Sheriff David Mackie: Public Consultation on Children’s Hearings Redesign

Sheriff David Mackie, Chair of the Hearings System Working Group, has been considering the Scottish Government’s consultation on proposals for the redesign of the Children’s Hearings System. In this blog, he raises concerns about the inclusion in the consultation of a ‘Legal Member’. You can access his more technical blog here, to understand these concerns in more detail.

This is a message for all of the children and young people in Scotland whose lives are affected by the care system and, in particular, the Children’s Hearings system. A huge thanks to all of you who have contributed to the development of the promise and, arising out of that, the re-design of the Children’s Hearings System. It was a great privilege to work alongside you in the Hearings System Working Group.

Following the publication last year of the Hearings for Children Report, we now have the Scottish Government’s Consultation Document on policy proposals for the Children’s Hearings re-design. I know some of you are looking at this and working on responses.

Scotland is now at the sharp end of implementing the transformational changes recommended in the Hearings for Children report. Some of those changes will require a change in the law, or new law to be passed, and the Consultation Document is meant to highlight those. It is one of the strongest indications yet of what the Government will support and turn into reality.

The hallmark of the Independent Care Review that led to the publication of The Promise was the collaborative approach to its work across the entire care community that led to the voices of over 5,000 people with direct experience of the care system not only being heard— but listened to and their views acted upon. At the Hearings System Working Group, we did the same, and the voice that rings out most through our report and its recommendations is yours: the children and young people who are likely to be most affected by it. Those voices led us, particularly, in the direction of recognising the importance of returning to one of the original key features of Children’s Hearings: that they be non-adversarial and inquiring, focussing on the single issue of deciding what is in the best interests of the child or young person who is the subject of the referral.

The proposal for the Legal Member

The Scottish Government’s Consultation Document risks undermining that good work and offending the trust that has been built up in this process with you. That is because the document includes a key proposal that is brand new, that was never mentioned during the almost two years of the Working Group’s work and, above all, your views were not sought.

It is the proposal for the creation of a new judicial post called the Legal Member who, it is suggested, will take over the role of Sheriffs in deciding whether grounds for referral have been made out by the Reporter.

Remember that aim to keep hearings non-adversarial; one of the key recommendations, listening to your voices, was to have the establishment of grounds dealt with before the Panel becomes involved so that, when it does get to the Panel, everyone can work together focussing on the best decisions to be made. Where the facts behind a referral are disputed it can get quite difficult and the Sheriff needs to hear evidence. Until now, those disputes don’t get to the Sheriff until they have first been to the Panel for what is known as a grounds hearing, and that can get everyone off to a bad start. We have recommended that it be the other way round, so that the referral doesn’t reach the Panel until after the grounds have been established. If they are not established there will be no referral; so, these decisions are important and could be life changing whether a referral takes place or not.

Responding to this proposal

The Consultation Document is short on detail about precisely what sort of official the Legal Member will be and where they will sit; so, we have to do quite a lot of guesswork to properly understand the implications. I don’t like the proposal, and my detailed reasons are explained in my other blog today, which has to go into quite a lot of technical detail. I believe the proposed new Legal Member in fact involves the creation of a whole new and other Tribunal operating under different rules separate from the Children’s Hearings and the Sheriff Court which would still have a role anyway in appeals, so that instead of simplifying the decision-making it would be making it more complex and confusing. Instead of Sheriffs making the decisions, it would be part-time Tribunal Members, who I think would be unlikely to be as good.

I find it troubling that the Consultation does not mention or seek views on the actual recommendations in the Report about establishing grounds before a hearing and I will be commenting on this too in due course.

Working with you on the report has been incredibly rewarding. But that is not an end in itself. Until the recommendations we worked up together have been implemented, they remain just words on paper. So, I was never going to be content to publish the report and think my work was done; I’m in this to ensure the delivery of the big changes we planned, and I want you to know that. Responding to the Consultation Document is an important part of the process.

Read Sheriff David Mackie’s blog which explores this proposal in detail.