Justice Committee

Meeting date: Tuesday, January 21, 2020

Official Report 692KB pdf

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Children (Scotland) Bill: Stage 1

We move to further consideration of the Children (Scotland) Bill. I refer members to paper 3, which is a note by the clerk, and paper 4, which is a private paper. I welcome our second panel today: Jackie McRae is practice and partnerships lead at Children’s Hearings Scotland; and Alistair Hogg is head of practice and policy at the Scottish Children’s Reporter Administration. Thank you very much for your written submissions. I apologise for the delay in hearing your evidence. Given that we are under such time constraints, I ask for both the questions and the answers to be as succinct as possible.

We will move straight to questions.

As the panel will be aware, sections 1 to 3 of the bill remove the current presumption that only children over 12 are able to express a view regarding decisions that are made about them. What are the panel’s views about the removal of that presumption? Are you supportive of that change in the first instance?

Thank you for the opportunity to talk to the committee. Children’s Hearings Scotland is in favour of the removal of the presumption that only children aged 12 and over are sufficiently mature to give their view. The children’s hearings system is premised on children’s views being at the heart of decision making about them, and our guidance and training to children’s panel members is that they should ensure that they are aware of the views of any child or young person who is brought before the panel.

From an SCRA perspective, I agree with those comments. We are in favour of removing the age of presumption, because we think that it is unhelpful in the children’s hearings system. We have always operated on the basis that a child of any age is capable of giving a view; what is important is how we are able to obtain that view. Of course, those views have to be given consideration—that is a statutory requirement of a children’s hearing. The stated age of 12 is an unhelpful barrier to the collection of children’s views in other forums.

On the practicalities of taking views from young children in particular, we heard evidence in the previous session from a representative of CELCIS, who talked about ensuring that the views of babies and young children are listened to. We also heard from Who Cares? Scotland about the importance of listening to the views of toddlers. Do any of the witnesses have any comments on how the views of young children can be taken into account? What is the best way to go about getting that information from young children?

In respect of children’s hearings, panel members have a variety of options at their disposal. With slightly older children, there is direct communication through their attendance at hearings, and there are often direct written contributions from children and young people, although the quality of those can be variable. Children may instruct a solicitor to act as a legal representative.

A lot of new technology solutions are currently being used in the hearings system. In Midlothian, a communications app called Mind Of My Own is used—there are different versions of the app for older young people and for younger children. In Fife, Barnardo’s Scotland has also been working with technology, using avatars to enable children to provide their views to a number of different decision-making and planning forums, including children’s hearings.

Panel members are given limited training in how to talk to children in hearings, but it is fair to say that, as lay decision makers, they often rely on information from others such as skilled professionals, family members and carers. There are challenges in taking views from very young children. We were very interested to hear NSPCC Scotland’s written evidence to the committee regarding the work of its GIFT—Glasgow infant and family team—project, and the comments from Duncan Dunlop in the previous session.

For very young children, hearings currently rely on the use of appointed safeguarders. Those can be skilled professionals such as the child’s social worker, or a specialist child psychologist can be appointed in certain circumstances.

I will keep my answer concise by saying that I associate myself with those remarks. There are a lot of new innovative and creative ways to obtain the views of children, and very young children in particular. The important thing is to recognise that a child is capable of providing a view no matter what age or level of maturity they have reached. It is just the way in which they are able to express their view that changes.

To add to the list of potential approaches, there are a variety of adults who can be involved in obtaining those views and providing them to a children’s hearing. We have heard about safeguarders such as the child’s social worker, legal representatives or family supporters. In addition, the committee will be aware of the introduction of advocacy workers from—it is hoped—April this year, which will provide another level of support and enhance the ability to project a child’s views for the hearing.

Can I just check something? In your written evidence, you say that the

“Court should determine the ‘best’ way to elicit the information they need—including a child’s view.”

Does that apply to sheriff court proceedings or children’s hearings?

The comments in our written submission relate to court proceedings rather than children’s hearings.

As Jackie McRae will be well aware, the rules for children’s hearings state that a child must have the ability to express how their view is taken, and it must be done in the manner that the child prefers. The legislation does not currently specify how that should be done. Does it need to be more prescriptive about how views are taken and listened to, or should it be open to interpretation depending on the circumstances of each child?

We welcome provision that would enable hearings to work with the child to enable them to give their views in the way that is most effective for them. On whether there should be a prescriptive list of methods by which that should be done, I think that there are some risks in that because, the greater the level of prescription in the law, the more restrictive some approaches to implementing that might be. There would be merit in having detailed statutory guidance for professionals about the options that are available to them.

Are you supportive of the proposed measures in sections 4 to 7 to offer greater protections to vulnerable people in the courtroom? Does the bill go far enough or should something more radical be suggested?

The court setting is probably more part of the remit of the SCRA in relation to this discussion. We welcome the proposals in sections 4 to 7, which we think are helpful. In particular, we welcome the restriction on personal cross-examination of a vulnerable person in the proceedings. We have long hoped for that power and it will be helpful.

Overall, in relation to the proposals, you will be aware of what is in our written submission. We tried to convey the point that, in looking at the vulnerability of witnesses and parties going to court, it would be helpful to look at children through a separate and different lens and to consider what supports, protections and measures might be most helpful and appropriate for children. That might be a more helpful and clearer process.

Under the Vulnerable Witnesses (Scotland) Act 2004, anyone under 18 is, by virtue of their age, considered to be a vulnerable witness, so that protection is in place. However, we think that it would be helpful and clearer to state a position in relation to children in the court process. The committee will obviously be aware that the Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 came into force yesterday. The SCRA would support the transfer of some of the measures relating to certain High Court proceedings to our proceedings, too. As children’s reporters, we have to appear in court under different sets of rules, depending on the grounds of referral. It would be helpful to have one clear statement in relation to children when they are involved in proceedings.

Children’s Hearings Scotland suggests that the bill has perhaps missed an opportunity to think about the child’s and family’s experience as they move through different sets of connected or sometimes related proceedings. Since 2013, there has been a real focus in the hearings system on realising the human rights of everybody involved. Some of the procedures that have been introduced are framed with a view to ensuring that the child’s and their family members’ article 8 rights are properly respected. That means that there are stringent tests, which mean that the child and their family members have rights and duties to attend hearings and that the circumstances in which relevant persons or their representatives may be excluded from hearings are limited, even when there is a concern that they may present a risk to the child or other parties in the hearing room.

In some respects, there is a need for greater protection for the child and for adult victims of abuse in the setting of children’s hearings. It is not uncommon for adult perpetrators to be brought from custody in handcuffs into a children’s hearing room, with children—sometimes very young children—present. The SCRA does an excellent job of trying to gather intelligence about risk and to consider beforehand how best to manage complex hearings and make arrangements to keep all the participants safe, but that cannot always be relied on. We cannot even necessarily rely on police presence when violence is anticipated.

In those circumstances, we consider that children’s panel members should have greater scope to manage hearings when there is evidence of risk and potential violence. That could include: providing information to the hearings in advance and greater information exchange between different court proceedings; greater participation by videolink so that the participants do not necessarily have to be in the same room together; and the capacity to enable panel members to make a decision to involve relevant persons in hearings separately. There is the possibility of excluding relevant persons, but the current test for those relates solely to the risk of distress to the child and to prevention of the child expressing a view. Those thresholds are quite high, in practice.

12:45  

Thank you. I would like to ask about more, but I know that we are short of time.

A lot was said about siblings in the earlier part of the meeting, and I am aware that you were present for that. A number of organisations have proposed that siblings’ rights and family places, including measures affecting the children’s hearings system, should be included. I will run those rights past you for your comments on them. They are the right to be notified of proceedings; the right to attend hearings; the right to make representations; and a right of appeal or review. What effect will the proposals have on the operation of the children’s hearings system, and what challenges could they pose?

That is a live issue because, as committee members will be aware, a Supreme Court decision on siblings’ rights in children’s hearings is awaited. The list of rights that you outlined will be considered by the Supreme Court, and we will know fairly soon what its position is.

Your question was about the impact of the proposals on the children’s hearings system. The SCRA supports the direction of travel on the general issue of siblings’ rights. There is a gap around the involvement of siblings in proceedings but proportionality is required, because we must always remember that the most important person at a children’s hearing is the child for whom the hearing has been arranged. The rights that you listed are the equivalent of the rights that a relevant person would have during children’s hearing proceedings and the rights that the child would have.

In relation to the debate that took place in the Supreme Court, the SCRA supports the greater participation of siblings in hearing proceedings. We recognise the powerful issues that the committee heard about earlier this morning, but there needs to be a balance and that involvement needs to be proportionate. The most important person is the child who is at the centre of the hearing.

Participation could take many different forms. It does not necessarily mean attendance at the hearing, for example; it could mean that you have the opportunity to present your views to a hearing in different formats. There could also be participation and rights in the form of an ability to seek a review if the position is detrimental to your position. The granting of the full range of rights would, however, be disproportionate to the issue that we are considering.

I echo what Alistair Hogg has said. Given the focus that is emerging from research findings on the importance of contact and the relationship between siblings, Children’s Hearings Scotland has been working on additional direct and online training for panel members, to ensure that they prioritise in a hearing the consideration of relationships that are important to the child. Those go beyond the relationships with parents to the relationships with brothers, sisters and other family members. We have a test for change planned in one of our support team areas, in which panel members will ensure that they gather information about the situation of the child’s brothers and sisters and consider the impact of those relationships on the child in every hearing.

I would like clarification on one small point. You mentioned the wider family, including siblings. For the avoidance of doubt, would that include grandparents?

Yes, it would include grandparents.

I want to ask about delays in the children’s hearings system. The bill provides for the court to “have regard to” the effect that delays might have on children. Should anything specific be included in the bill about the measures that courts could take to mitigate delays that might have an adverse effect on children’s welfare?

Our focus has been on the hearings system. In general, delays in the hearings system relate to administrative problems, a lack of reports or important people not attending hearings, which often makes it difficult for panel members to make decisions as promptly as they would wish. That is why we consider it critical to retain the focus on the child’s welfare in a hearing, in the current legal tests. An additional consideration for panel members over and above that would not add anything, as panel members should already be focused on considerations around delay and its impact on the child.

Delays in children’s hearings are always in the minds of children’s panel members. They are well aware that delays in making decisions are particularly unhelpful for the children and young people who are at the centre of the hearings.

The SCRA very much welcomes the measure in section 21 of the bill, which relates to court proceedings. It will be helpful to have it in statute, because our proceedings at court—particularly our proof proceedings—can often be delayed significantly. Cases can take several months or, sometimes, even longer than a year to conclude. There might be particular reasons why that is the case, but the impact on the child is hugely significant. A year in the life of a child is proportionately much more than a year in the life of an adult of my age, for example.

As I said, we very much welcome that measure being placed in statute. It might be helpful if some narrative or guidance around it was provided to guide the decision makers in relation to the impact of delay and how to reduce delay. It is a helpful addition that might enable and empower us to avoid delays in court.

Let us turn to appeals in the children’s hearings system, which are dealt with in sections 17 and 18. Does the panel want to comment on the Law Society of Scotland’s view that the function of the principal reporter is to ensure the effective conduct of a children’s hearing and that appealing a decision on relevant person status, as is proposed in section 17, would not be consistent with that role?

I understand that what is proposed will allow the principal reporter to appeal a sheriff’s decision on that matter rather than to appeal a decision that the hearing has made, which I agree would be inconsistent with our function. We very much welcome the ability to appeal a sheriff’s decision on deemed relevant person status because, at the moment, we see many cases in which decisions are made and in which other parties to proceedings who would have a right of appeal are unable to exercise that function for personal reasons. We are unable to pursue that and, therefore, shape the test relating to deemed relevant person status, which can have a big impact on not only individual cases but more generally if precedents are set.

I endorse Mr Hogg’s comments.

Do you have any comment to make on the Faculty of Advocates’ view that, unlike what is proposed in section 18, it is important to retain a direct line of appeal from the sheriff court to the Court of Session?

No.

No. I do not have any particular view on that.

That concludes our questioning. However, when we review today’s evidence, members might think of further questions that they would like to ask you, and we would be very grateful if you would provide further information, if it is requested. In the meantime, I thank you for a very concise and helpful evidence session.