Children’s hearings system reform: legislation is not always the answer

By Alyson Evans - Posted on 30 April 2026

As I have blogged previously, the children’s hearings system in Scotland has been going through a period of reform (again) in recent years. The Children (Care, Care Experience and Services Planning) (Scotland) Bill was passed by unanimous vote in the Scottish Parliament on 19 March 2026 and at the time of writing is awaiting Royal Assent. The Bill covers a range of separate but interconnected issues related to the children’s care system, with chapter 3 introducing changes to the children’s hearing system; a significant part of the wider children’s care system. 

The Bill was introduced against the background of ‘The Promise’ which was the culmination of the Independent Review of Care and the recommendations it made in 2020 for children who need care and protection from the state. In an all too rare outbreak of political consensus, The Promise attracted cross-party support in the last Scottish Parliament and is sure to continue to focus discussion of the children’s care system when the new Parliament follows the Scottish elections on 7 May 2026. This cross-party support for The Promise and the Bill purportedly in support of it has not, however, been uncritical.

For example, although the Stage Three vote on the Bill was unanimous, votes were not given without caution. During the debate, MSPs of all parties expressed concern about both the ambition and deliverability of the Bill. 

Roz McCall from the Scottish Conservatives cautioned “… the Scottish Government must understand that passing legislation is not the same as delivering change”, and continued that without further resource, funding and clarity the Act “will become another layer of complexity in a system that is already struggling under the weight of good intentions that were never properly implemented.”  

Martin Whitfield from Scottish Labour described the Bill as “an impetus to act” and that “it does not fulfil commitments to the care-experienced community.”

The concerns raised cross-party are perhaps best summarised by Willie Rennie speaking on behalf of the Scottish Liberal Democrats when he said, “all the fine ambitions and good intentions will not matter a jot unless we deliver.”

From the outset the Bill in itself was never going to achieve the change to the children’s hearings system that is called for through The Promise.  There has never been any question about that and any thought that it would is very much misplaced. In that regard we remain in the same position in which we started when The Promise was published in February 2020. Or indeed some may argue we are in a worse position: it is notable that in a highly unusual step both Social Work Scotland and The Professional Association for  Social Work and Social Workers urged MSPs not to support the Bill at Stage three due to concerns about deliverability, additional unnecessary complexity and the lack of investment in the workforce. This was quite the intervention for one of the main groups of professionals involved in the operation of the children’s hearings system and for the profession which is generally charged with the successful delivery of decisions made by children’s hearings; decisions in themselves meaningless for children without effective implementation by local authorities. This intervention must therefore be listened to with utmost seriousness.

To understand the place of the Bill in the overall reform process, we need to look at the terms of The Promise and the conclusions from the Independent Care Review. In relation to the children’s hearings system, very few of these recommendations required legislative change.  I have written previously that what is required is to utilise the legislation we already have and make changes to practice: to the values, attitudes and behaviours that equate to realising a rights-based approach for children. These are not changes that are brought about by more legislation, since (save some particular technical legal issues) the legislation already exists to provide the framework for this practice change. It was therefore with a heavy sigh that I watched yet more draft legislation being introduced last year related to the children’s hearings system and all the human efforts that surround the passage of new legislation from consultations, written and oral evidence, countless hours spent debating it in Committee and the Chamber.  But here we are, more legislation on the statute books to add to “the landscape [that] is cluttered, complex and does not provide a clear framework to support children, families, decision-makers and service-providers.” (The Promise, p25). More legislation that people need to implement in practice, in the same way they should have been doing already.

It is fundamental to emphasise that the Independent Care Review did not conclude that the children’s hearings system is broken.  Far from it.  The principles behind it remain sound and an articulation of the child-centred justice called for by the UN Committee on the Rights of the Child, for example in its General Comment 24.   Therefore, the changes to the children’s hearings system in the Bill are not extensive and that’s because the existing legislation in respect of the children’s hearings system does not require substantial amendment. What is (still) required is implementation of the existing legislation, now as further amended and in some respects with yet more additional layers of unnecessary complexity that children, families and practitioners will need to grapple with. Supporting this implementation now needs to be all our focus to ensure we do not fall into the previous trap whereby the legislation is not utilised to its fullest extent and the experience of children and families does not match the legislative intent.

So, what are the changes within the Bill that relate to the operation of the children’s hearings system? These include:

• structural changes to the composition of the national Children’s Panel, which once the provisions are commenced will be made up of “ordinary members”, “chairing members” and, if the National Convener considers appropriate, “specialist members” with renumeration as determined by the National Convener with approval of Scottish Ministers.

This is quite the philosophical departure from arrangements that have persisted since the inception of the children’s hearings system, whereby panel members have all been of the same status and received no payment other than expenses. As I have written previously, the substantial investment being made in this area of the care system is somewhat speculative since there is little evidence to indicate if this change will lead to improved quality of practice by panel members or whether there may be unintended consequences that compromise the undoubted strengths brought to children’s hearings by the current composition of the national Children’s Panel.  Only time (and research) will tell.

• complex changes to how statements of grounds are discussed with children and families, with a greater role for the children’s reporter at the point of arranging a children’s hearing to consider those grounds. Statements of grounds are the reasons why the children’s hearing has been arranged and, currently, require to be accepted by the child (if of an age and capacity to understand) and ‘relevant persons’ (typically parents and carers), or established by a sheriff, for the hearing to proceed.

These provisions are, I would argue, the least successful and potentially most challenging aspect of the Bill.  They represent an unhappy compromise between the recommendation from the Hearings System Working Group, which followed on from the work of the Independent Care Review, that there be “no more grounds hearings” with a desire to ensure that there is still an effective legal process to justify the significant intervention of the state in family life that may follow.  What we are left with is a certainly complex, potentially cumbersome and even more re-traumatising, process for children and families when they need to respond to the statement of grounds on more than the once they do currently.  What is for sure is that extra special attention will need to be paid by children’s reporters and panel members to the application of this new process in practice, even more so than the current process which was considered by the Hearings System Working Group to be “transactional, adversarial, and traumatic for children and their families.”

• changes aimed at improving the participation of the child in a hearing such as a presumption of continuity of chairing member unless, in a strikingly paternalistic concession, the chairing member does not consider that to be in the best interests of the child; the removal of the current obligation on a child to attend hearings and associated court proceedings unless required to attend; the provision of information about advocacy and child-centred legal services at the point of referral to the reporter; and the extension of children’s legal aid to children accused of the most serious offences.
• new provisions designed to limit the prospect of harm to a child by the involvement of a person as a relevant person in the process, such as very welcome new powers for a hearing to consider a relevant person’s review request to be “frivolous or vexatious”; and removal of relevant person status in some very limited circumstances, although potentially now redundant due to the aforementioned frivolous or vexatious review request provisions inserted to the Bill at Stage Three.
• technical, procedural, changes to decision-making such as provision for certain functions of the children’s hearing (largely still to be further defined via secondary legislation) to be carried out by a single chairing member rather than the current requirement of three panel members and the insertion of new timescales for a sheriff to determine a grounds application, both designed to speed up current processes; and changes to the legal test for referral and making a compulsory order to raise the threshold designed to ensure that state intervention in family life is proportionate and necessary to the child’s circumstances.

Given what I have said here about the importance of implementing legislation and of practice change, it is reassuring that work has been happening alongside the passage of the Bill to take forward the practice related changes needed to ensure consistency in implementation of the current legislation. This includes areas such as planning and preparation for a hearing, culture, the referral process, language and communication and processes during and after the hearing. It is this type of work, properly resourced and funded, that will lead to the improved experiences for children and families.

By way of example, one area I have recently had the pleasure of being involved with in a small way is work that young people from Our Hearings Our Voice have undertaken to produce a good practice guide and top tips for solicitors in children’s hearings.  Our Hearings Our Voice is the independent children and young people’s board for the children’s hearings system, made up of children and young people from across Scotland who have experience of the children’s hearings system.

The role of solicitors in children’s hearings is an issue that has been discussed throughout the lifetime of the children’s hearings system. That discussion has become more frequent following the enactment of the Children’s Hearings (Scotland) Act 2011 and the availability of children’s legal aid for representation at children’s hearings. Anecdotally, panel members and others talked of adversarial behaviours by a small minority of solicitors which were not consistent with the tribunal setting.  The Scottish Legal Aid Board commissioned research from 2016 found that while most solicitors “acted in ways that can be constructive and valuable” … “the presence of solicitors [in hearings] could sometimes present challenges.”

The guide and tips for solicitors seek to harness the values, attitudes and behaviours demonstrated by those solicitors who act in constructive ways and share the features of what that looks like in practice. Although this is a guide for solicitors, much can be learned by all other adults involved in some way in the hearings system: for example, who can argue that every adult at a children’s hearing should ‘know your stuff’, ‘show you care’ and ‘communicate well.’ Once again young people are leading our way in the practice that should be expected in implementing the legislation. The challenge is now for those individuals and organisations involved to ensure that this is what children and young people experience in their hearing without hiding behind a perceived need for further legislation to make that happen.

Alongside the duties in the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, the legal framework to underpin the practice called for in the children’s hearings system is there, as I would argue it has always been in recent years.  Parliament has done its work in passing more legislation and the time for legislative change in the children’s hearings system is now over: the onus is on people and the organisations who support them to realise the words on the page in practice.  This is time and resource intensive work but only this time and resource investment will bring about improvements in the children’s hearings system that children deserve. The incoming new Members of the Scottish Parliament would do well to heed the warnings of their predecessors in this regard.