The Children’s Hearings (Scotland) Act 2011

1. The Children’s Hearings (Scotland) Act 2011 By Professor Kenneth McK. Norrie International Technological University of Strathclyde

2. Legislative Progress • Consultation: Strengthening for the Future July 2008 • Draft Bill published in June 2009 • Various working groups set up: drafting, implementation, working with young people • Extensive consultations with stakeholders • Bill introduced in February 2010 • Stage One April/May 2010 • Education, Lifelong Learning and Culture Committee (with Prof. Norrie as Committee Adviser) • Stage Two September/October 2010 • Stage Three 24th/25th November 2010 • Royal Assent 6th January 2011: 2011 ASP 1 • National Convener takes up post in April 2011: Bernadette Monaghan • Act comes into force: April 2012 (present aim)

3. Structural Changes • New National Body: Children’s Hearings Scotland • Area Support Teams take over • From CPACs: appointing and monitoring of panel members • From area chairs: daily rota and scheduling • From training units: pre-service and in-service training of panel members • National Convener: Chief executive of CHS • Appoints and dismisses panel members • Sets standards, ensures consistency across Scotland • PROVIDES LEGAL ADVICE TO HEARINGS • Takes over reporter’s role in enforcing decisions against local authorities • Safeguarders • National panel • Sheriffs • Additional new power to vary CSO even when appeal is rejected (if circumstances have changed) • “Pre-hearing panels” to replace business meetings • “Relevant person” status • Excusing child or relevant person from attendance • Whether secure accommodation (and therefore Legal Aid) is likely to be discussed

4. Referral to Reporter by Court (s.62) • Court in “relevant proceedings” (primarily divorce, residence or contact, adoption) may refer matter to reporter if court considers that a section 67 ground MIGHT apply. • Reporter determines whether to arrange hearing, on making two determinations (this applies in all cases): • Whether reporter considers section 67 ground DOES apply; • Whether, if so, reporter considers it necessary for a compulsory supervision order to be made in respect of the child • At grounds hearing section 67 ground must be accepted or denied (and proved if denied) • 1995 Act: court found that ground DID apply and so required reporter to arrange hearing (no acceptance or denial of grounds).

5. Referral to Reporter by Court • By sheriff under Anti-social Behaviour etc (Scotland) Act 2004, s.12 • Sheriff may REQUIRE reporter to arrange a children’s hearing if he FINDS a section 67 ground applies (except offence ground). • 1995 Act: this requirement was a ground of referral itself • Now, sheriff must identify ground by making a “section 12 statement” • No need to seek acceptance or denial of ground (because it is already established)

6. New Grounds of Referral (1) (protection grounds) • Close connection with perpetrator of “domestic abuse” s.67(2)(f) • “abuse” probably follows definition in Protection from Abuse (Scotland) Act 2001, s. 7: abuse includes “violence, harassment, threatening conduct, and any other conduct giving rise to, or likely to give rise, to physical or mental injury, fear, alarm or distress”; “conduct” includes “speech or presence in a specified place”. • “domestic” probably means familial. • See Yemshaw v. London Borough of Hounslow [2011] UKSC 3 • Child likely to be forced into marriage/civil partnership s.67(2)(p) • Remember: “children” cannot marry in this country but ground might involve pressure on children to marry at 16, or children being taken abroad for marriage • Siblings: need to be children too. • Close connection with scheduled or sexual offender s.67(2)(c) and (g) • “Close connection” means member of same household or person with “significant contact” with child.

7. Amended Grounds (2) (behaviour grounds) • Commission of offence (no change): s. 67(2)(j) • Criminal Justice and Licensing (Scotland) Act 2010 raises age of criminal prosecution to 12 but retains age of criminal liability at 8 • (NEXT SLIDE FOR Rehabilitation of Offenders Act 1974) • Conduct likely to have a serious adverse effect on the health, safety or development of child or another person s.67(2)(m) • Some grounds disappear: • Incest • Glue-sniffing • Bad associations and moral danger

8. Amendments to Rehabilitation of Offenders Act 1974 and Police Act 1997 by 2011 Act, ss.187-188 • Rehabilitation of Offenders Act 1974 presently applies whenever ground that child committed offence is accepted or established • This is treated as “conviction” of child (but rehabilitation period short). • Real problem is Police Act 1997, under which enhanced disclosure certificate will reveal this for 25 years, or until offender is 40. • Now offence ground to be treated as “alternative to prosecution” • This will still require to be revealed but only if offence is of a type to be specified in regulations (not yet made).

9. “Relevant Persons” under 1995 Act • Section 93(2) has specific definition (persons with parental responsibilities and parental rights) and general definition (“persons ordinarily having charge of or control over child”). • BUT: the courts have been adding to this for ECHR reasons: • Authority Reporter v. S 2010 SLT 765: Unmarried father with contact order is not within 1995 definition, but needs to be to avoid breach of art 8 ECHR - so general definition reworded by court to include any parent with a contact order. • Principal Reporter v. K 2010 UKSC 56 (15th Dec 2010): Unmarried father granted “relevant person status” by section 11 order: Court of Session held this incompetent; Supreme Court held that if he had “family life” within art 8 he had to be read within the definition WITHOUT “BURDENSOME PROCEDURE”.

10. “Relevant Persons” under 2011 Act • S.200 provides a much narrower definition, limited to persons who have parental responsibilities or parental rights, with no general definition • S.81 creates an appealable process whereby those not within specific definition can acquire “relevant person status” by proving to the pre-hearing panel “significant involvement in the upbringing of the child”. • BUT: the unmarried father with contact order, or the unmarried father with family life, or the grandparent or foster carer with family life are NOT included, and there is no general definition to read down (as the Supreme Court did in Principal Reporter v. K). • QUESTION: Is the necessity to go to a pre-hearing panel to obtain “relevant person status” a “burdensome procedure” that the Supreme Court held those with family life should not be subjected to? • Scottish ministers have the power to amend the definition in light of Principal Reporter v. K

11. Confidentiality and the Child • Exclusion of relevant person (when presence is likely to cause child significant distress or is preventing hearing from obtaining child’s views) • 1995 Act provides that at end of exclusion hearing must inform the relevant person of the “substance of what has taken place” • 2011 Act, section 76 provides that at the end of exclusion hearing must inform the relevant person of “what has taken place” (excluded journalists still have to be informed of “the substance”). • New rule in section 178: • “(1) A children’s hearing need not disclose to a person any information about the child to whom the hearing relates or about the child’s case if disclosure of that information to that person would be likely to cause significant harm to the child. [This formulation effectively follows Sheriff Principal Bowen in McGrath v. McGrath 1999 SLT (Sh Ct) 90.] • (2) Subsection (1) applies despite any requirement under an enactment (including this Act and subordinate legislation made under it) or rule of law for the children’s hearing— (a) to give the person an explanation of what has taken place at proceedings before the hearing, or (b) to provide the person with (i) information about the child or the child’s case, or (ii) reasons for a decision made by the hearing.”[See A v. United Kingdom (2009) 49 EHRR 29 where alleged terrorists detained without trial were not given access to information upon which detention orders were issued: no breach of art. 6]

12. Legal Aid • Legal Aid (Scotland) Act 1986 amended. New provisions will replace the “interim scheme” set up after S v. Miller 2001 SLT 531 and extended after K v. Authority Reporter 2009 SLT 1019. Appointed “legal representatives” will disappear and instead children and relevant persons can appoint their own solicitors, to be funded by legal aid • “Children’s Legal Aid” to be made available automatically in three circumstances: • Hearings after the making of a child protection order • Hearings at which secure accommodation to be discussed • Hearings held because child apprehended by police. • Other hearings and legal aid for relevant persons: • Regulations yet to be drafted will govern availability and eligibility • Legal Aid at the sheriff court • Will be available to child or relevant person, eligibility being determined by SLAB (and not, as at present, the sheriff). Test for eligibility: reasonableness in the circumstances; avoiding undue hardship; best interests of the child. • ABWOR • Available for all hearings (subject to firms being registered with SLAB as eligible to provide children’s legal assistance and SLAB Code of Practice) 

13. Warrants and Interim Compulsory Supervision Orders • The plethora of warrants under the 1995 Act, each with different time limits and different conditions, are done away with. • 2011 Act: hearing (and sheriff) can grant one type of warrant – “a warrant to secure attendance” (s. 123). • In addition, however, the hearing may, at any stage in the process, make an “interim compulsory supervision order”. • Test is: “necessary, as a matter of urgency, for the protection, guidance, treatment or control of the child” (which is test for CSO with added urgency) • An ICSO can contain any measure that a CSO can contain. • It will last until the next hearing, or for 22 days, whichever is earlier.