Emerging themes

A rights-based approach

This theme was built around making sure a redesigned Children’s Hearings System:

• fully takes into account a rights-based approach, and
• is fully compatible with the United Nations Convention on the Rights of the Child (UNCRC).

Administration

This theme considered how the Children’s Hearings System should be administered— that is:

• how it should be run day-to-day, and
• who should run it.

At the moment, the Children’s Hearings System is administered by:

• the independent Principal Reporter, who is supported in carrying out their functions by SCRA, and
• the independent National Convener, who is supported in carrying out their functions by Children’s Hearings Scotland.

Why might it be appropriate for it to be run differently?

Under the European Convention on Human Rights, a Children's Hearing would be considered a Tribunal.

As well as this, Hearings have the capacity to determine both:

• civil rights and obligations, and
• criminal charges.

Because of this, the HSWG thought about whether the Scottish Courts and Tribunal Service should run the Hearings System instead.

But discussions with the President of Scottish Tribunals, Lord Woolman, suggested this wouldn’t be practical. A very long timetable would be needed for it to happen in practice.

So the Working Group continued on the basis that The Children’s Hearings System will remain administered by:

• the National Convener and CHS, and
• the Principal Reporter of SCRA.

Early help and support for families

In the long term, the HSWG wanted to see fewer children referred to The Children’s Hearings System.

This would happen through providing support as early as possible for the children and families who need it.

It's important that Early and Effective Intervention is applied effectively and consistently across Scotland.

This would make sure that when children come into conflict with the law, they:

• receive the appropriate response, and
• have access to appropriate care and support to meet their needs.

Support like this would divert and offset the need for future measures.

The Whole Family Wellbeing Fund is important to this theme

Although the Whole Family Wellbeing Fund is beyond the HSWG's remit, its members were clear that their work must link closely to it.

Local authorities are currently working to administer this Fund in a way that invests in:

• prevention, and
• early help and support.

The HSWG also worked to make sure there was a clear resource commitment to provide initiatives like Family Group Decision Making at an early stage— for those families who need it.

The role of the Reporter when a referral is made

The Children’s Reporter is an independent officer with several duties and responsibilities.

These include:

• investigating the circumstances of children referred to them,
• determining if these children need the support of a Children’s Hearing, and
• making sure it’s both necessary and proportionate for a Hearing to go ahead.

Sometimes, it’s necessary to refer a child to The Children’s Hearings System. When this happens, the HSWG considered how things could be changed.

This included looking at:

• the role of the Reporter, and
• the mechanisms they could use to support families at an earlier stage— without the need for compulsory measures.

16- and 17-year-olds have specific needs and rights, and these need to be given particular consideration.

Enhancing the Reporter’s role before referral

Some children, families and professionals told the HSWG that the Reporter could have more of a role earlier on: before a child is referred to the Hearings System.

If this was combined with empowering families to take part in their own outcomes, it might avoid the need for a Hearing completely.

But although a Hearing wouldn't be engaged, The Children’s Hearings System would be. This is because one of its functions is to keep children, young people and families away from compulsory measures of care.

Involving children and families through a strengths-based approach

Children and families with experience of The Children’s Hearings System shared their views about how the current system makes them feel with both:

• the Independent Care Review , and
• the HSWG.

They said they often felt confused and overwhelmed by the processes.

They also wanted more choice about:

• what was happening,
• where it was happening, and
• how it was happening.

They wanted to be involved in the most important decisions affecting their lives in a meaningful way.

Children and families also spoke about how it was important to highlight their strengths, and the good things which were happening in their lives.

And children said that both they and their families need to leave a Hearing fully understanding:

• what has happened, and
• what the decision means.

The HSWG listened carefully to these views. It also took into account ongoing improvement work to The Hearings System, which takes many of these concerns into account.

It thought about what a non-adversarial approach to The Hearings System looks like.

And it also considered the value of models and approaches like:

• Restorative Justice,
• Signs of Safety, and
• Family Group Decision Making.

Role of Professionals

A lot of different kinds of professional can appear at a Children’s Hearing, including:

• safeguarders,
• reporters,
• advocacy workers,
• lawyers, and
• social workers.

The Collaborative Redesign Project engaged extensively with these professionals.

Centring the Hearings System on children

Children told the HSWG how important it is that The Hearings System is centred on them. They also highlighted how many adults are involved in decision-making processes.

To that end, the HSWG was aware of:

• Clan Childlaw's work around a specialist accreditation for lawyers who represent children and young people.
• the recently published research into understanding the legal needs of children and young people in conflict with the law.

Supporting a culture of learning among delivery partners

Delivery Partners within the Hearing System have a strong culture of:

• learning and development,
• training, and
• qualifications.

The HSWG wished to encourage, support, and build upon this.

It's vital that professionals:

• understand their role, and
• are clear about the standards of evidence required to make decisions.

It's also important they have routes for reflection, complaint and training.

The best decision-making model

This theme is about making sure the Children’s Hearings System is using the best model for making decisions around the lives of children and families.

Scotland is the only country in the world which uses unpaid laypeople to make decisions on involuntary care of children.

And its Hearing System is one of very few tribunals that use volunteer decision makers.

Organisations must support those who make decisions

Organisations across Scotland must be able to make sure both:

• the tribunal members, and
• those working in the wider Children’s Hearings System making significant decisions supporting children and young people

are well supported themselves as they take on their role. They should have high-quality training which is clear on what excellence is.

There should be active consideration of other decision-making options

The Independent Care Review’s promise report was clear that – although there wasn’t an alternative to the volunteer structure – other decision-making options should still be actively considered.

The HSWG said there must be a thoughtful, evidence-based exploration of these models. This would include:

• small-scale tests, and
• pilots of change.

It also researched the effectiveness of various decision-making structures.

Despite looking at other models from across the world, the HSWG was clear it needed to focus on what works best for children in Scotland. Measures that work in one legal system and culture don’t always work in another.

How the panel makes and shares its decision

At the moment, a Panel's decision – and the reasons behind it – are spoken out loud at the end of a Hearing.

This means there's not enough opportunity for reflection and discussion among Panel members.

A written decision is also provided immediately at a Hearing, while children and families are there. This may be a factor which undermines their quality.

Making decisions clearer for children and young people

It's critical that panels produce decisions which are:

• clear,
• accessible and
• in formats that children and young people can understand.

To make this happen, the HSWG considered how to make sure that:

• children and young people fully understand the basis for decisions made, and
• panels are supported to make well-reasoned and clearly articulated decisions.

16- and 17-year-olds

The HSWG connected to work around the upcoming Children’s Care and Justice Bill.

This Bill will extend the remit of The Children’s Hearings System to include 16 and 17 year olds. It's legislation the HSWG welcomes, which is in line with the recommendations set out in the promise report.

But it means the Children’s Hearings System will need additional capacity to operate.

And it means there's more of a need for a specialised understanding of the rights of older children— who may also be in conflict with the law.

This will involve particular consideration of:

• advocacy, and
• legal representation.

This greater demand on The Children’s Hearings System means it's important for its structural underpinnings to be tested.

It was important redesign appropriately considered:

• the additional needs of older children, and
• how these needs can be met.

Babies and infants

The HSWG listened to the experiences of:

• organisations, and
• professionals working alongside babies and infants,

and to the views of:

• foster carers,
• kinship carers,
• birth parents, and
• adoptive parents.

And they clearly heard concerns around very young children: that they're not as well considered in The Children’s Hearings System as they should be.

There is extensive research which highlights the importance of:

• a child’s early years,
• strong relationships from the very earliest stage of pregnancy and development, and
• strong attachment from the very earliest stage of pregnancy and development.

As well as this, Scotland's understanding of:

• attachment,
• trauma, and
• the impact of adversity in childhood

has developed significantly over the last few years.

The HSWG has also heard of gaps in:

• perinatal and infant mental health services, and
• adequate trauma recovery support.

Making sure voices are heard

Designing a system which is sensitive to the needs of babies and infants includes making sure:

• that the voices of babies, infants and their families are heard,
• that babies, infants and families have creative opportunities to take part in decisions affecting their lives,
• that their rights are upheld, including to safety, care and protection.

It also includes considering what supports are available for babies, infants and their families around foster, kinship, and adoptive parents.

Given the importance of early attachments, it will look at what they may look like for babies and younger children.

Sometimes parents are known to professionals before a baby is born. This is something the HSWG explored.

All children’s voices

The promise report found that The Children’s Hearings System could find it challenging to listen and engage with children effectively.

It was especially complex to listen to voices of:

• babies,
• infants, and
• children with additional support needs or disabilities.

Due to structural and income inequalities – including poverty – the children and families are more likely to experience physical and emotional health problems.

The Children’s Hearings System most often considers children who are under 5, yet their voices are sometimes the hardest to hear.

This has consequences for the expertise and training required of panel members.

It also affects the extent that Hearings need to change depending on the age and stage of a child. If they don't adapt, a child's voice may not be fully and appropriately heard.

Hearings might adapt through making sure children and families are supported by:

• speech and language therapists,
• child support workers, and
• other professionals.

To understand what's needed, the HSWG is talking to groups who work with under-fives.

Capturing the views of children and young people

The HSWG was also interested in how children and young people take part in hearings. It wanted to make sure there are ways for their views to be captured, which:

• are meaningful,
• are imaginative,
• work for the children and young people themselves.

Meeting the needs of children after a Hearing takes place

Applying a Hearing Order is a critical moment in a child's life, and in the life of their family.

The HSWG is interested in how specific these Orders are. It's important to make sure a Child’s Plan reflects and complies with relevant Orders.

And it wants to understand more about the improvement to life outcomes which The Children’s Hearings System intends to bring about. It wants to know if children who experience the System do indeed benefit from these.

Assurance around implementation of Orders

Legal representatives are increasingly involved in Hearings. Because of this, they're now much more complex than in previous decades.

It's critical that The Children’s Hearings System can be assured:

• that Orders are being implemented, and
• that support is being provided.

The Collaborative Redesign Project looked at this specific issue within a project design team, and the HSWG is engaging with key stakeholders around it.

Other relevant issues under this theme

The HSWG was mindful of recent:

• judicial decision-making around professionals' role in relation to the best interests of the child principle, and
• discussions around whether Orders of both the Hearing and Sheriff Courts are being complied with.

The power that the National Convenor of Children’s Hearings Scotland has in relation to the feedback loop is also being considered.

National Care Service

A National Care Service has been proposed for Scotland.

But it's unclear whether this will include social work services for children and families.

This will have an impact on which organisation is considered the implementing authority.

Children and families’ right to redress, complain and appeal

As Scotland moves towards incorporating the UNCRC, it was important for the HSWG to think about the mechanisms which children and families have:

• to appeal decisions made at a Hearing,
• to respond to decisions made at a Hearing, and
• to complain about the processes and decisions made at the Hearings.