Scottish Government

Modern Studies - Intermediate 2: Booklet and Case Study

MODERN STUDIES - INTERMEDIATE 2

Teachers' sheet

The materials in this section take the form of a booklet which sets out the background to the Hearings system, the principles and processes of the system, and an explanation of the roles and responsibilities of those who are involved.

Short activities, and investigation and a role play are provided. A sample set of Hearing papers is available at the back of the section for use in the role play. This contains all the papers that panel members receive before a Hearing.

Modern Studies - Intermediate 2

History

The Children's Hearings system in Scotland is a unique system of combining welfare and justice for vulnerable and troubled children and young people from birth to their 16th birthday and in some specific cases to their 18th birthday. It has been operating for more than 30 years.

The Children Act 1908 was the first legislation to recognise the need for juvenile offenders to be dealt with separately from adults. The minimum age of criminal responsibility was seven years old and a child was treated as a juvenile until he/she was 17 years old.

In 1932, the age of criminal responsibility was raised to eight years old, where it remains today in Scotland. It was also recommended at this time that the cases of children and young offenders should be transferred to special Justice of the Peace Juvenile Courts. Between the 1930s and the 1960s, most of Scotland's children were being dealt with in different types of courts depending where in the country they lived. There was a need for standardisation.

In May 1961, a committee was set up by the Secretary of State for Scotland under the chairmanship of Lord Kilbrandon, a senior Scottish judge. Other members of the committee were four justices of the peace, four lawyers, a chief constable, a headmaster, a psychiatrist and a probation officer.

The remit of the committee was:

'To consider the provisions of the law of Scotland relating to the treatment of juvenile delinquents and juveniles in need of care or protection or beyond parental control and, in particular, the constitution, powers and procedure of the courts dealing with such juveniles, and to report.'

The Committee reported in 1964. Lord Kilbrandon found that whether young people had offended or been offended against, their needs were the same. He believed that in taking decisions about their future, the best interests of the child/young person must be the prime concern. The Committee proposed that the Children's Hearings system be established.

In 1968, the Social Work (Scotland) Act established the Children's Hearings system. On 15 April 1971, Children's Hearings took over from the courts most of the responsibility for dealing with children and young people under 16 who commit offences or are in need of care and protection.

The Children (Scotland) Act 1995 replaced most of the parts of the 1968 Act which related to children. The 1995 Act's focus is on the needs of children and their families, and it also spells out parents' rights and responsibilities in relation to children. Principles in the United Nations Convention on the Rights of the Child were also included in the Children's Hearings system, and the need to comply with articles in the European Convention on Human Rights was taken account of.

The Antisocial Behaviour etc. (Scotland) Act 2004 provides additional powers to Children's Hearings.

Principles

The Children (Scotland) Act 1995 requires Children's Hearings to keep in mind the following three overarching principles when reaching decisions:

• the welfare of the child is paramount - it comes first
• no order should be made in relation to a child unless it is better to make an order than not to
• children should be given an opportunity to express a view and this must be taken into account. When considering the welfare of the child or young person and reaching a decision, the Hearing also takes into account the protection of the public from serious harm.

Activity

1. Who sat on the Kilbrandon Committee?

2. What did they find out and recommend?

3. Give the three overarching principles of the Children's Hearings system.

The Children's Hearings System Process

There are four key stages in the Children's Hearings process

• The Referral
• The Investigation
• The Hearing
• The Outcomes

1.The Referral

Something has to happen in the child/young person's life to start the process. This can be one incident or a variety of concerns. For example:

• they may be the victim of a crime
• they may have committed a crime
• they may not have been going to school
• someone may be worried that they are not being looked after properly.

The police, social work or education department will usually raise their concerns with the Children's Reporter. This is known as a referral. Anyone can speak to the Children's Reporter if they are worried about a child/young person, and a child/young person can contact the Children's Reporter themselves. Most referrals are made by the police or social work departments.

Reasons why children/young people are referred to the Children's Reporter

From the 1st April 2003 to the 31st March 2004, 45,793 children/young people were referred to the Children's Reporter. This is just over 4% of Scotland's children. The Children's Reporter will be contacted about children and young people for a number of different reasons. These are known as the 'grounds for referral'. They are the legal reasons which allow the Reporter to go ahead. They include:

a) he/she is out of control (running away, staying out late, disobeying their parents all the time)

b) he/she is exposed to moral danger (being led into harm by another person)

c) he/she is not being cared for well enough by their parents (parents misuse drugs or alcohol, the child may not be fed properly)

d) he/she is not going to school regularly (is absent for all or part of the time without a good reason)

e) he/she has been or is being abused (this can include physical, sexual or emotional abuse)

f) he/she has misused alcohol, drugs or solvents

g) he/she has committed one or more offences.

Reasons a) to f) are known as care and protection grounds for referral.

Activity

Circle the number of referrals that you think were made to the Children's Reporter for each reason from 1st April 2003 - 31st March 2004.

answers: a) 5,863 b) 20,991 c) 3,795 d) 15,539 e) 1,892 f) 34,266

THE INVESTIGATION

The Children's Reporter investigates the child/young person's case by asking for information from different sources, for example from the social work department, police, schools, and health and voluntary organisations. He/she evaluates the information and decides whether:

1. Not to arrange a Children's Hearing. The Reporter might do this if, for example, it is the first time the child/young person has been referred and the child's circumstances are not a cause for concern. The Reporter will write to the child/young person and their family to tell them why he/she has made this decision. However, the Reporter may take some informal action, which may include, for example, issuing advice or referring the child for a police warning.

2. To refer the child/young person and family for voluntary support from the local authority. The Children's Reporter is aware of the support that the local authority can give that will help the child/young person and their family. He/she will also know that the child/young person and their family have agreed to work with the local authority.

3. To arrange a Children's Hearing. The Children's Reporter will do this if he/she thinks that supervision by the local authority is needed on a compulsory basis to help the child/young person and their family. This may involve guidance, treatment or measures to control behaviour. This is discussed further on Page 9 under "What is a Supervision Requirement?".

THE HEARING

The purpose of a Children's Hearing is to decide whether compulsory supervision is needed for the child/young person.

The style and setting of the Hearing is very different from courtrooms in Scotland. The setting is not too formal and usually everyone sits around the same table to encourage everyone to take part in the discussion. The Hearing takes place in private, and will usually last between 45 minutes and an hour. The decision that the panel members make must be followed.

People Who Attend the Children's Hearing

The key people at the Children's Hearing are the child/young person and his/her family, the Children's Reporter, the three panel members (comprising both men and women), a social worker and usually a teacher.

There are other people who may also attend the Hearing. The child/young person and his/her family may bring a representative. This may be a friend, or relative or a solicitor. Other professionals who have some expertise that might be useful to the panel, such as an educational psychologist or a health visitor, may also be there. If the Hearing has appointed a Safeguarder or a Legal Representative for the child/young person he/she will also attend.

(See Page 10 Roles and Responsibilities for more information about Safeguarders and Legal Representatives.)

What Happens at a Children's Hearing?

Before the Hearing takes place the Children's Reporter asks for reports for the panel members about the child/young person and his/her situation. These are normally provided by a social worker, a teacher and, if the child is very young, a health visitor. A few days before the Hearing the panel members, the family and usually the child (if he/she is over 12) will receive copies of these reports.

The panel members will ask the child/young person and his/her family about the situation and the issues, and what their views are about what is going on. They will ask the professionals who have written the reports what they think. The panel members will make their decision in front of everyone and give the reasons why they reached that decision.

Throughout the Hearing, the Children's Reporter will keep a record of proceedings, such as who is present, the time and place of the Hearing, the age of the child, etc. The Reporter does not present the case to the Hearing or recommend a particular decision to the panel members.

After the Hearing

Once the child/young person and his/her family have left the room, the panel members will write down the Hearing's decision and the reasons for the decision. The Children's Reporter will arrange for a copy of the decision and reasons to be sent to the child/young person and his/her family.

THE OUTCOME

The Hearing has several decisions it can choose from. The main ones are:

1. To discharge the referral because the panel members feel that compulsory supervision is not needed.

2. To impose a Supervision Requirement on a child/young person, with any conditions that they think are necessary.

3. If the grounds for referral are not accepted, or the child cannot understand due to their age or ability, to send the case to the Sheriff Court for the Sheriff to decide if the reasons for the Hearing are correct.

4. To continue the Hearing at a later date if the Hearing is unable to make a decision. This might be because someone has failed to turn up or because the Hearing needs more information to make an informed decision.

What is a Supervision Requirement?

The most common outcome of a Hearing is a Supervision Requirement. The Supervision Requirement is a plan of work, support and services to help the child/young person. What is in the plan depends on the reasons why the child/young person is at the Hearing and on his/her circumstances. Each plan is designed to meet the individual's needs.

The Supervision Requirement might include conditions about where the child/young person is to live, for example whether they need to live with foster carers or stay at a residential school or in secure accommodation. Most children/young people on Supervision Requirements stay at home.

The Supervision Requirements might also include conditions about whom the child/young person may or may not have contact with and when, or that he/she must attend a programme which focuses on his/her behaviour and works to improve it.

The Supervision Requirement will last for as long as it is needed but it must be reviewed within a year at another Children's Hearing. The child/young person and/or his/her family may ask the Reporter to arrange a Children's Hearing to review the decision after three months. The local authority can ask for the Supervision Requirement to be reviewed at any time following the Hearing. A Review Hearing might be requested because the child/young person's situation has either improved or deteriorated. At a Review Hearing the Supervision Requirement may be continued as it is, changed or terminated if it is no longer necessary.

Appeals

Any decision that a Hearing takes is legally binding on the child/young person. If the child/young person and/or his/her family do not agree with the decision of the Children's Hearing, they can appeal to the Sheriff Court, but this must be done within 21 days.

Activity

1. Describe the four key stages of the Children's Hearings process. Show this in a diagram.

2. What are the Children's Reporters' decision options?

3. What are the main decisions that a Children's Hearing can choose from?

4. Explain what a Supervision Requirement is and when it might be reviewed.

Roles and responsibilities

A number of different people, both professionals and volunteers, are involved in the Children's Hearings system.

The Children's Reporter is the "gatekeeper" of the system as he/she will investigate referrals of children and young people who are in trouble and who may need supervision. The Reporter decides which children/young people should attend a Children's Hearing. He/she also invites all the necessary people to the Hearing and sends copies of the reports to those people.

During the Hearing, the Reporter will keep a record of who was present and, following the Hearing, will send the child/young person and his/her family a copy of the Hearing's decision and reasons for it. The Reporter can also give advice to the panel members on procedural issues (the format that the Hearing must follow by law), or on the range of options available to the Hearing. The Reporter does not present the case to the Hearing or recommend a particular decision to the panel members.

The Reporter also has two roles in court. Firstly, he/she will lead evidence in court where the grounds for referral are denied or not understood. The Reporter will also go to court if the child/young person or the family appeal against the Hearing's decision. In an appeal the Reporter will assist the Sheriff to reach a well-informed decision in the child's best interests, generally by promoting the Hearing's decision.

There are Children's Reporters in every local authority area of Scotland and they work closely with their professional colleagues in education, social work, health and the voluntary sector.

Panel members are volunteers from the local community. They come from a variety of backgrounds. A Children's Hearing is made up of three panel members (at least one of whom must be male and one female). Their role is to make the decisions at the Children's Hearing that are in the child/young person's best interests. All panel members undergo a rigorous selection procedure and extensive training, which helps them to carry out their role.

A Sheriff is a judge who sits at the Sheriff Court. There are Sheriff Courts in every part of Scotland.

If a child/young person or his/her family think that the grounds for referral are not correct, the Sheriff will decide whether or not the grounds are established (true). The Sheriff will do this usually by hearing evidence from the Reporter and from the child and family. The Sheriff only decides on the facts; he/she never decides what should happen to the child because this is always done by a Children's Hearing. So if the Sheriff thinks that there are proper grounds for referral, he/she will ask the Reporter to arrange another Children's Hearing.

A social worker will tell the Children's Reporter about any children/young people that he/she is concerned about. He/she will write reports to help the Children's Reporter to decide whether there needs to be a Children's Hearing. The social worker will write a report for the panel members and go to the Hearing to discuss this. If the Hearing decides that compulsory measures of supervision are necessary, it will impose a Supervision Requirement, which is a plan of work, support and services to help the child/young person. The local authority is responsible for undertaking this.

A teacher may also contact the Children's Reporter if he/she is concerned about a child/young person. He/she will prepare the school report for the Children's Hearing, which outlines the child/young person's attendance, academic performance and behaviour. A teacher will usually attend the Children's Hearing to discuss the report and highlight any concerns that he/she may have.

The Children's Hearing might appoint an independent person called a Safeguarder to look after the child/young person's interests in the Hearing. He/she will write a report for the Hearing and be there to represent the child/young person's best interests, although sometimes the child/young person may not agree with what they say.

A representative may attend the case if the child/young person or family wish. There can be a different representative for the child and for his/her family The child/young person and the family must still go to the Hearing, but their representative can assist them in the discussion at the Hearing. The representative can be a friend or relative or even a solicitor. However, unlike a Legal Representative (see below), the representative is not appointed by a Hearing.

A Legal Representative, who is a solicitor with experience in representing children and young people, might be appointed by a Hearing to help the child/young person to take part in the Hearing. Also, if the panel members are discussing whether a young person should be sent to secure accommodation (be temporarily held in locked facilities for their own safety or the safety of others), a Legal Representative will also attend the Hearing.

Activity

1. Why is the Children's Reporter known as the "gatekeeper" of the system?

2. What is the difference in the role of a Safeguarder and a Legal Representative at the Hearing?

Investigation

Title: "At each stage of the Children's Hearings system, the child/young person is at the centre of the process."

Write the following headlines on separate pieces of paper, then write your answers below each heading.

1. Why the Children's Hearings system was established

2. The overarching principles

3. Some reasons why a child/young person is referred to the Children's Reporter

4. The style of a Children's Hearing

5. The child/young person's role in the Hearing

6. Conclusion (sum up your answer to the statement in the title)

Role play - a Children's Hearing

1. Read the Children's Hearings papers that you have been given.

2. Decide who you think will attend the Children's Hearing. Each person in the group should then choose a role. (Remember that the group of three panel members has to be made up of both sexes.)

3. In the role that you have chosen, prepare for the Children's Hearing:

• the child/young person and family should think about what they want to tell the panel members
• the panel members should think about the issues that they would like to discuss and the questions they would like to ask
• any professionals should think about what they want to tell the panel members.

Hold your Hearing in class. At the end, the panel members must decide which decision
they will make.

Glossary of key terms

Children's Hearing: a lay tribunal made up of three panel members at least one of whom must be male and one female. The three panel members are chosen from the local authority children's panel.

The child must normally attend, usually along with their family ('family' can include carers or anyone responsible for looking after the child) and relevant professionals.

The child and parents may take a representative to help them. Discussions are confidential but decisions are made in front of all of those present.

Children's panel: a group of volunteers appointed by Scottish Ministers following extensive vetting and training. Each of Scotland's 32 local authorities has a children's panel, which represents a cross-section of the local community. The panel is the collective name for the group of panel members, and each local authority must keep a list of who is on the panel.

Disposal: the main decision of the Hearing. The most common disposal is a Supervision Requirement, which means that the child/young person is a 'looked-after' child of the local authority with the effect that the local authority must safeguard and promote the child's welfare and make services available for the child/young person. A Supervision Requirement can have any condition attached which the Hearing thinks will help the child/young person.

Grounds for referral: the legal reason why a child/young person is referred to a Hearing. The grounds are set out in law and cover the general areas of concern. For example, the child may have been abused physically or sexually, played truant from school, offended, been a victim of an offence or bullying, misused drugs or alcohol, or been outwith parental control. There can be more than one ground for a child.

Referral: how a child/young person is brought to the notice of the Children's Hearings system. The child/young person may be referred to the Children's Reporter by anyone, but it is usually by the police or a social worker. A child/young person may refer themselves.

Review: a Supervision Requirement must be reviewed within a year, but the Hearing can set an early date for the review and a social worker can ask for a review at any time. The child/young person and/or their family can ask for a review after three months from the date of the Hearing.

Secure accommodation: locked facilities approved by the Scottish Executive that will meet the social, educational and health needs of young people when their liberty needs to be restricted, either for their own or for public safety.

Supervision: measures taken by the local authority for the protection, guidance, treatment or control of children or young people.