Hearings for Children: The Report of the Hearings System Working Group
By Alyson Evans - Posted on 16 August 2023
In April, I blogged about the (at that time) upcoming final report from the Hearings System Working Group (HSWG). The report has now been published and makes for significant reading for anyone with an interest in Scotland’s children’s hearings system. It contains in the region of 97 recommendations and as expected many of the issues highlighted have been around the system for years and have been the subject of previous work, including legislation. This should raise challenging questions for the agencies charged with operating the system. However, I will not concentrate on that here. Rather I will discuss two particular issues where what is recommended would mean a more significant departure from current practice and involve some element of legislative change: membership of children’s hearings and the abolition of ‘grounds hearings’.
Membership of children’s hearings
The headline grabbing recommendations relate to a move away from the current model of volunteer decision-makers. Currently, the three members who make up a children’s hearing are not paid for their time. They can receive expenses but no other payment. Of the three members, one will be designated as the chair before each hearing but at heart there is no difference in status between the three members: they are all children’s panel members who are recruited, trained and supported in the same way.
The HSWG has recommended a distinction be introduced between chairs and other panel members and that both should become paid appointments. Chairs, it is recommended, should become salaried, professional appointments and the two other panel members should be reimbursed for their time at a daily rate. The cost of these recommendations is potentially enormous and so it follows that there should be a clear justification for them.
While the rationale for a salaried, professional chair can be derived from a recommended enhanced role before, during and after the children’s hearing, the rationale for paying a daily rate to the other two panel members would have benefited from more explicit attention in the report. There is mention in the report of difficulties with recruitment, the need to recruit from a wider variety of backgrounds and from people who cannot afford to volunteer. Ensuring consistency in panel members between different hearings for the same child is also a core theme of the report. Subsequent media reports cite the increase in complexity of children’s hearings and what is expected of panel members as further justification.
It is important not to take an automatic principled objection to the payment of panel members – society and the law has changed significantly since the hearings system was created in 1971 and so we should be open to evolution, in the same way as the Kilbrandon Committee that imagined the system back in 1964 was. But given the sums of money involved it is essential to consider rationally whether this is the best use of our finite resources for children, especially in the current economic climate. The financial modelling referred to in the report has not been published, but even with some basic calculations paying panel members would require investment of several million pounds per year based on existing hearing numbers, fees paid to other Tribunal members in Scotland and equivalent professional appointments to a chair.
It should be acknowledged that the bigger picture is for the hearings system to ‘shrink and specialise’ in the words of Scotland’s Independent Review of Care, which may mean less hearings in the longer term and therefore less investment in the payment of panel members. But this ambition would seem to be a long way off given the (lack of) available early intervention support services in local authorities that the ambition relies upon.
Even with a smaller and more specialised children’s hearings system there would still need to be a significant annual investment to pay panel members and as such it should have a very clear rationale, which is unfortunately missing from the HSWG’s report. It is not clear from the report how paying a daily rate to panel members will address the stated concerns in relation to recruitment numbers and diversity. Sure, it might mean some more people are attracted to the role, but this is only a good thing if the money is a facilitator rather than a motivator.
In contrast to a salaried appointment, paying a daily rate is unlikely to mean an individual does not need employment elsewhere. As was highlighted by a current panel member in their piece in the Glasgow Herald, while many employers are willing to grant paid time off for volunteering would they be so accommodating with time to take up another paid opportunity? A daily rate would undoubtedly help self-employed people and those whose employers provide unpaid leave, but might there be unintended consequences for those in receipt of means tested State benefits? Perhaps there is a better solution to this perceived recruitment barrier whereby the existing loss of earnings allowance claimable from Children’s Hearings Scotland is developed to better reflect the actual loss of earnings an individual experiences through being a panel member.
Consistency in panel members at different hearings for the same child is one of those issues that has been discussed and debated within the system for years. It is clearly felt by the HSWG that having paid panel members, including those who chair, will enable consistency to be provided for children much more easily and that this is a good thing for children. While the logic of this can be followed clearly from having salaried, professional chairs, it must be questioned whether daily rates for other panel members would really facilitate consistency better. As above, daily rates are still likely to mean that people have other commitments so the system may not be any better placed to ensure consistency in panel members (as opposed to chair) than it is currently.
What of the justification that hearings are becoming more complex? It is certainly the case that children’s hearings are more complex than they were when the system was created, both in terms of the lives of children and in terms of the legal framework that hearings are working within. Consequently, enhanced knowledge and skills are needed from panel members especially those who chair; more so than may have been the case in the past. This is a central part of the HSWG’s reason for recommending a professional, as opposed to volunteer, hearing chair – a professional chair can use their experience and ongoing professional development to hone their chairing skills.
However, we must show extreme caution about equating payment with quality of practice, inherent in linking the recommendation to pay panel members who do not chair with the complexity of children’s hearings. Paying someone does not automatically mean they do a better job. Payment of a daily rate may mean higher expectations can be placed on things like attendance at mandatory training, taking part in supervision and overall accountability for decision making. But the success of these rely on several other factors and enhanced training, supervision and accountability could be put in place now without paying panel members, if that is what is considered necessary.
If the children’s hearings system is operating as it should (and there is clearly work to do to ensure this is the norm) a child should come to a hearing once a year, maybe twice if a review is needed due to a change in circumstances. Therefore, in the absence of a specific rationale for paying panel members a daily rate, should investment of the scale required first be made in the day-to-day services and support for a child? Arguably these support services are very much more important to bring about positive change in the child’s life than the composition of children’s hearings.
The rationale for the recommendation to pay a salary to a professional chair is more apparent. As well as ensuring professional chairing skills in every hearing, the HSWG clearly envisage an enhanced role for the chair well beyond chairing the hearing as it is currently, and it is unrealistic to expect such an involved role to be provided on a volunteer basis. However, this highlights another key issue with the recommendations, which is not covered explicitly in the HSWG’s report; that of a potential two-tier system between chairs and panel members. It is an inescapable imbalance that under the proposals a children’s hearing would comprise two panel members alongside a salaried, professional chair who is more closely involved in the child’s situation than the two panel members. It is likely that the chair will have been at previous hearings for the child, may have met the child on multiple occasions and been involved in discussions with the local authority about implementation of the hearing decision, all outside of the hearing. Even unintentionally it is foreseeable that the chair could have an influence on the thinking and decision-making of the panel members, who may be approaching the matter for the first time, and this dynamic needs to be considered carefully.
While the payment of panel members would represent a change in the current hearings system, we must not allow this one issue to detract from the very many other important issues identified by the HSWG. One example is the proposal to scrap so-called ‘grounds hearings.’ These are initial children’s hearings to consider the reasons why a hearing has been arranged by the children’s reporter. The child (if of an age and capacity to understand) and ‘relevant persons’ (typically parents and carers) are asked if they understand and agree with those reasons. If they do not agree and/or understand then the hearing can either discharge the statement, meaning the proceedings are at an end, or refer the matter to the Sheriff Court for proof. If there is a need for immediate protective measures to be taken for the child pending the proof, then the hearing has the power to make an interim order. This process is consistent with one of the founding principles behind the system: that there should be a separation of determination of fact (decided by a court) from what is necessary to meet the needs of the child (decided by a children’s hearing).
The HSWG recommends that grounds hearings be scrapped and if it is necessary the statement of grounds should be sent directly to the sheriff. The report does not specify what this procedure looks like, but it could be similar to that adopted by the Guernsey Child, Youth and Community Tribunal, itself modelled on the children’s hearings system, whereby the Convenor (similar to the children’s reporter) meets with the child and relevant family members in advance of the Tribunal to talk about their understanding and acceptance of the grounds.
On the face of it, the recommendation to scrap grounds hearings is a very welcome change. It acknowledges the stress involved for families to attend children’s hearings, where nothing of substance may be achieved, and the anxiety behind having to answer to each statement setting out how the section 67 ground is met in a potentially busy room can be extremely difficult for some children and families. There is, however, a very sharp sting in the tail of the recommendation and one that strikes at the heart of a children’s hearing being the primary decision maker about the child’s needs.
It is proposed that the role of the sheriff be expanded to grant interim orders while grounds are established. This represents a fundamental shift in primary decision-maker from the hearing to the court and flies in the face of the emphasis in the remainder of the report on the hearing as the primary decision-making forum in relation to the needs of children. Depending on the circumstances it can take several months to establish grounds at the Sheriff Court and so that means several months before a children’s hearing, apparently the best forum for decisions to be taken about a child’s needs, would have the opportunity to consider the child’s care plan and living arrangements. If a sheriff issues an interim order with a measure for the child to live away from home, or does not, this is then a long period of time before a hearing will be given the opportunity to consider the same question.
There is a lot of importance within the HSWG report. It is the latest in a long line of review reports about the hearings system over the past 20 years many of which raise the same, or very similar issues. As I blogged in April, many of the issues do not require legislative change and can be progressed by the relevant agencies now. Further justification and refinement of some of the new recommendations, notably those around the membership of children’s hearings and the abolition of ‘grounds hearings’, is needed before a final judgment on the merits of those recommendations can be given. The Scottish Government has indicated that it will take time to consider the recommendations in detail with a view to providing a response by the end of the year. We wait for that response with anticipation.