Scottish Government

Chapter 4 - RESPONSES TO QUESTIONS ON THE DRAFT BILL

Introduction

This chapter provides information about the responses to the questions about the draft Children's Services (Scotland) Bill.

The consultation document asked 15 specific questions about the text of the draft Bill. Each question is set out below. Statistics on answers are provided, and then further information about key themes is given. In view of the type of comments received, which included specific suggestions as well as more general comments, comments are attributed to named respondents throughout the text and where relevant given in full.

Question 1 - Well-being

Question 1 was : "Do you think that the concept of 'well-being' in relation to the duties on agencies set out in sections 1 and 2 of the draft Bill is helpful?"

Of the 171 respondents who indicated a yes or no response to this question, 149 felt that the concept of well-being was helpful. An additional 4 respondents felt that the definition was partially helpful. 18 respondents did not feel that the concept of well-being was helpful. 68 respondents commented in detail. Their comments are discussed more fully below.

This means that 87% of those who indicated a yes or no response felt that the concept of well-being was helpful. This figure is 75% of the total number of respondents to the consultation.

Comments welcoming the concept of 'well-being'

A large number of respondents were supportive of the term 'well-being' and in addition provided positive comments. Often, these were voluntary organisations. For example the Scottish Pre-school Play Association said:

"The use of well being is helpful, particularly as it is described in Part 1 1.(4). The description helps to clarify what is meant and encompasses the concept of the whole child which will assist agencies to think more about their responsibilities if they are to put the child at the centre of their service."

As another example, ENABLE Scotland commented:

"We welcome the concept of well being as a positive outcome for children. The vision should allow agencies to respond in a creative way, appropriate to each individual child's circumstances. This person centred, holistic approach to work with children and families sits well with our own and other voluntary organisations' approaches."

Need for the new term 'well-being'?

A number of respondents raised concerns about the effect that introducing the concept of 'well-being' might have on existing statutory terminology, particularly 'welfare'.

Aberlour Child Care Trust questioned:

"Clarification will be required in respect of the importance of the welfare principle which is key to other legislation, notably the Children (Scotland) Act 1995. If well-being is to be the key concept will this not have implications for the Children (Scotland) Act 1995."

ADSW commented:

"The relationship between welfare and well-being is important. The concept of welfare remains central to the 1995 Act, for example the underpinning principle that children's needs are paramount, and the emphasis on the importance of the local authority safeguarding and promoting the welfare of children who are in need."

The Scottish Commissioner for Children and Young People stated:

"If this provision of the draft Bill were enacted, the concept of
well-being would either sit alongside that of 'welfare' in Scottish Law or would eclipse it.

"Under the Children (Scotland) Act 1995, the concept of welfare is well established. Welfare has been very widely construed and includes consideration of the same issues highlighted in the proposal for
well-being. Identifying 'welfare' as merely a part of 'well-being' risks diluting the concept of welfare where it is expressed elsewhere in Scottish law. If the danger of dilution is avoided by having context-specific interpretations, this may give rise to confusion. The question for us is whether the gain is likely to outweigh the pain of introducing such a change without a comprehensive review that identifies linkages with other references to welfare. I suggest that the case for the change has not yet been made, showing its advantages and linking it with existing concepts."

Amendments to the concept of 'well-being'

A number of respondents suggested amendments to the concept of
well-being. These suggestions were:

• Replacing it (in the case of the Children's Commissioner replacing all of Part 1 of the draft Bill) with reference to rights contained in the UNCRC (Scottish Commissioner for Children and Young People, Children's Hearing Training Unit)
• Replacing it with reference to the elements in the Vision for Children (6 respondents)
• Replacing it with reference to the elements in the 'Child's World Triangle' (North Ayrshire Council Integrated Children's Services Planning)
• Linking it with the grounds for referral in section 15 of the draft Bill ( ADES)
• Having indicators of well-being e.g. 'The Well-being of Children in the UK' (Save the Children)

Amending the elements of the definition of 'well-being'

There were a large number of suggestions for fine tuning the elements contained within the definition of well-being. 27 respondents suggested including a specific educational element.

Other suggestions included:

• Separating out emotional and behavioural issues (Educational Institute of Scotland, SWIA)
• Avoiding a mix of positive and negative elements ( SCRA, Sense Scotland)
• Ensuring all aspects of health are covered (including sexual and emotional health) (7 respondents)
• Including emotional development (4 respondents)
• Including cultural and spiritual welfare (e.g. Quarriers)
• Explicitly referring to offending (Strathclyde Police)
• Include 'being in a loving nurturing family' as part of the definition (Children in Scotland)
• Remove 'welfare' from the definition in 1(4)(b) and replace it with 'care and neglect' (City of Edinburgh Children's Panel)

Comments on the scope of the concept of 'well-being'

A number of respondents raised concerns about the 'looseness' of the concept of 'well-being', and the scope this provided for differing interpretations and expectations. For example Edinburgh, Lothians and Borders Child Protection Office stated:

"The concept of 'well-being' may be more apparently helpful if properly explained and therefore a detailed definition is required."

Renfrewshire Integrated Children's Services Partnership commented:

"… the definition is not clear enough to prevent varying interpretations around thresholds of how much unmet need is required to be present for formal intervention to be required."

Forth Valley NHS Board agreed:

"We feel the concept of well being is helpful but without a tighter definition is limited and open to ambiguity or interpretation."

Victim Support Scotland said:

"The definition of well-being is helpful, but there is a need to further define what this encompasses in terms of new duties on agencies as it is not clear how these words will translate into actions and obligations."

The possibility of too low a threshold for agencies was also raised. For example, East Dunbartonshire Council, responding for a number of partners and agencies, commented:

"There is also a concern that the 'weak' definition of 'well-being' could lead to an increase, rather than a decrease in the number of referrals to the Reporter and the Children's Hearing system."

The Royal College of Psychiatrists (Child and Adolescent Section) said:

"…the concept of a 'child in need' helps to focus professionals on the group of children where there is most justification for society's intervention in their lives, whereas the broader concept of wellbeing opens up a range of uncertainties which are at best distracting."

Question 2 - Duties on agencies

Question 2 was: "Do you feel that the duties on agencies proposed in sections 1 and 2 of the draft Bill will ensure that all relevant agencies can and will act so that children get the help they need when they need it?"

Of the 155 respondents who indicated a yes or no response to this question, 90 felt that the proposed duties on agencies would help in this way. An additional 4 respondents felt that they would partially do so. 61 respondents did not feel that the duties would ensure that all relevant agencies acted appropriately. 87 respondents commented in detail. Their comments are discussed more fully below.

This means that 58% of those who indicated a yes or no response felt that the duties on agencies in sections 1 and 2 of the Bill would help in this way. This figure is 40% of the total number of respondents to the consultation.

The choice of language

A large number of respondents (over 35, from all sectors) who commented considered the language used to express the duties to be too 'vague' or 'loose' and to allow an inappropriate degree of discretion and scope for differing interpretation. For example one individual commented:

"'agency take such action as it considers appropriate' is a bit vague. What considerations (e.g. financial) will influence meaning of 'appropriate'?"

ADES stated:

"taking 'such action as it considers appropriate' could be open to interpretation in relation to responses from relevant agencies. The action/response of some agencies will however be determined by existing duties (e.g. police), and also by existing priorities (e.g. health)."

Graeme Nimmo said:

"The initial statement 'Relevant Agency must do its best' immediately gives a get out clause for all agencies as in practice 'Best' will be determined by financial and resource constraints and the 'Best interest of the child' will have been compromised. I now feel that unless resource issues are addressed this bill no matter how good its intention will not give the desired improvement in service."

The ENABLE Scotland Children's Committee were also concerned about these phrases in the draft Bill:

"We are concerned that the phrases 'must do its best' and 'must take such action as it considers appropriate' can be easily open to interpretation. In a climate of limited resources we doubt these are strong enough to prevent gatekeeping. In circumstances of dispute who or what body is going to judge whether an agency has done its best or acted appropriately? However, we do recognise and strongly welcome the fact that this Bill puts a duty on agencies to actually take action, as opposed to just assessing need."

City of Edinburgh Council commented:

"We welcome the proposed new duties on relevant agencies. However, there is some concerns:

i What is meant in legal terms by 'every relevant agency must do its best'?

ii. Similarly clarification will be required in relation to agencies' duties to 'endeavour to be alert'.

iii. Guidance will be required to enable agencies to establish realistic threshold of unmet need.

iv. Guidance will be required in relation to the requirement to monitor a child's situation."

Contact a Family raised a similar issue:

"… it is too vague and we feel that 'improving a child's situation' does not go far enough to ensure that authorities will meet children's needs. We would prefer 'ensure that the child's needs are fully met'."

As a final example of the comments raised, Edinburgh, Lothians and Borders Child Protection Office stated:

"This particular part of the Bill needs to be more directive and specific about individual agencies responsibilities, with the duties clearly and specifically laid out in order to avoid misinterpretation.

"Similarly, the reference to a relevant agency 'monitoring a child's situation until satisfied that it is being addressed' is both unclear and unhelpful. The Bill would have to outline the duties of that particular agency and be specific about the intended outcome, respective responsibility of the agency(ies) and monitoring arrangements that should be in place."

Definition of 'unmet needs' and the effect on thresholds

Eighteen respondents commented in more detail on the definition of 'unmet needs' and the effect that this might have on 'thresholds' for intervention with children. Unmet needs with respect to well-being raises similar threshold issues as identified for well-being above.

For example, Scottish Women's Aid asked:

"'Unmet need': Again, how is this to be defined and evidenced? Different agencies will have different views as to the existence and extent of 'needs' and the degree to which they are being 'met' or otherwise. This opens up the possibility of discrepancy within service providers across Scotland in terms of the definition and interpretation of these."

Save the Children linked this issue directly to thresholds:

"It is also unclear what the threshold for intervention is if a child is deemed to have 'unmet needs'. How can we ensure that different agencies use consistent thresholds?"

SCRA commented in detail on the proposed changes to legislation:

"Without defining 'unmet needs' there is potential for inconsistency with regard to agency 'thresholds'. The scope of 'unmet needs' could therefore be huge. A large proportion of the child population is likely to have at least some 'unmet needs with regard to well-being'.

"By comparison, the definition of a 'child in need' in the Children (Scotland) Act has thresholds that should ensure that the focus is on those children that most require services … Current experience would suggest that even with 'defined' thresholds there are still considerable differences around the country as to whether a child is actually considered to be 'in need'. SCRA questions whether the scope of 'unmet needs' will further add to this.

"… the potential scope of 'unmet needs' coupled with the current proposed changes to section 52 of the Children (Scotland) Act could have the unintended effect of increasing the number of children referred to the Principal Reporter.

"The use of the plural in relation to needs may not always be appropriate. What if a single need is unmet?"

Aberdeenshire Children's Panel felt that this proposal raised issues of practice and principle.

"… how do you judge the level of when to intervene at the multi agency level. Probably most children at some time in their lives have unmet needs. However surely we do not expect agencies to be stepping in to family's lives unless these needs are considerable."

Ideas for amendments or additions to the duties

A number of respondents suggested amendments or additions to the proposed duties.

• Section 2.2 - should the Bill include a subsection in relation to action required following serious criminal behaviour and safety of others. ( ADES)
• Explicit reference to the overarching principles of the UNCRC and the Children (Scotland) Act 1995 to aid co-operation ( SACRO)
• Explicit acknowledgment of the role and responsibility of parents (e.g. Highland Joint Committee on Children and Young People, Renfrewshire Integrated Children's Services Partnership)
• More explicit duty of jointly assessing, not just making joint plans (e.g. East Lothian Council)
• Action directed to the child or the child's circumstances should also include the family who care and support them (Contact a Family)
• Specific duty to assess the needs of the child (e.g. Unison)

Ways to resolve disputes

Some respondents suggested a need for clear dispute resolution processes and sanctions. As an example, the National Autistic Society Scotland questioned:

"… how the duties on relevant agencies to identify and address unmet need are to be enforced. There appear to be no enforceability mechanisms contained on the face of the Bill and therefore, no recourse for parents, nor the children and young people themselves, to challenge relevant agencies if they believe they are not complying with their duties."

Another example was Kay Roberts, who said:

"No powers to ensure agencies do what is required. Who will ensure decisions are implemented. No teeth!"

The Scottish Child Law Centre recommended:

"… that there is an additional method of holding agencies to account other than by judicial review. This could be in the form of the child, parents or other agencies involved with the child (or possibly just the lead person), after due notice, making a summary application to the sheriff."

SCRA was of the view that without an enforcement provision in Part 1 there was a real danger that some children may be drawn into the children's hearing system for reasons other than consideration of the need for compulsion.

The effect of these proposed provisions

A large number of respondents who commented in detail wondered about the likely effect of the provisions. Mostly the concerns voiced were about the proposed legislation not making much difference in practice, and particularly that limited resources were restricting the potential impact of the duties.

A number of respondents from all sectors felt that resource was a key issue which would impact on ability to respond to the proposed duties in the draft Bill. For example, the Prince's Trust Scotland said:

"The imposition of duties in itself will not result in children receiving the help they need, when they need it. The duties described in sections 1 and 2 are not entirely new requirements of relevant agencies. In our experience agencies already 'endeavour' to do their best etc but are often limited by resource rather than willingness.

The principles detailed for how agencies should act are correct in our view, but our concern is how this translates to practice."

Children 1st felt that the proposals were unrealistic:

"Children who have unmet needs with respect to their well-being would potentially describe a huge number of children …

Our concern is not that this is an unworthy intention, but that Part 1 of the Bill as it stands would bring little real improvement to the lives of many vulnerable children and young people."

Other respondents, again from all sectors, did not believe that the legislation would deliver the cultural change in agencies that they perceived was necessary. For example, Quarriers stated:

"Whilst we are supportive of the intentions behind the Getting it Right For Every Child programme, to deliver consistent, joined-up children's services which improve outcomes for children and young people, we have serious doubts about the ability of the legislative approach to bring about the necessary changes to current arrangements, not least of which is the attitudinal adjustments that will be required for successful and meaningful implementation."

Stirling Council and Partner Agencies reflected this view:

"Although the intention appears reasonable in theory, it was thought that many issues would arise which would make this less likely to work in practice.

"A significant cultural shift would be required across all relevant agencies who previously referred children on to another agency to get help. There may be reluctance for universal services to get involved. Staff training would be needed on a major scale to ensure all front line services staff would be equipped with the skills and knowledge to undertake initial assessments and planning regarding a child's
well-being. This would place a burden on a wide range of agencies not normally involved in the process."

Victim Support Scotland also commented:

"While the duties go towards meeting the aim that all relevant agencies 'can and will act so that children get the help they need when they need it', the actual set up by certain agencies may prevent them from fulfilling this. Additionally some agencies may be reluctant to give up their autonomy by co-operating with others, others may not have the resources or infrastructure to carry out these roles or duties and we have to recognise that voluntary agencies do not have the power to instigate the work of social services or other statutory agencies. However VSS do feel that the new legislation is a step in the right direction."

The Educational Institute of Scotland also commented:

"We believe that these duties will ensure that all relevant agencies can act together; they will not necessarily ensure that all relevant agencies will act together."

Other respondents felt that more structure was required to the duties and the role of agencies. Strathclyde Police said:

"No, a more structured and clearer outline of what is required from individual agencies will be necessary in order that all relevant agencies know their exact duties in the forum. If more specification is not considered then it allows the legislation to be open to individual agencies interpretation. The Bill is not specific enough in this regard. At Section 2(4)(a) the Bill is providing a relevant agency with a monitoring duty until 'satisfied that it is being addressed'. Who then takes on the action of monitoring to the point of full satisfaction of a child's needs? Police staff have no professional qualifications accrediting them with the skills to provide the proposed relevant agency monitoring duty."

Some respondents questioned the need for new stand-alone statutory duties. For example SCRA suggested amendment of existing duties in the Children (Scotland) Act 1995 as an alternative:

"Alternatively, Part 1 [of the draft Bill] could be integrated with the Children (Scotland) Act [1995] and take cognisance of the Education (Additional Support for Learning) (Scotland) Act 2004 and the NHS Reform (Scotland) Act 2004. Section 22 of the Children (Scotland) Act 1995 already creates duties for the local authority that could be further developed to achieve the policy intention."

Question 3 - Duties to plan

Question 3 was: "In your view, do the proposals in sections 2(5) and 5 of the draft Bill for recording agency decisions and actions and for a multi-agency action plan provide enough of a framework to deliver effective planning across agencies for the child and their family?"

Of the 157 respondents who indicated a yes or no response to this question, 113 felt that the proposed framework for agency planning and action would help delivery. An additional 4 respondents felt that the framework would partially do so. 40 respondents did not feel that the framework would help deliver effective planning across agencies for the child and their family. 112 respondents commented in detail. Their comments are discussed more fully below.

This means that 72% of those who indicated a yes or no response felt that the proposed framework would help delivery. This figure is 50% of the total number of respondents to the consultation.

Greater clarity on fit with other statutory plans

A number of respondents felt that there needed to be greater clarity on how the joint plan would fit with other statutory plans, such as those for looked after children and children who needed additional support for learning. For example, East Ayrshire Council commented in response to the question:

"The motivation for this is clear. The mechanics are more complex. It is important that the Scottish Executive clarifies the position of previously agreed care plans that are currently in place for many children. Specifically this will require clarification on the status of the looked after care plan used for accommodated and looked after children and the Individual Education Plan, the Educational Support plan and the Coordinated Support Plan."

East Ayrshire Community Health Partnership also stated:

"New child health record supports 2(5) as this is a more comprehensive way of assessing and recording decisions and actions, however there must be a continuous effort to ensure this links with the Integrated Assessment Framework / Hall 4."

Duties too flexible?

Some respondents expressed the view that the duties were too flexible. Clackmannanshire Council said:

"This is a very basic framework and will consequently allow the development of very different systems within different areas and organisations. This could cause many problems in joint planning where, for example, agencies come together regionally (such as Forth Valley) in order to achieve economies of scale, and work with services such as police and NHS."

Suggestions for different or additional duties

Some respondents suggested different or additional duties. These included:

• Duties should be clearly to the child and not as proposed to other agencies (Sense Scotland)
• Duty on relevant agencies to assess needs and then to take appropriate action to address unmet needs (Children 1st)
• Clearer outline of what should be included in joint plans (Children 1st)
• Requirement to undertake a shared assessment (Lothian NHS Board)
• Obligation to share plans with partner professionals in accordance with agreed inter-agency arrangements (Lothian NHS Board)

Assessment

A number of comments were provided on assessment. In addition, assessment comments on the proposed section 1 and 2 duties above are also relevant (questions 2 and 4).

As an example, Edinburgh, Lothians and Borders Child Protection Office said:

" ELBCPO would emphasise a cautious approach in placing a duty on identifying a plan for a child, without the appropriate support of a comprehensive multi-agency assessment of risk. It must be well understood that unmet need is not the same thing as child maltreatment. The Bill must, in the relevant sections, make clear that much child maltreatment (whether abuse or neglect) is intentional or deliberate. This is therefore outwith the normative scope of behaviour generally associated with child welfare and children's needs. It nevertheless is a crucial area of responsibility for agencies and represents a high-risk/high-priority population that causes serious concern to agencies and the public at large. It therefore deserves adequate clear provision in the proposals."

Dispute resolution and sanctions

Some respondents thought that the process for dispute resolution needed to be clearer and for there to be sanctions. For example, Mr P.R.W. Adams stated his agreement:

"Provided there is a mandatory system to ensure full, frank and truthful disclosure and co-operation."

Inverclyde Social Work commented:

"How the appointment of a lead professional is agreed, and what weight should be given to the views of the child/young person and his/her parents/carers needs further consideration, together with issues such as their authority and their ability to ensure agencies adhere to the plans and are accountable."

Role of the child and family in developing the plan

A number of respondents thought that the role of the child and his or her family in developing the plan needed to be expressly addressed. As an example Aberlour Child Care Trust said:

"While section 3 refers to each agency ascertaining the views of children, there needs to be more explicit emphasis on their views being part of any plan."

And The Care Co-ordination Network UK Scotland Group said:

" ... we believe that the emphasis should be on the agencies adopting a plan in conjunction with families, not just with each other. We would encourage the Executive to look beyond the involvement of children and families, towards agencies working in partnership with them. If a joint plan is to be effective we urge that the views of the child and their family are placed much higher on the agenda."

Role of lead professional

There were a large number of comments on the role of the lead professional.

Some respondents thought that the role of the lead professional as set out in the legislation was insufficiently clear. Aberlour Child Care Trust said:

"Further work is required in respect of the process of identifying the lead professional and agreeing the appropriate level of authority for that role. Proposals imply that this role would not automatically rest with the statutory social work services. There are occasions when it could be highly appropriate for a professional within a voluntary organisation, or from another statutory agency to take on the lead role. There would need to be clear levels of authority to match this level of responsibility."

Education and Children's Services, Perth and Kinross Council commented on what they felt the role of the lead professional should be:

"Experience from England would suggest that this should focus on an advocacy role rather than taking responsibility for the co-ordination and monitoring of the plan and other concerns exist around the accountability, responsibility, capacity and staff development and training."

Save the Children asked the following questions regarding the role of the lead person:

• "Who will or can the lead person be?
• Can a voluntary sector professional be a lead person - how will they command sufficient influence over statutory agencies to ensure the plan is implemented?
• How will the decision be taken to appoint a lead person? Will this default to the agency who raised the concern?
• Who will convene the initial meeting to appoint a lead person? Will this default to the agency who raised the concern?
• Will the child or parent have a say in appointing the lead person?
• Will the lead person hold a budget?
• Will the lead person be sanctioned if the plan is not implemented?
• Will the lead person have a case quota - will it become their sole function in an agency?
• Will the lead person be responsible for ensuring children's views are expressed and recorded in the plan?
• Will the lead person be responsible for ensuring the child's best interests are protected?"

UNISON Scotland stated:

" UNISON Scotland welcomes the role of the 'lead professional' … but believes that further guidance will be required on how this is operated, what the role and responsibilities of this person are and, crucially, where the accountability for decisions, implementation of plans and the provision of resources will lie. Support structures for the role will be required along with clarification of what powers the individual may have to ensure agencies collaborate."

The following points were also made:

• Instead of 'lead professional', create role of 'key worker' (Care
  Co-ordination Network UK)
• Distinguishing between role of resource manager and individual who knows the child or family well in the term 'lead professional' (Shetland Children and Young People's Planning Group)

What difference will this make in practice?

Some suggested the provisions would make little difference in practice. Quarriers said:

"…the concept of multi-agency planning and joint working is not new. Agencies currently have the ability to enable this to happen, but rarely adequate desire to make it effective, and in practice, resource constraints ultimately determine what is actually achieved. The experience of many children and families indicate serious deficiencies in the practice of multi-agency planning and joint implementation, and there is no indication that this additional legislation will accomplish improvements."

Other specific issues raised

A number of other specific issues included:

• Need to address information sharing - linked to responses to question 4 and question 20 (3 respondents)
• Possible increase in bureaucracy (5 respondents)
• Need for adequate IT (3 respondents)

Question 4 - Local co-ordination and monitoring

Question 4 was: "It is the intention that the proposals in sections 4 and 5 of the draft Bill for collaboration of agencies will provide a robust but simple framework for agencies to work together locally. In your opinion, do you think that the framework will enable this to happen?"

Of the 158 respondents who indicated a yes or no response to this question, 110 felt that the proposed framework would enable this to happen. An additional 7 respondents felt that it would partially do so.

41 respondents did not feel that the proposed framework would support agencies working together locally. 120 respondents commented in detail. Their comments are discussed more fully below.

This means that 69% of those who indicated a yes or no response felt that the proposed framework was helpful. This figure is 49% of the total number of respondents to the consultation.

Generally very similar comments were offered to those made in relation to question 3 above. Therefore these are not discussed with the same level of detail. Of particular note were the following:

• Duties too flexible (4 respondents) particularly in relation to co-operating 'so far as appropriate'
• Need for dispute resolution process and sanctions (9 respondents)

On this, ENABLE said:

"We are unclear with regard to sanctions available if agencies fail to carry out their duties. We note there is recourse if the work is within the context of the Children's Hearing system but otherwise there appears to be no way to enforce action. We question whether a review via the local monitoring mechanism is always going to be enough."

The Royal College of Psychiatrists (Child and Adolescent Section) stated:

"Section 4 relates to collaborative working and the arrangements for resolving disputes between agencies. This is an absolutely key section as one of the undesirable effects of the legislation may be to reduce the capacity of the Hearing system to highlight the consequences of disputes for children in individual cases. Dispute resolution should involve the same focus on the needs of the individual child as is currently seen when agencies are in disagreement at a Children's Hearing. This requires the creation of a mechanism for interagency dispute resolution that gives a strong voice to the child in question. The legislation does not give sufficient guidance to give confidence that this will be achieved."

In addition, difficult areas identified were:

• Joint funding (2 respondents)
• Information sharing, and possible over-sharing - see also responses to question 4 and question 20 (3 respondents)
• Equality of agencies (2 respondents)

On this last, ENABLE said:

"We welcome the concept of agencies working together on an equal basis but know that this is often difficult to achieve. The statutory agencies do not always perceive voluntary agency partners as equals and this has implications for their status, influence and authority. We would therefore welcome the strengthening of this section [4] to ensure equality between partners."

The following points were also made

• Suggest terminology of 'co-ordinated working' rather than collaboration as co-ordination is used in ASL (Sense Scotland)
• Lack of clarity on the fit with other statutory processes (5 respondents)

On the effect of these proposals, Clackmannanshire Council said:

"If agencies want to work together they can and do. These provisions could facilitate working together where all agencies have a will to do so but the framework is not sufficiently robust to deal with situations where agencies are reluctant to engage or where there may be disputes as to responsibility etc. Again, there is no real sanction for failure to work together."

Question 5 - Definition of 'relevant agencies'

Question 5 was: "Are you content with the definition of relevant agencies (including parts of the voluntary sector) in section 7?"

Of the 164 consultees respondents who indicated a yes or no response to this question, 119 were content with the proposed definition. An additional 8 respondents were partially content. 37 respondents were not content with the proposed definition of relevant agency. 83 respondents commented in detail. Their comments are discussed more fully below.

This means that 73% of those who indicated a yes or no response were content with the proposed definition. This figure is 53% of the total number of respondents to the consultation.

Who should be a relevant agency?

There was a wide range of suggested amendment or clarification regarding which agencies should be relevant agencies in the terms of the legislation. These suggestions and amendments are set out below:

• All local authority functions (5 respondents)
• Voluntary sector (10 respondents)
• General Practitioners (3 respondents)
• Adult services (3 respondents)
• Housing associations (5 respondents)
• Church or faith based groups (4 respondents)
• Immigration officers, agency or centres (2 respondents)
• Independent or private providers (10 respondents)
• Fire and rescue services (North Ayrshire Council Integrated Children's Services Planning)

Functions and definitions of relevant agencies

Some respondents suggested defining by the functions which would make an agency a relevant agency. For example, Aberdeenshire suggested:

"The intention of this section would benefit by listing a range of functions, which if provided by a public or non-public body, would designate that body as a relevant agency. The Scottish Minister's powers would then only be required for exceptions or unforeseen eventualities."

A number of other respondents made specific and varied suggestions on what such definitions might be. The suggestions included:

• All services providing support to children and families (Edinburgh, Lothians and Borders Child Protection Office)
• Anyone with a statutory function that affects children (Scottish Commissioner for Children and Young People)
• Any agency that has an impact on children (Families Outside)
• Other respondents suggested defining the term 'relevant agency' through the use of characteristics other than functions. For example:
• Any body which receives public funding or is required to register with a local authority or national body (Stirling Council and Partner Agencies)
• Any registered care provider (Scottish Out of School Care Network)
• Any body with a duty of care (Renfrewshire Integrated Children's Services Partnership)
• Where working in partnership with a public body for the delivery of services through either service level agreement or contract (Barnardo's Scotland)
• Any voluntary organisation if providing a service on behalf of a public body (Save the Children)
• Public or private social work institutions, as used in the UNCRC (Scottish Commissioner for Children and Young People)

Impact on voluntary sector organisations

Some respondents had concerns about the impact on voluntary sector organisations if those organisations become relevant agencies. Sense Scotland said:

"The proposed arrangements could be read as conferring an equivalent responsibility on voluntary organisations to ensure arrangements are in place, to participate in and evaluate any arrangements made, to engage in collaborative working and to set up and, where appropriate, invoke dispute resolution arrangements.

"To take an example of the impact on our organisation: in terms of information sharing alone, Sense Scotland could be expected to align its electronic information storage, maintenance and exchange mechanisms to comply with those set up by the statutory organisations, even though we have had no part in their development, had no funding for it and not been involved in pathfinder developments."

Scottish Women's Aid were concerned about the impact of the duties on those who might access voluntary sector services:

"… we are concerned that an enormous burden will be placed on organisations such as ours, that there will be an expected culture shift not commensurate with our model of working and that families will be wary of accessing our services as a result.

"Where they do access services they may be extremely wary about being honest about what is actually happening in their lives if we are unable to offer them the level of confidentiality and support previously enjoyed by them."

The Prince's Trust Scotland said:

"We support the characteristics as laid out in the draft Bill, but wish to highlight the precarious financial position of many voluntary sector organisations and how placing the same demands as on public bodies may impact on their ability to deliver the very services for which they have been recognised. In specifying a voluntary sector organisation as a 'relevant agency' there needs to be the belief that the infrastructure to support the principles enshrined in this Bill are in place or can be put in place with further support made available. We believe that to specify a voluntary sector organisation as 'relevant' should commit the public sector to a degree of responsibility for resourcing its ability to deliver."

NCH Scotland discussed supporting voluntary agencies:

" NCH Scotland also believes that if voluntary organisations working with children are to be included within the definition of 'relevant agency', it is vital that they receive support, guidance and training to meet their duties and responsibilities under the proposed legislation. We consider that assistance in these areas will be particularly important for the smaller voluntary organisations working with children, particularly those which are local, community based organisations."

Some voluntary organisations expressed a need to know as soon as possible whether it was intended that they be included as a relevant agency. This was in order to help good preparation to ensure compliance. These organisations included Fairbridge Scotland and Youthlink Scotland.

Meaning of terminology

Some respondents sought greater clarity on the meaning of 'public character' (3 respondents) or 'partly funded' (The Law Society of Scotland) in the draft Bill.

Question 5 supplementary - Should your agency be a 'relevant agency'?

Question 5 had a supplementary question which asked: "If you are responding on behalf of an organisation, should your organisation be included within the definition of relevant agencies?"

59 out of 123 (48%) organisations who responded to the consultation answered this question.

34 respondents (58%) who provided a yes or no response to this question answered 'yes' to the question, while 25 (42%) answered 'no'.

64 respondent organisations did not answer this question. This may be for a number of reasons. Some respondents provided a response which did not follow the questions set out in the Respondent Information Form. Some respondents would not have felt that the question was relevant to their organisation. Some respondents, notably councils, may have felt the question irrelevant as they already have a wide number of duties and expected the new duties to include them in any case. Other respondents, notably from the voluntary sector, did not feel clear whether they were to be included in the definition of 'relevant agencies' and therefore felt unable to comment.

Six individuals also responded to this question, though it was aimed at organisations. All of them felt that the area they were involved in should be included in the definition of 'relevant agency'. The examples were Children's Panels and General Practitioners.

The organisations who answered 'yes' to the question are as follows:

• Aberdeen City Children's Panel Advisory Committee
• Aberlour Child Care Trust
• Aberdeen City CHP, NHS Grampian (specifically, school nurse service)
• Aberdeen's Children and Young People's Strategic Planning Group (on behalf of all member agencies)
• ADSW (mostly - question what is to be included)
• Angus Council
• Barnardo's Scotland (subject to contract status)
• Children 1st (unclear of intention to include voluntary agencies and felt they should be included)
• City of Edinburgh Council
• Clackmannanshire Council
• Contact a Family (unclear of intention to include voluntary agencies and felt they should be included in certain circumstances)
• Down's Syndrome Scotland
• Dundee City Council
• Falkirk Children's Commission (on behalf of member agencies)
• FCA Scotland
• Fife Council Social Work
• Forth Valley NHS Board
• Glasgow City Council
• NCH Scotland
• NHS Dumfries and Galloway
• NHS Fife
• NHS Orkney
• NHS Tayside
• North Ayrshire Council Integrated Children's Services Planning
• North Lanarkshire Council
• SACRO (with some clarification)
• South Lanarkshire Council
• The Law Society of Scotland
• The Princess Royal Trust for Carers
• The Prince's Trust Scotland
• West Dunbartonshire CVS and Volunteer Centre
• West Lothian Community Health and Care Partnership (on behalf of member agencies)
• West Dunbartonshire Council Joint Strategy Group for Children's Services
• Plus one organisation who wanted their response to remain confidential

The organisations who answered 'no' are:

• Aberdeenshire Children's Panel
• ADES
• Amicus
• Angus Children's Panel
• British Association for Adoption and Fostering
• British Psychological Society
• Child and Adolescent, Royal College of Psychiatrists
• Dundee Children's Panel
• Edinburgh Association of University Women
• Families Outside
• Family Fund
• I Can
• Information Commissioners Office
• North Ayrshire Children's Panel Advisory Committee
• North Lanarkshire Children's Panel
• Renfrewshire Children's Panel
• Royal College of Nursing Scotland
• Scottish Association of Community Child Health
• Scottish Borders Children's Panel Advisory Committee
• Scottish Child Law Centre
• Scottish Children's Reporter Administration ( SCRA)
• Scottish Safeguarders Association
• Social Work Inspection Agency
• Sense Scotland (not without changes to the draft Bill)
• Victim Support Scotland (not without further discussion)

Scottish Children's Reporters Administration

SCRA did not believe that they should be a relevant agency but there should be an overarching description of the role of the Principal Reporter to promote clarity for other agencies.

Falkirk Children's Commission, the Law Society of Scotland and Strathclyde Police and one individual respondent all thought SCRA should be a relevant agency.

West Dumbartonshire Council on behalf of the Joint Strategy Group for Children's Services thought the Scottish Court Service should be included.

Question 6 - Board of the Scottish Children's Reporter Administration

Question 6 was: "With regards to section 11, do you agree that the Principal Reporter should not be a member of the Administration (the Board) of the Scottish Children's Reporter Administration?"

Of the 123 respondents who indicated a yes or no response to this question, 103 were content with the proposed amendment. One additional respondent was partially content. 19 respondents were not content with the proposed amendment. 2 respondents commented in detail. A large number of respondents did not feel that they wanted to answer this question, which they saw as for SCRA only.

84% of those who indicated a yes or no response were content with the proposed amendment. This figure is 46% of the total number of respondents to the consultation.

The Scottish Children's Reporter Administration ( SCRA) commented in detail on the proposal. They stated that they felt that the Principal Reporter should continue to be a member of SCRA's Board and added the following:

1. The SCRA Board Chairman wrote to the Deputy Minister for Education and Young People in March 2006 outlining the Board's support of the independence of the Principal Reporter and the need for the Principal Reporter to be a Member of the Board.

2. The Principal Reporter as Chief Executive reports to the SCRA Board, and is therefore the servant of the Board as with other Chief Executives. However, it is also the case that the SCRA Board's function is to support the independent Principal Reporter.

3. The only comparison to the role of the Principal Reporter in Scottish public life is that of the Lord Advocate, in that the Principal Reporter 'prosecutes' cases involving children in the Children's Hearings System. However, the position of the Director of Medicine in a Health Trust may also equate with that of the Principal Reporter, and the holder of that office is a Board Member.

4. In terms of section 128(8) of the Local Government (Scotland) Act 1994, SCRA is to play no part in directing or guiding the Principal Reporter in the exercise of his or her statutory duties under that Act and under the Criminal Procedure (Scotland) Act 1995. It could also be argued that this is less likely to arise if the Principal Reporter is a Board Member.

5. It is critically important to maintain the appropriate arrangements in respect of both accountability and independence."

The Children and Young People's Health Support Group also commented:

"There is a real risk that if Executive Officers are not involved in the decision making processes of their organisational management Board then this can lead to poor accountability and involvement in decision making processes.

"Most public sector and commercial organisations retain Executive Officer involvement at Board level with the Non Executive function providing some form of audit, stewardship and oversight on the operations of the organisation."

Question 7 - Power for Principal Reporter to appoint a legal representative

Question 7 was : "The new power in section 12 for the Principal Reporter to appoint a representative if certain criteria are met is meant to safeguard the rights of those children who need such representation. Are you content with the introduction of this new power?"

Of the 161 respondents who indicated a yes or no response to this question, 140 were content with the introduction of this new power. An additional 7 respondents were partially content. 14 respondents were not content with the introduction of the new power. 67 respondents commented in detail. Their comments are discussed more fully below.

This means that 87% of those who indicated a yes or no response were content with the introduction of this new power. This figure is 62% of the total number of respondents to the consultation.

Concern that Children's Hearings might become adversarial

Where respondents were not content or had concerns this was often based on a belief that children's hearings might become more adversarial. For example, Quarriers stated:

"Whilst we appreciate that this might be appropriate in some circumstances, we have some concerns that the introduction of a legal representative would not always be helpful or relevant and would almost certainly change the feeling of a Children's Hearing to become more adversarial with, potentially, legal representatives arguing points of law, rather than people discussing what is in the best interests of the child. We are not convinced that this is the best way of supporting children and young people."

Andy Leiper went further, and felt that early legal representation could pre-determine a case, saying:

"It should be left to the panel to decide if legal representation is required as appointing one before the hearing is likely to predetermine the outcome of the hearing, as only after hearing and reading all the reports and listening to the relevant person can that decision be made."

Legal representation in the context of other representation

A number of respondents highlighted a desire for legal representation to be placed in the context of other representation or advocacy options for children, with other options to be more available than at present. The Scottish Commissioner for Children and Young People said:

"The qualification to my positive response concerns the need to look much more widely at the principles of advocacy and how they might best be reflected in the children's hearings. I welcome the research report 'Big Words and Big Tables.' I endorse its conclusions about a 'personal advocacy plan' for each child and establishment of a pool of independent advocates that could be drawn upon in appropriate cases. I also support the recommendation about setting up 'common advocacy standards', and I recommend that these very explicitly reflect the need to respect both article 3 of the UNCRC (the child's best interests) and article 12 (the child's expressions of views). The focus on any particular role needs to be clear."

Others agreed this perspective. For example, City of Edinburgh Council stated:

"While it is generally viewed as positive to propose this new power the question is raised as to whether a legal representative is the best way to enable a child to 'participate effectively at the Hearing'. If participation is the aim perhaps the role of non legal advocacy should be further explored."

Alan D Miller felt that:

"A better option would be to resource and to establish standards and accreditation for advocacy services for children and young people … As long as the advocacy service has legal advice available to it, I believe the ECHR Article 6 requirements would be fulfilled. The Reporter's role would be to ensure that the advocacy service had the opportunity to contact the child or young person in advance of the hearing."

Others who responded in a similar way included:

• Aberlour Child Care Trust
• East Lothian Council
• East Renfrewshire Community Health and Care Partnership
• Education Services Inverclyde
• Highland Joint Committee on Children and Young People
• The National Autistic Society Scotland
• The Scottish Child Law Centre
• SCRA
• Unison Scotland

Mary Fawcett said:

"I would like it to be a statutory requirement that any young person attending a Hearing on offence grounds attends a meeting prior to the Hearing with a children's rights officer or similarly qualified professional so that they can be adequately prepared."

Child to have say in who is appointed legal representative

Some respondents indicated that they felt that children should have a say in who is appointed as their legal representative. Who Cares? Scotland said:

"Children and young people should be involved in the decision to appoint a legal representative and have the opportunity to choose his/her representative, with sufficient time, support and information offered to enable children and young people to make an informed choice and prepare adequately in advance of proceedings."

Who Cares? Scotland also provided comment from two young people. They said:

"I liked having my lawyer there at the hearing - but as long as I had arranged it - I would not want to walk into the waiting room and be told a lawyer had been appointed for me. If this were the case I would want to know in plenty of time and even have a meeting with the lawyer well in advance of the hearing.

"The decision who attends with the young person needs to be made by the young person - this is a basic right - to choose whom you want to represent you. The young person should always choose if a lawyer is to be present or not.

"If a lawyer is needed we should be told in plenty of time so we can get our own lawyer - with the help of SWS, Who Cares? Scotland or our own family."

The following respondents commented similarly on this issue:

• ACPOS
• East Renfrewshire Community Health and Care Partnership
• Education Services Inverclyde
• Colin Mackenzie
• Scottish Commissioner for Children and Young People

The Law Society of Scotland were concerned about this issue from the point of view of compatibility with ECHR:

"The Committees have concerns about compatibility with Article 6 of the ECHR if the principal reporter has responsibility for appointing a person as the child's legal representative at a children's hearing. The Committees are of the view that the child should be notified of his or her right to consult a solicitor and how to appoint one in advance of his or her appearance before the children's hearing. The Committees note, however, that the appointment of a legal representative by the hearing already exists in terms of Rule 3 of the Children's Hearings (Legal Representation)(Scotland) Rules 2002, which provides that the reporter will assess whether a legal representative will be required in the first instance and thereafter will present the motion for consideration by a hearing. This can take some time and can often result in children attending hearings where secure authorisation is being considered without a legal representative. The committees are of the view that the draft bill presents an opportunity to prevent any similar problems from occurring."

The Law Society also added the following points:

"The Committees note that while legal representatives are paid for carrying out their role, solicitors are not paid when they act as legal representatives. This inequity should be addressed.

"Section 12(5) of the draft bill states that a legal representative need not be appointed where the child has arranged his or her own representation, which is a clear improvement on the current system. At present a child can be put in the difficult situation where a hearing-appointed legal representative is present along with his or her own solicitor at the hearing. On some occasions, hearing-appointed representatives have refused to engage where the child has instructed his or her own solicitor due to professional conflict."

SCRA were of the view that the Reporter should not appoint a legal representative for the purposes of effective participation but that only a business meeting or children's hearing should be able to do this.

Skills, understanding and quality of legal representatives

A number of respondents indicated a need to address the skills and understanding of, or quality standards for, legal representatives. For example, Angus Council said:

"Children's Hearings have a duty to focus on the welfare of the child and this principle should be protected. Legal representatives who are to be involved with the Hearing system will need appropriate training to assist them to advocate in this environment."

The National Autistic Society felt that specific training was required:

"… it is essential that any legal representative and/or advocate who is appointed to represent a child or young person with ASD must be sufficiently trained in ASD so that they understand the disability and can efficiently represent the child or young person."

Others who commented on skills or training for legal representatives included:

• Aberlour Child Care Trust
• Clackmannanshire Council
• SCRA
• Scottish Commissioner for Children and Young People

Resources

Some respondents commented on the resource issue if local authorities are to meet the costs of legal representation. Glasgow City Council felt that this was:

"… a new financial pressure for local authorities."

Other respondents who commented in a similar manner included:

• City of Edinburgh Council
• Falkirk Children's Commission
• Angus Council
• British Association for Adoption and Fostering Scotland

SCRA issues

SCRA indicated serious reservations that the proposals would ensure that children meet with their legal representative any earlier than at present and commented that they would not resolve difficulties where the local authority is unable to find a legal representative.

In addition, SCRA suggested specific amendments to the provisions to reflect consistency of language.

Other issues raised

A number of other issues were raised by respondents. These are highlighted below.

A few respondents suggested a need to make legal representation available for parents or 'relevant persons'. Respondents who commented in this manner included:

• British Association for Adoption and Fostering Scotland
• Scottish Child Law Centre
• Falkirk Children's Commission

Other suggestions were based on delivering a supply of legal representatives. One suggestion was to have a national pool of legal representatives (2 respondents) and another was the setting up of a duty legal representation scheme (1 respondent).

Question 8 - Criteria for legal representation

Question 8 was : "In section 12 the criteria for legal representation is expanded to include the appointment of a legal representative where a Children's Hearing is likely to make a movement restriction condition. Are you content with the introduction of this new criteria?"

Of the 162 respondents who indicated a yes or no response to this question, 148 were content with the introduction of this new criteria. An additional 3 respondents were partially content. 11 respondents were not content with the introduction of the new criteria. 35 respondents commented in detail. Their comments are discussed more fully below.

This means that 91% of those who indicated a yes or no response were content with the introduction of this new criteria. This figure is 65% of the total number of respondents to the consultation.

Most of the detailed comments provided on this question in fact discussed wider issues than the movement restriction condition and these have been reflected above in the analysis of the responses to question 7.

In addition, Daniel Bradley stated:

"A movement restriction is not invasive enough of liberty to justify the introduction of yet another strand into the hearings system. Legal representatives, should be reserved [for potential secure accommodation cases]."

David Douglas was concerned that early appointment of a representative by the Reporter because there is the chance of a specific outcome could 'lead' panel members to make that decision that leads to that outcome. Specifically, on movement restriction conditions he stated:

"… you are again prejudicing and inferring to a panel that their decision should be considering a movement restriction condition. Again, unsatisfactory for a child or a panel member."

Question 9 - Withholding information

Question 9 was: "Section 14 introduces new provision to withhold information about the child where disclosure would be significantly against the child's interests. Are you content with this new provision?"

Of the 167 respondents who indicated a yes or no response to this question, 151 were content with the this new provision. An additional 6 respondents were partially content. 10 respondents were not content with the new provision. 32 respondents commented in detail. Their comments are discussed more fully below.

This means that 90% of those who indicated a yes or no response were content with this new provision. This figure is 67% of the total number of respondents to the consultation.

Guidance and training

A number of respondents highlighted the need for guidance and training on the provisions. As an example, ADSW felt that:

"Clear guidance on the criteria for such decisions is necessary, including the option for proportionate information sharing."

Possibility of legal challenge and compatibility with ECHR

Some respondents had concerns about possible legal challenge to the provisions, particularly in relation to compatibility with Article 6 of the ECHR. The Law Society of Scotland said:

"The Committees agree with the proposals in general as contained in section 14, but are concerned that parents could ultimately challenge removal of a child from the home in situations where they are not notified of the reasons and that the challenge would be successful under Article 8 of the ECHR."

The Sheriffs' Association commented:

"The Association understands why this section has been introduced but would caution that challenges from persons, particularly a relevant person, may arise in relation to the Human Rights Act 1998 and thus increase appeals to the court. For example - that a decision was made on information which was not available to the appellant."

The British Association for Adoption and Fostering Scotland commented in detail, including relevant case law, and was of the view that:

• "This is a good child-centred proposal which has been requested by many childcare practitioners.
• However, there are serious jurisprudential difficulties.
• It may be argued that the provision is contrary to Article 6 of the ECHR."

In addition, SCRA suggested that the information should only be withheld in interim verbal reasons but should continue to be covered in written reasons if material to the interim decision in order to avoid prejudice to the human rights of relevant persons.

The Scottish Commissioner for Children and Young People provided a slightly different perspective on this issue, stating:

"It is my view that withholding information is a legitimate interference in the rights of 'relevant persons' so long as it is proportionate to the end of securing the child's interests. The fact that the test of 'significance' is introduced into the section would seem an appropriate safeguard."

Other issues raised

Other issues raised on the issue of withholding information were:

• A desire for a longer period during which the information could be withheld (Scottish Commissioner for Children and Young People)
• A desire to tighten the criteria to 'very likely to be significantly against the child's interests' (Royal College of Psychiatrists (Child and Adolescent Section))

Question 10 - Referral to the reporter and referral to a Children's Hearing

Question 10 was: "Are you content with the proposals in section 15 of the draft Bill to change the grounds for referral to the reporter and the Children's Hearing to reflect the needs of a child and the need for compulsion?"

Of the 157 respondents who indicated a yes or no response to this question, 126 were content with the proposals to change the grounds for referral. An additional 4 respondents were partially content. 27 respondents were not content with the proposed changes. 54 respondents commented in detail. Their comments are discussed more fully below.

This means that 80% of those who indicated a yes or no response were content with these proposals. This figure is 56% of the total number of respondents to the consultation.

Complications of language and format

Some respondents expressed concern about the complicated nature of the language and format of the provisions in the draft Bill. An example is South Lanarkshire Council, who were content with the changes proposed in the question, but went on to add:

"However the wording in the Bill is rather clumsy and the use of phrases such as the 'situational condition' to describe a state of affairs is not the best use of plain and easy to understand English."

The clarity of the term "situational condition" was, as stated above, a matter of particular concern to a large number of respondents who commented. As an example, West Lothian Community Health and Care Partnership, Children's Services stated:

"We struggle with the terminology 'situational condition' as this will pass into the language of child care and is not easily understood by families, children or staff. Would 'situation', 'circumstances' or 'conditions' not suffice?"

SCRA commented in detail, providing suggestions for amendment to the proposed legislation in order to clarify and simplify the detail and format.

Thresholds for referral

Threshold too high

There were a number of detailed comments from respondents on the thresholds for referral created by the draft provisions. Some respondents thought that the proposed provisions would raise the threshold for referral and allow children to 'slip through the net'. One individual stated:

"I am concerned that the wording 'Grounds for referral are constituted if (and only if) all of the following conditions are met'. There may be circumstances when only one of these situations are worthy of action."

ADES commented:

" ADES have concerns around risk thresholds. The premise that agencies should do all they can before referral onto or discussion with another agency would appear to contradict the Child Protection agenda and partnership protocols. This could be most apparent in relation to 'neglect' issues which could lead to children slipping through the net."

The Law Society of Scotland also had concerns:

"The Committees have serious concerns that if all of the conditions contained in the new section 52A(2) require to be met, such a stringent test would preclude early intervention and thereby deny children in need access to the support of the Hearing system. Furthermore, children who are in need of protection or support could be bypassed because all three conditions cannot be met simultaneously. Indeed, it is often the case that when one ground is met and the child is referred, then other grounds are discovered once a referral has been made."

Strathclyde Police expressed concerns that the changes to the grounds for referral would raise the bar for referral and put extra responsibilities on to relevant agencies. In their response they commented:

"The changes to the grounds for referral as compared to those contained within the Children (Scotland) Act substantially raise the bar before referral can be considered, which is emphasised in the phraseology of the legislation i.e. 'Grounds for referral are constituted if (and only if) all the following conditions are met as respects the child'. …

The changes would in effect transfer the responsibility to the relevant agencies and devolve the responsibility of the Reporter thus losing their independence in the decision making process for referrals. The Reporter in conjunction with the Children's Panel are presently qualified, trained and skilled in the assessment of need for compulsory measures of supervision and those agencies now tasked with making that judgment are not. … This part of the legislation is structured in such a manner that it will potentially discourage some agencies from referring when it would in fact be in the best interests of the child to be referred."

In addition, Quarriers and others had concerns about access to services:

"We have some concerns about the proposed changes to the grounds for referral, as, for some children and families, this is the only way to lever in the additional resources required, and there is potential that this could be used to further restrict access to services. Whilst we are not convinced that the current system works adequately for children, the proposed changes to grounds for referral may make matters worse, rather than better."

Threshold too low

Other respondents thought that the proposed provisions would lower the threshold for referral to a Children's Hearing and as a consequence could bring about an increase in referrals. As an example, Education and Children's Services, Perth and Kinross Council commented:

"… this could potentially bring more children to the Children's Hearing system by widening the grounds of referral."

Glasgow City Council agreed, stating:

"It is our strong view that the revised grounds of referral have real potential to increase the numbers of referrals to Reporters. There is a lack of clarity around a number of terms, situational conditions, unmet needs, harmed by parental behaviour."

The Sheriffs' Association commented:

"Our main criticism of section 15 of the draft bill is the lack of specification in the subsections (c) to (i) of the new section 52(B) which may lead to too many cases being referred to a hearing which might otherwise be dealt with satisfactorily outwith the children's hearing system."

Alan D Miller felt that the Reporter should only receive a referral:

"… when there is a strong likelihood that compulsion will be required."

SCRA suggested that referral to the Reporter should only be where:

"Compulsory measures of supervision with regard to the unmet need are likely to be necessary."

Highland Joint Committee on Children and Young People suggested:

"… might the reference to unmet need be more specific, in terms of it being a significant level of unmet need?"

Some respondents suggested that there was a lack of clarity in relation to thresholds. The Scottish Child Law Centre commented in detail to set out the issues:

"It is vital that the legislation is framed in a way which makes it clear to everyone in what circumstances children ought to be referred to the reporter, when the reporter should investigate and arrange a children's hearing, and when the children's hearing could make a child subject to a supervision requirement. SCLC supports the thresholds for intervention as drafted (subject to comments …). However, perhaps because of the method of incorporating the proposed changes into the Children (Scotland) Act 1995, the result is a lack of clarity of these thresholds. It is obviously very important to express this as clearly as possible. SCLC therefore proposes that the thresholds are re-written in their entirety."

'Unmet needs' was identified by some respondents as requiring further definition. As an example, ADSW commented:

"The term 'unmet need' will require guidance as it appears to be the main criterion for the 'needs condition'."

On 'unmet needs', SCRA stated:

"a. SCRA agrees that the test should be unmet needs rather than significant needs.

b. The use of the plural in relation to needs may not always be appropriate. What if a single need is unmet?

c. SCRA suggests adding 'likely unmet need or needs' to enable intervention to prevent unmet need (e.g. new born baby)."

In a similar vein, ADSW commented on the word 'harm':

"A standard definition of the terms and concept of 'harm' in 'harmed by parental behaviour' would assist in the consistent application of the law and a shared understanding and agreement on thresholds for intervention."

Some aspects of thresholds were also raised in comments about the factors relating to the situational condition, addressed in question 11.

Other issues raised

Other specific issues were raised by a small number of respondents. These were:

• Questions around what should happen if the Reporter decides not to arrange a Children's Hearing (Falkirk Children's Commission)
• What to do in relation to children alleged to have committed an offence(s) if all three conditions of the grounds for referral are not met ( ACPOS)
• Ensuring a good fit with the Mental Health (Scotland) Act 2003 ( NHS Education Scotland; Royal College of Psychiatrists (Child and Adolescent Section))
• Amending section 15(2)(b) so that a person or agency giving information to the Principal Reporter when referring a child gives information which is 'relevant to the child's case' (The Law Society of Scotland)
• Amending the format of the provisions so that the test for referral to the reporter is outlined in section 53 of the 95 Act (and combining the tests for the local authority and other relevant agencies as they appear to be the same), the list of factors in section 53A (replacing section 52) and the test for referral to the hearing in section 65 and 56 ( SCRA)

Question 11 - List of relevant situations

Question 11 was: "The relevant situations in section 15 are intended to improve on the existing conditions in section 52(2) of the 1995 Act and to address possible gaps such as self-harm by a child and exposure to domestic abuse. Do you feel that the relevant situations are appropriate?"

Of the 153 respondents who indicated a yes or no response to this question, 141 were content that the relevant situations were appropriate. An additional 2 respondents were partially content.
10 respondents were not content that the relevant situations were appropriate. 58 respondents commented in detail. Their comments are discussed more fully below.

This means that 92% of those who indicated a yes or no response were content that the relevant situations were appropriate. This figure is 62% of the total number of respondents to the consultation.

A number of respondents commented on the difficulty of the language and format of the relevant sections of the draft Bill.

Concerns of losing current case law

Two respondents pointed out the danger of losing existing case law, particularly in relation to the current 'lack of care' condition. As an example, British Association for Adoption and Fostering Scotland stated:

"As the grounds for referral have not been changed significantly since their introduction in the Social Work (Scotland) Act 1968, there will be interpretation issues when the new ones come into force and existing case law will not always be helpful. It would be unhelpful if all case law is simply lost in relation to grounds which are continuing in a slightly different form. This is particularly true of the existing ground in s.52(2)(c) and its replacement in s.52(2)(e)."

Proposed conditions too broad

Six respondents thought that some of the factors in the draft proposal were too broad and lacking in specificity. An example of these was the Sheriffs' Association, who commented:

"Our overall comment on this section is that it is complicated and loose and may not strengthen the existing grounds."

SCRA and the Sheriffs' Association suggested that references in the factors to 'harm' or 'adverse effect' be amended to 'significant harm' and 'serious' or 'significant adverse effect'.

Retain certain specific conditions

Some respondents wanted to retain existing specific conditions for specific reasons.

For example, the response from East Dunbartonshire Council, which included comments from a number of relevant agencies stated:

"The police also note the absence of any explicit criteria relating to substance misuse and question whether this is a gap or if there is the expectation that such situations will be 'fitted' into another category; for example section 52(B)(2)(c)."

ACPOS also commented:

"Members do not feel that the relevant situations are appropriate as many salient points which are contained within the 1995 Act have not been replicated in the draft Bill, e.g. bad associations/moral danger, misuse of drugs or alcohol."

Shetland Children and Young People's Planning Group raised a point about the ground of 'special measures' currently in the Children (Scotland) Act 1995:

"Although rarely used the current 52(2)(1) of the Children (Scotland) Act 1995 ground of special measures that may be required for children subject to a Section 86 parental responsibility or accommodated under Section 25 have not been included in the new grounds. This may be a loss as a way of bringing such children and young people who need compulsory measures to a children's hearing. It pre-supposes that local authorities are in a position to safeguard them, and promote their needs which is not always the case. Corporate parenting is not always good parenting."

Add in new conditions

A number of respondents wanted to add in new specific conditions. These suggestions were

• Parental misuse of drugs or alcohol (Education & Children's Services, Perth & Kinross Council; Lothian NHS Board; Child & Adolescent, Royal College of Psychiatrists)
• Sexual exploitation e.g. prostitution and internet abuse (Stirling Council and Partner Agencies)
• Pattern of behaviour (Falkirk Children's Commission)
• Anti-social behaviour ( SCRA)

Specific suggested amendments

Many of those who offered comments suggested specific amendments to the 'situational conditions' proposed in the legislation focussing on the proposed factors (c), (d), (e), (f), (g), (h) and (i) in section 15 of the draft Bill. These factors are as follows:

(c) the child's behaviour has caused, is causing or is likely to cause -

(i) the child to come to harm,

(ii) an adverse effect on the child's health or safety, or

(iii) an adverse effect on the child's development,

(d) the child's behaviour has caused, is causing or is likely to cause -

(i) another person to come to harm,

(ii) an adverse effect on the health or safety of another person, or

(iii) an adverse affect on the development of another person,

(e) the way in which the child is cared for (in a domestic context) has caused, is causing or is likely to cause -

(i) the child to come to harm,

(ii) an adverse effect on the child's health or safety, or

(iii) an adverse effect on the child's development,

(f) the child has been abused, ill-treated or neglected

(g) the child is, or is likely to become, a member of the same household as a child who has been abused, ill-treated or neglected,

(h) the child is a member of the same household as an adult person who is subject (in a domestic context) to abusive behaviour of a third party

(i) the child -

(i) is, or is likely to become, a member of the same household as, or

(ii) has significant contact with,
a person whose character is such that there is reason to believe that the person might abuse or harm the child."

Specific suggested amendments included:

• In factor (i) remove reference to character (8 respondents) and
• In addition to potential abuse or harm, include reference to potential adverse effect on child's health, safety or development ( SCRA)
• For the purposes of factor (i), commission of a schedule 1 offence should be conclusive proof ( SCRA, Sheriff's Association)
• Use 'household' instead of 'in a domestic context' (British Association for Adoption and Fostering Scotland)
• Define 'in a domestic context' (Dundee City Council)
• 'In a domestic context is too limiting ( SCRA, Inverclyde Social Work)
• Use the phrase 'domestic abuse' instead of 'in a domestic context' ( SCRA, Sheriffs' Association)
• Ensure past, present and future is reflected appropriately and consistently (4 respondents)
• Subsection (i) of factors (c) and (d) and (e) is unnecessary ( SCRA, Sheriffs' Association)
• Change the order of the factors and do not have offending as the first on the list (5 respondents)

Question 12 - Expediting establishment of grounds for referral

Question 12 was: "In your opinion, do the provisions in section 16 of the draft Bill to expedite the establishment of the situational condition where the relevant person accepts the condition but the child has not understood or is not able to understand provide adequate and appropriate protection for the rights of the child?"

Of the 151 respondents who indicated a yes or no response to this question, 147 felt that the new provision provided adequate and appropriate protection. 4 respondents did not think that this was the case. 24 respondents commented in detail. Their comments are discussed more fully below.

This means that 97% of those who indicated a yes or no response were content with these proposals. This figure is 65% of the total number of respondents to the consultation.

General comments

A number of respondents particularly welcomed this proposal. For example, the Sheriffs' Association commented:

"The Association welcomes the provisions of section 16 - amending section 68 of the Children (Scotland) Act 1995 with one caveat. We note that the child, the relevant person or the Reporter may request a hearing but not a safeguarder and we would suggest that an opportunity be given to a safeguarder."

In contrast, Autism Rights commented very negatively:

"The proposed legislation would seem to show that the Scottish Executive is trying to put a gag on media interest in Children's Panel proceedings, as well as denying parents the right to challenge the grounds of referral to a Children's Panel in court - the Sheriff will merely examine the paperwork. The implications for cases which involve the complexities of Autistic Spectrum Disorder ( ASD) are that miscarriages of justice will be far more likely, where the evidence of local authorities cannot be directly challenged by parents in court and where it will be impossible to cross-question witnesses, expert or otherwise. Taken in the context of the links that are made between ASD and pseudo medical diagnoses such as Reactive Attachment Disorder and Munchausen's Syndrome By Proxy, there is scope for many more tragedies affecting the families of children with ASD. We believe such a change in the law would breach the right to a fair hearing and also the right to respect for family life, as enshrined in the European Convention on Human Rights and, as such, is open to legal challenge."

Need for cases to be referred to the sheriff

Some respondents questioned the need for such cases to be referred to the Sheriff at all. For example, Frank Plowright suggested:

"Why not go the whole hog and dispense with referral for underage children when the relevant person accepts grounds. Time and cost saving at no detriment to the child."

The British Association for Adoption and Fostering Scotland raised an alternative suggestion, but noted the problem of interim decision-making:

"The system would be better if the first discussion of/meeting about the grounds was at the sheriff court in cases where children are too young or incapable to understand the grounds. This would save families the worry of going to a children's hearing and then worrying about court and whether they should and/or will have to go there too.

"However, such a system could make it difficult to arrange an interim supervision requirement unless the sheriff was given the same limited powers as in s.17, the new s.70A.

"But, it could be argued that that goes against the principle of hearings making welfare decisions, not courts."

Alan D Miller felt that the provision was unnecessary. He said:

"Where grounds for referral relate to the actions or omissions of persons other than the child (in current terms, section 52(2)(c)-(g)) then the interests of the child who cannot understand the grounds are sufficiently safeguarded if the parent formally accepts the grounds at the hearing. There is no need to refer to proof at all. Of course, if the grounds do relate to the child's behaviour then any uncertainty about their acceptance must be resolved in front of the Sheriff."

Changes to the process

Respondents suggested a number of changes to the process:

• Delete sub-section (4) of the proposed section 68ZA (Scottish Child Law Centre)
• Require the sheriff to always have a hearing (Law Society of Scotland)
• 7 days is too short for the family to obtain advice on whether to request a hearing (Law Society of Scotland)
• Tight timescales could cause problems in island communities (1 individual)
• As quoted above, the Sheriffs' Association felt that a safeguarder should be allowed to request a hearing from the sheriff

There were also more general comments about managing proof proceedings:

• Provide time interval standards for establishing grounds (Stirling Council and Partner Agencies)
• Empower sheriffs to manage proceedings by setting timescales etc (Alan Miller)

In addition, SCRA suggested that:

• If a hearing is requested, the sheriff should be obliged to have one
• The sheriff should not be allowed to dispense with the hearing of evidence after a parent requests a hearing where their acceptance is withdrawn but they do not turn up at court
• The sheriff should not be allowed to issue a warrant under section 68(10) of the Children (Scotland) Act 1995 where the expedited procedure has been used
• There be amendments to the format of this draft Bill section

Question 13 - Interim supervision requirements

Question 13 was : "In your opinion, do you feel that the proposals in section 17 for interim supervision requirements provide an appropriate additional option to a Children's Hearing when they are unable to dispose of a case?"

Of the 153 respondents who indicated a yes or no response to this question, 144 were content that the proposals for interim supervision requirements did provide an appropriate additional option to a Children's Hearing. An additional 3 respondents were partially content. 6 respondents were not content with the proposals for interim supervision requirements. 34 respondents commented in detail. Their comments are discussed more fully below.

This means that 94% of those who indicated a yes or no response were content with these proposals. This figure is 64% of the total number of respondents to the consultation.

Interim supervision requirements before grounds established

Some respondents were of the view that interim supervision requirements were not appropriate where grounds for referral were not yet established (unless, for some respondents, the family was in agreement). Dundee City Council provided an example of this concern:

"There can be no dispute about the benefits of speedier hearing processes. However we would caution against a position where the Hearing are exercising compulsory measures on an interim basis without the ground being accepted or proved, or without the voluntary agreement of the child or family.

"We see this as a fundamental breaching of the child/young person and families rights."

Barnardo's Scotland said:

"If the intention is to use interim supervision requirements in situations where the grounds for referral have yet to be established, careful consideration needs to be given as to compliance with UNCRC and this should be specifically addressed in further guidance."

Frequency of use of interim supervision requirements

Some respondents were concerned about the frequency of use of interim supervision requirements.

The Royal College of Psychiatrists (Child and Adolescent Section) felt that the provisions of interim supervision, and in particular the twenty-two day time limit would:

"markedly increase the number of Children's Hearings and thus paperwork and involvement of relevant Professionals in administration."

City of Edinburgh Council stated:

"We broadly welcome this proposal but there is a need to ensure that this measure is not inappropriately overused. There is a risk that this measure may cause unnecessary drift or delay in completing assessments and decision making."

ADSW supported the idea of a speedier hearing process, but commented:

"It will be important that this measure does not cause unnecessary drift or delay."

Time periods for interim supervision requirements

There were some comments on the timescale for interim supervision requirements, offering different perspectives on timing and approach.

Some respondents suggested that an interim supervision requirement should last for longer, from 44 days (Dundee Children's Panel) to until grounds for referral are established (City of Edinburgh Children's Panel) to until the Children's Hearing has obtained the information to make a substantive decision (Stirling Council and Partner Agencies).

The Royal College of Psychiatrists (Child and Adolescent Section) suggested a different approach to this issue, saying:

"I would suggest longer maximum time limits on Interims with the possibility of paper hearings at the discretion of the Principal Reporter or other relevant person."

However, there was also concern that 66 days, the maximum total duration from a children's hearing where grounds are not established, was too long. ACPOS stated:

"Members expressed concern that an interim supervision requirement can be made for a period of up to 66 days as this seems a rather lengthy period of time."

Other issues raised

A number of other respondents raised specific issues on interim supervision requirements.

One respondent suggested that the reasons why hearings had to be continued should be addressed. Frank Plowright commented:

"Too many panels are cancelled due to lack of social work report and/or relevant social worker or other person. I would feel a better solution would be to apply sanction on those not attending without a reasonable excuse. Also, there could be a duty on Reporters not to schedule a panel coinciding with the allocated social worker's annual leave."

SCRA suggested that it be made clear that an interim supervision requirement can be used before and after a supervision requirement is made and also suggested that an interim supervision requirement should be capable of authorising interim variation of an existing supervision requirement.

The Scottish Commissioner for Children and Young People had a specific concern around the Rehabilitation of Offenders Act 1974:

"I would wish to be assured that there were no implications for the child in terms of the definition of 'conviction' in the Rehabilitation of Offenders Act 1974, or in terms of retention of information for inclusion in any future enhanced disclosure in relation to the child."

Question 14 - Duties on agencies

Question 14 was: "In relation to section 18, it is intended that any agency which is taking, or is expected to take, action in accordance with a supervision requirement should have a duty to take such action. It is also intended that a Children's Hearing may impose specific duties on an agency. A formal enforcement process will apply to breach of duties as is currently the case in relation to duties imposed on a local authority.

"The provisions in relation to duties set out in section 18, together with existing duties of a local authority, are intended to adequately and appropriately provide for duties to act in relation to a child subject to a supervision requirement. Do you think they do so?"

Of the 148 respondents who indicated a yes or no response to this question, 126 felt that the proposed duties on agencies would help in this way. An additional 4 respondents felt that they would partially do so. 18 respondents did not feel that the duties would ensure that all relevant agencies acted appropriately. 49 respondents commented in detail. Their comments are discussed more fully below.

This means that 85% of those who indicated a yes or no response felt that the proposed duties were helpful. This figure is 56% of the total number of respondents to the consultation.

Resources

A number of respondents commented on the resource implications for relevant agencies of this proposed new duty. This concern was expressed in different ways by all types of respondent.

Some respondents were of the view that the provisions could work only if agencies were sufficiently resourced or had sufficient capacity.

The Highland Children's Forum commented on charities:

"In the case of charities who are held to be 'relevant agencies' there may be a risk that they have to apply additional resources to a case beyond those available to them under a specific contract. Depending on their financial structure or situation this judgment may have wholly unintended and disproportionate effects on the charity."

North Lanarkshire Children's Panel Advisory Committee responded to the question as follows:

"Yes, however, as under the current system, many of the disposals for children are not acted upon due to lack of resources. It is considered that this proposal would only work if all agencies had sufficient resources available to them to implement an action plan."

From an individual perspective, Mr A.R. Docherty asked:

"Is the Executive going to ensure that relevant agencies have 'the means available'? This section removes onus from Executive and puts it on agencies."

As a further example, UNISON Scotland:

" UNISON Scotland believes the provisions are clear in their intention to ensure that a required service is provided. However this needs to be seen in the light of the resources being available to respond to unmet need. Current financial arrangements do not facilitate this. Subsection (8) makes it clear that no allowance will be made for the means available to the provider. This is unrealistic within the current funding regimes and could have a significant effect on the voluntary sector in particular."

From an organisational perspective, NHS Fife were concerned about the impact of resources on capacity:

"Failure or more often delay of for example a therapy service to open a duty of care is almost often a capacity issue where the client is placed on a waiting list for intervention and therefore intervention will not be started or completed within the timescales placed upon the agency [health]. Much has been achieved through ASL to quantify waiting times and clarify duty of care and levels of appropriate intervention available from specific services. However, with regard to some therapy services, demand for intervention far outweighs supply and it is possible to see difficulties arising."

Other respondents who commented on resources in their answer to this question focussed on the likely effect on prioritisation of resources and in particular how resources would be prioritised to children subject to compulsory measures of supervision.

ADSW and a number of other local authorities raised this issue. For example, Dundee City Council:

"This could lead to a shift in resource allocation to primarily those children and young people subject to compulsory measures to the detriment of the far greater number who work with agencies on a voluntary basis. …

"Working on a voluntary basis still requires resources and there is a real risk with the duties in this section that prioritisation of resources will follow compulsory measures which means the tariff is raised in order to access those resources."

Glasgow City Council built on this and brought in considerations of principle:

"There is a concern that children on compulsory measures of care have speedier access to limited resources which could corrupt both the assessment of need and the [Children (Scotland) Act 1995] position on the no order principle."

NHS Dumfries and Galloway commented on potential implications for the health service:

"This new duty on behalf of the NHS as a relevant agency has major resource implications - in particular that the Principal Reporter is to take no account of any factor relating to the means available to the relevant agency to enable it to comply with the duty. The 21 day notice would bring a degree of inequality into the NHS system where other children in need on waiting lists for services, wait longer than those within the Children's Hearing System."

In addition to these points, some respondents focussed on the effect on availability of services and thought the provisions might reduce the availability of services. UNISON Scotland felt that:

"These provisions could also lead to the unintended result of reducing available services. Potential providers may be unwilling to involve themselves in some existing services for children because of the risk that they may have to provide something that they do not have the means to provide."

Aberdeenshire felt that this new duty might create a reluctance to deliver services for children. They answered:

"Yes. But it needs to be highlighted that there will be resourcing challenges and issues within this. Subsection (8) makes it clear that no allowance will be made for the means available to the provider. This could have a significant effect on agencies within a climate of constrained funding and staffing issues. The enforcement process may also result in providers being hesitant to involve themselves in Children's Services."

Definition of relevant agency

Some respondents made links to how the term 'relevant agency', used in the draft Bill, is defined (see also section 5 above). For example, Barnardo's Scotland commented:

"Barnardo's Scotland understands that Section 18 is a restatement of existing duties that will now include all relevant agencies. This is helpful although it reinforces the points … regarding non-public bodies as relevant agencies, how they will be identified and the extent of their responsibilities under the Bill. Consequently, this is a cautious 'yes' subject [to our detailed comments on relevant agencies]."

Strathclyde Police were of the view that the proposed provisions would not be appropriate for the police:

"In terms of police responsibilities as a relevant agency and imposing specific duties relating to supervision this would normally be associated with those agencies whose staff are appropriately trained and qualified to ensure compliance with a supervision requirement. A supervision requirement is placed on a child on the basis that there is a welfare need. This part of the legislation moves away from the police being recognised as a referral agency to the assumption that they will be able to provide welfare support in the longer term. Section 18 (2) (b) appears to provide some clarification i.e. Duties imposed under subsection (1) - (b) are restricted to that securing or facilitating the provision for the child of the services of a kind normally provided by the relevant agency. The police would not have the capacity to accommodate a proactive role in the monitoring of a supervision requirement. Nor would you think children/parents would welcome such a criminal justice based interest in monitoring child welfare provision."

Some respondents expressed particular concern about the effect on small or voluntary agencies. As an example of this Education and Children's Services, Perth and Kinross Council stated:

"In principle it is supported and extending the arrangement that already exists within the local authority to other providers is logical. However how it operates in practice in particular with relevant agencies who may be small voluntary organisations or independent providers may be more problematic."

Quality of information and understanding

Other respondents focussed on the quality of information, knowledge, skills and understanding which were seen as necessary to making the provisions work.

The British Psychological Society provided a number of comments, and stressed the need to use the provisions carefully with everyone working within a collaborative framework. They stated:

"Key factors must be the knowledge of the processes, systems and services of the Children's Hearing System and panels, as there is a huge need for these to be presented with better knowledge and more integrated plans. Currently, a hearing may make decisions that go against an integrated local plan. All participants must be skilled and supported to function within the collaborative framework."

Falkirk Children's Commission said:

"Any amendments made to the action plan and supervision requirements imposed by Children's Panel Members will require to be well informed and realistic. This will have training implications for Panel Members and require all agencies to be open and honest regarding their resources and capacity for any specified service provision."

Additional specific suggestions

A number of additional specific suggestions on this proposal were made by individual respondents. These included:

• Consultation with the agency before duties are imposed (British Psychological Society)
• Only impose if the agency agrees to the duty (Colin Mackenzie)
• Only if this is to be no more than a duty to provide a service rather effect 'behaviour change' ( SACRO)
• Put in place a mechanism to settle disputes between the agencies and the Children's Hearing when the hearing was not fully informed about resources (West Lothian Community Health and Care Partnership)
• Include enforcement provisions for interim supervision requirements and warrants or else supervision requirements would be prioritised (Scottish Child Law Centre)
• Place the final decision with a safeguarder, not the Principal Reporter (North Lanarkshire Children's Panel Advisory Committee)
• More closely mirror the process for local authorities ( SCRA)
• Amend review provisions in section 73 of the Children (Scotland) Act 1995 and exclude the local authority from the definition of 'relevant agency' for the purposes of the provisions ( SCRA)

The Sheriffs' Association pointed out that summary application was an application to a Sheriff not Sheriff Principal. They were of the view that applications to the Sheriff Principal tend to be more time consuming or more likely to cause delay.

City of Edinburgh Council, while welcoming the provisions, welcomed the local authority staying the main agency with responsibility to implement the supervision requirement.

The Scottish Commissioner for Children and Young People suggested an alternative of a duty on agencies to comply with the UN Convention on the Rights of the Child.

Question 15 - Warrants

Question 15 was: "In relation to section 20 on warrants, it is intended that section 66 will apply where there is an application to the sheriff under section 65. It is intended that section 69 will apply where the situational condition is accepted/established (and there is no current section 65 application). Section 45 and section 63 will continue to apply in their own particular circumstances. Further refinement to ensure this effect is intended. In your opinion or in the opinion of your organisation, will such an approach simplify warrant procedures?"

Of the 126 respondents who indicated a yes or no response to this question, 114 were content that the proposed approached simplified warrant procedures. One respondent was partially content. 11 respondents were not content that the approach would simplify warrant procedures. 11 respondents commented in detail. Their comments are discussed more fully below.

This means that 90% of those who indicated a yes or no response were content with the proposed approach. This figure is 50% of the total number of respondents to the consultation.

Respondents generally welcomed any simplification of the existing warrant provisions. Some suggested there should be further simplification, Perth and Kinross Council Education and Children's Services felt that:

"This is a lost opportunity to really simplify children in need of a warrant or not."

Building on this a number of respondents felt in particular that warrants and the proposed provisions for interim supervision requirements in section 17 of the draft Bill should be combined, with possibly only section 45 warrants remaining separate. The Scottish Child Law Centre was typical of these responses as it commented:

" SCLC proposes that s66, s69 and interim supervision requirements are combined into one section to deal with the situation where a hearing are unable to dispose of the case for whatever reason."

Other specific and detailed suggestions were also provided by SCRA. These included:

• Given the amendment to section 66(6) of the 1995 Act, add in a duty on the Principal Reporter to arrange a children's hearing to consider renewing the warrant
• Provide for a time limit for each warrant issued by the Sheriff under section 67 of the 95 Act