Scottish Government

The Children's Hearings System in Scotland 2003
Training Resource Manual 2nd edition

PART ONE
Section 3 At a Hearing

Contents

1 Introduction
2 Pre-hearing
Preparation
Before the hearing starts
3 Beginnings
4 Middles
Difficult situations
ECHR challenges
Making decisions
5 Endings
6 Post-hearing
7 Summary
8 Further reading

1 INTRODUCTION

There is a limited amount of time for a hearing to come to a decision that is in the best interests of the child. It is essential therefore that the hearing has a structure which is understandable to all present and which allows everyone to make a contribution. Although the chairman of the hearing has particular responsibilities, he or she has no additional power in relation to the decision and all three panel members should work as a team. They should therefore support each other with each panel member making a full contribution. This section focuses on the role of the panel member in the hearing and takes each stage of the hearing in turn: pre-hearing planning, beginnings, middles, endings and post hearing. Together with the sections on Law and Procedure and Communication it will help build a picture of what actually goes on in a children's hearing.

2 PRE-HEARING

Preparation

Good and thorough preparation is essential. It means that every child and family should receive as fair and well conducted a hearing as possible. Every panel member will have their own way of preparing but the following are some of the issues that should be considered in advance.

• What is the purpose of the hearing? If unsure check with the reporter before the start of the hearing.
• Who is likely to be present?
• Have the child and family been to a hearing before? If they have not, more care will need to be given to explaining the purpose of the hearing and what will be happening.
• If there are new grounds for referral, how might they best be explained to the child and relevant persons?
• What are the main points in the reports that are likely to affect the hearing's decision? What is going to be the best way to inform people about these? Is there any information that could be detrimental to the child that should not be raised in his or her presence?
• What might be the best way to find out the views of the child? Consideration should be given to the age of the child and his or her stage of development. Is it likely that a relevant person may need to be excluded?
• Are there likely to be any sensitive issues and, if so, how might they best be tackled?
• If a supervision requirement is being considered, the issue of contact will need to be raised - is this likely to be contentious?
• What options are possible? What decisions are open to the hearing and what are consequences of making each of these decisions?

When notification of the hearing is received, if panel members know a family member, they should contact the chairman of the panel (or other designated person) immediately. If the knowledge and familiarity is likely to be seen as prejudicial to the conduct of the hearing, the panel member should withdraw.

In order that the hearing flows well it is important to set an agenda for the discussion of the reports. It will also make it clear to everyone present what is to be discussed, provide a structure for the hearing and will help panel members to give the reasons for their decision at the end. In preparing for the hearing each panel member should make a list of the main points arising out of the reports that they wish to discuss, remembering that these should be 'material to the manner in which the case of the child should be disposed of...and would not be detrimental to the interests of the child'. (Rule 20(4) The Children's Hearings (Scotland) Rules 1996.

It may be helpful to cluster these into groups which is logical and should allow the hearing to flow, for example:

• purpose of the hearing
• issues arising out of grounds for referral or, if a review, the reasons for the last hearing's decision
• issues relating to family matters
• how the child relates to the community, e.g. friends
• performance and attendance at school
• issues of contact if considering making or continuing a supervision requirement
• assessment of risk
• options.

Where the case is concerned with the consideration of the renewal of a warrant for a place of safety, the main points for the agenda would be what has changed since the

Before the hearing starts

Panel members should arrive at least fifteen minutes before the first hearing is scheduled to start. This helps panel members to gather their thoughts and to start promptly.

Panel members should check with the reporter:

• who is coming and their entitlement to attend (has there been a business meeting to excuse the presence of child/relevant person?) Should everyone be present for the beginning of the hearing?
• if there are there any observers who may attend at the chairman's discretion. The chairman should consider whether their attendance would be detrimental to the best interests of the child. The chairman may wish to arrange for the views of the child and relevant person to be canvassed before the observer comes into the hearing
• if any problems are anticipated, e.g. aggressive parents, parent in custody
• will the child need protection from encountering a particular person or persons? If so, should special arrangements be made to see parties separately if their presence in the same room could cause the child distress?
• what is the purpose of the hearing and the legal options.

In addition, panel members should check with each other:

• whether they all have the same papers - e.g. reports, decisions of previous hearings
• if the reports have not been received within the timescales, panel members must consider whether to continue the hearing to another day. In exceptional circumstances, and only when it is absolutely essential to do so, the panel members may decide that the hearing must proceed. This may be where a supervision requirement or warrant is due to expire, the child is at immediate risk, or a warrant has to be issued. The views of the family should be sought before proceeding. The decision should be recorded with clear supporting reasons.
• the main points to be discussed at the hearing i.e. agenda items. This should be topic only and not the substance. The detail of the case should not be discussed at this point
• if the child needs protection from encountering a particular person/s whether the hearing should be conducted in stages
• whether everyone should be in the room for the start of the hearing
• any seating arrangements that might need to be considered
• the strategy for discussion and the way in which panel members may be brought into the discussion by the chairman.

3 BEGINNINGS

The main responsibility for the first part of the hearing falls to the chairman of the hearing but the other panel members should be aware of the process and observe the reaction of the family.

There are certain legal requirements that must be covered ( see Law and Procedure) and these should be done as clearly and succinctly as possible so that all understand what is happening and why. Children and families will have a better understanding of the process if the chairman introduces him or herself, the other panel members and the reporter, and then checks who else is present making it clear in what capacity they are there.

After making the basic introductions the chairman should explain that:

• the reporter is an independent official who arranged for the hearing to be held
• the reporter decided (if it is a first hearing) after making investigations, that the child should be at a hearing
• during the hearing, the reporter will keep a record of the proceedings and provide factual advice as required but will not take part in the decision making process
• any observer present knows to keep information confidential
• during the hearing there will be a discussion of the reports with the child, family and professionals present - the hearing can decide to talk to the child on his or her own
• a safeguarder, someone who is also an independent person, may be appointed if the hearing think it is necessary to safeguard the interests of the child (this may be considered at any stage during the hearing)
• if anyone is unsure about what is being said or going on, people can ask for things to be explained

and check that:

• the papers were received within the specified time-scales
• if there are new grounds for referral and they relate to offences by the child, he or she has received the information sent out about the Rehabilitation of Offenders Act 1974 sent out by the reporter.

The tone that is set at the beginning can influence how the rest of the hearing is conducted.

If a panel member discovers at a hearing that individuals are known to him/her (e.g. when they come into the hearing room), they should declare this before the hearing starts. Knowledge of individuals cannot always be avoided. However, the existence of the possible conflict should be identified and addressed by the chairman at the outset. The family should be given an opportunity to consider the matter in private, and the views of the child/family taken into account. A hearing may proceed if it is necessary to safeguard the best interests of the child but this should be clearly recorded in the reasons.

4 MIDDLES

Once the beginning part of the hearing has been dealt with and any new grounds put have been understood and accepted, the hearing can progress to consider the reports and discuss with all present what decision is in the best interests of the child. The chairman should start by going over the main points to be raised during the hearing and ask the other panel members, the child and parents if there are any additional issues they think should be included. It is good practice for the chairman in particular to make a note of these as it will reassure the family that their points will be addressed.

The main skills required during this part of the hearing are related to communication and teamwork. Although the chairman has some duties in the middle stages of the hearing many of the legal obligations during this part are for the hearing as a whole. This is when the three panel members should be operating as a team, sharing the load and working together to address all the relevant issues. While the chairman 'holds the reins' each panel member makes a contribution and plays an important part in ensuring that the hearing is productive. There are various things that need to be borne in mind:

• structuring the hearing through the use of the identified issues as an agenda
• keeping the hearing on track and ensuring that it does not drag on unnecessarily or keep going over the same ground. Panel members must remember that they need sufficient and relevant information to reach a decision
• summarising at various points lets people know what stage has been reached. This should include the main points discussed, points agreed on, points not agreed on, and views of the child, family members and professionals
• making sure everyone is given the opportunity to have their say. This may mean asking relevant person/s to leave to allow the hearing to obtain the views of the child. Although the child's views may be sought and the child might request exclusion of a person it should be noted that this is a decision for the hearing and it is inappropriate to delegate this to the child. If the hearing wish to ascertain whether there is anyone in particular who the child may wish to stay with him or her in the hearing it would be appropriate to ask all persons to leave and then, once they are out of the room, to ask the child who he or she would like to be asked to return
• involving all three panel members
• checking that the child and relevant persons are understanding what is happening and being said
• prior to the hearing coming to a decision, asking the child and family if they have any last comments to make. This is important not only because of fairness but if there is an appeal, the reporter will be able to state that the family had a final opportunity to raise any point they wanted the hearing to consider.

Difficult situations

Hearings often centre on situations of conflict. Individuals and families will be coping with background tensions that are certainly not lessened by the stress of coming to a hearing. Though it is valuable to know people's true feelings, a hearing dominated by uncontrolled outbursts of aggression and emotion is unlikely to fulfil its primary aim of making the best possible decision about a child's life. Above all, panel members need to keep their own emotions under control.

Strategies to avoid conflict

The following list offers some practical strategies for panel members which may help to reduce this kind of destructive conflict to a minimum.

• Prepare thoroughly in advance and be familiar with all the details of the case, especially names and relationships. Getting these wrong can be very off-putting for the child and irritating for the family.
• Check the physical surroundings. Are there enough chairs? Are there toys in the hearing room in case small children get bored? Are there tissues in case someone is very upset?
• Keep to time if at all possible. Nothing increases tension more than being kept waiting. If the previous hearing has overrun an apology should be given to the next family.
• Consider changing the chairman. It may be helpful to have a panel member who has met the family before chair the hearing (or not, depending on their last encounter!) If one member of the family is known to be loud and aggressive, it may be necessary to have a chairman with a dominant voice. Alternatively, someone with a quiet, gentle approach might have a calming influence. Panel members need to weigh up these possibilities (always remembering that it is possible to get it wrong).
• Limit the numbers in the room. There is a legal obligation on the chairman to ensure that the number of people present is kept to a minimum.
• Set the tone. How the family are received into the hearings room and how introductions are made are crucial to how the hearing develops.
• Be confident of procedures and options. If the case is confusing, check details with the reporter before the hearing starts and do not hesitate to seek clarification on legal points when necessary. A feeling that the panel members know what they are doing, with the chairman firmly in charge will communicate itself to the other people present and help them to settle down.
• Watch body language. People struggling to control themselves will often give clear physical signs (going red in the face, clenching their fists) before bursting into a rage.
• Do not preach to parents. Although the child's problems may be caused by their attitudes or behaviour, they are likely to feel antagonised and act aggressively if they think that panel members are telling them what to do. Panel members should try to focus the discussion on the child.
• Continue the hearing to another date. If one family member is obviously under the influence of drink or drugs and in no fit state to take part, there may be the option to continue the hearing to another date.
• Acknowledge distress. If someone is very distressed panel members should not ignore it but make it clear that they recognise the reasons why and that this is OK. Make an offer to take a short break to allow them time to recover their composure.
• Keeping calm! However nervous and stressed panel members are feeling they should remember it is much worse for the family.

Strategies for coping with conflict that does occur in the hearing

Despite all sensible precautions and planned tactics, conflict will occasionally flare up between individuals at hearings. This may not necessarily be a bad thing. It allows people to let off steam and express their true feelings. However, panel members need to be prepared for the unexpected and develop some strategies for managing conflict. Many of these are to do with good communication skills and are described in more detail in that section. In summary, they involve repeating messages quietly and calmly; being an understanding referee; and for the panel members to be assertive and 'keep their cool'.

Some of the following ideas may be useful in particular circumstances.

• The broken record. One of a panel member's most important tasks and legal obligations is to get across clearly to families what is actually happening, what stages of the process they are at, and what the options are. When people are overwrought, they are often unable to take in what is being said to them on a rational level. This may call for great persistence by panel members in getting their message across. One way of doing this is simply to repeat the message quietly and calmly until it has been received, e.g. to a parent who is still denying the grounds of referral which have been established in court:

  Chairman: As you know we are here to discuss Tommy's case in the light of the grounds for referral which were established at court last week.

  Parent: But that's ridiculous, none of those things ever happened....

  Chairman: Well from the point of view of the panel, Mrs Smith, we have to consider the case on the basis of the established grounds.

  Parent: What's the point of talking about them if they are not true?

  Chairman: I can only explain to you that from our point of view, the grounds are established and that will be the starting point of this hearing. We hope that you will be willing to participate on that basis.....

  And so on. The important thing here is for panel members to hold their ground and to go on repeating the message as calmly as possible until they can move on to the next stage.

• Turn down the volume. This is a technique to respond to loudness and aggression by deliberating speaking more and more quietly. It is hoped that this will have a calming effect, causing the angry person to moderate his or her tone.
• The understanding referee. If a family member indulges in a violent outburst, it will be necessary for a panel member to intervene to stop it after a 'letting off steam' period. This may call for a firm interruption by a panel member, if necessary backed up by the other two, but it is likely to be more effective if it also shows some understanding of the point of view being expressed.

  Mr Brown, we can all understand why Ian's behaviour makes you so angry, but we'll probably get further if we try to talk about it a bit more calmly.....

  I see you don't agree with the social work department, Mrs Jones, but in order to make a decision we have to hear everybody's point of view....

  Anyone would be upset and angry if that had happened to them, Shona, but shouting and swearing isn't the way to help us understand what you think should happen next...

• Keeping their cool. It is essential for panel members not to be drawn into any conflicts that may arise. However hard it may be to remain detached, becoming involved in a heated argument with anyone else at the hearing is not going to be productive. This may mean not reacting to extreme provocation.
• Supporting the child. Witnessing conflict between parents is distressing for a child, and if the hearing becomes very difficult panel members may decide to adjourn the hearing to allow everyone time to calm down, carefully explaining what is happening and why. Once reconvened and the circumstances arise again, the hearing could exclude the parents, or suggest in extreme circumstances to the reporter that the police may need to be called.
• Knowing their own powers. If all techniques for defusing aggression fail and the situation deteriorates completely, the hearing has the authority to take firm action:
  • ask the aggressive person to leave the hearing room. The child and his or her representative cannot be excluded but they may however react to a tactful request
  • adjourn the hearing if the atmosphere is becoming very heated, tense, distressing - it can be a good idea to suggest a break in the hope that everyone will calm down and return in a more amenable frame of mind
  • although incidents where a real emergency occurs and physical violence takes place in the hearing room are very rare, it is important that there should be agreed local procedures for handling such situations. There should be clear understanding of these between the reporter and panel members.

European Convention on Human Rights (ECHR) challenges

What if ECHR issues are raised in a hearing ?

There have been fewer challenges in hearings than were anticipated but it is still important for panel members to know how to respond if a challenge is raised:

(a) Consider the issue which has been raised and record your decision and reasons.

(b) If the concern relates to how the child or family has been treated up to that point in the hearing, then panel members must consider whether they have acted in a manner compatible with ECHR:

• If the answer is "yes" then the chairman of the hearing should indicate that the hearing is operating in accordance with the Children (Scotland) Act 1995, the Children's Hearings (Scotland) Rules 1996 and good practice guidance.
• If the answer is "no", the hearing should clarify the concern and try to address it.
• If the hearing cannot agree on the appropriate course of action then the hearing should be continued to another date, unless a decision has to be taken immediately in the best interests of the child.
• If the hearing agrees to proceed and the complainant continues to hold the view that their rights have been infringed, the chairman must advise the complainant of the right to appeal.

Whatever happens, panel members must listen to what is said and record comments as a postscript to the reasons for the decision. Reporters are required to keep a clear record of all human rights challenges raised in proceedings before children's hearings or sheriffs.

Where the concern relates to the procedures and legislation within which the hearings system operates, the chairman should indicate that the hearing is operating in accordance with the Children (Scotland) Act 1995, the Children's Hearings (Scotland) Rules 1996 and best practice guidance. If there is an ECHR issue it may be appealed. Meantime, the hearing will consider the welfare and needs of the child and proceed to reach a decision. Pending any appeal, the decision of the hearing will stay in force, unless another hearing suspends the supervision requirement.

Where an alleged breach is the responsibility of others (e.g. failure on a part of an authority to follow key procedures or to provide essential services to the detriment of the child's basic rights), the hearing should consider whether the alleged breach has a direct bearing on the substance of the discussion in relation to the child.

• If the answer is "yes", the hearing then has to consider the alleged breach along with all other relevant factors which have a bearing on the best interests of the child. The hearing must record its reasons for whatever decision it takes. The hearing may proceed to reach a decision.
• If the hearing considers that the alleged breach is fundamental to the hearing's consideration and if a continuation or postponement of the case might be in the child's best interests, the hearing may continue the case in order to allow the breach to be addressed and additional reports submitted to the hearing.

Suggested wording is:

"Although we must consider your rights under the European Convention on Human Rights this does not necessarily mean that the hearing can't go ahead. We now have to decide whether we can do anything about it in the hearing, bearing in mind that we must have regard to [child/children's name(s)]'s best interests."

Following discussion within the hearing about how to proceed:

Either:

"We have listened to what you have said but we have decided to proceed with the hearing today. Our reasons for this are... If you still think that there is a breach of rights under ECHR then you may wish to appeal, as you can in any case."

Or:

"We have listened to what you have said and we have decided not to proceed with the hearing today but to continue it to another date for further information. We are doing this because..."

Making decisions

The hearing is a decision-making process. Although the ultimate aim is to make a disposal, a series of decisions are in fact being made throughout the hearing. These may include who should be present at the hearing, whether or not a safeguarder be appointed and/or whether disputed grounds be sent for proof. Decisions may also be made on when and whether certain parties should be excluded from the hearing or parts of the hearing.

The child and family also have choices to make and it is important that there should be meaningful options. For example, do they accept the grounds or not? Does the child wish to express views or not?

While it is hoped that a consensus will come naturally from the discussion in the hearing, differences of opinion may emerge and these must be carefully considered and discussed. If general agreement proves impossible to reach, there may come a point when panel members must simply impose their views and make a decision even if this is not welcomed by the family, or some members of it. If the process of the hearing has been clear, with explanations and summing up at every stage, the decision should never come as a shock to the child and the family even if they do not agree with it. If the decision of the hearing differs from any views expressed by the child and or relevant persons, the hearing should acknowledge this and explain that, whilst they have taken account of their views, their paramount consideration in reaching a decision must be the welfare of the child.

In order to make a decision panel members will take into account the following issues.

• Information about the case
  This is gained from social background reports and discussion during the hearing.
• The views of other people
  Hearings have a duty to seek the child's views and to encourage participation by parents in the decision-making process. Panel members will also take into account the views given in the reports and those expressed during the hearing.
• Panel members' knowledge and judgement
  This comes from panel members' own experience of children, families and the community, background reading, knowledge of the hearings system, discussion during training and many other sources. One important aspect is knowing what legal options are open to the hearing in any particular case, and what resources are available to meet the child's needs.
• The aims of the decision
  Hearings' decisions need to be forward looking, identifying how a child's circumstances can best be changed in order to solve current problems, whilst taking into account possible future developments.
• Personal attitudes and values
  Inevitably, panel members' personal attitudes and values will colour decisions. Common sense is an essential ingredient here but it is important that panel members are aware of their own prejudices or pre-conceptions. One of the strengths of the system is that the views of all three panel members will contribute to the decision. Panel members should not feel they must agree with each other: it is essential that each panel member makes up his or her mind honestly and independently in reaching a decision.

A framework for decision making

When reaching decisions, panel members should:

Key questions in meeting the needs of young people

When reflecting on the needs of a young person and whether a supervision requirement is necessary, panel members should consider:

• is the young person generally within adult control?
• is the young person being looked after by adults who can use authority consistently, offer suitable example etc?
• does the young person have a home base offering appropriate structure, routine and supervision?
• is the young person attending school and making reasonable educational progress?
• is leisure time suitably structured?
• are there opportunities for reasoned discussion and responsible behaviour?

If the answer to any or all of these questions is no, then panel members will need to decide whether compulsory measures of supervision are required to offer the necessary protection, guidance, treatment or control.

Assessment of risk

Many of the decisions panel members will be making involve balancing risks. In order to do this, they will need to take account of the following questions:

• is it safe for the child to go home?
• do the possibly damaging effects of separation from family outweigh the risks of leaving the child at home?
• may the parents' negative reaction to intervention in their lives actually make the situation worse for the child?

The most important thing for panel members to remember is that if they feel that a child is at risk, they should take whatever steps are necessary to protect that child from danger. If the risks are caused by the child's own behaviour, hearings may also need to take into account the protection of other people. It is important that they remember that compulsory supervision may include measures taken for protection, guidance, treatment or control of a child.

5 ENDINGS

Each panel member, including the chairman, should give his or her decision and the reasons for it. It is most important that these are communicated accurately and effectively so that everyone at the hearing understands exactly what they mean. This is not an easy task, especially following a complicated hearing. The chairman then informs the family of the hearing's decision with the reasons. This should be done clearly and in language that is understood by the child and relevant persons. The chairman then informs the family of their rights of appeal and review. The hearing is now over and the family, and others attending the hearing leave the room. A written record of the reasons for the hearing's decision is now made and this task is made easier if all three panel members compile the written reasons working together as a team.

A set of 'good reasons' is likely to contain:

• some statement of the problem, drawing on various sources of information, often referring to the grounds, the family situation and any particular concerns about the child
• options considered and rejected including any minority views
• an indication of the outcomes and why this particular decision will help to achieve them
• the type of supervision thought to be necessary i.e. protection, guidance, treatment or control
• an indication why the child needs compulsory measures of supervision.

Remember that reasons should be given for all decisions taken during the hearing e.g. excusing the child, excluding a relevant person.

Good reasons are essential for:

• the child and family, so they can understand why a particular decision has been made
• the local authority, whose duty it is to give effect to any supervision requirement
• the next hearing, so the panel members know why the previous decision was made and what the expectations were
• the sheriff, so that if there is an appeal he or she will know what was in the mind of the panel members
• the reporter, who has to explain the decision on appeal
• the panel members themselves, to focus their minds on their own decision-making process and ensure that they take all relevant factors into consideration.

Decisions and reasons should be forward looking, the starting point for any supervision requirement and a yardstick by which to measure progress when the case comes for review. If a child comes to hearings over a period of time, the reasons from successive hearings will chart his or her progress through the system.

6 POST-HEARING

There is no statutory definition of when the hearing is concluded. However, best practice dictates that the child and relevant persons be asked to leave after the verbal statement of the reasons and the rights of appeal have been given. There is then no further discussion.

Once the child and family and others who attended have left the hearings room, the chairman should write the reasons or ask one of the other panel members to do so. Ideally, the written report of the reasons should be undertaken by the panel members working as a team. It is not the time for panel members to talk about their holidays and leave the chairman to do all the work! It is therefore important that all three panel members remain until the written report of the reasons has been completed.

On occasion something might have occurred during the hearing which one or more of the panel members may wish to have raised elsewhere. Each children's panel has its own specific procedures for dealing with this, but generally speaking it involves the panel member writing a note of the points for the attention of the chairman of the children's panel. He or she will then raise the matter with the appropriate service concerned.

Panel members should take the opportunity to 'debrief' after each hearing. This might be particularly important where the hearing was very distressing or when a panel member felt that he or she was unable to make a contribution. Such sharing and support should enable the panel members to learn from their experiences and become more competent in their task at future hearings.

7 SUMMARY

Although the chairman of the hearing carries specific responsibilities for the conduct of the hearing, all three panel members have a role in ensuring that the hearing flows effectively.

8 FURTHER READING