Jonathan Ainslie: The Children’s Hearing System Working Group Report

Jonathan Ainslie: The Children's Hearing System Working Group Report

Dr Jonathan Ainslie

The final report of the Hearings System Working Group (HSWG) was published on 25th May. The report proposes a significant redesign of the existing children’s hearings system in Scotland. Dr Alyson Evans of the University of Strathclyde, an academic specialist in the children’s hearings system, has recently blogged on two of the key recommendations contained in the report: changes to the membership of children’s hearings and the removal of grounds hearings. Both of these recommendations would require changes to the Children’s Hearing (Scotland) Act 2011. This article by Dr Jonathan Ainslie offers some further comments on the impact of the report’s recommendations for the hearings system.

Remuneration for panel members

Under the existing system, the panel for each children’s hearing is comprised of three members who volunteer their time. All panel members receive specialist training. In recent years, there has been an emphasis placed on securing volunteers from a diverse range of backgrounds within the community. One member, usually with at least a year of service, will be nominated to act as the chair of the hearing. The chair does not have additional substantive decision-making powers. In particular, their vote on what compulsory measures of supervision may be appropriate for a child does not carry more weight. The chair does, however, have important additional responsibility for the management of the hearing. Their role includes setting the agenda for the hearing, determining who speaks and when, ensuring the child’s views have been expressed, and in exceptional cases, excluding disruptive participants.

The volunteer model has its origins in the Kilbrandon Committee of 1964, which brought together children who have committed offences with children in need of care and protection under a unified system. The Kilbrandon Committee also stressed the importance of having key decisions about a child’s welfare taken by individuals who were drawn from the same community where the child lived. As Dr Evans notes, it is important to be open to the possibility that society and the law have moved on since the 1960s and that the design of the children’s hearings system may need to adapt along with it. Such proposals must, however, be clearly justified in terms of the best interests of the child. In many other jurisdictions around the world, decisions about the compulsory supervision of children are taken by professional or semi-professional tribunals. The Kilbrandon volunteer model, therefore, continues to represent a highly distinctive approach to the care and protection of children who live in Scotland.

The HSWG recommends that the current volunteer model is replaced by a two-tier system of panel members. The chair of the hearing would be a full-time salaried professional. The other two non-chairing members of the panel would be remunerated for their time at a daily rate. Existing volunteers would be offered the opportunity to continue under the new system, most likely as non-chairing members. It is not clear at this stage what proportion of existing panel members would choose to do this, so the introduction of the HSWG may represent a significant turnover in the membership of the panel.

Dr Evans concentrates on the significant potential cost of the shift away from the existing volunteer model and particularly the daily rate of remuneration for non-chairing members. She notes that even under a “smaller and more specialised” children’s hearings system, the cost of remuneration for panel members would represent a significant annual investment, likely several million pounds a year. This raises the question as to whether the cost of remunerating panel members would be better devoted to support services such as social work, support for foster carers and Child and Adolescent Mental Health Services (CAMHS). It is likely that greater resources for these already existing services will have more direct impact on the quality of care-experienced children’s lives than investing in the remuneration of panel members. It is also more likely to address many of the wider issues around the children’s hearing system, such as the need to better prepare children and families in advance of a children’s hearing.

The justifications given for the remuneration of panel members fall into two broad categories. The first is the increasing complexity of the children’s hearings system. This tracks a shift from the welfarist model envisaged by the Kilbrandon Committee to the rights-based models of more recent years. While an intensified focus on the rights of children and other panel participants has brought significant benefits, it has also led to more proceduralisation and increased the role of legal representatives and other specialist professionals in children’s hearings. This inevitably means heavier expectations in terms of the law and procedure that both chairing and non-chairing panel members must know to be effective in their role. As Dr Evans notes, however, we must be extremely careful about equating payment with competence. Panel members already commit themselves to extensive training on a voluntary basis and are subject to rigorous accountability mechanisms through their panel practice advisers. The role of panel practice advisers could be expanded further to support panel members with more complex aspects of law and procedure during hearings. In addition to this, the children’s reporter can provide a view to the panel on legal or procedural matters where they consider that a children’s hearing is at risk of making a procedurally incorrect decision. There is also much that can be done to reduce the complexity of the existing system, most especially by streamlining and rationalising the (frequently voluminous) papers panel members receive before a hearing.

A second justification arises from a concern about the difficulty of recruiting new panel members. It is important to avoid the stereotype that panel members are only drawn from those with professional backgrounds, or those who can afford to devote significant amounts of free time to prepare for and sit on children’s hearings. It must also be ensured, however, that the remuneration does not itself become a motivator. Dr Evans suggests that it may be preferable to focus on adequate compensation for lost income rather than renumeration per se for time spent contributing to the hearings system.

Professional chairs

The need for professional chairs is usually justified in terms of panel member continuity and the need to provide enhanced support to families before and after the hearing. These have become more pressing issues in recent years owing to the high rate of deferral within the existing hearing system, often caused by difficulties over family access to the pre-hearing papers or to legal representation. The result is that interim measures of compulsory supervision often need to be reviewed every three weeks, sometimes for extended periods, rather than annually or every few months. This risks the repeated re-traumatisation of children and young people, who can then become alienated from repeated hearings, with the consequence that they need to be excused from attending.

Dr Evans is somewhat more supportive of salaried chairs than the daily renumeration of non-chairing panel members. She notes, however, the “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 possible to envisage that professional chairs could begin to exercise significant tacit influence over the decision-making of other panel members. There are also concerns around introducing an additional paid professional to the life of a care experienced child’s life when they are already required to interact with a wide range of professionals.

It could be argued that the HSWG report overlooks significant advantages embedded within the existing model. Panel members benefit from the opportunity to alternate between chairing the hearing and contributing as a non-chairing member. Experience in one role tends to enhance the quality of a panel member’s practice in the other. We should be careful about drawing too strict a line between the management of the hearing, which is the responsibility of the chair, and the substantive decision, which is the responsibility of all panel members sitting on a hearing. Decisions taken about hearing management can affect the manner in which evidence is presented as well as the way that hearing participants, along with their legal and non-legal representatives, express their views. In particular, these decisions can affect how the views of the child, who in a very large proportion of cases will be excused and not present in the hearing, are considered by the panel. Decisions made about the management of a children’s hearing therefore have a significant influence on the context in which the substantive decision is made at the end of the hearing. For these reasons, there can be great value in all panel members (of sufficient service) having experience as both chairs and non-chairs.

It is also important to consider the stress placed by the Kilbrandon principles on the independence of the children’s hearing from the professionals involved in a child’s care. There can be value in panel members, who are not previously familiar with a child’s case, bringing a fresh pair of eyes and an independent perspective. The enhanced support that would be provided to families by a professional chair before and after the hearing may help to make children feel more comfortable with the hearing process. The inevitable consequence of this, however, is that professional chairs would also develop a close working relationship with the social workers, health visitors, family time workers, safeguarders and other professionals involved with a child’s care. They could in effect become part of the same professional community as these other groups, which may bring with it a shared set of cultural presumptions and perspectives. This may present challenges for the perceived independence of the panel.

There is little doubt that the existing design of the children’s hearings system is under considerable pressure. These pressures arise from increasing proceduralisation and complexity, high rates of deferral, the alienation (and, consequently, frequent excusal from attendance) of the children themselves, and difficulties with recruitment. It is unclear, however, whether the remuneration of non-chairing panel members represents the best solution to these challenges. The introduction of professional chairs, while it would help to relieve concerns around complexity and go some way to familiarising children and their families with the children’s hearings system, would fundamentally alter the relationship between chairs and non-chairing members in ways that may not be sustainable. It may also potentially create issues around the perceived independence of the children’s panel.

Removal of grounds hearings

The HSWG also proposes to remove grounds hearings. In most circumstances (except for child protection order proceedings) a grounds hearing will be a child and their family’s first experience of the children’s hearing system. The role of a grounds hearing is to consider the reasons that a child has been referred to the children’s panel by the children’s reporter. The child (if they are of an age and stage of development where they can understand) and their relevant persons (parents or others with a significant role in a child’s upbringing) will be asked if they understand and accept the grounds of referral. If they do not understand or agree, the panel can choose either to discharge the grounds, or refer them to the Sheriff Court for proof. This maintains a distinction between the sheriff as trier of fact and the children’s panel as the arbiter of what best meets a child’s needs for care and protection. The vast majority of existing grounds hearings result in a referral to the Sheriff Court. Discharge, while possible if the grounds are not deemed by panel members to be sufficiently serious for compulsory supervision, is rare. The HSWG proposes that the grounds hearings are removed, with grounds of referral sent directly to the Sheriff Court if not understood or accepted by the child or their family.

The removal of grounds hearings may bring significant advantages. Children and their families often find grounds hearings distressing and can perceive the discussion of the grounds of referral to be accusatory and intrusive. Often it will be perceived that nothing significant has been achieved. This can then prejudice the attitude of children and their families against future participation in the children’s hearings system. There are, however, two key issues which need to be addressed in the HSWG recommendation. The first concerns the potential discharge of grounds of referral. While rare, the decision as to whether grounds of referral are insufficiently serious for compulsory supervision is one that should properly be made by the children’s panel as a whole and not by the Sheriff Court or the chair acting alone.

A second, closely related concern is that the HSWG report recommends expanding the role of the sheriff to allow them to decide interim measures of compulsory supervision while the grounds of deferral are out at proof. As Dr Evans notes, “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”. Owing to resource constraints, proof at the Sheriff Court can take many months. If a children’s hearing only becomes involved in making decisions about compulsory measures of supervision many months after a child is first referred by the children’s reporter (and by which time they may already be long settled in a new foster care or kinship placement) the role of panel members may be greatly diminished. The key concern is that in trying to remove some of the needless and distressing proceduralism of the current model - and recognise the reality that grounds almost always need to be proved - the HSWG report shifts primary decision-making responsibility to court or to professional chairs.

The HSWG report contains many other important recommendations, including in relation to the monitoring of compliance with compulsory supervision orders and the organisation and format of the children’s hearing itself. It is clear however that while the HSWG report is sensitive to many of the challenges of the existing model, some of its recommendations require further consideration prior to legislative change.

Dr Jonathan Ainslie is a lecturer in private law at the University of Aberdeen and a member of the children’s panel for the City of Aberdeen. This blog post was written in an academic capacity. Dr Ainslie is grateful to Dr Alyson Evans of the University of Strathclyde for helpful comments on an earlier draft.

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