Tod and Mitchell specialise in all aspects of criminal defence work including child hearings and regularly appear in criminal courts throughout Scotland dealing with cases in the High Court of Justiciary, the Sheriff Court and the Justice of the Peace Court.
Why use us?
Tod and Mitchell and our team of highly respected and experienced solicitors are well-known for our professional approach, vast knowledge of law and high percentage of case wins. Our head office is based in Paisley giving us the perfect central location for working with clients attending courts in Glasgow, Paisley, Dumbarton, Greenock and many more courts across Scotland.
Tod & Mitchell (Children’s Hearing Lawyers) Ltd.
Our sister company Tod & Mitchell (Children’s Hearing Lawyers) Ltd. offers specialist legal advice and representation in relation to Children’s Hearings, Grounds of Referral Cases which have been referred to the Sheriff Court and Child Protection Orders. It is vitally important to get the right legal advice at the earliest possible opportunity. We would recommend that you contact us as soon as you have any involvement with the Social Work Department or the Reporter of the Scottish Children’s Reporter Administration.
What happens if you, as a child, have to attend a Children’s Hearing?
There are many reasons why the Reporter of the Scottish Children’s Reporter Administration (SCRA) may refer a case to a Children’s Hearing. The Reporter may have received information from the social work department, your school or the police and has decided to refer your case to a hearing. In 2014/15, 27,538 referrals were made to SCRA, 71% of which were made by the police. The Reporter must send you and any relevant person (such as your parent or guardian) a copy of the grounds of referral which sets out the reasons why your case has been referred to a hearing, as well as a copy of all the reports and documents in the case and information as to your right to legal advice. Before sending a case to a children’s hearing, the Reporter must be satisfied that the grounds, if established, are sufficiently serious that they would justify the panel in making a compulsory supervision order.
When you receive a letter from the Reporter with the date for the hearing it is important that you fully understand the grounds of referral and all the other documents which you have been sent. The Reporter usually sends out these documents well before the date of the hearing, but sometimes you only get seven days’ notice. When you get your letter from the Reporter contact us and we will be happy to explain all the important steps along the way and come with you to the children’s hearing itself. You must attend the children’s hearing unless you are specifically told you don’t have to go. If you do not attend a hearing the panel could issue a warrant and have you brought to the hearing.
Grounds of referral
The Reporter will refer a case to a children’s hearing if:
(a) a child has been the victim of a sexual crime;
(b) a child is, or is likely to become, a member of the same household as a sex offender;
(c) a child is exposed to persons who are likely to have a detrimental effect on its health, safety or development;
(d) a child has, or is likely to have, a close connection with a person who has carried out domestic violence.
The Reporter will also refer a case where a child
(e) has committed an offence;
(f) has misused alcohol or drugs;
(g) is beyond parental control, or
(h) has failed to attend school without reasonable excuse.
Before the date for the hearing, you may receive a letter telling you that a pre-hearing panel is to be held. A pre-hearing panel is where the panel members meet to discuss some important matters before the children’s hearing takes place. You and the relevant persons have the right to attend a pre-hearing panel but do not have to attend if you do not want to.
A pre-hearing panel can be arranged for many reasons, including to:
(i) consider whether you or a relevant person needs to attend the children’s hearing itself;
(ii) consider an application for ‘deemed’ relevant person status. This is where a person who is not a relevant person wants to be allowed to attend and take part in the discussions of your case at the children’s hearing. The pre-hearing panel must deem this individual to be a relevant person if it considers that the individual has (or has recently had) a significant involvement in your upbringing. This individual, a relevant person or you, the child, can apply for a pre-hearing panel to discuss whether this individual should be a ‘deemed’ relevant person;
(iii) discuss whether it is likely that the children’s hearing will be considering secure accommodation, in which case you are automatically entitled to have a solicitor attend the hearing with you;
(iv) consider whether to appoint a safeguarder, or
(v) to consider a non-disclosure request preventing a party receiving certain information.
The day of the hearing
When you get to the building where the hearing is to take place (usually the Reporter’s office) you will be welcomed by a member of staff and then taken into a room along with your parent, guardian and other relevant person where you will meet the three panel members (either two women and a man, or two men and a woman). These three people are quite independent of the Reporter who referred your case to the children’s hearing in the first place and they will make sure that your best interests and welfare are protected.
After everyone is introduced the panel chairman or chairwoman, the person who sits in the middle, will ask you and the relevant persons if you have received a copy of the grounds of referral and other documents. The panel members will make sure everyone has received a copy of all the necessary paperwork and that you all understand the grounds of referral. You will all be asked separately whether or not you accept all or any of the grounds listed. You might want to accept some, but not others. Your parent or relevant person might accept some grounds, but not others. They could accept some grounds which you do not accept, and you might accept some grounds which they do not.
If the panel members are satisfied that enough grounds have been accepted by both you and the relevant persons, then the panel members can go ahead and discuss with you what action, if any, is necessary. Remember, the most important person at the hearing is you. The panel needs to know your views and you will asked to talk about the reasons which have brought you to a hearing. Once everyone has had a chance to state their views each of the three panel members will give their decision as to what they believe would be in your best interests. There are three possible outcomes at this stage. The panel may discharge the referral, that is, take no further action; they may postpone making a decision until a future date when more information is likely to be available and could consider whether to appoint a safeguarder in the meantime, or they could make a compulsory supervision order.
By law a children’s hearing (with one notable exception) must regard the need to safeguard and promote the welfare of the child throughout the child’s childhood as the most important consideration. The only exception to this rule is when the children’s hearing is considering placing a child in secure accommodation.
The three panel members don’t always agree on what they think will be in your best interests and sometimes their decision is made on a 2-1 majority, with two panel members opting for a one course of action whilst the other believes a different approach would be better.
If you or the relevant person do not accept the grounds of referral or enough of them to enable the panel to make a decision in your case, then the Reporter must send the case to the sheriff for him or her to decide if the grounds are established. Again at this point the children’s hearing may appoint a safeguarder to look after your interests if it believes this is necessary.
What is a Safeguarder?
A safeguarder is a person appointed either by a pre-hearing panel or children’s hearing, or by the sheriff to make sure that your interests are properly looked after. A safeguarder is not appointed in every case, but when it is felt necessary for your welfare then the children’s hearing or sheriff will appoint a safeguarder. Sometimes if the people at a hearing have very different views to each other, or the panel members feel they need more information to allow them time to make a decision, they will appoint a safeguarder. This person is completely separate from the social worker, the Reporter and the panel members. A safeguarder has experience of the children’s hearing system and he or she will speak to you and the other persons involved in your case in order to prepare a report for the children’s hearing and/or court. Once appointed the safeguarder will attend all children’s hearings and any referrals to the sheriff court
What happens when your case is referred to the sheriff court?
If the children’s hearing refers your case to the sheriff don’t panic. The sheriff has no power to make a compulsory supervision order. The sheriff’s job is simply to hear evidence from witnesses and then decide which grounds, if any, have been proved. The hearing before the sheriff is in private and all members of the public other than those involved in your case are excluded.
The the sheriff is an independent judge and he or she will look at your case in a completely unbiased way. In all referral cases at the sheriff court, except one, the standard of proof is the balance of probabilities. This means that all the Reporter has to prove is that the facts alleged are more likely to be true than not. So, for example, where the ground of referral is that a child has, or is likely to have a close connection with a person who has carried out domestic abuse, this can be held to be proved even although that person has not been charged with domestic violence or even where that person has been charged but was later found not guilty after trial.
The one exception to the rule that proof is on the balance of probabilities is where the ground of referral alleges that the child has committed a crime. In that case, the Reporter must produce enough evidence to satisfy the sheriff beyond reasonable doubt.
Even if the sheriff does decide that all or some of the grounds of referral have been proved, the sheriff does not have any power to deal with your case. The sheriff must send the case back to the children’s hearing, with a report on what has been proved, so that the children’s hearing can decide whether or not to impose a compulsory supervision order.
As a ‘relevant person’ what are my rights at the Children’s Hearing?
A relevant person is a parent or guardian who has parental responsibilities or parental rights in relation to the child. The first and most important right you have as a ‘relevant person’ is the right to attend all hearings and any referral to the sheriff court. You have the right to receive all the relevant documents and reports relating to the child’s case, although some information may be withheld if a non-disclosure order has been made. Not only do you have the right to attend a children’s hearing you have a duty to attend. Failure to attend a children’s hearing is a criminal offence punishable by a fine. If you attend a children’s hearing and do not accept the grounds of referral the case is then sent to the sheriff for a determination on the facts. If you then fail to attend the court hearing you will be deemed to have accepted the grounds.
As a relevant person you have the right to appeal against decisions of the children’s hearing.
What is a Compulsory Supervision Order?
A compulsory supervision order is made at a children’s hearing when the panel is satisfied that it is necessary to do so for the protection, guidance, treatment or control of a child. The children’s hearing can also impose an interim compulsory supervision order.
The following conditions can be included in a compulsory supervision order or interim compulsory supervision order:
(a) a requirement that the child stays at a specific place, e.g. that the child stays with the grandmother. In some situations the panel may order that the place specified is not to be revealed to certain named individuals.
(a) a movement restriction for up to six months. This condition states where the child must reside, the days of the week when the child is to stay there and the hours during which the child must remain (effectively a curfew condition of up to 12 hours in any one day) e.g. “the child must remain within [specific address] Monday to Friday between the hours of 7pm to 7am.” This order can also include a condition prohibiting the child from entering certain places. A movement restriction can only be imposed if one of following factors exists, namely (i) the child has previously absconded and is likely to abscond again and if the child did abscond, it is likely that the child’s physical, mental or moral welfare would be at risk; (ii) the child is likely to engage in self-harming; or (iii) the child is likely to cause injury to someone.
(b) a secure accommodation requirement within a residential establishment. If one of the factors listed in para.(b) is present and the panel considers that a movement restriction is not a sufficient safeguard, then the hearing, after looking at all other options, may impose a secure order if it is necessary to ensure the welfare of the child.
(c) a medical examination or treatment requirement. The panel which continues a hearing for further information may, in an interim order, impose a condition that the child submits to a medical examination. The panel which imposes a compulsory supervision order may include a condition that the child submits to certain medical treatment. However, such instructions cannot be carried out without the consent of the child, if the child is capable of giving consent. Therefore, in some case there may be little point in attaching such a condition to the order.
(d) a direction regulating contact. This is undoubtedly the most common condition attached to a compulsory supervision order. Whenever the hearing places a child on a compulsory supervision order it must consider whether to make an order regulating contact between the child and a named individual. This could be to ensure e.g. that a parent or grandparent not staying with the child gets to see the child on a regular basis. The hearing may insist that contact be supervised. Alternatively, such a condition could be used to prevent contact between the child and a certain person.
Can I appeal a decision from the Children’s Hearing?
You, any relevant person or the safeguarder can appeal to the sheriff against most decisions of the children’s hearing within 21 days of the decision, but if the appeal is about a ‘deemed’ relevant person, this must be made within seven days.
A decision by the panel to appoint a safeguarder cannot be appealed.
The following decisions of the children’s hearing can be appealed:
(a) a decision to make, vary or continue a compulsory supervision order,
(b) a decision to discharge a referral by the Reporter,
(c) a decision to end a compulsory supervision order,
(d) a decision to make an interim compulsory supervision order,
(e) a decision to make an interim variation of a compulsory supervision order,
(f) a decision to make a medical examination order, or
(g) a decision to grant a warrant to secure attendance.
To be successful in the appeal you have to show that the decision of the children’s hearing is unjustified.
Review of a Compulsory Supervision Order
A compulsory supervision order remains in force for one year unless it is continued within that year at a review hearing. The Reporter must arrange a review hearing if the compulsory supervision order has only three months to go until it expires. A review will also be held if the Reporter intends to raise fresh grounds of referral. If the local authority requests a review of a compulsory supervision order then the Reporter must arrange a hearing.
A child or relevant person can request a review of the compulsory supervision order at any time three months after it is imposed.