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