes the following recommendation:

“The preparation phase prior to a Hearing taking place must give particular consideration to the information held by the people who know the child best, including those working closely alongside them, and foster, kinship and adoptive parents. These people must be able to participate appropriately and share their views. Legislative or policy changes may be needed to the definition of ‘relevant person’ status to facilitate these changes.”

The term “relevant person” is well-established in legislation and policy. Being, or becoming, a relevant person confers certain rights and obligations on an individual. 

Relevant persons enjoy significant rights in relation to children’s hearings, including rights to appeal, review determinations, and receive detailed papers relating to proceedings. 

When an individual is automatically classed as a relevant person, there are no means to remove that status from them, other than via a court order having removed their Parental Responsibilities and Parental Rights (PRRs).[13] 

Under the Children’s Hearings (Scotland) Act 2011, and its subordinate legislation[14], the legislation does not include a definition of ‘parent’, but the following people are considered to be “automatic” relevant persons:

• Any parent, whether or not they have PRRs (unless their PRRs have been removed by the court)
• Any other person who has obtained PRRs. 

This definition means that a biological parent qualifies as a relevant person, regardless of the level of their involvement in the child’s life. The Scottish Government would welcome respondents’ views on this existing definition, and whether it would be appropriate for a hearing to have the power to remove automatic relevant person status where the involvement of an individual in hearings proceedings may not be compatible with the rights of the child or others.

There are mechanisms to allow the hearing or Sheriff to consider whether other people should be deemed relevant persons. A pre-hearing panel can be convened to consider whether to deem an individual to be a relevant person if it considers that the individual has (or has recently had) a significant involvement in the upbringing of the child[15]. “Deemed” relevant persons can have their relevant person status removed in situations where their relationship with the child no longer meets the deeming criteria. 

The Scottish Government recognises that, under the current legislation, there are no means for an individual to be deemed a relevant person prior to a pre-hearing panel taking place. The Scottish Government understands there may be justification for introducing a process for individuals to be deemed relevant persons at an earlier stage to ensure they are able to participate fully in the preparation phase before a hearing. The Scottish Government is interested in views regarding whether changes are required to enable more effective gathering of information prior to a hearing and to support proper opportunities to participate. 

It is the Scottish Government’s view that, in practice, the preparation for a hearing, and the provision of information to a hearing, can and should involve appropriate consultation with the people who know the child best. This should happen at the relevant time either before a referral is made, or during the preparation for a hearing. This activity should, in the main, be undertaken by the local authority, with the children’s reporter making additional inquiries where it is necessary. 

This is provided for in current legislation and practice, but respondents’ views are invited on where and how the current arrangements could be improved. In particular, the Scottish Government is interested in whether respondents feel it is necessary to legislate for the participation and engagement of a broader range of people in the preparation for a hearing. The Scottish Government would particularly be interested in views on whether there would be advantages in creating an additional class of person with certain rights to provide their views at an early stage, and to participate appropriately as the case proceeds.

Questions: 

• What are the advantages and disadvantages of the current definition of “relevant person”?  The current definition reflects the legal status of individuals involved in a child’s life such as those with PRR, however it assumes that those with PRR take an active parenting role in their child’s life, which may not be the case. It may be unreasonable for someone with PRR but who is an absent parent to have their views considered particularly where domestic abuse has been a factor in the prior relationship. It also excludes people who may have a strong interest in outcomes for child or people who the child would like to be involved in the process. The definition of “relevant person” also excludes foster carers or kinship carers who may have more current knowledge about the child, a stronger relationship with the child and who will often need to deal with the aftermath of the hearing while have limited knowledge about what has happened or the reasons for decisions being made.

• Should the legislation include a definition of “parent” and if so, what should it be?”  Parents hold particular rights and responsibilities in law for their children and a further definition may not be helpful in determining who might be considered a relevant person for the purposes of the Hearing process.

• Do you have any views on whether it would be appropriate for a hearing to have the power to remove relevant person status from any relevant person in certain circumstances and if so, please explain?

It may be appropriate on occasion to remove relevant person status where a parent has been absent from their child’s life. It can be difficult for absent parents to find themselves involved in a Hearings process when they have no knowledge of their child and no involvement in their day to day lives, while also feeling compelled to be involved in some way. This may also prevent abusive former partners from using the Hearing system as a way of exerting continued control over an individual after the relationship has ended and contact has been ended. Removal of relevant person status should follow clear criteria with the right of appeal. The ability to remove relevant person status might also support the inclusion of kinship and foster carers, whereby relevant person status could be removed when the placement or their caring responsibilities end. 

• What are the advantages and disadvantages of an earlier process for deeming other people to be relevant persons?

It is essential that people who have an important role in the life of the child have the opportunity to be involved in decisions that affect the child at as early a stage as possible. This is largely achieved through social work involvement prior to the referral being made, formalising this process may promote children's rights more fully. There is however the potential for a significant number of people to become involved in processes that are very private, and which can feel both exposing and distressing. There is also evidence to suggest that the more adult voices within a process, the greater the potential for the voice of the child to get lost. The number of people deemed to be “relevant” should therefore be kept to an appropriate minimum with clear criteria for who might be considered relevant for the purpose of the Hearing.

• What changes could be made to legislation to enable more effective gathering of information prior to a hearing and to support proper opportunities to participate for other people in the child’s life?

Legislative change may be needed to expand the people who might be deemed relevant persons for the purposes of the hearing, depending on how that role is considered.

• What are the advantages and disadvantages of the creation of an additional class of person whose views and participation are essential to the business of the hearing, but do not require the full rights and obligations of a relevant person?
  1. Participation and Attendance

It is in the best interests of the child that people who have an active role, and who are deemed important to the child, can contribute in a way that is meaningful to the child. Creating a new class of people who might do so may be desirable however, it may also cause confusion, eg is this person a relevant person, or someone who can be expected to contribute but not have the same rights and obligations. Consideration needs to be given to how that decision might be made and by whom.

Each child’s view on how they participate in their hearing must be a significant feature of a redesigned system. Article 12 of the UNCRC is clear that a child who is capable of forming his or her own views has the right to express those views freely in all matters affecting them, and their views must be given due weight in accordance with the age and maturity of the child. 

Within the current children’s hearings system, there are multiple ways for children and young people to appropriately participate – according to their age, stage and preferences.[16] Enabling children to have a clear choice of how to participate in their hearing, unencumbered by administrative barriers, is in keeping with broader trauma-informed practice, and the Scottish Government is supportive of this in principle.

The Hearings for Children report recommends that:

“The existing obligation for a child to attend must be removed and replaced with a presumption that a child will attend their Hearing, with some limitations. There must be no presumption that babies and infants will attend their Hearing.”

Section 73 of the 2011 Act sets out the obligation for a child to attend their hearing, and the circumstances in which a child can be excused from their hearing. Further provisions on the child’s duty to attend court proceedings are laid out in sections 103 and 112 of that Act. There is no provision to proceed in the absence of a child if they have not been, or cannot be, excused under the criteria in section 73.

Should the obligation to attend be completely removed, this could have concerning rights implications, for example where an offence ground is under consideration. However, the Scottish Government acknowledges that there is support for greater flexibility in this regard. System partners and stakeholders have reflected positively on the impacts of, and learning from, the emergency arrangements for children’s hearings introduced by the Coronavirus (Scotland) Act 2020, which removed the obligation for children to physically attend their hearing. Anecdotally, the Scottish Government understand that this flexibility was well received by children and young people, and their families. 

Questions:

• Do you agree with the recommendation to remove the child’s obligation to attend their hearing, to be replaced with a presumption that the child will attend?

• If yes, what limitations would need to be applied to this presumption?

The Hearing is a legal process which makes significant decisions about the life of a child. As such children should be expected to attend unless there are compelling reasons particularly given is it their hearing, rather than the adults or professionals hearing. While giving choice about attendance respects the immediate rights of a child ie to choose whether they want to attend, there may be wider impacts on their rights if they are not in attendance at a forum which in some cases restricts their rights eg to live with their family of origin or have their liberty restricted in some way. As such we would prefer to see the reasons for excusal expanded and flexibility around attendance eg attendance online be offered rather than removing the obligation to attend. In the case of babies or very young children their age may be used as an acceptable reason to be excused (as is currently the case). Consideration should also be given to children with learning disabilities or significant mental health concerns and whether attendance at their hearing is in their best interest. Should measures be taken to remove the obligation to attend, care needs to be taken to ensure the child has freely chosen not to attend, and that they understand the potential consequences of not attending while also ensuring the child is not placed under undue pressure not to attend.

• Does the hearing need a power to overrule the child’s preference not to attend their hearing in certain circumstances?

If the obligation to attend is amended to a presumption, there should also be the power to overrule a child’s preference in some circumstances eg where restriction of liberty is being considered with appropriate supports in place to help the child to participate as far as is possible for them. 

• What steps could be taken to support the child’s participation and protect their rights, if they choose not to attend their hearing?

Advocacy should be offered to any child who makes a choice not to attend their hearing. In hearings on offence grounds, children should have access to their own legal representation to ensure their rights are upheld.

• Should a child still be obliged to attend hearings held in consequence of offence referrals, or in consequence of the 2011 Act section 67(m) ‘conduct’ ground? 
  1. Voices of very young children

The right to a fair trial is enshrined in law and while the hearing sits outwith the criminal court system, the child has the right to hear the concerns that have been raised and to respond to them. Given the Hearing has the power to restrict liberty and their findings may constitute a criminal conviction for the purposes of the Rehabilitation of Offenders Act 1974, the child should be supported to attend as these decisions may have significant long-term impacts on the child. There is also evidence of the value of restorative practices when addressing offending behaviour, the Hearing provides such a forum for the child to hear about the impact of their alleged behaviour and to hear about the reasons for decisions arising as a consequence of those allegations.

Where the hearing relates to babies and infants who are too young to express a preference regarding their participation, the Hearings for Children report recommends:

“The voices and experiences of babies and infants must be captured and shared with the [hearing].”

Question:

• Do you agree that particular arrangements should be made to capture and share the voices and experiences of very young children in a redesigned children’s hearings system?

• If so, what should those arrangements be?
  1. The offer of advocacy to the child

Capturing and reflecting the views of very young children is a skilled piece of work best undertaken by professionals who know the child and their family well. Often the views that are presented reflect the professional’s observation of the child in a variety of settings and with caregivers. Social workers who have a relationship with the child and family, family support workers, nursery staff and health visitors can all have a part to play in reflecting the experiences of the child.

It is important that, in advance of a hearing, children and young people of all ages are involved in the consideration of how they can appropriately give their views. Where necessary, this should involve the support of a children’s advocacy worker, and the Hearings for Children report also recommends “there should be an immediate offer of advocacy at the point of referral to the Reporter for all children” and “the offer of advocacy should be repeated to children and to their families at different stages of the process.”

The current section 122 of the 2011 Act states that the chairing member of a hearing must inform the child of the availability of children’s advocacy services. In practice, the offer of advocacy does happen before the children’s hearing. 

Questions: 

• Should the focus and wording of section 122 of the 2011 Act be reformed to reflect an earlier, more agile and flexible approach to the offer of advocacy to the child?  Irrespective of any legislative change all those involved in the hearing system have a duty to advocate for the best interests of the child and should be supported and expected to exercise that duty. Formal advocacy services should be offered at the earliest opportunity where appropriate. There is no need for legislative change to achieve this. However, legislating for increased access to advocacy services will be ineffective without associated resources to increase capacity and develop the needed skills and knowledge to undertake this complex role.

• How should the rights and the views of children and young people of all ages, including very young children, be better represented in the children’s hearings decision making?

All those involved in the hearings system have a duty to promote the rights of children and to present their views where known. This requires training, time and resources to ensure professionals have the capacity to gather views and support children and young people in their involvement in the process. Where social workers have the time and space to undertake this work, it results in better outcomes for children and young people.

• Should there be a statutory obligation to support the sharing of information to advocacy workers, and other people who can help children and families to understand their rights?
  1. Amplifying children’s voices throughout the process

Advocacy is a process whereby the purpose is to amplify the voice of the child or young person, who should have full control over what they chose to share with their advocate. Where it is considered necessary to share information, this should be shared proportionately, on a need to know basis. Information pertaining to childrens hearings can contain very private, sensitive and historic content which may leave families feeling exposed and so act against them being able to access advocacy services. Creating a statutory duty would limit the ability of families to decide who knows what about them, impacting their privacy and dignity while also undermining professional judgement about what might be shared and why during a hearing process. Furthermore, there is a risk in sharing circumstantial information that it changes the nature of the relationship between the child and their advocate whereby the advocate becomes part of the “system” rather than being there to ensure the child’s voice is clearly heard. There needs to be a balance between the right to privacy and the provision of essential relevant information that requires a more measured, nuanced approach than can be provided for with statutory duty to share.

Existing legislative requirements mean that a hearing, pre-hearing panel, or Sheriff must ensure the child has the opportunity to express their views, in a manner they prefer, and decisionmakers then must have regard to those views. It is also a requirement that anyone providing any document to a hearing under the terms of the legislation, must include any views given to them by the child. The chairing member of a hearing must also ask the child if their views are accurately reflected in the documents provided to the hearing. 

However, it should be seen as the responsibility of all those involved with the child to capture their views, and to support methods of preparation for, and participation in, the various stages of the children’s hearings system - appropriate to the child’s age and stage. If the child is not going to attend their hearing, there should be a recorded process which assesses what has been done to support their participation in other ways, and to get their views, in a way that also makes clear recommendations on what more needs to happen before a hearing is convened.

The Scottish Government considers that there may be value in the creation of a statutory process, undertaken by the children’s reporter, which:

• Records what has been done up to the point of referral to gather the child’s views, including confirming that they have been offered advocacy.
• Applies a “best interests” test regarding appropriate participation prior to a hearing being arranged. This would account for the child’s views on how they wish to attend/participate, their age and stage of development, and the nature of the matters due to be considered by the hearing.
• Makes any necessary further arrangements to gather the child’s views and support their ongoing participation. This would include additional offers of advocacy and bespoke and enhanced forms of participation depending on the age and stage of the child, or any other needs they may have.

The Scottish Government is therefore interested in the views of respondents on how changes to participation might operate in practice, to ensure children’s rights and best interests are upheld, and their views and wishes reflected to decisionmakers.

Question:

• Do you support the creation of a statutory process, undertaken by the children’s reporter, to record the capturing of children’s views and participation preferences?
  1. Before the Hearing – Provision of Papers

Best practice would dictate that efforts are made to capture childrens’ views and to support their participation in the hearing process and those efforts recorded. This requires that professionals involved in the life of the child have the skills, knowledge and the time to do this in the context of their relationship with the child and their family. Creating a new statutory duty will be ineffective without investment and resources to enable professionals to undertake this work in a meaningful way.

Chapter 8 of the Hearings for Children report includes discussion of the issues around the provision of information for hearings to children, families and panel members. It also describes the support given to those that may be seriously affected by reading deeply sensitive or repercussive material about their personal and family lives, especially where that happens without the right support, reassurance or explanation. 

The current 2013 Rules of Procedure[17] require that the child, each relevant person and any appointed safeguarder must receive certain papers as soon as practicable, and no later than 7 days before the hearing. Other reports, such as those produced by the safeguarder and the local authority are required to be provided no later than 3 days before the date of the hearing. The Hearings for Children report suggests that these timescales might not be sufficient to allow children and families to be adequately supported to understand and emotionally address the contents in a way that would help them to prepare properly for their hearing. 

“There should be full consideration of the time a child and ‘relevant person’ is given to read and understand the information that they have received. ……Th[ere] may not be enough time for a social worker, family support worker or advocacy worker to sit down with a child and family and help them to understand and process the information, however the balance between introducing drift and delay into the system and this being provided should be considered.”

                                                                        Hearings for Children report, Chapter 8

SCRA advise that actual usual practice is for papers to be provided to children and families well in advance of the minimum legal requirement of 3 days. Altering the time frames as set out in the current 2013 Rules of Procedure could have implications for the professionals involved in their production and could introduce delay. 

Any proposed change would need to balance the need to ensure that paperwork continues to be produced to the standard required, that the material remains relevant and current for discussions and decisions at the subsequent hearing, and that any new timeframes reflect the imperative to ensure that the best interests of children are served. 

Chapter 8 of the Hearings for Children report considers a range of issues relating to the way in which information is currently provided. Non-legislative issues relating to the provision of information will be considered by the Children’s Hearings Redesign Board rather than this consultation.

Chapter 8 also discusses the implications for panel members of timeframes for the provision of papers to them:

“There are few children and families that engage with Children’s Hearings that have not experienced some degree of complexity and trauma in their lives. The papers received by the [panel members] can be substantial and include weighty reports by social workers, psychologists, parenting, and other assessment relating to health or education. Currently, Panel Members will commonly have only a few days, at most, to appraise themselves of these complexities ahead of a Hearing taking place. The Group has heard that sometimes the [hearing] does not have time to assess all of the information. In a redesigned Children’s Hearings System all reports must be shared with plenty of time for Panel Members to review them.”

                                                            Hearings for Children report, Chapter 8

Questions:

• Should the timeframes for the provision of papers in advance of a children’s hearing to the child and relevant persons as set out in the 2013 Rules of Procedure be altered? 

The timescales for provision of papers does allow limited space for professionals to support families in reading and understanding these however this is also dependent on the workload of social workers preparing the papers. The current situation where social workers carry very high case loads with increasing complexity undermines their capacity to spend time with families and talk through the relevant paperwork.

Increasing timescales may introduce drift into the system and may also mean information becomes less relevant as situations change and dynamics shift within families. It also means that families need to sit with the information provided for an extended period of time before the hearing which may increase anxiety and uncertainty. Rather than changing timescales, we should seek to ensure social workers and associated professionals have workloads which enable individuals and families to access their social worker in order to discuss the reports according to their needs, recognising that some individuals may not want such support.

• Should the timeframes for the provision of papers to children’s panel members as set out in the 2013 Rules of Procedure be altered?

Panel members need time to read and process complex information provided about families and their children. Given the volunteer nature of panel members who may have many draws on their time, it may be appropriate to extend the timeframe to match that for children and their families, eg to 7 days. This would allow time to read, process and consider the best way forward in any given case without introducing drift into the process as this timeframe matches existing time frames for children and their families.

1. Grounds for Referral and Associated Processes

‘Hearings for Children’ recommended that: The drafting of grounds and the Statement of Facts should be reframed to take a rights-based approach to help families to better understand why grounds are being established and recognise themselves in the drafting.

Discussion and analysis around grounds of referral are set out in two sections:

 

• Grounds of referral: concept and language and
• Grounds of referral: processes.

Each section aims to pursue improvement to the children’s hearings system in terms of experiences, fairness, efficiency and expediency, and is in response to recommendations identified as numbers 5.1.1, 5.1.3 and 5.1.4. in the Scottish Government response to Hearings for Children. 

In this consultation, the phrase “grounds of referral” refers to the headline legal reasons expressing welfare concerns about a child and represent the legal justification for potential compulsory intervention. In statutory terms, grounds of referral are currently contained in s67(2) of the 2011 Act. 

There are currently seventeen grounds. The “statement of grounds” denotes the document prepared by the children’s reporter under section 89(2) of the 2011 Act, where they determine that a ground(s) of referral applies, and the child requires compulsory measures of supervision. The statement of grounds sets out the statutory ground(s) that best relate(s) to the primary presenting welfare concern, and this is accompanied with averments of fact to support the ground(s).

If, as Hearings for Children suggests, the language of grounds of referral should be better understood by children and families so that they might “better …recognise themselves in the drafting”[18], then the processes for putting grounds to families and for having grounds established must reflect that.

1. Grounds of referral: concept and language

The Hearings for Children report states: The drafting of grounds and the Statement of Facts should be reframed to take a rights-based approach to help families to better understand why grounds are being established and recognise themselves in the drafting.

The children’s reporter will remain the “gatekeeper” to the system considering legal compulsory measures, while recognising the importance of working collaboratively alongside other professionals – linking where necessary to prior inter-related children’s services’ processes. The decision as to whether to impose compulsory measures of care will continue to rest, subject to rights of appeal, with a children’s hearing.[19]

The Scottish Government proposes to retain grounds of referral (to continue to be drafted within statements of grounds by the children’s reporter) as the means for introducing welfare concerns about children and young people to a children’s hearing. 

The status quo will be retained with the statement of grounds acting as “the principal legal basis for decision making by a children’s hearing”[20], while allowing the hearing to have regard to all information which is relevant to its decision-making around compulsory measures of care[21].

The Scottish Government seeks respondents’ views on proposals – extrapolated from the Hearings for Children analysis - meaning that the statutory non-offence grounds could change from those currently listed in s67(2) of the Children’s Hearings (Scotland) Act 2011- to grounds that are aligned to the statutory wellbeing indicators (safe, healthy, achieving, nurtured, active, respected, responsible and included)[22]. 

The intended benefits of that change would be to:

• maximise engagement with children and families by improving their understanding of the grounds - by using positive rather than negative language, wherever possible and appropriate.

• provide continuity of language and meaning for children and families and professionals alike - before, during and after a children’s hearing and link to “other inter-related processes and meetings in their lives”[23].

• link children’s hearings’ language and concepts to those familiar to the children’s services workforce in inter-related processes, particularly around wellbeing assessment[24] and the statutory wellbeing indicators.

• reinforce the concept that the children’s hearings system seeks to minimise the use of technical language wherever possible.

The statements of grounds drafted under a redesigned scheme may have some potential to offer a more positive experience for children and families.

The remainder of the statement of grounds could demonstrate how the underpinning SHANARRI indicators are not being met for the child in the absence of compulsory support and supervision. 

At the stage of drafting grounds, in many cases families have already become unable or unwilling to accept the need for change. However, that situation should not be made worse by grounds that can be difficult for families to understand, or that can be perceived as accusatory. 

For example, where the welfare concern is one of the child experiencing a lack of parental care, the current prescribed ground, under s67(2)(a) of the 2011 Act, which states, “the child is likely to suffer unnecessarily, or the health or development of the child is likely to be seriously impaired, due to a lack of parental care’ could be replaced with a new ground akin to “the child is entitled to be cared for in a safe and nurturing environment”. 

There would have to be a way to connect the grounds of referral with the supporting concerns. That would necessarily use language with a negative connotation, for example - “The child has not been and/or is unlikely to be cared for in such an environment because: ….”, followed by statements of fact, containing sufficient specification. If a new ground of referral were to state - simply and clearly - the standard to which the family should be adhering, and gives them and their lead professional/team around the child a goal to work towards, then that may improve both experiences and understanding.

In introducing new ’wellbeing expectations’ grounds of referral in this way, there is a risk that some important welfare concerns might not be capable of being captured with the right degree of specificity. 

The Scottish Government’s ambition is for children’s welfare and justice to be delivered in a responsive manner that maximises the potential for children and families to understand significant statements put to them, and to support them to participate fully in the processes affecting them. 

The Scottish Government would be interested in respondents’ views on the following questions:

• Do you consider the current scheme of stating the grounds of referral sufficiently promotes the understanding of children and families as to why they are in the children’s hearings system?

It is important that the grounds of referral are understood by children and their families in the hearing system: a legal tribunal making potentially life changing decisions in the best interests of the child. 

The current scheme of stating grounds needs to be considered in the wider context of working with children and families whereby referral to the hearing is often the culmination of a long process of assessment and support. Concerns giving rise to a referral to the hearing have been raised, discussed and supports put in place with multi-agency involvement before such a referral is made. It is highly unlikely that the grounds for referral is the first time a family have been told about the concerns for their children. As such, while the grounds need to be understood, and professionals should seek to use plain language where possible, the formality of the hearings system as a tribunal making legally binding decisions about children and their families should also be respected.

• Do you agree that there should be changes to the current approach to grounds of referral? No, the grounds for referral represent the legal basis for bringing a child and their family to a hearing. They should be framed in legislation and clarified through discussion with professionals involved with the family who are well placed to explain and help the family see themselves in the descriptions given. There is no substitute for strong social work practice in supporting families through the hearing process. 
• Do you agree with the proposal to set grounds positively as a range of wellbeing-orientated entitlements, before clarifying how the child’s experience or conduct falls short of expectations - to the point that compulsory care is needed?  It can be very difficult to frame the reasons for referral in positive terms, and in some cases doing so will not communicate the extent or the gravity of concerns raised. While wellbeing oriented language is used across childrens’ services, the hearing system is differentiated by its legal standing, making decisions that are binding on children, families and professionals. As such referral to the hearing should be framed in legal terms that can be clearly evidenced, changing the language and framing may cause confusion or obfuscate matters for families who may not then realise the legal status of the process they are involved with. Grounds for referral should be clearly explained by social workers as part of their preparation work with children and families. In doing so social workers act as a bridge between the informal and voluntary processes in the child care and protection framework and the legal process as enacted by the hearing. It should be noted that wellbeing indicators form part of the child’s plan which is provided to SCRA as part of the pre-hearing reporting process and is therefore available to both the panel and to children and families. Drawing links between the wellbeing indicators within the plan and the grounds for referral may support families in understanding the impact of “lack of parental care”.

• If a new scheme of grounds based on unmet expectations around wellbeing indicators were to be introduced, are any safeguards needed (statutory or operational)? Social workers would need training in translating statutory grounds into the language of wellbeing indicators to ensure they carried sufficient weight and could be evidenced. There would also need to be guidance for the legal profession in understanding that, while positively framed, the grounds represented significant concerns for a child's safety, wellbeing or conduct such that compulsory measures are being considered to ensure that the child's best interests continue to be given paramount consideration.

1.  
2. Grounds of referral: processes

Hearings for Children recommended at 5.1 that the “process of establishing grounds must change” and specifically:

“5.1.3 Grounds must be established in a separate process before a child and their family attend a Children’s Hearing. There must be no more Grounds Hearings.

“5.1.4 A more relational way of working to agree grounds and confirm the Statement of Facts should be encouraged, where the Reporter exercises professional judgement to determine when children and families might be able to discuss grounds.”

The Scottish Government has therefore given close consideration to the processes by which children and their families enter the children’s hearings system, and how those processes impact them. If the language of grounds of referral is to be better understood by children and families with an aim they might “better …recognise themselves in the drafting”[i], then the processes for putting statements of grounds to children and families; allowing them to meaningfully contest aspects of the statements of grounds; and for having grounds determined must all reflect that aim.

Over the following three sections, the Scottish Government is proposing a new approach covering the journey from initial referral (to the children’s reporter) to the legal grounds being accepted or established. For ease of reference, a high-level flow chart and more detailed flow chart seek to explain potential redesigned processes around the children’s reporter’s investigation into grounds for referral and the consequent finding of facts, where required.

1. Engagement between the children’s reporter and children and families        

The Scottish Government has accepted recommendation 4.3.1 of the Hearings for Children report: “Once a referral has been received, the Reporter must work more closely alongside children and families, where possible. This should include: Ensuring the voices, views and experiences of children and their families are routinely part of the Reporter’s investigation (and there must be consideration of a statutory duty on the Reporter to seek the views of the child and family if they wish to share them).”

Currently, the children’s reporter writes to children (of sufficient age and maturity) -and families - at the initial stage of the investigation. The reporter then invites them to express their views on the referral, share any information or discuss any queries. 

SCRA’s website also contains information on how children and families can engage with the children’s reporter. Response rates from children and families to the current approach are low.

The Scottish Government considers that further improvements to engagement between the children’s reporter with children and families are primarily practice-based issues that can, at least in part, be addressed by SCRA. A programme of continual practice improvement, commencing with a review of current arrangements and efforts by the children’s reporter to engage with children and families, is being considered. 

Section 27 (“views of the child”) of the 2011 Act obliges a children’s hearing, pre‑hearing panel or sheriff to give the child an opportunity to express views and thereafter to have regard to those views before making a decision about the child. Section 27 does not apply to children’s reporters. Currently SCRA are operating a project to consider the implications of UNCRC Article 12 (a child’s right to participation in decisions which concern them), applying their review work across the whole current role of the Reporter. This project will consider the children’s reporter’s approach to seeking views and information from children and families, along with how they can better gather and use views consistently and proportionately. 

The programme of activity is capable of being developed within SCRA, but with visibility into that activity for the Children’s Hearings Redesign Programme Board.

In light of Article 12 being incorporated into Scots law under the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, the Scottish Government has not yet identified any significant potential added value by introducing a statutory duty – over what is already in place or being planned – to strengthen engagement between the children’s reporter and children and families.

However, views are sought below on whether new legislative expectations may assist by confirming the central importance of these issues to a successful redesign of the system.

1. Children’s views within Reporter investigation and decision making – a post-referral discussion?

One means of giving effect to the Hearings for Children recommendation around “consideration of a statutory duty on the children’s reporter to seek the views of the child and family if they wish to share them” would be to statutorily oblige the children’s reporter to offer a post-referral discussion with the child and family. This could be convened at any point during the investigative stage of the children’s reporter process, prior to any decision being taken.

Where the children’s reporter decides upon receipt of the referral or during the investigation process that compulsory measures are not required, they should act in accordance with the ’minimum intervention’ principle and end their investigation. This reflects the Principal Reporter’s current practice direction that “investigation[s] should be proportionate” and “case actions and decisions should be based on relevant, reliable information and objectively justifiable”[25]. There would be no statutory requirement on the children’s reporter to offer a post-referral discussion for cases where the children’s reporter’s decision is not to arrange a children’s hearing.

If proceeding with a post-referral discussion, the children’s reporter would be present and the child and family may, if they wish, be accompanied by their representatives, including solicitor and advocacy worker where applicable. 

The purpose of this post-referral discussion would be to allow:

• the children’s reporter to explain directly to the child and family the content of the referral, and welfare concerns behind it along with the purpose of any potential compulsory measures of care to address those concerns.
• the child to give their views directly to the reporter on the referral and have direct opportunity to inform the reporter’s decision-making.
• the children’s reporter to further assess whether compulsory measures of care may be necessary before making a final decision on whether to refer the child to a children’s hearing.
• the children’s reporter to assess whether the child and family are likely to accept any subsequent grounds of referral and plan accordingly.

The Scottish Government would welcome respondents’ views on the suggestion for a post-referral discussion:

• Do you support the introduction of the offer of a post-referral discussion between the children’s reporter and the child and family?  There is already provision for children and families to meet with the children's reporter post referral, with very low levels of engagement. Creating a statutory duty to offer a facility that is already offered seems counterintuitive as it could be said families are already exercising their right to not have such a meeting. SASW would have concerns about creating an expectation that families will meet the reporter post referral which may create an additional stressor or burden for families who are often already attending a number of meetings as part of processes giving rise to the referral. Consideration should be given to ensuring any communication received from the reporter clearly explains how to contact them and that it is possible to meet as part of the referral process. There may be a role for independent advocacy support to help the family decide whether they wish to meet with the reporter post referral.

Where there are concerns that a child may need additional support to participate in the process, a post referral meeting should be offered to assess their needs and how best to offer support.

• Who else, if anyone, should attend a post-referral discussion?
  1. Establishing Grounds of Referral

The Hearings for Children report proposes a bold new approach to the establishment of grounds. It recommends:

 “Grounds must be established in a separate process before a child and their family attend a Children’s Hearing. There must be no more Grounds Hearings.”[26]

Currently, the children’s reporter, having decided that a section 67 ground(s) applies in relation to the child and that compulsory measures of care are necessary, must arrange a children’s hearing (a “grounds hearing”). The children’s reporter prepares a statement of grounds for the grounds hearing, and the child and relevant persons are obliged to attend. 

At the outset of a grounds hearing, the chairing member must explain the statement of grounds (alleged facts and relevance to statutory grounds for referral) to the child and relevant persons, and to ask whether each element of the statement of grounds is accepted. This process can be a disproportionate use of volunteer panel member time, where their principal role is to make substantive decisions in the best interests of the child.

The Hearings for Children report and the Scottish Government recognise that, in order to safeguard the rights of the child and relevant persons, there must be a process whereby a recognised decision maker considers whether the grounds of referral have been established. 

Views are invited on a proposal that grounds hearings be replaced with ‘fact finding hearings’ to be presided over by a new, legally qualified member operating within the environment of the children’s hearings system (the “legal member”). A fuller description of the potential role and function of the legal member, and the purpose of the fact finding hearings is outlined below.

The Legal Member

The Scottish Government invites views on the proposal that the role in determining grounds for referral currently performed by a sheriff be reformed, with the sheriff’s current functions and powers being assigned to a new role - the ‘legal member.’ The legally qualified legal member would operate in the existing children’s hearings centres but would not be a children’s panel member. 

The Scottish Government considers this proposal has the potential to proportionately fulfil the intent of the recommendations and narrative in Hearings for Children which proposed specialist Sheriffs[27] - by providing for a specialist decision maker (of fact and interim decisions) while also minimising the exposure of children and families to the court environment.

The Scottish Government does not propose that the legal member replaces the decision-making role of the children’s hearing relating to dispositive decisions around the child’s welfare, but rather replaces the roles currently carried out by:

• grounds hearings (relating to procedural and interim decisions) and
• Sheriffs in determining statements of grounds.

If their introduction is supported, it is proposed that the ‘legal member’ may receive written and oral evidence with similar powers with which the Sheriff currently operates, and would then determine whether there should be findings made in relation to the statement of grounds.

Rules of procedure would need to be developed to support flexibility in the proceedings – making them adaptable to each child’s particular circumstances (including age and stage of development). These proceedings should be handled as fairly, expeditiously and efficiently as possible, having regard to the age and stage of each child. The legal member, when determining statements of grounds could be given statutory powers (within new rules of procedure) to direct matters, including:

• any issues on which they require evidence.
• the nature of the evidence.
• the way in which the evidence is to be presented; and
• the exclusion of any evidence which is irrelevant or unnecessary.

If this approach were to be adopted, it is envisaged the legal member would operate the fact-finding function from children’s hearings centres - with parties, representatives, witnesses and all others required for the proceedings of proof also attending, or participating to an appropriate extent remotely in accordance with rules of procedure. 

The Scottish Government considers that where a legal member makes a determination relating to grounds of referral, there would still be a right of appeal to court, adopting similar procedures to existing arrangements.

The proposed legal members would be legally qualified, competency-based and fee-paid, consistent with legal members of other Scottish tribunals. They would be provided with induction and ongoing education on their functions and would be subject to rigorous performance monitoring.

These proposals have potential to make the redesigned children’s hearings system less dependent on competing demands within sheriff courts, and also better able to explore ways of identifying and eliminating sources of delay in establishing grounds. The proposals could also bring the realisation of the concept of continuity of decision-maker (expressed at recommendation 11.22[28]) within the direct control of the appropriate and discrete mechanisms integral to the redesigned children’s hearings system, and potentially relieving the courts system of the burden of this demand. 

The Scottish Government seeks respondents’ views on the following questions:

• What would be the advantages and disadvantages of passing the fact-finding function from sheriffs to a new cohort of legal members within the redesigned children’s hearings system?  The introduction of the legal member may help avoid drift by supporting the establishment of grounds quickly and without delay. However, the Sherrif has clear detachment from the hearing system and so provides an independent arbiter in the process which is important to protect the rights of children, particularly those referred on offence grounds.

• Do you consider that this proposal fulfils the intention of the recommendation that there should be a consistent specialist sheriff throughout the process? No, because the legal member does not hold the same standing or independence as a Sherrif.

• Do you have any views on the proposed retention of the appeal arrangements - appeals going from legal member to Sheriff - within a redesigned children’s hearings system? In any tribunal system there needs to be an appeal to an independent body and in the case of a childrens hearing, this is the Sheriff. We believe that appeals should be heard by the Sherrif if grounds cannot be agreed with the legal member.

• Other than a legal member or sheriff is there another person or body who could: 

• present the statement of grounds to the child and family and receive responses?

• make interim orders? 

We consider the Sherrif to be the appropriate person to fulfil the above functions to preserve the rights of children and families throughout the hearing process.

Fact Finding Hearings

Once the children’s reporter decides that compulsory measures of care are necessary, the children’s reporter would prepare a statement of grounds and refer it to a fact finding hearing. This would be attended by the child (subject to other possible reforms around the obligation to attend) and relevant persons (who may attend with the support of their advocacy workers and/or representatives). At that fact finding hearing, the legal member would explain the grounds of referral to the child and family and seek to elicit their responses. 

In the event that the legal member is satisfied i) that the child understands and accepts the statement of grounds and ii) that the grounds are also accepted by the relevant persons, the legal member would require the children’s reporter to arrange a children’s hearing. 

Currently where a statement of grounds is not understood and/or accepted, the children’s reporter, at the direction of the children’s hearing, applies to the Sheriff, who determines contested or non-understood elements of statements of grounds[29]. While children’s court callings are held in private, and courts do make special arrangements to adapt the environment for children and families, court will always be an anxious and difficult experience for many children and families.

Under the proposed approach, if a statement of grounds is not understood and/or accepted by the child or relevant persons, the legal member could then defer the fact finding hearing if necessary. This would allow them to consider evidence relevant to the statement of grounds, similar to a sheriff’s current approach, while minimising the need for children and families to attend court.

The existing functions of the grounds hearing relating to interim decisions (including the making of an interim compulsory supervision order, medical examination order and interim variation of a compulsory supervision order) would transfer to the legal member, to be made as necessary at a fact finding hearing.

The Scottish Government seeks respondents’ views on the following questions:

• What would be the advantages and disadvantages to replacing grounds hearings with a fact finding hearing where the process would be undertaken by a single ‘legal member’? The advantages would be the possibility of removing drift from the system and not taking up court time with grounds hearings. It could reduce stress on families who may find court a very difficult experience. Care would need taken to ensure children's rights are upheld particularly in relation to referrals on offence grounds. 

• Is it proportionate and necessary for there to be a fact finding hearing in every case?  No, SASW believes it is neither proportionate or necessary to undertake a fact finding hearing to accept grounds on behalf of babies and very young children who cannot understand grounds much less have capacity to accept them. Acceptance of grounds by parents/relevant persons should be sufficient to allow the hearing to proceed. Fact finding should only be necessary where parents do not accept grounds or where older children with sufficient understanding and capacity do not accept grounds.
  1. Babies, infants, very young children and the grounds of referral

The Hearings for Children report recommended that “there must be no requirement for young children to agree with the grounds for referral. When all relevant persons agree the grounds and Statement of Facts, this must be sufficient to consider the grounds as agreed, with no need for additional proof proceedings.”[ii]

Under current legislation, where a child would not be capable of understanding or responding to the grounds (for example because the child is an infant), and the children’s hearing does not discharge the referral, a Sheriff must determine the grounds of referral on behalf of the child[30]. Where the grounds are accepted by the relevant person(s) before determination, a Sheriff may make a determination in a case without a hearing, in accordance with section 106 of the Act. 

Where a child is very young it may be clear that they would not be capable of understanding, or they have not understood, the explanation of the grounds. 

In these cases, where the grounds are agreed by all relevant persons, the requirement to involve a Sheriff can create a strain on capacity, and unnecessarily extend timescales.

The Scottish Government acknowledges the need to take a pragmatic and 

age-appropriate approach to young children, their important additional needs, and their capacity to understand proceedings. 

Conversely, there may be a need to safeguard the child’s interests by leaving it to a decision maker (be that a sheriff or legal member) to decide on the right subsequent procedure, having regard to all the circumstances of the case, including whether any grounds of referral have been accepted by relevant persons. This allows each child’s unique needs and circumstances to be considered, and the appropriate course of action to be determined.

The Scottish Government is interested in respondents’ views on whether any additional safeguards would be needed for very young children in a redesigned grounds process.

Questions:

• In order to safeguard the interests of very young children, should the legal member or sheriff have discretion to convene a fact finding hearing, even if all relevant persons accept the statement of grounds?

If all relevant persons accept the statement of grounds, there should be very clear criteria for a sheriff or legal member to convene a fact finding hearing, given that the facts have been accepted by the people with parental rights and responsibilities for the child in question. Consideration should be given to the additional stress placed on families attending grounds hearings when grounds have been accepted by parents/relevant persons.

• Do you have any other views about how the youngest children should be supported in this part of the process to establish grounds of referral? Professionals who know the child and the family have a duty to present their observation of the child’s views and act in their best interests, and to support the child throughout the process. In practice this often means supporting the parents and family to recognise the concerns which have given rise to the referral; however, this may also involve direct care and support of the young child.
  1. Statutory time limits in establishing grounds of referral.

The Scottish Government does not propose introducing statutory time limits on establishing grounds (c.f. recommendation 5.4.1[31]) because it is arguable that the proposals set out in this consultation, alongside wider non-statutory action, will combine to expedite processes around grounds of referral. 

However, the Scottish Government is interested in respondents’ views around introducing a procedural rule whereby if the grounds of referral have not been established by a specified time, that situation should trigger a review by the decision maker (be that a sheriff or legal member).

Questions:

• A period of three months has been suggested as a time limit for triggering a review where an application to determine grounds of referral has not been dealt with. 

• Do you support a defined time period for triggering a review of the progress of the case? Yes

• If you support defining a time period, but not the suggested three months, should another time period be considered? Please explain why?
  1. Potential involvement of safeguarder in grounds establishment proceedings   

It is important that hearings progress in a timely manner, as unnecessary drift is harmful to children and to their families and prevents them being able to move on from the circumstances giving rise to the referral. Three months seems an acceptable time period to have determined grounds and a review at this stage would allow decisions about how best to proceed given the passage of time, 

The Hearings for Children report puts forward the view that enabling the involvement of a safeguarder earlier in the redesigned process would be beneficial to some children and to decision makers. The report then states ‘Where there is added value in their involvement [at a subsequent children’s hearing], this should be considered however should not be presumed.’ 

The Scottish Government seeks respondents’ views on the potential involvement of safeguarders during and beyond grounds establishment in redesigned children’s hearings proceedings. 

Questions:

• Do you agree that there should be earlier consideration of the appointment of a safeguarder in a redesigned system?

This should be considered as early as possible in the referral process where a safeguarder may be helpful in promoting the child’s best interests eg where there is significant conflict or complexity in the case, . 

• Should the proposed legal member have discretion to appoint a safeguarder to assist them with establishing the grounds of referral?

Yes

• Do you support the suggestion that a safeguarder’s early appointment to a child (before grounds have been established) should be presumed to end once grounds have been established?  It is reasonable to think that if a safeguarder is needed to support the establishment of grounds they may still be needed to protect the child’s interests in the hearing itself. Retaining the safeguarder beyond establishing grounds means they have an existing and continued relationship with the child and their family, giving them a good basis to continue to represent the child’s best interests. Rather than assume the appointment ends once grounds are established, it would be more proportionate to assume their appointment will continue unless there are clear reasons to discontinue. This would avoid continuance at hearing should a safeguarder be deemed to be required at that stage.

High level flow chart 

1. Role of the Children’s Reporter

In this section of the consultation, Scottish Government use the term ‘children’s reporter.’ This refers to the Principal Reporter and anyone employed by the Scottish Children’s Reporter Administration exercising their functions, as delegated in accordance with the 2011 Act.

1. Enhancing the role of the children’s reporter

Discussion around enhancing the role of the children’s reporter is set out in the following sections:

• Pre-birth activity by the children’s reporter.
• Pre-referral involvement of the children’s reporter.
• children’s reporter’s relationship with the child’s plan.
• children’s reporter’s right to convene a new hearing without bringing fresh grounds.
• Re-referrals to the children’s reporter within certain timescales.
  1. Pre-birth activity by the children’s reporter

The Scottish Government have conditionally accepted the terms of recommendation 3.6.1 within the Hearings for Children report, and seeks respondents’ views on the following recommendation: “When it is considered that compulsory measures may be required immediately upon a child’s birth, the Reporter must be engaged in multi-agency processes and decision making and must be empowered to undertake an investigation and prepare draft grounds for referral before a baby is born.”

The Scottish Government recognise the important benefits of pre-birth planning by health and social service professionals, and of adhering to the well-established concept of effective early intervention approaches. It is important for local services to plan interventions in an inclusive manner with expectant parents, at as early a stage as possible. Health and social services often work collaboratively to identify pregnancies where there are significant potential child welfare risks and concerns, and to develop child plans which include support for the expectant parents in developing parental skills for the benefit of the entire family unit, not least the wellbeing of the child if/when subsequently born.

Engagement with specialist pre-birth support services is undertaken by families on a voluntary basis. There is no current involvement for the children’s hearings system before a child is born. A children’s reporter currently has no role in a child’s case until a referral is received by them. Referrals to the children’s reporter can only be made after a child’s birth, as this is the point at which the child becomes a legal person who can be the subject of a referral. The Scottish Government understand that agencies working with expectant parents consider they are not permitted to share information with the children’s reporter ahead of a child’s birth on this basis.

Similarly, it is not currently possible to apply for a Child Protection Order until after a child is born. There are no proposals from the Scottish Government in this consultation, or contained within the Hearings for Children recommendations, to change that position. 

In terms of the specific recommendation highlighted above, the Scottish Government considers there are both benefits and risks in involving the children’s reporter prior to a child’s birth.

Where compulsory interventions are anticipated immediately or shortly after a child’s birth, if professionals working with expectant parents were empowered to share information with the children’s reporter, that may support efficient and expeditious children’s reporter investigation and decision making at the point when the child is born.

However, the Scottish Government is alert to the risk that obliging professionals to consider sharing information with the children’s reporter ahead of a child’s birth could risk damaging trust in an already delicate relationship between some expectant parents and professionals (including social workers, family nurses and health visitors). This may hinder or prevent work in developing child plans intended to support expectant parents in developing parental skills for the benefit of the child after their birth.

In these circumstances, it is also possible that the involvement of the children’s reporter may unintendedly place additional stress on the expectant parents which could be detrimental in particular to the health of the expectant mother and unborn child.

The Scottish Government is carefully considering the potential implications of this proposal, including from all the relevant rights holders’ perspectives, and it intends to engage with the Information Commissioner’s Office directly on the connected data protection issues. To further inform the Scottish Government’s considerations, respondents’ views are sought on proposals for expanding the children’s reporter’s role to pre-birth situations. In particular:

Questions:

• How could a redesigned children’s hearings system better protect babies shortly after their birth? 

• What can be done to improve interagency pre-birth preparatory work?
  1. Pre-referral involvement of the children’s reporter

While babies don’t have legal rights until birth, the pre-birth stage of planning is a vital part of child care and protection processes. It enables professionals to scaffold around expectant parents and provides the best chance of supporting the parent to care for their baby when born. Strong pre-birth protocols with clear timescales are essential to good social work practice, social workers need case loads which reflect the complexity and intensity of work in pre-birth assessment and support.

The Scottish Government have accepted the following recommendation (3.5) of the Hearings for Children report: 

“The role of the Reporter prior to a referral being made to the children’s hearings system must be enhanced. The engagement of the Reporter must routinely be considered during other child protection and care and support meetings and discussions, and there must be a consistent approach to partnership working between agencies and the children’s hearings system.”

The children’s hearings system is a rights-based system which necessarily involves clear delineation between the roles of the children’s reporter and agencies who regularly refer to them. That delineation of roles must be tempered with the need for effective collaborative working to promote the wellbeing of each child. The children’s reporter is currently able to achieve that latter ambition as a matter of practice in a pre-referral discussion by:

1. engaging with a potential referrer about a case, noting that the children’s reporter can neither prevent nor require a referral; nor can the children’s reporter give any undertaking or expectation about what specific action will be taken if a referral is actually made.

1. attending and observing a child protection case conference (although not acting as a member of the case conference) which can consider whether to refer the child to the children’s reporter among other matters. 

1. sharing information about the child with agencies who have responsibilities for the child, in a way that is compliant with data protection requirements. This may extend to social work, health and education professionals who are involved in child protection proceedings relating to the child. The purpose of sharing the information is to assist the person or persons to whom it is disclosed to decide on whether to refer the child to the children’s reporter.

1. in certain limited situations, using information received during a pre-referral discussion to form the basis for the children’s reporter’s consideration that “it appears the child might be in need of protection, guidance, treatment or control” (see section 66(1)(b) of the 2011 Act), triggering the consequent decision on whether to convene a children’s hearing.

Revision in 2023 of the “National Guidance for Child Protection in Scotland 2021” brought new prominence to the role, and potential contribution, of the children’s reporter. This new guidance revision reiterates conditions when early referral to the reporter might be needed, adding that referral to the children’s reporter should be considered at all stages of the child protection process, and decisions to either refer or not refer need to be recorded.

The Children’s Hearings Improvement Partnership has also developed guidance for making referrals to the children’s reporter. The guidance is available to referring agencies “during other child protection and care and support meetings and discussions”. It is expected that this guidance may be reviewed further by the Children’s Hearings Redesign Board.

Any move to enhance or expand the role of the children’s reporter prior to referral must not complicate experiences, or cause confusion or duplication between the roles of the various professionals involved in supporting the child. In such sensitive and critical systems, there must be justifiable trust for, and between, the professionals and decision makers in each of the separate processes, along with clear understanding of, and respect for, their roles. 

The Redesign Board is well placed to a review the existing guidance and protocols, to consider any need for revised and fresh guidance and protocols so as to achieve a “consistent approach to partnership working between agencies” as recommended by Hearings for Children.

Questions:

• Do you agree that non-statutory action (practice improvements and guidance updates) is sufficient to deliver an enhanced pre-referral role for the children’s reporter in a redesigned hearings system? Yes, there is currently capacity for consultation with the reporter pre-referral. Any guidance should be clear about the reporter's role in any pre-referral contact with professionals and not cause confusion about the roles and responsibilities of professionals involved with families where a referral to the reporter has not taken place. Further consideration should be given to the principle of minimal legal intervention, whereby we believe the children’s reporter should not be invited to observe or participate in case conferences prior to referral. This may cause additional distress and upset to parents who often find case conferences incredibly difficult and may undermine their capacity to participate in this process.
  1. Children’s reporter’s ability to call a review hearing.

The Scottish Government have given further consideration to recommendation 12.8 of the Hearings for Children report:

“The Reporter should be given the discretion to call for a Review Hearing without the need for new grounds to be investigated and established, where appropriate.”

A “review hearing” is held to review an existing compulsory supervision order (CSO). A range of circumstances exist in which a review hearing must be arranged (see section 137(1) of the 2011 Act). 

Currently, when the children’s reporter considers that a ground under section 67 of the 2011 Act applies and that it is necessary to make a CSO, the ground must be accepted or established before any CSO is made and implemented. In the case of a child who is already subject to a CSO, a new ground for referral must also be accepted or established before review of the existing CSO can proceed on that basis. 

It is important to consider how a child’s rights would be protected if a children’s reporter had absolute discretion to call for a CSO review hearing on the basis of new facts which had neither been accepted nor established. It is important to bear in mind that the children’s hearing, in reviewing a CSO, has the option of introducing new measures of care which potentially carry more restriction on the freedoms of a child. 

The Scottish Government accordingly consider it appropriate that the children’s reporter may only review a CSO in light of new welfare concerns after any new ground of referral is accepted or established. This can be contested by the child and family under the scrutiny of a sheriff (or, if adopted, a ‘legal member’) in respect of the factual element – and considered by the review hearing from a welfare perspective. A statement of grounds (containing grounds of referral) is the principal basis for decision-making by a children’s hearing.

Should a CSO require to be varied for reasons unconnected with newly emerging or newly identified child welfare concerns (for example, issues with engagement or implementation), a review hearing can be arranged where the local authority (in certain circumstances), child, relevant person, or other person who has a statutory right to do so, requires it. In the case of a child or other person requiring a review, the review can currently only take place after three months of the CSO having been made, continued or varied.

The Scottish Government wishes to consult on whether the current three-month period within which a CSO cannot be reviewed - at the request of a child, relevant person or other entitled person - should be abolished or shortened.

There is concern that a genuine need for review may arise within the three-month period. Therefore, it is arguable that a child, relevant person and/or entitled person should have the right to make representations to a hearing without waiting for up to three months. This particularly applies in respect of very young children, where three months can represent a significant period in relation to their own whole life to date.

The Scottish Government seek respondents’ views on the following issues associated with any potential change:

• Do you think it would be appropriate for the children’s reporter to be able to initiate a review hearing before the expiry of the relevant period? In the current arrangements professionals involved in the life of the child can initiate a review. It is unclear what benefit would be gained by the reporter also having this power. Where a review is called due to new, unexamined grounds there should be a fact finding process to establish the new grounds in order to protect the rights of children and their families.

• Do you think the statutory three-month period should be revised so that individuals who are entitled to request a review of a child’s CSO can do so within a shorter time period?  There needs to be an opportunity for children and families to recover and effect change following a children’s hearing which results in a CSO. The three month review period allows for continued work with the family and the opportunity to see sustained change over a period of time. The danger in reducing this period is that families find themselves being called back to hearings repeatedly with no time to process the decisions made or to allow caring arrangements to become established and to evidence change over a period of time. The process of requesting a review hearing could also be subject to misuse whereby a relevant person could repeatedly request review hearings as an extension of a pattern of coercive control over a resident, or non-resident parent.
  1. Re-referrals to the children’s reporter within a given timeframe – a trigger for other action?

The Scottish Government has explored recommendation 4.4.4 of the Hearings for Children report: ‘The following measures should be considered with a view to reducing the number of ‘repeat referrals’ and increasing coordination between the children’s hearings system and the other parts of the ‘care system’: 4.4.4 Re-referrals of children to the Reporter within a specific timeframe should be considered as part of a continuation of the previous concern, rather than new circumstances, and wherever possible should be considered by the same Reporter.”

The Scottish Government agrees with the concept of the children’s reporter developing a cumulative understanding of a family’s challenges, strengths and circumstances. The Scottish Government also supports minimising both intersecting referral activity and the number of children’s hearings proceedings. 

There is also support at the level of principle for the same children’s reporter (along with some continuity in children’s hearings’ personnel) looking again at a supervised child’s case when new information becomes available. 

However, a child’s circumstances can be fluid, as can their views and wishes. 

This proposal could have impacts on children’s rights, where ‘re-referrals’ prompted by fresh concerns risk being inappropriately linked to established previous concerns about a child, without that child or their family being able to contest the new alleged facts. 

Permitting re-referrals may be appropriate as a means of reducing the number of repeat referrals in respect of children already subject to supervision within the children’s hearings system. Fresh action may reflect ongoing or escalating difficulties which continue to meet or exceed the statutory threshold for referral to a hearing. Under the principles of GIRFEC’s National Practice model, planning support for a child or young person is a dynamic and evolving process of assessment, analysis, action and review. Any forward course of action should continue to reflect this.

Questions:

• Do you consider that a child being re-referred to the children’s reporter within a certain timeframe should result in that ‘re-referral’ being treated as a continuation of the pre-existing referral?

• If yes, what would be an appropriate timeframe from the original referral for re-referrals to be treated in this way?

Children’s lives are dynamic, and their circumstances can change considerably in a short period of time. While repeated referrals should be avoided, there are potential difficulties in treating all new referrals as an extension of existing concerns. On occasion it will be clear that the latest information is a continuation or exacerbation of concerns raised in the original referral. In such cases there should be some discretion to consider this new referral without the need to establish grounds. Where there is doubt about the nature of the new referral or it is clear the referral relates to a new concern there should be a process of establishing grounds.

1. The Children’s Panel and Children’s Hearings

Scottish Ministers did not accept the Hearings for Children recommendation which specifically sought to introduce a full-time, salaried chairperson alongside two paid panel members for each children’s hearing.

The national children’s panel is the largest legal tribunal in Scotland. Ministers took the view that the particular structure of this recommendation would have had broad and unsupportable consequences, including a significant and unsustainable funding requirement. There were also significant implications for the workforce resource demands both within, and beyond, the children’s hearings system. 

However, the Scottish Government is supportive of investing in additional capacity for the decision-making function within a redesigned children’s hearings system. This includes exploring further whether changes could or should be made to the make-up of the national children’s panel and to the composition of particular types of hearings proceedings – to promote more capacity, continuity and confidence. Potential changes could include: 

• whether the entire panel should be remunerated in some form, or that should be confined to certain categories,
• whether the current number of panel members is appropriate for all types of hearings proceedings and ancillary decision making,
• whether the panel should include specialist hearings members to make decisions in certain types of children’s cases or 
• whether individual, specially recruited and qualified, panel members should be given authority to make decisions - in a one or two member forum - which are currently the preserve of a full children’s hearing of three panel members. 
  1. A redesigned children’s panel 

Under the 2011 Act, the National Convener is an independent position, and they have the authority to appoint members to the children’s panel.[32] 

The consideration of potential changes in this area would therefore, in addition to a number of other factors, be predicated on full and further consultation with CHS, the National Convener, and the current children’s panel community. 

Scotland’s children’s hearings system is distinct from other tribunals in its use of volunteer members for legally binding decision-making. While volunteerism is not expressly stated in legislation, the custom and practice is well-established and has served Scotland’s children well for over 5 decades. The Scottish Government notes that accompanying policy documents for the Children’s Hearings (Scotland) Act 2011 state that members of the children’s panel should be, as they had been since the systems’ inception, volunteers: ‘The existing children’s panels will be replaced by a single national Children’s Panel, comprising volunteers from local communities who will continue to be recruited and sit as panel members for hearings in their local communities. 

Children’s Hearings Scotland will, through the area support teams, work closely with local authorities to provide support to ensure that all children’s hearings make nationally consistent and high quality decisions in relation to children and young people.’

The Scottish Government recognises the value of local people making decisions about children who live in their own area, and the vast array of experience and expertise brought to the system by volunteer panel members offering extraordinary time, skill and energy to the children and families from their own community who may need help and support. 

The Scottish Government has deep respect for the track record and outstanding public service of volunteer children’s panel members. A careful combination of supports and understandings have been constructed over the years, and that has been essential to the unbroken success and delivery record of the current children’s panel construction. Real care has to be exercised in the discussion of further reforms in this area. 

However, it is also recognised that the legal decisions taken by panel members have grown more complex, and the environment more contentious and litigious over the years. It is arguable that the current wholesale reliance on lay members may be asking too much of an unpaid volunteer community. 

As previously noted, the National Convener is independent of Government and all others in discharging his functions and has the authority to appoint members to the children’s panel. For further background about the appointment of members to the national Children’s Panel, please see sections 4 and schedule 2 of the 2011 Act.

The Scottish Government have been collaborating with the National Convener and CHS officers to develop and assess a range of potential future roles within a reconfigured children’s panel. Scottish Ministers are inclined to the view that any potential new investment in developing and sustaining new children’s panel roles should be understood as an agenda of ‘reinforcement’ rather than wholesale ‘replacement’, but respondents’ views are sought on these issues.

The Scottish Government recognises that the make-up of the children’s panel overall, and the long-standing use of volunteers in these key roles, are emotive issues. Any discussion on the future of the panel should not be considered adverse commentary on the extraordinary contribution of volunteers through the decades. However, it is right, in light of the Hearings for Children report and its recommendations, to consider whether the volunteer mode – alone - is the most appropriate approach, especially as the cases that fall to children’s hearings trends towards greater complexity and requires additional stability and sustainability.

The ultimate viability of each configuration, and combination of configurations, is contingent on the outcome of discussions and decisions on the future role(s) of chairs, panel members and children’s reporter / SCRA staff, as well as whether new demands will be made of the tribunal members.

By way of illustration, the current system demand (and the anticipated demand flowing from commencement of the Children (Care and Justice) (Scotland) Act 2024) has been applied to a range of potential modifications to the current ‘single class of lay unpaid panel member’ model. Some of the potential reconfigured children’s panel roles, and the appropriate roles that they might play in deciding cases in a redesigned system, are reproduced below. 

• 1 Paid Chair and 2 Paid Panel Members (only for complex cases[33]) - other cases decided by volunteers.

• 1 Paid Chair, 1 Paid Specialist Panel Member, and 1 Volunteer Panel Member – for certain cases

• 1 Paid Chair and 2 Paid Specialist Panel Members

• 1 Volunteer Chair and 2 Paid Specialist Panel Members

• 1 Paid Chair and 2 Volunteer Panel Members

• 1 Paid Chair and 1 Paid Panel Member 

• 1 Volunteer Chair and 1 Volunteer Panel Member – for certain cases

The Scottish Government invites initial views from respondents on these potential approaches, and intends to engage in deeper dialogue with the National Convener, children’s panel members and system partners in the months beyond this consultation – once analysis has been completed and firmer forward policy positions have been adopted in respect of the issues covered in this consultation.

Questions:

• Do you believe the children’s panel element of the children’s hearings system should retain the unpaid lay volunteer model in whole or in part?  The hearings system has a rich history of drawing on members of the community who volunteer their time to support children and young people. The use of volunteers brings a lay person's perspective to often complex situations and provides checks and balances to the assessment and decision making of professionals responsible for working with children and families. The benefits of volunteering extend to individuals gaining greater awareness of the challenges facing children and families, can bring a greater sense of community, social responsibility and empathy for families who face challenges in their daily lives.

The benefits of using volunteers should be retained within the children’s hearing system.

• Would you support some measure of payment for panel members, over and above the current system of expenses, in return for the introduction of new and updated expectations? While there are clear benefits to a volunteer model within the hearing system, cases coming before the hearing are increasingly complex and often require a high degree of understanding and analysis to ensure decisions are made that reflect the best interests of the child. The introduction of legal representation has seen a rise in the level of conflict and adversarial discourse within hearings and has made chairing hearings particularly difficult in some cases. Given this is the case we would support some element of payment in certain situations if this was accompanied by clear expectations around levels of training, experience and ability to manage the complexities of the hearing process. 

• Do you have any views on the introduction of new roles into the children’s panel –

• Paid Chair. A paid Chair may improve chairing standards, giving them an authority which can be hard to hold as a volunteer.

• Paid specialist Panel Member – possibly including care-experience. There is opportunity for specialists to provide reports to the hearing where appropriate. There is potential for a specialist panel member to inadvertently compromise the means of decision making whereby lay panel members may defer to someone who is perceived to be an expert. This potentially undermines the basis of the hearing system as a tribunal. Care experienced people should be supported to become panel members and while payment might enable people who otherwise could not commit the time needed, we should also avoid the assumption that care experienced people are less likely to volunteer their time.

• Paid Panel Member. SASW believes that retaining the volunteer nature of panel members supports community involvement in the lives of children and young people.

• Volunteer Panel Member. SASW believes that retaining the volunteer nature of panel members supports community involvement in the lives of children and young people.

• Recognising that payment of panel members/chairing members would represent a significant new national investment in decision making, do you have views on priority resourcing for other parts of the system?

In our view any additional resourcing in children and families services should be prioritised for children and families social work and related services where there are significant recruitment and retention issues. Resourcing social workers appropriately would enable them to fully support children and their families throughout the child care and protection process and in many cases resolve the issues represented throughout this document. 

• Each children’s hearing currently consists of 3 panel members, with one chairing:

• Does every decision taken by a children’s hearing need to be taken by three children’s panel members in a redesigned system?  There may be some undisputed procedural issues that could be decided on by an amended or reduced panel.

• Should all panel members, on completion of appropriate training, still be required to chair hearings in a redesigned system?  The role of chair is a complex one which requires experience, skills, and confidence in the role to be effective. Many panel members while having strong analytical and decision making skills do not have the personal qualities required to effectively manage what can be a very challenging meeting with high levels of emotion. Furthermore, the ability to gather views from attendees and manage potential conflict is an essential part of the hearing. This can be challenging in the extreme. The role of chair should be considered a specialist role with further training provided in managing the meeting in a productive way, setting clear professional boundaries and ensuring the tone of the meeting is inquisitorial and respectful to all. 

• Would you support some children’s panel members being paid for ‘specialist’ knowledge, while others’ involvement remains voluntary? E.g. a specialist panel member may have a particular qualification or expertise in childhood development, ACEs, or be a professional with prior experience of working with children in some other capacity. The hearing system is a legal tribunal with well-established principles around lay involvement which would be undermined by specialist panel members. Specialists have the opportunity to provide input to the panel by way of reporting processes and should be engaged where necessary as part of the child’s plan or work undertaken with the family prior to referral to the hearing system. It could be questioned how far any specialist could form a reasoned opinion based on reading reports presented to panel and the panel meeting alone without direct work with the child or the family concerned. There is also the potential that their view is considered to carry more weight than lay members of the panel, with the result that the lay members feel devalued or defer to the views of the specialist member, resulting in less measured or balanced decision making. 

• Would you support the remuneration of a cohort of care-experienced panel members?  Where lack of payment presents a barrier to care experienced people taking up panel membership, it may be worth considering payment in the interests of increasing accessibility. The value of people with lived experience of the care system cannot be underestimated and measures should be taken to support care experienced people to become involved in childrens hearings.  It should, however, not be assumed that care experienced people are unwilling or unable to give their time on a voluntary basis if they wish to do so. 
  1. The Chair of the children’s hearing

The Hearings for Children report links the establishment of a full-time chairing member to a number of connected recommendations. 

These additional recommendations have been accepted in principle but must be subject to broader consideration given that the redesigned roles of chair and panel members have yet to be confirmed, and will be subject to further work following this consultation. 

The following recommendations and associated discussion are considered appropriate for grouping together:

1. Engagement with the Chairing member before the Children’s Hearing

The Hearings for Children report asks that: In advance of a hearing taking place, the child or young person and their family should be offered an opportunity to meet the Chair outwith the formal setting of a hearing. Consideration should be given to the production of a note of the meeting shared, with the permission of the child and their family with everyone who has a right to receive information relating to the children’s hearing by the Chair.

This proposal potentially could foster a more relaxed, informal atmosphere for the child to meet the chairing member of the hearing, reducing uncertainty about the hearing room, the panel members and process.

The Scottish Government considers that many of the desired benefits could be achieved without the need for a full-time salaried chair, and there is much to recommend in the mainstream of existing good practice. However, careful consideration needs to be given to whether what is actually required is a dedicated further meeting, or just a more informal opportunity for the Chair and panel members to greet the child and family and introduce themselves just before the hearing on the given day. 

Clear boundaries would need to be set around any introductory meeting to ensure there was no discussion of the substance or focus of the pending children’s hearing. Discussions of that type would then have to form part of the formal record, thereby removing the benefits sought under a more informal approach.

The Scottish Government would instead support more informal measures – for example, through practice guidance – which would allow a chairing member to make introductions, offer any appropriate reassurance and explain to the referred child and family what will happen next (should it be appropriate to the particular circumstances of the case)

Questions:

• Should the chairing member of the hearing meet the referred child, their family or representatives to welcome them to the centre and offer any appropriate explanations and reassurances before the actual children’s hearing?  There may be benefits to the Chair having the opportunity to introduce themself and welcoming the family to the hearing centre to reduce anxiety and orientate the family to the setting. However, this should not be considered an opportunity to discuss the matters that have brought the family to the hearing as this may compromise the process. 

• If an additional orientation / reassurance meeting is held in the hearings centre with the chairing member, would you support this being an informal meeting?  Yes, the boundaries of the meeting would need to be clear to all involved and a process in place to support those boundaries, eg an understanding that matters relating to the hearing cannot be discussed and a record kept of discussions that fall outwith those boundaries. 
  1. Children’s hearings decision making in a redesigned children’s hearings system 

Hearings for Children proposed that ‘the final decision will be a majority decision. If there is a dissenting view from a Panel Member, the Chair must reflect that in the written decision.’

The current decision-making approach already operates by majority. That is, regardless of the view of the chairing member, where two children’s panel members take a decision then that majority holds sway and becomes the applicable decision. Any dissenting, or minority, decision is noted in the Decisions and Reasons document. 

However, should the make-up of the children’s hearing, and the roles of children’s panel members within that, change in a redesigned children’s hearings system, how the decision-making model operates may also need to be reviewed. 

The Scottish Government would welcome respondents’ views on whether the majority decision approach should be maintained, or whether in light of potential changes to the decision-making model, consideration should be given to alternative approaches.

The Hearings for Children report states – “At the end of the information gathering and discussion part of the Hearing there should be consideration of a short break to enable the Panel[sic] to retire and reflect on the information they have received and to confer on their decision.”

“This break will also allow the child, their family, and other important people in their lives to reflect on what has been discussed, and to decompress and have some time away from the intensity of the Hearing.”

The Scottish Government is supportive of changes to practice which would allow a period of adjournment and reflection for decisions to be taken away from the hearing room, before being relayed to the child, family and representatives. 

Currently, children’s hearings are expected to deliver their Decisions & Reasons verbally without recourse to an adjournment. 

Introducing a brief period of recess to consider and outline the decision of the children’s hearing - which could then be delivered by the chairing member - may assist in greater clarity of decision-making. It would avoid the need for three successive decisions and reasons to be narrated as currently takes place, potentially thereby minimising the repetition of traumatic material.

Questions:

• Do you support the proposal that the children’s hearing should have a brief period of recess/adjournment before reaching their decision and sharing it with those present?  A short adjournment would give some breathing space for all involved in the hearing. It would give panel members the opportunity to discuss any dissention and the reasons for this in private, rather than doing so openly in panel which can be confusing and anxiety provoking for families attending hearing. It would also give families an opportunity to process the meeting before hearing the outcome of decisions which may help them understand and retain the information provided to them. Consideration needs to be given to how to accommodate such a recess, so that families and professionals have separate waiting areas and do not need to wait together in one space following an emotive meeting.

• Do you agree that the majority decision-making approach should be maintained, in respect of the relevant redesigned three member hearings?  Yes, a majority decision acts to provide checks and balances in decision making.

• Should the children’s hearing be asked to reach a unanimous decision during adjournment, in order to minimise repetition and potential retraumatisation? It may not be possible to reach a unanimous decision in some cases. It would be preferable to have a majority decision than to have a hearing continued due to the inability to reach a unanimous decision.

• If a majority decision approach remains, would you agree that any dissenting decision should be noted and explained? Yes, it can be important for families to know that a decision wasn’t unanimous and the reasons for this, particularly if the decision is one the family had not hoped for. It is also important that panel members have their reasoning and decision making recognised and recorded to feel like their contribution is valued and respected. 
  1. Decision-making and specificity of measures in a Compulsory Supervision Order (CSO)

The Scottish Government has heard, in response to a previous consultation on policy proposals for the recent Children (Care and Justice) (Scotland) Act, that it would be desirable to introduce more clarity and specificity in CSO decisions, particularly those placing children away from home with kinship or foster carers, or in recognised regulated childcare institutional settings like residential schools. 

Such a move would be to assist children to challenge interventions and restrictions that had not been explicitly authorised by a Sheriff or hearing. This engages questions of restriction up to the level of restraint.

Questions: 

• Do you agree that it is desirable or necessary to introduce clearer authorisation for particular interventions with children, or particular interferences with their liberty, on the face of measures included in an Interim Compulsory Supervision Order or Compulsory Supervision? Yes, children and their families should be clear about interventions included in a CSO and understand the extent and limits of any order issues.

• If so, do you agree that a ‘maximum authorised intervention’ is an appropriate means of delivering that clarity to children and to professionals? Yes, parents, children and professionals need to be clear about what is intended in terms of intervention included in a CSO, and the limits of this intervention particularly the potential for restriction of liberty or use of physical restraint. Panel members should be prepared to explain and evidence the reasons for authorising restrictions and/or use of restraint and have those decisions recorded and communicated clearly.
  1. Timely notification of children’s hearings decisions

Hearings for Children recommended: ‘The Chair must provide the decision within a reasonable time limit.’

The decision of the children’s hearing is currently communicated to the child and family immediately within the hearing room, with the written decision transmitted by SCRA on behalf of the children’s hearing within 5 working days per Rule 88 of the Children's Hearings (Scotland) Act 2011 (Rules of Procedure in Children's Hearings) Rules 2013. Rule 88 also prescribes the information that is to be transmitted, and identifies the classes of person entitled to receive that information. The Scottish Government seeks respondents’ views on the current approach.

Questions:

• Is the current time frames for written confirmation of the decision by the children’s hearing (5 working days) still appropriate? Yes, this ensures families have a written record of decisions made in a timely manner and gives time to follow appeal processes where necessary. 

• Should certain children’s decisions (e.g for an ICSO) have accelerated notification timeframes, relative to the urgency of the decision?  Where a decision has been communicated verbally to the family at the time of the hearing, written confirmation within 5 days appears reasonable.
  1. Continuity of Panel members in children’s cases 

Hearings for Children considered the issue for continuity of panel and chairing members, envisioning continuity for each case where possible. “As far as possible the Chair must be the same Chair each time a child and their family attend a Hearing. This should also apply to Panel Members where possible and desirable.”

Of relevance here is Rule 3 of the Children's Hearings (Scotland) Act 2011 (Rules of Procedure in Children's Hearings) Rules 2013, which states that:

3.— (1) Where a children’s hearing is held in relation to a child, by virtue of the Act or any other enactment, the children’s hearing may request that the National Convener select, where practicable, one of the members of that children’s hearing to be a member of the next children’s hearing to be arranged in relation to that child.

The issue of consistency, or continuity, of panel members for the referred child is a challenging and complex area from both rights and resourcing perspectives. 

However, it is broadly agreed that a greater degree of continuity (that is, one or more of the same panel members sitting on the same child’s hearings) can be desirable and can improve the experience for the child.

The Practice & Procedure manual published by CHS cites the ‘Better Hearings’ research by SCRA as evidence for this position. 

This research cited the views of children, young people and practitioners within the system. It found broad consensus that a greater understanding of a child’s life and circumstance will lead to more informed decisions by panel members, as well as reducing the need for a child to either tell, or hear, their story on multiple occasions with different children’s panel members. 

Judicial consistency has been promoted in family law court processes both in Scotland and other jurisdictions to ensure cases continue to progress and minimise drift and delay. It is perhaps likely that children’s panel member continuity would follow this pattern and improve children’s experience, especially in particularly complex cases. 

However, the children’s panel – and each children’s hearing - needs to remain an independent and impartial tribunal. Different individual children’s panel members being involved in different cases goes towards supporting the impartial consideration of the individual child’s case facts and circumstances. Excessive use of continuity may undermine the necessary objectivity of individual children’s panel members and may not necessarily be in the best interests of every child. 

The recommendation to have the same chair for each child’s successive hearing is complex, particularly where the system doesn’t currently support a full-time chair approach. While the Scottish Government is generally supportive of moving towards a presumption of continuity, modelling for continuity and consistency is deeply complex. The Scottish Government would welcome views on wholesale continuity where practicable, including a position where, perhaps, only one panel member is consistent across each case.

Questions:

• Should consistency or continuity of chairing members be the default position for each child’s hearing?  The issue of continuity can be achieved through a variety of means. The danger of relying on a consistent chair is the case may be subject to drift depending on the chair’s availability. As such there may be unintended consequences to holding the consistency of chair as a default position.

• Would you support one single children’s panel member’s consistent involvement as an alternative approach? One consistent panel member may provide sufficient consistency in decision making. 
  1. Substantive vs Procedural decisions

The Scottish Government is supportive of the position adopted by Hearings for Children in regard to consideration of the types of decisions which do and don’t require a full children’s hearing: “In a redesigned children’s hearings system there must be a separation between procedural decisions relating to the hearing itself and the decisions made by the hearing. There should be an assessment to understand which procedural decisions a Chair can take without the need to convene a full Panel [sic] in advance of a hearing. This should include scrutiny of whether anything needs to change in legislation or procedural rules to better facilitate decision-making and eliminate structural drift and delay in the system.”

Currently, each children’s panel member is assigned a number of ‘sessions’ per month (around two, on average), one session in the morning and one in an afternoon in busier areas. Each hearings session will contain up to three separate cases, fewer if the children’s reporter considers that an individual case is more complex and will have to take longer than the allocated slot. 

Following analysis of the recommendations in the Hearings for Children report, the Scottish Government believes there may be scope to change which decisions require a full children’s hearing of three children’s panel members, in line with established expectations and with the 2011 Act. 

It may be considered appropriate, subject to further full legal analysis, that some procedural decisions could be taken by an individual children’s panel member (usually the assigned chairing member), or potentially a ‘legal member’ before the grounds are determined – see section 6. 

This would free up capacity for other children’s panel members to engage in substantive decision making, so that allotted sessions could be used more appropriately for substantive discussions and decisions in the best interests of a child - as opposed to procedural matters at which the child or their family may not be present. 

This would also allow for increased capacity of the total panel member community, reducing the number needed by removing a significant number of hearings from the allotted sessions. 

Examples of where ‘procedural’ decisions could be taken, and where there is no requirement for the referred child to be in attendance include:

• Pre-hearing panels covering:
  • Deem or un-deem a relevant person, subject to the existing routes of appeal.
  • Excusal of child or relevant person from attending.
  • Attendance by electronic means.
• Advice hearings.
• Review of a Child Protection Order.    

Questions:

• Should children’s panel members or chairing members, for certain procedural decisions, be able to take decisions without recourse to a full three member children’s hearing? This may be appropriate for uncontested procedural decisions, with the ability to defer to a full hearing where the family contest the decisions made, eg in relation to who may be considered a relevant person. 

• Are there other areas you would consider appropriate for a single-member decision making approach?  No

• Would you propose additional safeguards to accompany these proceedings and decisions?
  1. The Powers of the Chair during a Children's Hearing

During a Children’s Hearing

The Hearings for Children report made several recommendations relating to the powers of the chairing member of a children’s hearing. Particular emphasis is placed on those attending the children’s hearing, and how the Rules of Procedure, along with training provided by the National Convener and the relevant CHS practice guidance should enable the chair to robustly and effectively manage attendance and participation. The relevant recommendation states: “The existing Rules governing a Children’s Hearing must be sufficiently robust to ensure that the Chair is able to manage the dynamics and conduct of an inquisitorial approach to a Children’s Hearing. This includes determining who is present at each stage of a Children’s Hearing, whilst effectively balancing rights of attendance and participation, and having the flexibility to change the speaking order and arrangements and the authority to ask contributors to the meeting to leave the room after they have spoken, if that is in the best interests of the child.”

The report made it clear that this includes recognising the potentially challenging relationships between attendees which may affect participation, even when there are no outward signs of violence and disruption.

There are existing powers to manage attendance at a children’s hearing, including the exclusion of relevant persons, in both the 2011 Act and the 2013 Rules of Procedure. The chairing member also has a responsibility under section 78(4) of the 2011 Act to keep the number of people in attendance to a minimum.

However, the Scottish Government acknowledges that these are highly complex issues, and there could be benefits to creating a set of clearly stated statutory powers to enable more robust management of hearings. The Scottish Government also agrees that empowering the chairing member to take difficult decisions on participation and attendance could help minimise hostility and promote inquisitorialism - by making these decisions clearer and backed by potential future primary legislation.

Questions:

• Would it be beneficial for the chairing member to have a robust and clearly stated set of powers to manage how and when people attend and participate in the different phases of a children’s hearing? A skilled chair is essential to the effectiveness of the children’s hearing. They should be appropriately trained and have full understanding of the powers available to them to support the hearing as an inquisitorial process. They should be able to set and hold boundaries in relation to professional standards of behaviour and ensure all in attendance are treated with respect. Increasingly social workers experience hearings as being very stressful, and report experiencing professional and personal attack, often at the hands of legal representatives who are accustomed to operating in an adversarial arena. Chairs need to be able to manage robust debate while ensuring all views are heard and considered.

• Are the existing powers of the chairing member and of the hearing sufficient to protect the rights of all involved? The existing powers are sufficient in the hands of an experienced, confident chair person. The rotating of panel members through the role of chair does not support the development of experience or confidence in the role as individual panel members may not chair with sufficient frequency to develop the skills needed. Having a dedicated chairing role, paid or unpaid, with additional training will support chairs to understand their existing powers and to develop the confidence to hold the meeting safely. 

• What enhancements could be made to the existing powers of the chairing member and the hearing to promote inquisitorial approaches? Chairs need to understand their role and to own responsibility for ensuring robust debate does not spill over into conflict. Enhanced training and support coupled with clarity around existing powers will go some way to supporting more effective chairing. 

1.  
2. Recording of Children’s Hearings

The Hearings for Children report considered the potential benefits of recording children’s hearings. The development of that recommendation included consultation with children and young people. Their views on this issue were reflected in the report and were broadly in favour of recording hearings. The report concluded by recommending that:

“There should be a full examination of the potential benefits and consequences of recording hearings. This should include a full assessment of the impact this would have on the rights of children and their families.”

The Scottish Government has committed to exploring this further as part of the broader consideration of the practice and procedure in a redesigned hearings system. 

The Scottish Government takes careful note of the views put forward by children and young people and captured in the Hearings for Children report. The Scottish Government recognises that there are both benefits and drawbacks to recording hearings.

Respondents’ views are therefore sought about whether hearings, in full or in part, should in principle be recorded. Comments and suggestions are also invited about the benefits and risks of video, audio or written recordings.

Questions:

• In your view, should children’s hearings be routinely recorded?

Yes

• If yes - which method of recording should be routinely used?
  • Written
  • Audio
  • Video
  • Other – write in.

As a minimum clear written records should be kept of children's hearings, beyond the decisions being made. Consideration should be given to the potential impact of audio and/or video recording on children and their families who may not wish a very emotive meeting to be recorded in that way. 

• What are the main benefits and risks of this method of recording hearings? Children have a right to understand the process of decision making, not just the final decision made. This can be particularly important for care experienced children in understanding their experiences throughout their life course. Having access to records of decision making forums can bring understanding and possible acceptance of the issues that resulted in removal from their families and can promote trauma informed practice whereby they are able to make meaning from their experiences. 

• If no, what are your most significant concerns about recording hearings?

• If only the decision element of a children’s hearing were to be recorded, would this change your view?  While it is important that decision making is recorded clearly, the reasons for that decision and the concerns brought to a hearing can be very important for children and young people who may want to question or understand the decision making process in later life. This may be very important to people who were very young when decisions were made in relation to their family of origin or those who did not attend their hearing.
  1. Child friendly summaries of decisions

The Hearings for Children report asked that: a summary of the decision made by the Hearing in plain language and in a format appropriate to the age and stage of the child must be shared alongside the full decision. There must be consideration given to whether this would also be appropriate for family members.

The Scottish Government is generally supportive of this proposal but recognises that it may have resource implications and impose a requirement for the chairing member or other suitably qualified person to oversee any ‘translation’ to a child-friendly document - to ensure consistency with a legally binding decision. 

This recommendation links to wider considerations about the role of the chairing member and other children’s panel members within children’s hearings, and improvements to the reporting and delivery of decisions. It is also linked to future decisions about the child’s attendance at their hearing and considerations of their ability to participate. If processes for the production of child-friendly summaries of decisions are to be developed, this must be considered and progressed alongside other relevant changes. 

While a fully reasoned decision will assist in improving openness and transparency and to inform appeals, this might be inappropriate for, and inaccessible to, children—especially very young children, and children with a learning disability. A summary of the decision in plain language in a format appropriate to the age and stage of the child should therefore be prepared and issued alongside the full decision. Similar accommodations may support family members with learning disabilities to, for example, understand the written decision more easily.

Hearings for Children report 

Questions:

• Should there be a statutory requirement for the production of age and stage appropriate summaries of Children’s Hearing decisions? It is good practice for children to have decisions explained to them in ways that they can understand. This may be by means of verbal discussion or provided in a written form which they can process in their own time. It is important that any written communication doesn’t dilute or minimise the concerns raised or the decision made which can be challenging given the complexity and sensitivity of issues that are brought to the hearing. Practice guidance may be sufficient to support production of age appropriate summaries, however workers will need time and resource to do this. Statutory requirement alone will not improve practice unless it is accompanied by sufficient resourcing, 

• Should the specific needs of other family members – especially other children - be taken into account when decisions and reasons are being prepared and issued? The needs of the family should be considered in decisions that affect children and young people and in the case of age appropriate written summaries these should be written in a way that communicates reasons for decisions while also protecting the child’s view of people involved in their care. That is, in a non-blaming, non-accusatory way in order to preserve potential continued relationships with family of origin.
  1. Family Group Decision Making (FGDM) and Restorative Justice

The Hearings for Children report considered that Family Group Decision Making (FGDM) and restorative justice processes should be pursued where appropriate, prior to a referral to the children’s reporter, and potentially after a reporter referral. The report recommended that: “[Hearings] must be empowered to create space for restorative justice and FGDM processes to take place, by deferring hearings for a sufficient time.”

The operation of FGDM and restorative justice services, and how they may appropriately interact with children’s hearings, require careful consideration.

The Scottish Government does have concerns about the potential impact of deferring children’s hearings – especially when the intention is to minimise the number of those hearings to the point that only those that are absolutely essential still remain - in order to pursue these other processes. 

When a child is referred to a children’s hearing, it has been determined by the children’s reporter that they are likely in need of compulsory measures to address concerns about their welfare. Other routes of support, such as FGDM or restorative justice, may have already been considered, or they may still be thought to be helpful – but that should not delay a children’s hearing making a decision, or the implementation of essential support to the child through a CSO. The Scottish Government is therefore interested in views on how these processes might appropriately interact with a redesigned children’s hearings system.

Questions: 

• Is it appropriate for children’s hearings to defer their decision in order for Family Group Decision Making or restorative justice processes to be offered, or to take place? Consideration should be given to the wider child care and child protection environment. Often when children are referred to the hearing there has already been significant work undertaken with the family, including restorative and collaborative processes such as FGDM. Where these processes have been offered, there should be no requirement to re-offer pending a children’s hearing nor should a hearing be delayed in the hope that families might engage with a restorative practice as this may cause unnecessary drift and leave children and families in limbo without the services and support that can be provided through a CSO.

• What other ways could consideration of these processes feature in the redesigned hearings system?  These processes should be offered before referral to the hearing system is made, as part of multi-agency assessment and intervention. 

1. After a Children's Hearing 

1. After the Hearing – the length of interim orders

Under section 86 of the 2011 Act, an interim compulsory supervision order has effect for the “relevant period” as defined in section 86(3). That is, if the order does not cease to have effect sooner, the cut-off is 22 days beginning with the order being made, or in the case of an extended order, 22 days beginning with the order having been extended.

Under the emergency Coronavirus (Scotland) Act 2020, the period for which an interim CSO could apply was temporarily extended to 44 days. This was essential for the continued safe operation of the children’s hearings system during the pandemic, and its introduction was only justifiable with reference to that emergency. However, the learning and feedback from the use of an extended time limit is instructive here, and it was broadly positive. Approximately 77% of all Interim Orders made from 7 April 2020 to 8 September 2021 made use of this extended time limit.[34] It was applied flexibly but proportionately, and limits were only extended as much as they needed to be in the best interests of the child. This offers an important contribution to the evidence base for redesign.

The Hearings for Children report recommended in Chapter 5 that “… there should be full exploration of the making of interim orders for a specified time that is bespoke to a child’s needs.” The report states that “It may be helpful to consider retaining the limit as a default, with a discretion to extend the time period to suit the circumstances of the child and to meet the child’s best interests”. 

The Scottish Government agrees that trust should be placed in decision makers to implement interim compulsory supervision orders for the appropriate time in the best interests of the child, taking into account appropriate and necessary considerations of ECHR rights and rights of appeal. 

The Scottish Government is therefore interested in respondents’ views on how positive changes can be made with respect to the duration of interim orders, while safeguarding the rights of children and families.

Questions:

• What are the advantages and disadvantages of increasing the statutory 22-day time limit for the duration of interim compulsory supervision orders (ICSOs)? An increase in limit would allow time for fuller assessment and continued work with the family which may negate the need for a CSO at hearing, 

• Do you feel that there should be more flexibility in the duration of these interim orders?  Yes, decision makers should be able to adjust the duration of an ICSO to meet the needs of the individual child and their circumstances up to a maximum limit, to avoid drift. This may provide a level of consistency and security to children and young people and allow time for initial interventions to evidence effectiveness. 

• If so, in what circumstances and what maximum duration do you consider appropriate? Evidence from experience over COVID showed the extended limit of 44 days was effective and positive for many families. Given this was the case, it may be appropriate to extend the maximum duration to 44 days. 

• Could ICSO reviews be undertaken by lone children’s panel members? (See Chapter 8) Reviews of ISCO should be undertaken by a full panel to protect the rights of children and young people and ensure measured, balanced decision making. 
  1. After the Hearing – the concept of a child’s exit plan

“The HSWG understands the concerns raised by children, families and care experienced adults with experience of the Children’s Hearings System that, at present, there is not a clear understanding about what needs to happen to ‘exit’ the system. As a result, children can remain subject to legal orders for long periods of time, sometimes longer than is necessary. All children and families and implementation authorities should understand what is expected of them and what needs to happen to ‘exit’ the Children’s Hearings System.”

“The concept of a child’s ‘exit plan’ out of the Children’s Hearings System, with clear targets and timescales, should be developed and tested in local areas.”

                                                Hearings for Children report, Chapter 11

The Scottish Government’s response to the Hearings for Children report indicated support for the concept of an ‘exit’ plan to connect any compulsory measures with voluntary support for a child or young person. 

Where a GIRFEC child’s plan is already in place, an exit plan could be incorporated into this plan to ensure that, where possible, there is one document which sets out the expectations from the hearing placed on the child or young person, their family and the implementation authority. 

The Scottish Government notes that the policy-based GIRFEC plan is entirely voluntary, while the exit plan would link to compulsory measures. So, while the creation of a statutory “exit plan” could be explored, further consideration would be required around what that would contain and how that would link with a GIRFEC plan (where one exists) and the potential range of other statutory plans that could exist for a child. As outlined above, key aspects of this proposal could be explored in practice and policy rather than on a legislative basis, in line with the GIRFEC child’s plan constituting a non-statutory plan. However, the Scottish Government would welcome respondents’ views on proposals for a child’s exit plan from the children’s hearings system and the appropriate underpinning for this. 

Questions:

• Do you support the proposal to create a child’s exit plan from the children’s hearings system? 

• what elements should be included in any child’s exit plan?
  1. System Redesign Overall

The end of a CSO is indicative that things have improved for the child and their family and as such they no longer need statutory intervention in the form of a legal order. Children’s current need at the time of a CSO ending are usually reflected in reports prepared for the hearing which outline any continued service involvement needed, including universal services. Considering the no order principle of the 1995 and 2011 Acts this should mark the end of involvement with the hearings system with any further plan resting with the local authority and universal services. 

Consideration should be given to older young people who are exiting the children’s hearing process due to age and moving towards independent living whereby clear transition plans should be created to support that transition. 

• Do you have any other suggestions where you consider that new legislation is needed to deliver a successfully redesigned children’s hearings system? 
  1. Secure accommodation timescales for review

The Hearings for Children report states: The timescales for children living in Secure Care must be reviewed to ensure that they are appropriate and in their best interests. There must be no expectation or understanding that children should be living for long periods of time in Secure Care, but rather the presumption should be that it is a temporary measure. 

1. Background

Secure accommodation is the most intensive and restrictive form of childcare available in Scotland, whereby children up to age 18 are placed in a locked setting, and receive high intensity, trauma-informed care, support and education. This normally occurs through involvement of the children’s hearings system or the criminal justice system, due to a level of concern around the risks, or actual significant harm, which parts of a child’s behaviour pose to themselves and/or others.

The use of secure accommodation should only happen in exceptional circumstances, where it is the only means by which a child and/or others can be kept safe. Depriving a child of their liberty is one of the most serious interferences a state can impose on a child’s rights, and this must be absolutely necessary and proportionate in all cases.

There are currently 78 secure places available in centres run by four secure accommodation services in Scotland - Rossie Secure Accommodation Services; Good Shepherd Centre; Kibble Education and Care Centre; and St Mary's Kenmure, all of which are independent charitable organisations. Scotland's secure accommodation centres offer therapeutic care, education and support, taking account of the trauma which the children may have experienced before being placed there.

1. Proposal

The Scottish Government is clear that children who require to be placed in secure accommodation should only be placed there for as short a period as necessary, when they meet the statutory criteria for being accommodated there. 

The 2011 Act sets out criteria for a secure accommodation authorisation being imposed in a compulsory supervision order, an interim compulsory supervision order, 

a medical examination order or a warrant to secure attendance (“a relevant order”).

These criteria will be amended by the Children (Care and Justice) (Scotland) Act 2024 (“the 2024 Act”) so that, in future, before a children’s hearing or sheriff imposes a secure accommodation authorisation in an order, they must be satisfied that it is necessary and that:

• the child has previously absconded and is likely to abscond again unless they are kept in secure accommodation, and, if they child were to abscond, it is likely that their health, safety or development would be at risk;
• the child is likely to engage in self-harming conduct unless they are kept in secure accommodation; or
• the child is likely to cause physical or psychological harm to another person unless they are kept in secure accommodation.

Criteria for implementing a secure accommodation authorisation will continue to apply under section 151 of the 2011 Act and the Scottish Government will consider any amendments required to secondary legislation to support implementation of the 2024 Act. As things stand, regulation 10 of the Children’s Hearings (Scotland) Act 2011 (Implementation of Secure Accommodation Authorisation) (Scotland) Regulations 2013 sets out arrangements for review of a child’s secure placement where they are subject to a relevant order with a secure accommodation authorisation. It requires that the relevant chief social work officer must review the placement from time to time and carry out the following mandatory reviews:

• a first review within 7 days of the placement,
• a second review within 1 month from the date of the first review, and
• thereafter, subsequent reviews within 1 month from the date of the previous review. 

A review must also be carried out whenever the child or relevant person requests one.

The Scottish Government notes that in an emergency situation and subject to stringent conditions, a child in Scotland may need to be placed in secure accommodation without the authority of a children’s hearing or a sheriff. The Secure Accommodation (Scotland) Regulations 2013 specify the maximum period during which a child may be kept in secure accommodation in this scenario. The statutory limit is an aggregate of 72 hours (whether or not consecutive) in any period of 28 consecutive days, except in very limited circumstances in which a further period of 24 hours is available[35].

The placement of children who are accommodated in secure accommodation via provisions of the Criminal Procedure (Scotland) Act 1995 must also be kept under regular review. Currently, the relevant local authority’s chief social work officer and the head of the secure unit must ensure that they make arrangements to review the child’s case—

• within 7 days of the placement being made,
• at such times as appear to them to be necessary or appropriate in light of the child's 
• in any event, at least every 3 months[36].

Following the review, the child may only be kept in secure accommodation where the chief social work officer and the head of unit are satisfied that this is in the child’s best interests.

The Scottish Government has carefully considered the existing timescales and believes that they are still appropriate to protect children’s rights.

Questions:

• Do you agree that the timescales for review of a child’s placement in secure accommodation in Scotland, as laid out in legislation, are still appropriate? Yes, regular review of children’s placement in secure accommodation is essential to protect and promote children’s rights.

1. Assessing Impact 

1. Background

The Scottish Government propose to carry out impact assessments alongside the development of any new legislation which would be required to implement the changes proposed in this consultation. 

These include a Data Protection Impact Assessment, Child Rights and Wellbeing

Impact Assessment, Equality Impact Assessment (related to the protected

characteristics of age, disability, gender reassignment, marriage and civil

partnership, pregnancy and maternity, race, religion or belief, sex, and sexual

orientation). The Scottish Government would be interested in your views on these areas to help develop these and any other necessary assessments.

Questions:

• What, if any, do you see as the data protection related issues that you feel could arise from the proposals set out in this consultation?

• What, if any, do you see as the children's rights and wellbeing issues that you feel could arise from the proposals set out in this consultation?

• What, if any, do you see as the main equality related issues that you feel could arise from the proposals set out in this consultation?

Research shows that the vast majority of children families involved in the child care and protection system, including the hearings system live in areas of multiple deprivation. We also know that children of colour are overrepresented in all parts of the child care and protection system. As such we consider these proposals could disproportionately affected children in our poorest communities and BME communities.