Questions 9 to 14: Policy and Legislative Changes
New Statutory system on the legal representation of children
Question 9: We invite views on the best way to provide an appropriate, statutory scheme for legal representation of children and young people (in the circumstances specified above) who are involved in the Children's Hearings System.
178 respondents to Strengthening For The Future expressed a view on this proposal. 69 (39%) of those expressed support for the development of a code of practice.
Key themes emerging from comments were:
- desire to defer commenting until the publication of the Review of the Children's Legal Representation Grant Scheme: Research Report
- views that legal representatives must be specialists in child law
- views that legal representatives should be experts in the Children's Hearings System (and the differences between a panel hearing and court)
- views that any new scheme must be focussed on the best interests of the child
- suggestions for 'stand-by' or a pool of legal representative specialists
- concerns that any change to the current system must carefully balance the rights of the child vs. the rights of society
- suggestions for the provision of advocacy services to children whose liberty may not necessarily be at risk but who do require counselling and support
Withholding information provided by the child
Question 10: What are your views on the proposal?
Of the 223 respondents who indicated a yes or no response to this proposal, 137 (68%) of the respondents expressed clear support for the proposal, with a further 36 (18%) expressed qualified support, compared with 27 (13%) who clearly disagreed.
Key themes emerging from comments were:
- views that the proposal would help to protect children
- views that withholding information would help encourage the child to speak more freely and provide more information to the hearing
- views that the rights and safety of the child should be paramount
- concerns regarding how parents, carers etc would learn about (and defend themselves against) false claims
- concerns regarding how information that has been withheld (but that contributes to a hearing decision) is recorded
- views that the proposal would reduce the 'open' nature of the Children's Hearings System
- concerns that withholding information might increase the risk to children's safety - with parents coercing them after the hearing to reveal what was said
- concerns that 'keeping secrets' from their parents would be harmful to the child
- concerns that withholding information would not comply with the ECHR requirement for 'equality of arms'
Streamlining the establishment of grounds for referral
Question 11: What are your views on this proposal?
Of the 207 respondents who indicated a yes or no response to this proposal, 187 (89%) of the respondents expressed support for the proposal, and 15 (7%) expressed qualified support, compared with 8 (4%) who disagreed with the proposal.
Key themes emerging from comments were:
- views that the proposal would improve the efficiency of the system and be a better use of panel resources
- views that it would reduce distress for children and their families
- concerns that the new system be robust and efficient
- concerns that the best interests of the child - particularly their rights and safety - are not compromised
- questions regarding who would assess the competency of the child e.g. panel, Safeguarder.
- concerns that young children should be represented by a legal representative/Safeguarder
Procedural changes to the Children's Hearings System: Simplifying warrant provisions and the Principal Reporter releasing the child from detention
Question 12: Do you agree these are areas which should be addressed?
Simplifying warrant provisions: Of the 195 respondents who indicated a yes or no response to this proposal, 190 (94%) expressed support, compared to 4 (2%) who disagreed.
Key themes emerging from comments were:
- strong consensus that this was an opportunity to reduce bureaucracy and improve the effectiveness of the system
- views that the changes would save time and reduce emergency hearings
- views that the changes would enable the child's needs to be met sooner
- views that the current warrant system was necessarily complex and did not need fixing
Releasing the child from detention: Of the 198 respondents who indicated a yes or no response to this proposal, 169 (85%) expressed agreement and 13 (7%) expressed qualified support, compared to 6 (3%) who disagreed.
Key themes emerging from comments were:
- majority view that a fuller investigation was in the best interests of the child
- views that there should be an agreed timescale within which the children's reporter should conduct their investigation and make a decision about a hearing
- concerns about any potential delay to decision-making which causes uncertainty and disruption to the child's life
- concerns that provision would be needed to protect released children
- concerns that it would reduce the panel's role
Papers for Children
Question 13: Do you agree that the Scottish Government should bring forward such a provision in the draft Bill?
Of the 202 respondents who indicated a yes or no response to this question, 193 (96%) of the respondents expressed support for the proposal, compared with 9 (4%) who were not content.
Key themes emerging from comments were:
- strong consensus that children should have a statutory right of access to papers
- equally strong consensus that this right should be fettered according to the child's maturity and competence
- concerns that harmful information should be withheld in the best interests of the child
- views that the right of access should be age-restricted (especially limiting access to children 12 and over)
- views that children can only participate effectively in hearings if they have access to appropriate information
- views regarding who should have the role of helping the child understand/contextualise the information e.g. Safeguarder
- view regarding who would decide how the papers would be fettered e.g. reporter
- concerns that papers for children be presented in a child-accessible language
- suggestions for a temporary withholding of information in the best interests of the child
Other legislative implications
Question 14: Are there any other issues which you think might be addressed in the reform programme or proposed legislation?
147 respondents to Strengthening For The Future suggested issues to be addressed.
Key legislative suggestions were:
- remove ability of local authority to overrule panel decisions on secure accommodation
- power for panel to demand action from parents
- powers for panel members - legal rights for paid absence from work, the right to attend hearings at a national level
- reform to the Grounds for Referral e.g. specifically accommodating children and young people who experience domestic abuse
Key reform programme suggestions were:
- improvements to Children's Hearings training - for panel members and for social workers
- improvements to performance monitoring and accountability in all areas
- making better use of I.T. - in administrative support and at hearings, and a website with best practice and training resources
- improvements to support for, and representation of, panel members - expenses, resources, rota management, support following difficult hearings
- better gathering of views from children, young people and families