Decision Making by a Children’s Hearing: Less legislative ‘redesign’ and more ‘implementation’
By Alyson Evans - Posted on 25 April 2023
Scotland’s children’s hearings system is rightly celebrated. The system originated from a report in the 1960s (‘the Kilbrandon report’ named after the chair of the Committee, Lord Kilbrandon) and works from the starting point that children should not be defined by the reason why the intervention of the State is needed; whether that’s because the child is, or may be, the victim of abuse or neglect towards them or their own behaviour is a cause for concern, including behaviour contrary to the criminal law. Often, they are the same child. Research continues to demonstrate the soundness of this premise, most recently in research by the Scottish Children’s Reporter Administration (SCRA) on children aged 12 – 15 years in conflict with the law published in June 2022.
Through the years the children’s hearings system has been the subject of analysis, review and criticism, both publicly and privately. There have now been three substantive pieces of legislation setting out how the system operates, the Social Work (Scotland) Act 1968, the Children (Scotland) Act 1995 and the Children’s Hearings (Scotland) Act 2011, alongside additional incremental legislative change on specific issues; including up to the present day with the Children (Care and Justice) (Scotland) Bill currently making its way through the Scottish Parliament. Through all this legal change the so called ‘Kilbrandon principles’ have remained as the basis for the system and indeed any change to the hearings system is usually compared with the recommendations from the Kilbrandon Committee: the ‘Kilbrandon test’ if you like. I have blogged elsewhere about Lord Kilbrandon’s name being synonymous with the system.
The Independent Review of Care offers the most recent review of whether the children’s hearings system meets the needs of children to the very best of its ability. The Review’s recommendations formed ‘The Promise’ to Scotland’s children and, in spite of the pandemic, work has gathered pace over the last three years to consider and implement this promise with the support of a new national organisation The Promise Scotland. In relation to the children’s hearings system a ‘redesign’ process was started and a Hearings System Working Group established in August 2021. It was made apparent that this ‘redesign’ was necessary to meet the promise made and would lead to new legislation being introduced towards the end of the current Parliamentary term. The final recommendations from the Hearings System Working Group to the Scottish Government are expected in May.
The issues raised within the Independent Review of Care about decision-making by children’s hearings are not new. As far back as the 1970s academics were writing about the model for decision-making in the system and arguing that more consideration should be given to the role of the hearing chair in particular. In more recent years, the participation of children in their hearings has been a focus: ‘Big Words and Big Tables’ published by SCRA in 2006 highlighted some of the barriers to a child’s participation and fast forward to 2016 when the ‘Better Hearings’ report was published by the Children’s Hearings Improvement Partnership with the aim of identifying “what makes a Hearing work well from a perspective of those involved”. It is reassuring that much of this previous knowledge has been recognised by the Hearings System Working Group, which in its most recent update report stated: “Many of the issues… will not be a surprise to children and families and organisations who deliver and/or have experience of the Children’s Hearings System. Indeed many of them have been discussed for a long time…” (Emerging Themes Report, p16). In light of this, we must question why the necessary improvements have not been realised and the extent to which a ‘redesign’ is required?
What is meant by ‘redesign’ is not clear. The method of the Hearings System Working Group draws on the Scottish Approach to Service Design, a collaborative approach that came from the Christie Commission in 2011 and aims to create change by working with people to design public services around their needs. However, in the context of what happens in a children’s hearing what is needed is less ‘redesign’ of the law in the sense of doing something different and more doing what already exists in the first place. In short, we need to utilise the legislation we currently have in full before reaching for the statute book once again. Children and adults have been sharing their views on the children’s hearings system for years: we must now act.
Much of The Promise rests on realising the rights of children and their families. Realising rights relies not only on legislation but more fundamentally on how this legislation is implemented in practice. Empowering and enabling a child to participate in their hearing does not just rely on a legislative provision setting out that they have the right to do so, it relies on those people that make it happen: those who implement that piece of legislation. This is done through recruiting the right people with the right values, providing them with robust training, guidance, coaching and mentoring. The temptation is always to focus on this being the role of the decision-maker within a children’s hearing, the children’s panel member, but this responsibility rests with everyone in a hearing (the children’s reporters, social workers, legal representatives, safeguarders etc.) as well as the panel members.
Let’s take some examples. Continuity of decision-maker between a child’s hearings is an issue raised consistently in Reviews and Reports. The arguments for and against this is for another day, but if there is a consensus that this is advantageous for children then it is already permissible under the current legislation – the Children’s Hearings (Scotland) Act 2011 Rules of Procedure (Scotland) Act 2013, Rule 3(1) – what would be needed is a method of operationalising this consistently, which is inherently challenging (but not impossible) given the volunteer nature of the national children’s panel.
The volunteer nature of the lay panel members is an issue that has been raised periodically throughout the lifecycle of the children’s hearings system. Again, this is a matter that the current Hearings System Working Group is looking at specifically, including the desirability of having a salaried rather than volunteer chairing member. Sometimes this debate is framed around adhering to the recommendations from the Kilbrandon Committee. But the emphasis in the Kilbrandon Committee report, and indeed the discussions of the Committee according to the papers retained in the National Archives, was on lay decision makers as opposed to volunteers. This illustrates why a clear understanding of what the ‘Kilbrandon principles’ actually are is necessary if the system is going to employ the ‘Kilbrandon test’ for any changes. In line with this, the current legislation does not specify that members of the children’s panel must be volunteers. Indeed, there is provision for the payment of an allowance within Schedule 2 of the 2011 Act and therefore should the move to a paid workforce in whole or in part be considered desirable it would be financial investment that would be needed and not necessarily legislation.
The Hearings System Working Group has noted in its Emerging Themes report that it is also looking at the current practice of giving a decision and reasons verbally and then in writing immediately at the end of each hearing. If the intention here is to allow a short adjournment for panel members to reflect before giving their decision then this would already be permissible under the Rules of Procedure. The only requirement in the current Rules being that if a hearing is adjourned it is reconvened on the same day (Rule 7) and that each member must state their decision and reasons, before the overall decision of the children’s hearing is confirmed by the chairing member. If the intention is to alter this process more substantially, by perhaps removing the requirement that each panel member give their own decision in favour of one overall decision being given then what would be required is amendment to the secondary legislation, something which is more straightforward than introducing new primary legislation. In terms of the written decision and reasons, the only current requirement is that the chairing member ensures that a record is made (Rule 6) but there is no prescription on when this is done: like much of the operation of children’s hearings the current practice of ‘writing up’ at the end of each hearing has evolved over time and experience, in this case in a likely attempt to improve transparency of decision-making.
These are just some examples. While there are undoubtedly some other issues that require relatively minor legislative change, many of the issues identified within The Promise, and being explored by the Hearings System Working Group, do not require legislation to enact – improvement is possible to achieve within the current statutory framework and therefore we must not wait for further legislation to make these things happen. This is all the more important given that legislation would not be expected until 2025, with further time for implementation required after that. We have the legislation: what needs to be done is full and complete implementation of it in practice. Let’s not make Scotland’s children wait any longer.