Education and Culture Committee

Meeting date: Tuesday, January 15, 2013

Official Report 571KB pdf

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Taking Children into Care Inquiry

Agenda item 3 is our inquiry into decision making on whether to take children into care. The committee has just completed its last fact-finding visit in connection with the inquiry—that was yesterday, in Perth. Throughout our visits and in the written evidence that we have received thus far, a number of concerns have been expressed to us about the children’s hearings system. The purpose of today’s session is to put those concerns to representatives of the hearings system and allow them to respond.

I welcome to the committee Bernadette Monaghan, national convener and chief executive of Children’s Hearings Scotland; Hugh McNaughtan, deputy chair of the children’s panel chairmen’s group; Barbara Reid, children’s hearings training officer; and Malcolm Schaffer, head of policy at the Scottish Children’s Reporter Administration. Good morning to you all.

As I said, concerns have been expressed to us by a number of organisations and individuals, both in the written evidence that we have received and in the visits that we have made. We want to run through those concerns with you this morning, if that is all right. We will start by asking about the consistency of decision making by panels, which is an issue that has come up several times. Clare Adamson will begin the questions on that subject.

11:30

Good morning. In the course of the visits that we have undertaken, concerns have been raised about the consistency of decision making across Scotland. Obviously, budgetary pressures and capacity play a role in that, as does the demographic of the local area. What are your views on that? Is there room for improvement? Do we have an opportunity to look at the consistency of decision making across the country? Specifically, the National Society for the Prevention of Cruelty to Children raised a concern about different thresholds being applied by panel members and professionals in respect of cumulative neglect and emotional abuse.

Speaking both as someone who sits on hearings and from a national perspective, I think that there will always be differences across authorities, even when we have a national body, because hearings make decisions on the day in the best interests of the child who is in front of them. I do not think that budgetary constraints are necessarily a big problem for decision making, although they affect how social work departments then deal with the hearing’s decision.

We hope that many of those issues will be dealt with under the new Children’s Hearings (Scotland) Act 2011, because the hearing’s convener will be in a better position to hold the authority to account if the hearing’s decisions are not followed up. On the whole, if on the first time that a family comes to a hearing the panel members on the day think that the best thing for the child is to be taken into care, the panel will make that decision no matter what recommendations are made by social work or what representations are made by the solicitors around the table. Panel members are very aware that, in the main, solicitors tend to represent their clients—the parents—rather than the best interests of the young child. With the new act, we should get more solicitors looking first at the act before they look at the European convention on human rights, which is what solicitors representing parents have tended to do.

As with a lot of things, the system is not perfect but, as the 2011 act is implemented and we go into this new world, I think that it will be a lot easier to get feedback on such matters and for the convener to deal with them in each authority area.

When we visited Who Cares? Scotland, the care leavers whom we spoke to expressed the concern that they personally found the whole set-up of the panel very intimidating, and they therefore believed that the parents’ views were given much more credence by the hearing than those of the young person’s advocate or the young person if they were asked to speak at the hearing. They found the physical set-up very intimidating. Do you have any thoughts on that?

First, let me say that my role as national convener of Children’s Hearings Scotland and the new public body CHS are in a shadow period, so we will not officially own any of the children’s panels’ functions until 24 June this year. What I can say is that we aspire and hope to ensure that in future there is greater consistency of decision making, with sound evidence and reasons for decision making as well as feedback to panel members.

As national convener, I am required to include young people and to take their views on board in the design and delivery of panel member training. A lot of research reports have been done on that—indeed, a modern apprentice working for the SCRA has pulled together all those findings on young people’s experiences of hearings—so a lot of valuable information is available on young people’s views and experiences. As a panel member myself, I think that panel members always feel that we put young people at ease and that we are good at engaging and communicating, but actually we are not as good as we think we are.

There is a lot of rich information that we will use in the design and delivery of future training through the national curriculum for panel members. There are simple, commonsense things, such as teaching panel members about body language and about speaking first to the young person, rather than to all the adults in the room. When panel members are faced with a room full of professionals and, increasingly, more and more lawyers, we will need them to be strong in chairing and managing hearings to ensure that the young person’s voice is heard.

Panel members will have a duty to check that the young person is aware of advocacy support and the services that are around. Malcolm Schaffer can perhaps say more about the general work that is being undertaken to make sure that the child’s voice is at the centre. For example, in the new national standards that we have developed for the children’s panel, standard number one is:

“Children and young people are at the centre of everything”.

There is an opportunity in future training to take on board what we know from research. We have been doing some work with Who Cares? Scotland on how we can involve young people not just in training, but in the life of children’s hearings in Scotland, at different levels and in a meaningful way.

I will develop that further. I entirely agree that the system could do a lot better on involving young people and vulnerable adults. A participation group was established in the SCRA that uses the modern apprentices we have appointed, who are young people who have been or are in care and who help us to look at procedures, buildings and room design to help us improve the quality of communication. Can we produce better ways of encouraging young people to be involved in the hearings process? Should we have pre-hearing visits, for instance, so that young people know the sort of place that they are coming to? Can we improve leaflets or electronic communications to make them more appropriate for young people?

To be blunt, for a few years we have been very complacent about the system for involving young people. We can up our act, and we need to.

I would also like to tackle cumulative neglect and emotional abuse, which is the other area that Clare Adamson mentioned. There is enough research material out there to suggest that that area is a major challenge, possibly not just for our system, but for systems elsewhere, and certainly not just for panel members.

It is sometimes much easier to intervene when there is a specific instance of physical abuse, as opposed to a continuous pattern of emotional neglect, although emotional neglect may have huge significance for and cause huge damage to a child. We need to look at how we ensure that the information that is presented to the decision maker—be it the panel, the reporter or the court—is of the highest quality and can clearly mark out the sort of behaviour exemplified, the impact on the child and what the research tells us about the cumulative effect that that behaviour can have on the child’s future health or development. We also need to work on training for all parties, not just panel members, to make sure that we understand the long-term impact of emotional abuse on a child. The area unquestionably needs to be worked on, not specifically by panel members but across the board.

We have written evidence from Dumfries and Galloway Council about the weight given to different opinions by panel members. It said:

“It is perceived that Children’s Panels tend to value the views of other professionals and of ‘so called’ experts above the holistic assessments of social workers.”

What is your response to that concern?

That is what the children’s hearing is for: to hear what social workers and whatever other experts are put forward have to say, and to consider whatever information we get. Based on that information, we make decisions that are in the best interests of the child. If that is not necessarily what social workers think is in the best interests of the child, so be it.

I am sorry, but perhaps you did not hear me. The specific allegation—if I can put it that strongly—is that

“Panels tend to value the views of other professionals and of ‘so called’ experts above the ... assessments of social workers”.

The committee might have had access to our recent research on children on supervision for five or more years—if you do not have a copy we can ensure that you get one. In that research, we examined the correlation between social work recommendations and children’s hearings decisions and found that 94 per cent of hearings actually followed social work recommendations.

So you disagree with the evidence that has been submitted.

I disagree with its basis. I am sure that it is based on individual experiences but having looked at the patterns in the system we have found no evidence to suggest that what has been alleged is happening.

Thank you. That is helpful.

Do you believe that the inception of area support teams will help the consistency of decision making? How will the situation be monitored, and how will you seek to ensure consistency in and across teams?

There are various aspects to that question. At the moment, there are not only 32 local authority children’s panels but 30 children’s panel advisory committees, which will be replaced by the new area support teams. I think that the new terminology is important, because consistent support for panel members is critical.

Although the new area support teams will largely continue the children’s panel advisory committee functions, they will work in a very different way. As a support team, they will be accountable for and work to the national standards that we have developed and which will be reviewed before the go live date in June. Those standards will also be underpinned by a set of practice and procedure manuals. Approaches to observing panel members in practice, making recommendations about appointments and reappointments, dealing with complaints, paying expenses and so on will be standardised; after all, it is fair to say that at the moment the processes and procedures across the country are inconsistent. In this day and age in the children’s panel, such a situation is not acceptable. Although they might be volunteers, panel members are professionals and are members of a tribunal with extensive decision-making powers. The management of local hearings will come through the area support teams, each of which will have an area convener and depute whose role will be to work with me, to be the local point of communication and to work with the SCRA on picking up on trends and so on.

We have had a lot of discussion with the SCRA about available data—management information, if you like—that we can feed to area support teams through the area convener, for example to point out that high volumes of hearings are being continued in a particular area and to find out why a lot of children do not seem to be appearing. There will be much more of a two-way flow of information, more monitoring of trends and more linking in with locality reporters. The expectation is that the area convener will report back to me, the panel, the area support team and CHS. At the moment, with the children’s panel advisory committees and the 32 local authority children’s panels, it is very difficult to use the SCRA’s information and data properly and effectively and to feed all that back. In that respect, having one national panel, national standards and 22 area support teams supporting panel members in a very different way will be critical.

There will still be a need for what I would call local ad hoc training to deal with any issues that might arise or to provide training and clarity on the demarcation between the panel member role and that of the reporter, and we have to be able to respond to such situations. However, each area support team will have a learning and development co-ordinator who will link very closely with the future provider or providers of the national curriculum. We are aiming for a much more consistent approach and better use of the existing data to feed back to panel members through the area support teams and, indeed, to hold the teams to account for what is happening locally. We also expect that the area convener will have conversations on our behalf not just with the reporters but with social work and all the different agencies.

With regard to Malcolm Schaffer’s point about research and information, I note that we do not make an awful lot of use of research that we should make use of. In relation to developing the feedback loop, I feed back to panel members about not just trends and referrals but, ultimately, the implications of their decisions. We need to understand exactly what the components of an effective supervision requirement are. We are working closely with the criminal justice social work development centre to try to unpick those components and to ensure that panel members have that information as part of future training.

11:45

Malcolm Schaffer and I are also involved in the Edinburgh study of youth transitions and crime. We were recently made aware of an important finding that one predictor of future involvement in the justice system and offending is school exclusion. There is a wealth of data and information that we are not feeding back routinely to panel members or embedding in panel member training, or, indeed, using to influence policy direction. The creation of an accountable national body for panel members, which involves me and area support teams, offers real opportunities to move forward on that.

I hope that I have answered your questions.

That was very comprehensive, thank you.

On the point about consistency, children are unique, the problems that they bring to a hearing are unique, and what their families can offer and what resources can be offered are also unique. Therefore, consistency does not mean that one size will fit all. There will always be discrepancies. We need to set realistic expectations, including in relation to children’s expectations about what hearings are about. Hearings are a quasi-judicial forum, so they will not always be as comfortable as other options, although I take Malcolm Schaffer’s point that we could do a lot better. However, decision making is based on that child at that hearing on that day, not on what we did the last time that we had such a case. There will not be complete consistency, but there should be consistency in the processes that go into making the decision.

I agree with that. I made a similar point earlier. The point is that children are different and we will not get the same decision on a family in the south of the country as we will on a similar family in the north. The decision will be made on the day, and it will be about that child. I agree with what Bernadette Monaghan and Barbara Reid said—there should be consistency in the process, but the consistency of what a child gets as regards their best interests at that time will depend.

Is there a need for us to do more nationally to articulate what we believe is acceptable behaviour and what we as a society think should be acceptable treatment of children? If education or social work professionals who work with children day in, day out are perhaps not there yet, how can we expect lay members of children’s hearing panels to be there? Do we need greater emphasis on multidisciplinary training to achieve that consistency?

Multidisciplinary training would certainly help. There are areas where, particularly with new initiatives, panel members may be ahead of other agencies, or other agencies may be ahead of them. There is a need to look at not just a national curriculum for panel members but where that fits into the work that social workers and others are doing.

We can do a lot to ensure that there is a curriculum that everybody is aware of and, as Bernadette Monaghan said, to ensure that we are sharing and using research. Another asset of the new Children’s Hearings (Scotland) Act 2011 is that it affords children the right to access advocacy services.

One of the biggest failures in the hearings system has been that despite the fact that children have the right to bring someone to a hearing with them, 40 years on, children still do not do that. If we could empower children to bring someone to a hearing to advocate for them—to talk for them—that would be one of the best things that we could achieve for children.

Parents are articulate and get solicitors and other people to come, but the child is left in a room in which the adults are all arguing and there is no one to support them. Advocacy for children that is universally available—advocacy that is available to any child who wants it—would be a huge step forward in protecting children.

The next point is about the move away from the advisory panels to the area support teams. As the legislation was being developed, there were concerns about how that would operate in an island context. What is the current situation and how is the training done? Any travel off-island is a significant financial cost as well as a time cost for those who are involved, so it needs sensitive management. Could you explain very briefly what is being done about that?

About islands arrangements?

Yes.

There was a lot of mythology at the outset about what might happen with area support teams. The act is very clear that I have to obtain consent from the local authorities to create area support teams. I went round the country and spoke to a large range of stakeholders, not least of whom were panel members, panel chairs, children’s panel advisory committee members, social workers, local authorities and so on. In the islands, there was a fear that they might be joined up into one area support team.

One of the consistent fears that were expressed around the country was that if an additional layer of structure was created in some areas, a substructure would be needed in each local area or community. The concern is that an additional layer of structure will not deliver better results but will put more of a burden on people by requiring from them a greater time commitment, especially when they are unpaid; it will cost more and it will be counterproductive because it will not deliver efficiencies, if that is what is expected. I listened to that concern and took it on board, and all my proposals were made on the basis of extensive dialogue and consultation. I came up with what I thought was realistic and workable.

The other very real fear that people expressed concerned the local identity of the panel. That is critical. People around Scotland, regardless of whether they are part of a national panel, have signed up to serve the children and young people in their communities. They want to get the best outcomes and give the best quality of service that they can as a panel member. It is very important that we do not lose that. I have listened to that point and taken it on board for the whole country.

We have to see how the new area support teams bed in. We have to get people who have been in the system for years working together in a different way. That does not mean the joining-up of panel members and panel chairs, and CPAC members and chairs doing what they have always done. It is about getting the best support for panel members locally. For me, the structures are not critical. What is critical is that we have the opportunity to ensure that people are signed up to working to the same national standards across the country, through one national children’s panel, while recognising that it can be the children’s panel wherever, and while preserving the local identity.

When we were on the visits, the issue of panel members changing between hearings came up. That was expressed as a concern by care leavers as well as by some parents whom we spoke to, who had learning disabilities. They found it very intimidating to see different panel members at different hearings. Can that issue be addressed, and can it be addressed without increasing timescales in the process?

The issue of continuity has been around for a long while. We have to avoid panel members taking ownership of a panel, although continuity can be useful when a case has to be continued or the hearing has to deal with very complicated issues. The simplest way that I can put it is that I have tried, in various local authorities, to say that A, B, and C are on one hearing, C, D and E are on the next, and E, F and G are on the next. In that way, those who are involved in the hearing are not faced with three completely new panel members.

That is the safest way of doing it, because it is a bad idea for panel members to take ownership of a hearing or of a child; they can become too knowledgeable. We are looking at that issue, and it is not that hard to take care of it. A lot of work needs to be done by the SCRA once the rotas have been produced, and the reporter has to say that they need, for example, one of these three panel members on a certain panel. With the data systems that we have, that is not impossible and I do not think that Children’s Hearings Scotland is against it. We might not need to do it for every hearing, but that might be the easiest way of doing it. That is for the future, but it is being looked at.

For the future, we are looking at how legal advice could be provided to panel members. At the end of the day, they make the decision. For example, if panel members have the option to adjourn a difficult hearing so that they can write and ask for legal advice or an opinion, the expectation might be that, in that situation, there should be continuity on the next panel. That is still being worked out in terms of procedural rules and how advice to hearings might be offered.

Panel members must be the independent decision makers in the tribunal. Having a national panel provides options for people to cross boundaries. At present, that happens informally where, for instance, there is a shortage of male panel members in small communities in which panel members might be known. There is flexibility and there is scope for panel members to cross boundaries. It is not expected that they will do so but, where we need panel members to help out in other areas or in specific circumstances, we will be able to call on that assistance through the national panel. Likewise, at present, if panel members resign from one area, they have to reapply and retrain in another area, but those barriers will be removed with the national panel.

The rota must be set objectively, unless there are specific instances in which it is written in the rules that there should be continuity from one hearing to another.

We move on to pressure from parents. You have touched on that issue, and it was raised consistently in written evidence and in our visits. In effect, the complaint that we have received is that panels can be unduly swayed by parents’ presentations at hearings. We heard that from young people who have been through the system and from professionals. I will read another bit of written evidence, this time from Unison. It states:

“our members regularly report that they believe these decisions”

by hearings and courts

“are often taken with first regard to the rights of parents as opposed to the paramountcy of the welfare of the child.”

Will you comment on that submission from Unison?

The only thing that I would say is that the research that has been done suggests that that is not true. If panel members are following recommendations from social workers, they must be following advice that has come from an assessment that had the child at the centre. SCRA research shows that the situation that you describe is not the case.

That is not necessarily so. We received more than one comment that panel members and other professionals are swayed unduly by parents. Obviously, all the issues have to be taken into account, but we have been told that undue influence is being brought to bear by the parents, rather than the child. That applies not just to panel members, but to some of the professionals.

Part of the issue might be that, particularly in certain parts of the country, because of the number of families that come to hearings or who are party to the whole process, with legal advice, the rights of parents are being pushed slightly further up the agenda than the rights of the child. That applies to all agencies. That might be one element.

That issue can be a danger in some hearings, particularly with a young vulnerable parent whose child is perhaps so young that they are not even at the hearing. There can be a sort of transference and forgetting of who the hearing is about, so that panel members might almost think that the young vulnerable parent is the subject of the proceedings. That is a danger for all of us in decision making. We need to be clear and keep the focus on the child as the centre of decision making.

Many panels will have a young person of 18 sitting in front of them whose child is now subject to supervision or a hearing and who themselves was in the system not many years ago. As Malcolm Schaffer said, if the child is not there, an issue might well arise. However, I do not think that that happens as often as the written evidence to the committee suggests. As Malcolm Schaffer said, we should look at that issue. I hope that, with consistent training through the national body, panel members will be clearer on such issues and will ensure that they remember that they are dealing with the parent and not the young person who is the subject of the hearing.

I accept what you are saying, but one point that was raised by the young people to whom we spoke and by others was that panels tend to have a kind of one-more-chance attitude towards parents. In effect, they think, “You’re trying, so we’ll give you one more chance.” However, that one more chance is just one of the many one more chances that they receive. The young people felt—as I said, others said this, too—that every time they came to a hearing, their parents were given one more chance to carry on neglecting and abusing them.

12:00

I do not think that that comes only from panel members. If you looked into individual cases, you would probably find that social work was also doing that.

Absolutely. I am not for a minute suggesting that it is just panel members, but as you are representing them, I am asking you the question.

We might well be working with information that we got from a social worker who said, “We expected the parents to do A, B and C. They have actually done only A and B, but with proper supervision we can probably let them go home and try again.”

It will happen. Again, it is a question of having consistent training so that panel members are more aware. Perhaps we are sometimes not as aware as we should be.

A general area of improvement arises from your question. We need to ensure that the meaning of home supervision is tighter—that people are clear about what is expected of them, that there are specific timescales within which improvements are expected and that there is clarity about the next steps if that does not happen. I sometimes wonder whether, when people leave the hearing room, they are as clear as they should be about what the supervision order means and what should happen. Can we make more use of conditions in supervision requirements? Can we make more effective use of timescales within which work must be done?

Clearly, when we make a decision, we can make it only on the basis of the child, and we can make conditions only on the child. There is no compulsory hold over the parent. However, we can still include in the reasons for making a home supervision exactly what is expected of the parent in co-operating with the home supervision requirement and what the next steps are. Cases that involve treatment for substance or alcohol abuse might be classic examples of where we look for significant improvement in a particular area within a particular timeframe, but sometimes it drifts.

I have three points. The first is on training. In the future, we need to have panel members who can chair hearings and be pretty robust—not keep the solicitors and lawyers in check, but help them to perform to their best standard within the ethos of the children’s hearings system. Malcolm Schaffer and I have been involved in some work with the Scottish Legal Aid Board, which has looked at our national standards, and we will be involved in some awareness raising for solicitors. However, in the case of panel members, the person who chairs the hearing will need to keep the focus on the young person and ensure that they feel that they have had the best possible quality of service. We will be doing a children and families survey, building on the work that the SCRA has been doing, so we will be looking to get views and feedback from service users—the customers, if you like—about panel member practice, which we will feed back into panel member training.

My second point is about cases coming back for review. If I think back to my experience as a panel member, which was a good number of years ago, we were sometimes taken aback by the length of time that it took for cases to come back to a hearing when circumstances had changed. It would be helpful to ensure that panel members can say that they want a case to come back within a certain timescale and that they can say what they expect in order to ensure that there is an understanding of what will happen in the supervision.

My third point links to the feedback loop. In putting in place the mechanism for the implementation of compulsory supervision orders, the first thing that I have been doing is some work with the president of the Association of Directors of Social Work and the head of its children and families standing committee to get agreement between us—between me and the ADSW—on exactly what we mean by implementation of a compulsory supervision order. We have a draft form of words that we will be working on, and both organisations will be able to sign up to the wording as the basis for going forward. That will mean that social work should expect that panels will produce sound, evidenced reasons for a decision, and those reasons should form the basis of the care plan and the work that will then go on with the young person. We will sort out what we mean by giving effect within certain timescales.

There are opportunities through work that has already started to really nail down the processes and have much more dialogue between the panel community, the SCRA and social work, recognising that we are working to the same ends but that we have different functions within the overall system.

You talked about the requirement for chairs to be robust. How robust are panel members, particularly chairs, in challenging statements by both parents and professionals in a hearing?

I ask that question because an ex-panel member reported to me an incident of a social worker saying that Mrs X had been very good, had not had a drink in the past month and had made real improvements in her problem with addiction; the mother concerned had given exactly the same story. However, at the end of the hearing the chair said, “You must have been extremely anxious coming here today—coming before a panel is a very anxiety-ridden event. Were you not tempted to have a wee drink?” The mother said, “Oh, yeah, I had a drink afore I came here this morning.” A couple of further questions showed that her behaviour had not changed one iota. She described all her drinking that had taken place over the past month, which completely contradicted what she had said previously and what the social worker had said.

I wonder how realistic it is to expect chairs and panel members to do robust questioning and cross-questioning of parents and professionals. I would expect them to do it, but do you?

Yes, clearly. As an authority chair in one of the biggest authorities, I expect panel members to ask such questions. However, I cannot honestly say that that happens all the time, either in my authority or in authorities across Scotland.

Again, it is about the consistency of training. Perhaps it goes back to what we said about the hearings system and panel members making pretty good decisions—it is about what they back them up with. That is all part of not being scared to ask the questions so that the panel can say in its reasons, for example, that although so-and-so said that something was the case, it emerged clearly in the discussion that mum was still topping up her drugs or whatever. However, as I said, the process will not be perfect.

To pick up on Hugh McNaughtan’s point, I would expect panel members to ask certain questions. However, not everyone is confident in doing that, so there is a training issue in that regard. Any panel member who does not ask the questions that they know they need to ask is doing a real disservice to the young person and their family. It might be easier to skirt round the issues, but part of the training on engaging—it was part of my training—is not about being nice to people, but about the need to ask certain questions in a way that does not destroy the people at the other end of the table. That is difficult, but it is a real skill that panel members learn, which can translate into aspects of their working life and other activities.

As I said, there is a training issue. We can train panel members in the future on the law and on procedure, but there needs to be a wider context about how they conduct a hearing. We will have opportunities to get more feedback from children and young people about how they felt their hearing was and whether it was, in fact, their hearing. Part of that will be about the panel chair being strong and robust, and standing up, where necessary, to lawyers and professionals. For example, a lawyer might say that a child did not witness a particular incident of domestic abuse, but a panel member’s point of view is very much that the child or young person will grow up in a house in which domestic abuse takes place. There is therefore a different way of coming at matters, which we need to understand.

Panel members need to keep focused on what their role is and on the fact that, ultimately, they are there to get a better outcome for the child or young person. I hope that we can build that into our training and ensure that we are giving that message to panel members and giving them the skills to ask the questions that they might not otherwise have the confidence to ask.

Is that what is happening, Barbara?

That is what is happening currently with panel members. They are trained and equipped to go out and do the job, then they go into the hearing situation, which is an additional learning experience. However, I have been a trainer since 1996 and in all that time I have had only two issues of a panel member needing training in something. As a one-time panel member who trains panel members, I do not believe that in that length of time only two panel members have needed additional training. My one hope is that, with area support teams having to meet national standards and be accountable for the state of their hearings, they will look at how many appeals there have been and whether that means that there is a deficiency in panel member decision making. No one actually looks at that.

I have a similar hope with regard to the convener’s point about the role of parents at hearings and how children feel about that. If I could wave a magic wand tomorrow, I would stop panel members allowing children to be excused on the ground that the hearing will be difficult for them. The lives that they are living are difficult. The child is often not in the hearing room. As Malcolm Schaffer said, if the child is not in the hearing room, the parent becomes the child and the focus is lost. That is an area in which children are right: they get a decision made about them, to which they have not been party. We are all guilty of feeling that it is easier to talk to an adult than it is to talk to a child. We need to get underneath that. I do not think that that is not dealt with in the training, but it does not form part of the process of looking at the standard that everyone has to achieve.

Thank you very much.

In her evidence to us, Anne Black, an independent social worker, suggested that panel members should be trained in attachment, resilience and child development. Attachment, in particular, has been raised repeatedly during the inquiry. Could you say a bit about where panel members are in that regard?

We have just completed two different lots of induction training. Attachment, child development and resilience are dealt with on day 1 and that continues all the way through.

We do not expect panel members to be experts in attachment, but they have to understand what it means. They have to understand how brain development affects bonding and attachment, and how that affects the child in later life. They get all that information; it is in the curriculum. If the committee wants to see the materials, we can certainly make them available. We recognise the importance of attachment. How we approach the issue now is different from how we approached it five years ago because of new developments. In fairness, panel members get such training.

One of the big problems with training is ensuring that there is enough of everything. We have to be much more inventive about how we use the time that we ask people to give up for training. Another hope for the future is that a lot of what we do now can be done through, for example, e-learning, which would give us much more time to deal in slightly more depth with some of the newer issues that are coming up. However, attachment is dealt with in the curriculum as it stands.

Last year, Bruce Perry was over from America and Sir Harry Burns gave the Kilbrandon lecture. The fact that a large number of panel members went along to those events shows that they are interested in such matters and want to build on their skills. Such opportunities exist and panel members are taking them up.

Attachment must be part of the national curriculum in the future. Barbara Reid is right—the issue is the level at which such training is provided and the extent to which panel members need in-depth training. They certainly need awareness raising, at the very least. There will always be a need for the pre-service course, so that panel members understand the law and the procedure. There is also a need for chairing skills, to help with the management of hearings, and continuing professional development, which will cover a range of things, such as the context in which children grow up.

In addition, there is a need to respond to new developments—not just policy developments—as knowledge of early intervention, attachment and so on changes, and to factor that into future training. That will be picked up in the new national curriculum.

I want to pick up on legal assistance, which Bernadette Monaghan said was part of the issue with parents applying pressure in the hearings system or with social workers or other professionals. The Scottish Legal Aid Board has raised the issue with us. It says:

“current legal aid provision does not cover representation by a solicitor at hearings. The current provision for the appointment of a legal representative (in limited, specified circumstances) is less than ideal.”

It goes on to say that there are problems with the solicitors who are appointed getting up to speed with cases, different solicitors coming to successive meetings and so on.

Is there a need to address the issue, particularly given that better-off people who find themselves in front of a hearing will have no problem in covering their costs and will therefore have some form of advantage over those who do not have the means of affording legal representation?

12:15

At present, if a parent needs legal representation, it comes through a panel appointed by the local authority. Indeed, I suspect that that is the particular point that SLAB is referring to. The new act presents a good opportunity, because it will make legal aid available through SLAB for representation and ensure that those who need it get it, particularly with regard to the core quality of needing assistance to participate effectively in the hearing.

And, picking up the points that have been made about other kinds of pressure on the system, I take it that you are not concerned that that will change the dynamic of hearings in an unhelpful way.

I hope that that does not happen. Bernadette Monaghan has already mentioned that SLAB along with other parties is developing a code of conduct to ensure that solicitors who represent parents or children do so within the hearings system’s framework; that they are, first, knowledgeable and, secondly, aware of the different type of conduct expected in hearings as opposed to that expected in court; and that, in cases where such an approach is not followed, an appropriate complaints procedure is in place to deal with the situation. We can always talk about the negatives, but I think that this will be a huge positive in cases where parents really cannot represent themselves and need assistance and in ensuring that solicitors represent parents at hearings in an appropriate way. I have seen many good examples of solicitors at hearings who without dominating proceedings have still been able to put forward their clients’ views appropriately and to take a note of everything that is being said in the event that something is not proceeded.

Barbara Reid mentioned the need for greater consistency in the availability of an advocate for the child, but I am certainly aware of instances in which adults themselves have needed not necessarily a legal representative but an advocate to provide pastoral support, moral support or whatever support is needed. How do you see those two issues sitting alongside each other and how does one judge whether a legal representative or advocate is required?

Sometimes people need neither; sometimes all they need is a friend. That is the kind of judgment that needs to be made and the discussion that needs to take place with the party to ensure that they are aware of the available choices. Indeed, they themselves might be able to make an effective choice about the best course of action. That brings me back to the point that we need to communicate more effectively with parties in such situations and discuss the options to ensure that they think about them and are able to go in the right direction.

So the options are available—it is just that they are not necessarily as well understood as they might be.

The availability of advocacy for children varies quite markedly across the country. Although the new act contains provision in that respect, its implementation will probably be slightly delayed beyond June to ensure that work is carried out to examine the availability of advocacy across the board. You could make the same point about the availability of lawyers who understand childcare law. They, too, are scattered all over the country and in some parts of the country that kind of understanding is not always as deep as one would like it to be. I have no doubt that the issue will be addressed when the new legislation’s provisions come into force, because it is important that, no matter where the child or parent might be, opportunities are equal.

As Malcolm Schaffer has pointed out, advocacy support will be under the provisions in the new legislation. We have to accept and respect the fact that the job that lawyers do in a hearing is different from that done by the chair or panel members and work together in that respect. SCRA and I have had a real opportunity to shape the code of conduct, which will be finalised before the register opens for solicitors who want to come forward and offer that service in hearings. We have worked quite closely with SLAB on this matter—indeed, I am encouraged by the fact that it has based a lot of its code of conduct on our national standards—and we will have a further opportunity to be involved in some sort of awareness raising or training for solicitors on the hearings system’s ethos. So far we have had good productive dialogue on the issue.

Yesterday I attended a Legal Services Agency conference in Glasgow, where solicitors were looking at how they will need to adapt to the hearings system. I was very heartened to see that they are a step ahead in anticipating what the code of conduct will mean for them.

Both today and in previous evidence, we have heard concerns about the impact of legal representation at panels. Obviously, if such representation affects the outcome for the child or, as seems to be a consideration, is intimidating to panel members, that is a really serious issue going forward. How do we deal with that? You have talked about providing training for panel members, but will that be enough? You have also talked about having advocates for children, but the children’s advocates whom I have met have been very variable in quality and effectiveness. Because there is no standard, virtually anybody can be an advocate for a child so that may not always be the strongest way to go. What is the answer?

I think that there is an opportunity for much more consistent support for advocacy going forward, but the advocacy must be based very much on what the young person feels they want and need. I am not sure what stage advocacy service or support is actually at.

We are also moving towards the creation of a national safeguarders panel. That does not fall within my remit, but I think that essentially that is about ensuring that all safeguarders are trained consistently and work to the same national standard. That will come on stream in the future and is being managed by Children 1st.

At the end of the day, the issue comes down to panel members continually understanding what their role in the hearing is and staying focused on that. Part of the local area training will seek constantly to reinforce the message about what the panel member’s job is and the fact that the most important person in the room—regardless of whether there is a cast of thousands of professionals—is the young person. We need to keep reinforcing that message and training will be critical.

The consistent message coming forward to us is that, in some cases, the needs of the child are not coming first because the parent’s rights, if you like, are being argued by the lawyer to the detriment of the child. How do you balance that? The training of panels could take a very long time. How confident will panel members be in dealing with a lawyer who is much more accustomed to an adversarial situation and much more skilled at arguing the points? Panel members are basically ordinary people who are not skilled in that sort of debate.

The whole point of the hearing being a tribunal of three people is that, although we may never have all three people who are strong enough to deal with everything, we need just one person on the hearing who is strong enough. We have already heard examples of hearing panel members—not necessarily the chair—saying, “Look, we may have all these people here, but will the solicitors please remember that we are here today to make a decision in the best interests of the child?” The only strength that panel members need to have is the strength to make it clear from the outset that if there are any legal points or anything else, those can be made elsewhere because, on the day, all the hearing is interested in listening to is what the lawyer’s client feels or believes. The hearing is not interested in points of law but must make a decision in the best interests of the child. The training may help to keep that focus in mind, but I do not think that that focus will ever go away because we already have great examples of what panel members are doing just now.

The new act reinforces the existing provision enabling the hearing to speak to the child on its own, without parents or legal representatives being present. If the child is well equipped and feels confident to share his or her views, that affords an opportunity to the hearing to keep the spotlight continually on the child’s views and the child’s interests.

We will move on to timescales. We have touched on those as we have gone through, but we have some specific questions on them.

We have had it put to us in visits and in written evidence—I think that it was the evidence from Angus Council and South Ayrshire Council, to be specific—that too many of the court and hearings processes create a significant delay. I think that the last time that you gave evidence, Mr Schaffer, you expressed concern about that too. Is that problem prevalent or is it an issue that only one or two councils flag up?

It is a relevant issue and it can come into play in different parts of the system.

First, if the grounds of referral are denied, the case goes on application to court for proof. One of the core issues is having that proof heard as early as possible. Sometimes, when it is contested, it drags on and on. We have proofs that last more than a year. In terms of the life of the child and the protection issues for the child, that is a long time. We are in dialogue with the Scottish Court Service on how we can improve practice on that issue.

A second part of the process that can be clunky is the permanence procedure. We have highlighted that in our research report, with which I know you are familiar. We can make improvements on that, including a basic one of improving the communications between the SCRA and the Scottish Court Service. We need to make as much as possible electronic, as opposed to the rather clunky mail procedures, which can take days and days more than they should, which is significant.

There may be one or two aspects of the 2007 legislation that do not help and might be revisited. A children and young people bill is coming up. That might be an opportunity to consider one or two aspects of how the 2007 legislation works and whether there are aspects of legal process that add no value but just add time.

Does that refer to some of the more recent legislation on adoption processes?

Yes.

Social Care and Social Work Improvement Scotland asked about that. Was it raising a valid concern?

Absolutely.

The care inspectorate is uncertain about how the recent legislation will impact on decision-making processes. Do you have any further comment on that?

To reinforce what I said already, it is worth re-examining the legislation. I am not sure how much factual evidence we have on it, so I am being slightly impressionistic about it, but there are problems with aspects of the process.

To give an example—this is only my view—I am not sure what value the advice hearing adds other than adding several months of time. At the moment, the hearing has to give advice before the permanence proceedings are launched, but I have never been convinced about how much value that adds, and it often delays the launching of the proceedings by a significant period of time. That is one petty example of an area in which we could consider improvements.

The greatest frustration for panel members is to see a child who has been in care practically from the minute that they were born and is getting to five or six but the permanence order is still not through. Panel members sit at advice hearings and ask themselves why they are doing it, because it is clear what the child needs. There is no doubt that there is frustration.

I will ask some questions on accessibility. These arose primarily from evidence from the organisation People First (Scotland) and they concern parents with learning disabilities in particular. Those parents reported that they routinely attended children’s hearings and were, to be frank, unable to understand what was going on in the process. Either there was a lack of support or support came far too late in the process for it to make any difference, and material was not available in a format that they could easily access and understand. Do you have any comments in response to those concerns?

12:30

As I said, we have a participation group up and running, because we believe that we could do a lot better—full stop. We have been in touch with the Scottish Consortium for Learning Disability and we are more than willing to consult other groups, such as People First (Scotland), on improving the style of our communications—making them more accessible and more understandable—as well as listening to people, getting better feedback and ensuring that people are properly represented. We accept and will address the concerns that have been voiced, and we hope that we are working on that.

From a panel member’s perspective, I think that, if parents come in and have any lack of understanding and if the reporter has not already allowed for a legal representative to be there to represent the parents’ views, the majority of panel members are much more aware of that than they were a couple of years ago and will not proceed if they feel that a parent has any lack of understanding. In such cases, panel members will have the hearing continued or wait until a legal rep can be found. That is fine in a city centre but is not very good on the islands or somewhere such as that, where the situation could be much more difficult.

What you say could be the case, but the representations that we have had from People First (Scotland) and the consortium are very recent. They expressed the concern that, because of a lack of understanding among panel members, a disproportionately high number of the children of the parents concerned are being removed—more than would be the case if panel members understood the parents’ situation more. Do you recognise and accept that concern? Does that represent a training need that must be addressed?

Like Malcolm Schaffer, I have been in touch with the consortium, and I am aware of the issues. As part of building a national curriculum and on-going training for panel members, we need to work with stakeholders such as the consortium to get such feedback, which must be incorporated into panel member training in the most appropriate and effective way possible. We must take that on board.

If the ultimate aim is to ensure that panel members across Scotland can consistently give the highest-quality service to a young person, a family and a hearing, we need to be open to listening to feedback about the different groups of people who come to hearings and about how we might not be meeting their needs as best we can. The discussions are at an early stage, but I imagine that I will do a lot more work with the consortium and other agencies to listen to their feedback and embed that in feedback to area conveners and area support teams and in panel member training nationally and locally.

During our inquiry, the young people whom we have spoken to have expressed the view that they felt that, when they went to a panel, something was happening to them because of their conduct, behaviour or whatever, which was usually the result of behaviour by parents or other adults. My question might be about the bigger picture: do we need to move to systems of family hearings rather than children’s hearings? As has been said, the focus at the moment is on the child having to do something or on something happening to them. Outside the formal criminal justice system, I do not see any way in which something must happen to the parents that is enforceable without going through a court. I hope that I have explained that clearly.

Malcolm Schaffer touched on that point. You will not find a panel member in Scotland who has not at some time walked out of a hearing wishing that they could have put conditions on the parents. Sometimes that can be worked round, but at other times it cannot be done. Being able somehow to put conditions on parents would help.

A young boy was quiet at the start of a recent hearing, but he ended up talking quite loudly and making it clear to his mum that, if someone put drugs in front of her, it was up to her whether she took them. He was happy to have contact with his mum, but he wanted us to make up a condition that his mum should attend at least an initial assessment with addiction services before he would entertain seeing her. On the day, the panel managed to find a way round that, but the issue is difficult.

If there was some way of putting conditions on parents, it would not necessarily have to involve family hearings. Although they are children’s hearings, the family come into them. Contrary to what some might think, panel members listen to what parents say. However, being able to put a condition on a parent would make a heck of a lot of difference to some outcomes.

It is worth remembering that the Antisocial Behaviour etc (Scotland) Act 2004 introduced parenting orders but, since the legislation came into force, they have never been used anywhere in Scotland. There has been an improvement in the services that are offered to develop parenting skills, but not a single order has been used. I cannot explain why that is. It is an interesting issue, but I am not sure that I know what the answer is, other than to say that what is available is not being used.

To go back to the antisocial behaviour legislation, there is an issue about whether the fact that parenting orders have not been used indicates success or failure. It might well mean that we are dealing with parents’ needs and providing support for them through much more informal processes. We should bear that in mind.

There are different aspects. One is the ability of panels in future to speak to the young person on their own and get a sense of what they feel and want. The object of a hearing is about the outcomes for the young person. Although the family is there, the focus must be on the young person and ensuring that their views are heard.

The recent research on young people leaving care—which links to the impact of our work with young people in compulsory supervision—shows that we are not doing a very good job if we are trying to prevent them from moving into the adult criminal justice system and to help them with issues such as independent living, appropriate accommodation, emotional support and access to learning and employment.

Panel members need to be aware of all that work and understand that, when they make a decision, there is a bigger context. The decision is about the young person, their family and their community, but it is also about the young person eventually moving beyond the panel, the hearing and the system.

You have hit on the problem, because the best result for some young people will not be something that happens to them but something that amends the behaviour of the people around them.

I have completely forgotten the other point that I was going to make but, if it comes back to me before the end of the meeting, I will raise it.

We will come back to you.

One problem is about families being aware of what hearings can do to help before they come to a hearing. It is not only children who feel that something is being done to them; parents who are not coping feel that social work is something that is being done to them, rather than that they have a right to receive help to be a better parent.

We need to change the context in which social work involvement is seen as negative, because it is not and it can be a positive experience. People have a right to that help. We can say what we think people need and that they have a right to demand it of their social worker, and we can tell them to let us know if they do not get it. It is about tipping the scale of what people feel social work is about.

I have remembered my other point. I imagine that the reason why local authorities and housing providers decide not to use antisocial behaviour legislation is that they see substance addiction, for example, as a health issue rather than a criminal justice or housing issue or whatever. I have been through this argument before, and I know that a number of instances in which bodies have not applied antisocial behaviour legislation can be explained in that way.

We have heard two comments about being able to speak to young people in private. When we visited care leavers at Who Cares? Scotland, we heard comments that young people, when faced with a panel situation in which they might see a parent or carer for the first time in a considerable while, might be intimidated about saying anything because of the long-term emotional damage that that might do to the relationship or, in certain circumstances, because of fear of what might happen. Can young people request that what they have to say be heard in private?

At the moment, anything said in private has to be repeated to parents and anything that is written has to be given to them. During the passage of the recent bill, young people said in evidence that that intimidated them and prevented them from saying or writing anything; as a result, section 178 of the new 2011 act allows a children’s hearing to keep private anything that a child has told members in private if its being revealed is likely to cause significant harm to the child.

In theory we support such a provision, but it will be a challenge to implement it in practice because it will be argued that a parent has a right to hear what has been said, particularly if it impacts on the hearing’s decision. We need to look at how we can make the provision work, but at least it exists to cover the situation in question.

I have a final question before we end this evidence session. You have said an awful lot about the demands that are and will be placed on panel members. Even though these people are lay members, work part-time and are volunteers, we still expect them to be part-social worker, part-lawyer, part-psychologist, part-psychiatrist and part-parent as well as being lots of other things. All the way through the session, we have been saying, “We’ll have to give them more training, and they’ll have to be better at this and more adept at that.” Given the system’s voluntary nature, are our expectations of what panel members can do reasonable?

As a serving panel member, I can say that when I joined the system—which is some time ago now—the expectation was that we were to attend whatever mandatory training came along. Various things have been done with core training and area meetings in order to deal with the local aspects of the issue and, given the paperwork that had to go out, it is clear that the people who went through the training to transfer from the system under the old act to that under the Children’s Hearings (Scotland) Act 1995—and indeed those people who are now transferring to Children’s Hearings Scotland—knew fine well what the expectations on them were.

For more than 40 years now, we have for some reason or other been able to find 3,000 people willing to take on the role year on year and do the training. They know what they are signing up to and have taken everything on board.

On an issue that some of you have probably been involved with—I know that Barbara Reid certainly has—I note that one thing that people from other countries cannot work out is how we have managed to get that number of people to serve for that length of time without their being paid. They just say that that would not happen in their country. It must be something to do with the Scottish ethos.

If I could ban one word with regard to panel members, it would be “volunteer”. They give their time in a voluntary capacity and are not paid for it, but I note that 180 of them have just finished their training and have all signed up to making a commitment to children in a quasi-judicial body. They know that it is not like being a volunteer. They are very well aware of the expectations on them and are equipped to do the job.

We need to make the experience for children as positive as we can by allowing children who come to hearings to feel that they are well supported and are being listened to. We need other professionals to acknowledge that the hearing is not a voluntary thing; instead, it comprises people who have learned tremendous skills, have a tremendous amount of commitment and are there to do the best they can. If we disagree with you, it is not because we are being bloody-minded; it is simply because we take a different view.

I agree. As panel members know, I do not use the word “volunteer” when I speak to them. They volunteer to train to be a panel member but when they take on that responsibility they become members of the largest tribunal in Scotland and have extensive decision-making powers. People certainly take the role seriously.

The Minister for Children and Young People, Aileen Campbell, and I sent out a joint letter to approximately 2,400 serving panel members—excluding the trainees, who are about to get a similar letter—inviting them to transfer from the 32 local authority panels to the national children’s panel. We had a 95 per cent return rate, with 96 per cent of respondents saying that they would transfer. We therefore have about 103 panel members to chase up to find out whether they are coming across.

Those who decided not to transfer felt that the invitation represented a natural cut-off point; there were family reasons and so on. It is also getting much more difficult to get time off work and a huge area of work, which I will not go into just now, is about convincing employers that they should support the panel by demonstrating that the skills that panel members learn are really good transferable ones that they will benefit from.

12:45

Although panel members are unpaid, they take on a responsibility. I find that, by and large, they have sound values and want to give the best possible service to children and young people. They accept that the training is part of all that and take such a responsibility seriously. As a result of last year’s national campaign, there were more than 10,000 expressions of interest from people who wanted to become a panel member, so I think that we have done very well in convincing panel members that they will retain their local identity and serve the children, young people and families in their community.

With the national panel, we have an opportunity not only to create a high-quality and much more consistent service but to raise the profile and promote greater understanding among the public and—not least—among employers of what panel members actually do, they skills they have and the commitment they give. We might in future think about putting in place some sort of kite-mark award for employers who support the panel, but at the moment we do not even know who the employers are and indeed how many panel members are actually employed. That is a whole other piece of work that we have to do.

As I have said, we had a positive response rate to our invitation to move to the national panel. We certainly did not expect to get mass resignations; indeed, there never has been such a reaction in the 40-odd years of the children’s hearings system. Panel members have adapted to change, have continued to stay focused, and have sat on hearings and made decisions in the best interests of children. We certainly do not take that for granted, and we did a lot of work to reassure them what a national panel does and does not mean. Nevertheless, the response rate was very positive.

I thank the witnesses for coming along this morning and giving very helpful and useful evidence for our inquiry. I want to say that I appreciate their volunteering to attend this morning, even if I get chastised for using inappropriate language.

I suspend the meeting briefly.

12:47 Meeting suspended.

12:48 On resuming—