Achildren's hearing is part of the legal and welfare systems in Scotland; it aims to combine justice and welfare for children and young people. As of 31 March 2020, 8,875 of Scotland's children were subject to a compulsory supervision order. [1]
A children's hearing is carried out by three specially trained lay tribunal members of the children's panel, a children's reporter, child and legal guardian and a representative of the local social work department. The children's reporter takes no part in the decision making process of a children's hearing. A change to the role was introduced in September 2009 and the reporter is able to make representations if the panel is at risk of making a decision which is not, in the reporter's view, competent or procedurally correct. The reporter is responsible for the administration of the Hearing and also represents the decisions of hearings in a court setting when grounds of referral (now known as the statement of grounds) are disputed or the child or relevant person is unable to understand and comment on the statement of grounds (for example, due to the child's age).
As of 24 June 2013, Children's Hearings Scotland took over the running of thirty two local authority panels to have one national children's panel for Scotland with approximately 2,700 volunteers supported by 22 area support teams.[2]
Children referred to hearings are first referred to the Scottish Children's Reporter Administration. Uniquely in Scotland, referrals may be made on offence grounds and/or care and protection grounds. The children's reporter investigates the case (usually via information provided by the social work department) and will decide whether or not compulsory measures of supervision may be required. If, in the reporter's opinion, such measures are required, a Hearing will be arranged. The Reporter may take other steps short of arranging a hearing, for example arrange for some form of restorative justice.
In 2019/20, 28.3% of referrals received (6,263) were for children and young people subject to a Compulsory Supervision Order at the point of referral. In the same year, 27% of children and young people referred had a Reporter decision to arrange a Hearing.[3]
Any child generally under the age of 16, or under the age of 18 but still subject to a compulsory supervision order (CSO), who offends is referred to a hearing unless the area procurator fiscal decides that the seriousness of the case merits prosecution in either a sheriff court or the High Court of Justiciary.
This group of people, unless excused by the panel, must attend every hearing to contribute to the proceedings of the hearing.
Finally are the group of people where attendance is not compulsory, however would assist the proceedings by giving information to the panel and aid discussion. The chairing person, however, has a responsibility to keep attendees down to a minimum. Other persons may include:
Some people maybe excluded from the hearing if it would be in the benefit of the child/young person. If relevant persons, their representatives and/or (if necessary) the press are excluded, the "substance" of the discussion which took place needs to be discussed on their return.
For the hearing itself, a child may automatically be entitled to legal assistance when specific circumstances apply. These are when:
In other circumstances, the child and/or relevant persons can apply for legal assistance via the Scottish Legal Aid Board (SLAB).[4] Children's Legal Representatives are members of special panels maintained by SLAB, with all costs met by the Scottish Government. The hearing may also appoint an independent person known as a Safeguarder whose purpose is to prepare a report to assist the hearing in reaching a decision; the Safeguarder must act in the best interests of the child, which indeed is the basis of all decisions made by children's hearings. Each Children's Hearing must consider whether the child's immediate safety is assured. If this is not the case panel members have the power to issue an Interim Compulsory Supervision Order (when the child does not already subject to a Compulsory Supervision Order) or Interim Variation of a Compulsory Supervision Order (when the child already has a Compulsory Supervision Order but there is not enough information to make a substantive decision). This interim measure empowers the social work department to the move the child to "a place of safety" (e.g. Children's Residential Home, Foster Care, the care of relatives). Panel members also have the powers to issue a warrant when necessary to enforce the attendance of a child who has failed to attend his/her hearing.
For a child to be required to attend a Children's Hearing, one or more Section 67 Ground must be relevant to the child. They include various care and offence related grounds. The grounds are that:
Following a grounds hearing, the panel may decide that compulsory measures of supervision are not required and discharge the referral.
However, if required, hearings have power to make a number of orders – these are:
When making either a CSO or ICSO, the hearing could attach a number of measures which may range from attendance on a particular programme, conditions regulating contact with parents or other significant adults/family members, contact with a social worker, placement in foster care, residential accommodation or secure accommodation. Once issued a CSO must be reviewed by a Hearing within 12 months. Relevant persons (as described above) and children can ask for this to be reviewed at any stage after 3 months. The social work department have powers to ask for the order to be reviewed though at any time.
The children's hearings system was initiated by the Social Work (Scotland) Act 1968, and further reinforced by Children (Scotland) Act 1995 and Children's Hearings (Scotland) Act 2011. It followed a report in April 1964 of a committee set up by the Secretary of State for Scotland under the chairmanship of Lord Kilbrandon, a Senator of the College of Justice, to examine how young offenders were dealt with.
The existing juvenile courts were regarded as unsuitable because they had to combine the characteristics of a criminal court with those of a treatment agency. Separation of functions was recommended. The establishment of the grounds of referral (where disputed) was to remain with the courts but decisions on treatment were to be the responsibility of a new and unique kind of tribunal, which would be neither a court of law nor a local authority committee. On 15 April 1971, hearings took over from the courts most of the responsibility for children under 16.
The Children's Hearings (Scotland) Act 2011 came into force on 24 June 2013 and brought a number of changes including updated grounds, updated legal orders, pre-hearing panels and the use of interim measures (instead of warrants).[7]
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