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NOTE: This information explains your legal position if social
services are concerned about your child’s welfare and are considering
Children's Hearings in Scotland. Written mainly for parents and carers, but
the information in it is also for other people, including other family
members, who are involved in the welfare of a child and may become involved
in Children's Hearings in Scotland.
For specialist legal advice
we recommend you
seek the professional assistance of a experienced Solicitor.
Children's Hearing Advice -
Scotland
Referral to the
Reporter
»
What can the reporter
do?
»
Reasons for the Child
Hearing
»
Get Legal Advice
»
Legal representation
of Children
»
Social Background
Support
»
The Childrens Panel
»
Who can Attend the
Hearings?
»
What happens at the
Hearing?
»
The Safeguarder
»
What if I don't accept
the grounds for Referral?
»
Supervision
Requirement »
Contact
»
Review Hearings
»
Appeals
»
Taking your case to
the EC of Human Rights
»
Helpful Links
Information
»
note:
» Back to the top
of page
1. Referral to the Reporter
The Reporter is an official employed by the Scottish Children’s Reporter
Administration
http://www.scra.gov.uk/about.html Your child will be referred to the
Reporter by social services if they feel your child needs compulsory measures of
supervision, such as if they feel your child is suffering abuse/neglect. Your
child can also be referred to the Reporter by the police, school, health worker,
other main agency, or a member of the public.
When the Reporter gets a referral, s/he must make an initial investigation
before deciding what action, if any, is necessary in the child’s interests. This
may include getting reports/gathering information from your child’s school,
health agencies, social worker, family members and other professionals involved
with your children. The Reporter must consider whether there is enough evidence
to support the grounds for referral and then decide whether compulsory measures
of supervision are needed, such as if he/she feels that your child is at risk of
harm.
Their contact details are:-
Headquarters: Ochil House
Springkerse Business Park
Stirling
FK7 7XE
Tel: 01786 459500
Fax: 01786 459532
Enterprise House
Springkerse Business Park
Stirling
FK7 7XE
Tel: 01786 459500
Fax: 01786 459562
E-mail: info@scra.gov.uk
They also have offices in 4 different regions of Scotland. You can find your
local and regional office at:-
North Region Team:
http://www.scra.gov.uk/scra_contacts_north_region.html
West Region Team:
http://www.scra.gov.uk/contact_scra_west.html
East Region Team:
http://www.scra.gov.uk/contacts_scra_east.html
Central West Team:
http://www.scra.gov.uk/office_contacts_center_west.html
»
2. What can the reporter do?
The Reporter can:-
• decide that no further action is required. The Reporter will write to the
child/young person and usually the parent or other relevant person to tell them
of this decision. (This does not happen often).
• refer the child or young person to the local authority so that advice,
guidance and assistance can be given on an informal and voluntary basis. This
usually involves social workers being involved in regularly in your family life.
• arrange a children’s hearing because s/he considers that compulsory measures
of supervision are necessary for the child such as foster care or other
intervention by social services.
»
3. Reasons for the Child Hearing
Section 52(2) of the Children (Scotland) Act 1995 states the grounds (legal
reasons) for having a Children’s hearing, some of these reasons are if the child
is:-
• beyond the control of parents or carers
• at risk of moral danger
• been the victim of an offence, including physical injury or sexual abuse
• likely to suffer serious harm to health or development through lack of care
• misusing drugs, alcohol or solvents
• has committed an offence
• not attending school regularly without a reasonable excuse
You should be sent forms telling you the date and time of the hearing and who
can attend.
»
4. Get Legal Advice
If you are asked to attend a Children’s Hearing you should contact a solicitor
who specialises in “child law”. The solicitor can act on your behalf at the
Children’s Hearing. However you are not automatically entitled to legal aid as
in England and Wales. For information on legal aid please see section below
“legal aid”.
You must push your solicitor to fight as hard as possible to help you. Many
solicitors also tell you to do everything the local authority say because they
know how mighty they are and what power they have, so they don’t like going
against them. Please be aware of this. You can get a full list of Children Law
solicitors in and around your area through The Scottish Law Society Website
page-
http://www.lawscot.org.uk/find/
1. Type your postcode in the "Postcode Box"
2. In the section "accredited specialist in" press the arrow pointed down and
select "Child Law".
4. Press the "Search" button.
This will give you a list of solicitors in that area. These are the solicitors
you need to help you.
The contact details for the Scottish Law Society are:-
26 Drumsheugh Gardens
Edinburgh
EH3 7YR
Tel: 0131 226 7411
E-mail:
lawscot@lawscot.org.uk
Website: www.lawscot.org.uk
Legal Aid
If you want to enquire about your eligibility for legal aid, contact the
Scottish Legal Aid Board (SLAB) at:
44 Drumsheugh Gardens
Edinburgh
EH3 7SW
Tel: 0131 226 7061
E-mail: general@slab.org.uk
Website: www.slab.org.uk
If you are not entitled to legal aid then you can get free legal advice from The
Scottish Child Law Centre:-
Telephone: 0131 667 6333
Freephone for under 18s: 0800 328 8970
Text: text 'SCLC' and your question to 80800
Fax: 0131 662 1713
Post: 54 East Crosscauseway, Edinburgh, EH8 9HD
E-mail: enquiries@sclc.org.uk
If you need a barrister you can look on the Scottish bar council website - The
Faculty of Advocates. The Bar Council is the regulatory and representative body
for barristers in Scotland. You can also chose a barrister from this website and
ask your solicitor if they can represent you. The Bar Council website is
http://www.advocates.org.uk/
»
5. Legal representation of Children
Legal representation will only be provided for a child where the members of the
children’s panel/Sheriff consider it likely that there may a recommendation of
secure accommodation or where legal representation is needed to allow the child
to participate effectively at the hearing, such as if the child does not
understand what is happening. It should be noted that Children’s Legal
Representatives are members of panel maintained by local authorities and used by
them regularly. The legal costs are met by the Scottish Executive.
The Children’s Hearing rules (Scotland) 1996 state “a child of twelve years of
age or more shall be presumed to be of sufficient age and maturity to form a
view”. If your child is of this age or over and has sufficient understanding in
relation as to what is happening in a given situation and has the capacity to
take their own decisions then they should be able to instruct their own legal
representation. We suggest they contact the following:-
Children in Scotland
http://www.childreninscotland.org.uk/html/poly_righ.htm
Child Rights Information Network
http://www.crin.org/organisations/viewOrg.asp?ID=2834
Scottish Alliance for Children’s Rights
http://www.sacr.org.uk/
Children’s Rights Officers and Advocates (Scotland)
http://www.croa.org.uk/node/52
»
6. Social Background Support
Before the hearing a social worker will prepare a social background report on
your child and their circumstances. You should receive a copy of the reports,
which will arrive before the hearing, and a copy of a statement of the reasons
for the meeting. You should read through these thoroughly and make a note to
challenge anything that you disagree with.
»
7. The Childrens Panel
The Children’s Hearing will be held before the children’s panel. This is a group
of three people from the general public, who must be of mixed gender. They are
appointed by Scottish Ministers recommended by the Children’s Panel Advisory
Committee (CPAC). They are unpaid and give their services voluntarily, but are
trained in law. They must be at least 18 years old and have been police checked.
Members of the panel are appointed for three years which is renewable on further
recommendation from the CPAC, following monitoring of performance. Every local
authority has their own children’s panel.
»
8. Who can Attend the Hearings?
It is important that parents attend this hearing. Parent’s attendance is
compulsory by law, and failure to appear may result in prosecution and a fine.
You can also be excluded from all or any part of the hearing if panel members
feel that your presence there would distress the child and hinder them from
giving their proper views and feelings. However, the chairman must afterwards
explain what has taken place in your absence.
You and your child may each take a separate representative to help and support
you at the hearing this could be a solicitor, member of your family, friend or
other advocate. The child/children involved must attend and always has the right
to attend all stages of his/her own hearing, unless the panel members decide
that the child does not have to attend certain parts of the hearing, or even the
whole hearing if it feels that it would not be in the child’s best interest.
A person from the press is allowed to attend the hearing, but may be asked to
leave the room if the hearing decides it is necessary in order to get the views
of the child, or if the child may be distressed by their presence.
A Children’s Panel Advisory Committee Member will also be attendance at the
hearing for the purpose of monitoring panel members’ performance, and members of
the Scottish Committee of the Council on Tribunals.
Other relevant people may attend. The definition of a ‘relevant person’ is set
out in Section 93(2) (b) of the Children (Scotland) Act 1995, and is a person
who has (or has been legally granted) parental rights or responsibilities for
the child, or any person who normally has
charge of, or control over, the child (but this does not include someone who
only works with the child as part of his/her employment).
Other professionals may attend a hearing, but nobody is admitted unless they
have a legitimate concern with the case or with the hearings system and have the
agreement of the chair of the hearing, the child and the child’s family.
»
9. What happens at the Hearing?
When you and your child arrive at the place where the hearing is to be held, you
will be asked to wait until the hearing is ready to see you. When you are called
into the hearing room you will meet the 3 panel members who will be dealing with
your child's case. The chairperson will firstly identify everyone. He will then
explain the statement of the reasons for the hearing sent to you by the reporter
and ask if both you and your child understand them. You and your child will then
be asked if you accept that what is written in the reasons for the hearing is
correct. You may accept it or object to all or part of it. In some cases the
hearing will proceed if only part of the statement is accepted. If you all
accept that the statement is true, the hearing will go on to have a full and
frank discussion and will normally make a decision as the whether to make a
supervision requirement. You should be allowed to take part in a full part in
the discussion about the needs of your child and make your views and wishes
known. If you do not agree with the reasons for referral the case will be
referred to the Sheriff to decide whether the grounds are established.
If the hearing goes ahead it will have to decide on the measures of supervision
which are in the best interests of your child. It will receive a report from a
social worker in the local authority and where appropriate from the child’s
school. Medical, psychological and psychiatric reports may also be requested.
Parents, and the child if s/he is over 12, are provided with copies of the
reports at the same time as the panel members.
The hearing discusses the circumstances of the child and the child’s long term
well being with the parents, the child and any representatives, the social
worker and the teacher, if present. The hearing must decide whether compulsory
measures of supervision are needed for the child and, if so, what they should
be.
»
10. The Safeguarder
The panel/sheriff can decide whether or not it is necessary to appoint a
Safeguarder in the proceedings. A safeguarder can be appointed at any time
during the proceedings. The Safeguarder may represent themselves personally in
proceedings if they are party to the proceedings or he/she may be represented by
a solicitor.
They are normally from a relevant professional background such as in law, social
work or teaching. They can be appointed by a Children’s hearing or the Sheriff
if they feel that this is necessary to safeguard the interests of the child in
proceedings. Their role is to provide written reports for the hearing detailing
what they feel is in the child’s best interests.
Rights Powers and Duties of The Safeguarder
An appointed Safeguarder:-
has the powers and duties as a Curator ad Litem in respect of the child. This
means they will represent the child in the hearing as to what they feel is in
their best interest.
should receive copies of all reports, etc relating to the proceedings from the
principal reporter, including any papers from the Children’s Hearing, and make
any enquiries he/she feels are needed
should determine whether or not the child wishes to give his/her views, and make
sure these are put in a report before the Children’s Hearing/Sheriff
The safeguarder will speak with you and your child and with the professionals
who are submitting reports to the hearing before submitting his recommendations.
The hearing will consider the safeguarder's report, together with the other
available information. It should be noted that the Scottish Executive stated
that often when parents had formed the impression that the safeguarder supported
their viewpoint, they found that the safeguarder adopted an opposing view at the
hearing.
All local authorities in Scotland have a duty to recruit and maintain a panel of
safeguarders, so that a sufficient number is available to meet the need in their
area.
See – The Role of Safeguarders in Scotland
http://www.scotland.gov.uk/Resource/Doc/46905/0029769.pdf
»
11. What if I don't accept the grounds for Referral?
If you do not accept the grounds for referral the hearing will not go on with
your child's case that day. The hearing may decide to discharge the case
altogether or they may ask the reporter to arrange for the case to be heard by
the Sheriff. If you or your child only accepts some of the grounds for referral,
the case can also be remitted to the Sheriff Court for a decision. Within a few
weeks the Sheriff will hear witnesses and decide whether the reasons for the
hearing have been proved or not. The appearance before the Sheriff is in
private. Where the Sheriff decides the reasons for the hearing are correct, he
could make a ruling or can send your child back to a hearing which you will have
to attend to decide what should be done. On the other hand, if the Sheriff
decides they are not correct, he will discharge the case.
If the case goes before the sheriff you must try to get a solicitor to represent
you if you can (see Legal help above). You can contact the sheriff clerk at your
local Sheriff Court if you want to ask any questions or get more information
about the proceedings.
To find details of your local Sheriffs court please go to
http://www.scotcourts.gov.uk/sheriff/gazetteer.asp
Type in the name of your local area in the box provided and this should bring up
full details of the name, address, telephone/fax numbers and e-mail address of
the court, together with information on directions, opening times, etc.
»
12. Supervision Requirement
The panel members at the Children’s Hearing may request that a Supervision
Requirement is needed if they feel that your child is at risk of harm. This must
be reviewed annually until the child becomes 18. The hearing has wide scope to
insert conditions in the Supervision Requirement, and the local authority is
responsible for ensuring it is carried out. They may decide that:-
your child will continue to live at home but will be under the supervision of a
social worker
your child should live away from home with relatives
your child should be placed in foster care or a children’s homes, residential
school or secure accommodation
There is no time limit as to how long a Supervision Requirement can last for.
There is no set duration A Supervision Requirement can be terminated when a
hearing decides that compulsory measures of supervision are no longer necessary,
such as if they feel your child is no longer at risk of harm.
»
13. Contact
The panel will also decide what contact you will be allowed to have with your
child.
You should ask to be able to speak to your children on the phone. Social
services usually try to stop this. Some kind foster parents will let the
children phone you themselves, without involving the social services, but most
don't. To stop you phoning your own children social services may use the excuse
that they can't be sure what you are saying to them - "oh yes you might be
telling them the unthinkable - you want them home!" To get round this you must
ask if the foster parents have a speaker button on their phone where they can
listen to the conversation, or if they have a telephone extension where they can
listen. Then they can terminate the call if you say anything they consider
wrong.
Also, ask if you can compile a video for the children with all the family and
friends on reminding the children how much you all love them. The children can
play the video and be reminded of you all the time then. Be careful not to talk
about them coming home or it won't be allowed to be given to them. Ask if the
foster parents can do a video back).
Research says the following:- (and can be used as arguments for more contact):-
Contact is the key to children returning home early from care.
Children actually do better if they are visited frequently by their family
despite the stresses this can bring.
Children need contact with important people from the past in order to develop
their sense of identity that is essential for their well being.
Continuing contact protects children against the more adverse effects of public
care.
There are fewer breakdowns of foster placements when contact is maintained. It
is more possible than many social workers believe to find foster carers willing
to encourage contact. Barriers to contact stem more from the attitudes of social
workers than foster carers.
Continuing contact with grandparents is almost wholly beneficial, and is
particularly important for older children.
Research from publications:- Long Term Foster Care 1984, Barnardo's family
placement and Access, Foster placement breakdown, Sibling Groups and social
work, Child placement: principles and practice, Children going home; the
Reunification of Families.
»
14. Review Hearings
A review must take place within a year of the date when the supervision
requirement was made otherwise it lapses. At a review hearing, the supervision
requirement may be ended, continued or changed.
A hearing may also specify an earlier review date. The Children’s hearing will
consider your child’s case again.
After each review hearing you or your child has the right to appeal against the
decision and to ask for another review hearing after 3 months. You should
contact the Reporter and tell him that you want to appeal the decision as he has
a duty to arrange hearings.
The local authority can call for a review at any time. The hearing will be
attended as before by you, your child and relevant persons.
»
15. Appeals
Appealing to the Sheriff
The parents or the child may appeal to the Sheriff against the decision of a
hearing under section (51) (1) of the Children Act Scotland 1995, but you must
do so within 21 days. You must inform the reporter in writing that you wish to
appeal to the Sheriff’s Court.
You will be considered as “the appellant” and must sign for the appeal. A
Safeguarder can sign on behalf of a child if the child is appealing. You must
lodge your appeal with the Clerk at the Sheriff Court. To find details of your
local Sheriffs court please go to
http://www.scotcourts.gov.uk/sheriff/gazetteer.asp
Type in the name of your local area in the box provided and this should bring up
full details of the name, address, telephone/fax numbers and e-mail address of
the court, together with information on directions, opening times, etc.
The sheriff’s clerk will assign a date for a hearing at the Sheriff’s Court,
which should be no later than 28 days after lodging the appeal. Copies will have
to be issued to all parties involved in the proceedings, such as social worker,
reporter, safeguarder and any other relevant persons involved.
There will then be a hearing at the Sheriff’s court. We would advise you to
prepare well for this. You must get statements from as many professional people
as possible who will support you as a good parent, for example from your
GP/Health Visitor/Teacher. These should be given into court so that these people
can then go as your witnesses at court on your behalf. Do the same with any
other members of your family to show what support and help they can give you.
Get letters if you can't get statements.
After hearing the appeal the Sheriff can issue his judgement or can reserve
judgement. If judgement is reserved the sheriff principal must give his decision
in writing to the Sheriff Clerk within 28 days. The Sheriff Clerk must ensure
that all parties involved receive a copy of this.
What can I do after this?
After this you can appeal to the Sheriff Principal or The Court of Session on a
point of law only. The Court of Session is Scotland's supreme civil court and
sits in Parliament House in Edinburgh as a court of first instance and a court
of appeal. You can find more about The Court of Session at The Scottish Court
website – see
http://www.scotcourts.gov.uk/session/index.asp
»
16. Taking your case to the European Court of Human Rights
1. What is the Court of Human Rights?
The European Court of Human Rights is an international court based in
Strasbourg. It consists of a number of judges equal to the number of member
States of the Council of Europe that have ratified the Convention for the
Protection of Human Rights and Fundamental Freedoms
2. What does the court do?
The Court applies the European Convention on Human Rights. Its task is to ensure
that States respect the rights and guarantees set out in the Convention. It does
this by examining complaints (known as “applications”) lodged by individuals or,
sometimes, by States. Where it finds that a member State has violated one or
more of these rights and guarantees, the Court delivers a judgment. Judgments
are binding: the countries concerned are under an obligation to comply with
them.
3. Who can apply?
Anyone from the UK can apply, but you must have first applied and appealed as
high as you can go in the UK court process. You only have only six months from
the date of the final decision at domestic level (generally speaking, the
judgment of the highest court) to lodge an application. After that period your
application cannot be accepted by the Court.
4. How can I apply to the Court?
You can apply by sending a letter to the Court giving clear details of your
complaint. You will receive an application form. Or you can download and fill in
an application form directly by going to:
http://www.echr.coe.int/ECHR/EN/Header/Applicants/Information
In completing the application form you must give a brief summary of the facts
and your complaints, an indication of the Convention rights you think have been
violated and the remedies you have already used;
The letter and/or application form should be sent to the following address:-
The Registrar
European Court of Human Rights
Council of Europe
F-67075 Strasbourg Cedex
The Registry may ask you for additional documents, information or explanations
relating to your complaints.
At this stage of the proceedings you do not have to be represented by a lawyer.
If, however, you wish to apply to the Court through a representative, you must
send an authority form with your application for authority for him or her to act
on your behalf. To get download of copy of this go to:
http://www.echr.coe.int/ECHR/EN/Header/Applicants/Information+for+applicants/Authority+Form/
5. What happens then?
Proceedings are conducted in writing. You will be informed in writing of any
decision taken by the Court. Public hearings are exceptional.
Your case will be dealt with free of charge.
Although you do not need to be represented by a lawyer in the first stages of
the proceedings, you will need a lawyer once your application has been notified
to the Government.
You will have to bear only your own costs (such as lawyers’ fees or expenses
relating to research and correspondence).
After your application has been lodged, you may apply for legal aid. Legal aid
is not granted automatically, and awards are not made immediately but only at a
later stage of the proceedings.
The Court must first examine whether your application is admissible. This means
that the case must comply with certain requirements set out in the Convention.
If the conditions are not satisfied, your application will be rejected. If you
have made several complaints, the Court may declare one or more of them
admissible and dismiss the others.
If your application or one of your complaints is declared admissible, the Court
will encourage the parties (you and the State concerned) to reach a friendly
settlement. If no settlement is reached, the Court will consider the application
“on the merits” – that is, it will determine whether or not there has been a
violation of the Convention.
In view of the current backlog of cases, you may have to wait a year before the
Court can proceed with its initial examination of your application. Some
applications may be treated as urgent and dealt with as a matter of priority.
If the Court finds that there has been a violation, it may award you “just
satisfaction”, a sum of money in compensation for certain forms of damage. The
Court may also require the State concerned to refund the expenses you have
incurred in presenting your case. If the Court finds that there has been no
violation, you will not have to pay any additional costs (such as those incurred
by the respondent State).
Finally please note:
The Court is not empowered to overrule national decisions or annul national
laws.
The Court is not responsible for the execution of its judgments. As soon as it
has given judgment, responsibility passes to the Committee of Ministers of the
Council of Europe, which has the task of supervising execution and ensuring that
any compensation is paid.
»
17. Helpful Links Information
Children’s Hearing (Scotland) Rules 1996
http://www.opsi.gov.uk/si/si1996/Uksi_19963261_en_1.htm
Childcare and Maintenance Rules (Scottish Courts)
Information on Adoption/Hearings before Sheriff/Custody/Appeals, etc.
http://www.scotcourts.gov.uk/library/childcare/index.asp
“Voice for the Child” Under the Children’s Act Scotland 1995
http://www.scotland.gov.uk/Publications/2002/09/14905/6731
Supplementary Document to he Children’s Hearings System in Scotland 1st Revised
Edition.
http://www.scotland.gov.uk/Publications/2003/01/16212/17105
The Childrens Hearing in Scotland Training Resource Manual 2003 2nd Edition
http://www.scotland.gov.uk/Publications/2003/12/18611/29851
»
