Introduction

UNISON Scotland welcomes the opportunity to respond to the call for evidence from

the Education, Lifelong Learning and Culture Committee on the above Bill

UNISON Scotland has over 160,000 members in Scotland, most of whom work in the

public sector across Scotland. We represent most of the staff who work for the Scottish

Children’s Reporters’ Administration and are the majority union representing social

workers and council administrative staff who will be affected by changes proposed in

the Bill.

General Comments

UNISON Scotland wants to commend the consultation process which has taken place in

the period since the last Draft Bill was published for consultation. We has been fully

involved in the consultation carried out by the Scottish Government, by making

written submissions, meeting with the Minister, Adam Ingram, meeting with Kit Wyeth,

one of the Civil Servants attached to the CH Bill Team, and by participating in the

Virtual Bill Group that was set up to engage with stakeholders and share information

relating to the formulation of the Bill.

UNISON’s main concern throughout all of our discussions on the Bill has been to

ensure that the unique nature of the Children’s Hearings system was upheld. The

current scheme approaches the human rights of children through the concept of their

welfare being paramount and through attempts to work in partnership with their

families. We originally had fears that this unique principle would be sacrificed in an

attempt to change the system to fit bureaucratically with the ECHR rather than seeing

those rights from a child’s perspective and defending and promoting the rights

afforded to them by the CH system.

We are very grateful for the opportunities afforded us by the Minister and the Bill

Team who have ensured that our views and comments were taken seriously and which

have allowed us to assist in making the Bill now before us a more realistic and

workable piece of legislation, based on the principles of the welfare of the child, which

will enable our members to continue to protect children from harm and provide the

excellent service that is currently offered by the Children’s Hearings system

Remaining Concerns

Whilst as stated above, we appreciate the immense movement that has been made in

producing the new Bill, we still have a few concerns on which we require further

clarification and set these out below:

UNISON is concerned that the Bill allows a wider scope for a sheriff to substitute

decisions made in the Children’s Panel. The current test is provided by Section 51 (5)

of the 1995 Act which states that: “the decision of the children’s hearing is not justified

in all the circumstances of the case” This is now substituted for “if satisfied that the

decision is justified”. We believe that a consequence of this could be that rather than

looking at whether the matters contained in the appeal lead to a conclusion that the

decision is not justified (onus on appellant), the onus might now be considered to be

on the Reporter i.e. to prove that the decision is justified. We are also unclear about

the scope of the appeal and wonder whether this could be anything the Sheriff chooses

to bring in to it.

Section151 (1) (b) of the Bill permits the Sheriff to substitute his or her own decision if

he or she believes that the child’s circumstances have changed. UNISON believes that

this wider scope for the Sheriff’s action challenges one of the basic premises of the

Kilbrandon Report which advised that the Hearing was the most appropriate place for

decisions about children to be made.

Section 155 of the Bill also provides ‘relevant persons’ with a right of appeal against a

decision of a ‘pre-hearing meeting’ (currently defined under the 1995 Act as a

‘business meeting’) to confer (or not) the status of ‘relevant person’. It remains to be

seen how any individual who is not currently a relevant person (and therefore has no

right to receive notifications relating to a child) prior to the pre-hearing meeting to

consider his/her status could receive any notification of such a hearing – and thus be

able to appeal within the required 7 days against such a determination.

The Bill also provides a new right of appeal (S156) against a decision to implement a

secure authorisation. This appeal will be against a decision made by a chief social

worker for the relevant local authority, so it is unclear as to what the Reporter’s role in

this appeal will be.

We have other concerns around the Sheriff’s role in relation to appeals and may

consider the use of an amendment to change the details outlined in the Bill.

UNISON appreciates the provisions relating to Legal Aid, but would be concerned if

this led to lawyers routinely appearing before the hearing. The experience of our

members is that this can create an adversarial atmosphere that tends to work against

participation by children and families, detracting from the discussion-based ethos

which is the strength of the Children’s Hearings system. We are glad to note that that

the Legal Aid Board is to expedite applications as we believe delays could be

damaging to the children.

We feel that the wording of Section 32 - “Termination of appointment of safeguarder

appointed by children’s hearing” of the Bill is clumsy and does not make clear why the

termination of the safeguarder’s appointment should be linked to his or her making (or

not) an appeal. This appears to mean that a safeguarder who has not lodged an appeal

will be unable to assist or appear before the court if the appeal be made by another

person, whereas we believe it would be better to state that a safeguarder’s

appointment will terminate on the expiry of the period given to lodge an appeal. In

this way, a safeguarder’s appointment would persist if an appeal was lodged by

someone else.

In particular we are referring to the following point:-

(2) This subsection applies where the relevant local authority for a child considers:

(a) that the child is in need of protection, guidance, treatment or control,

and

(b) that a compulsory supervision order should be made in respect of the

child.

This section differs from the current test provided in S53 of the 1995 Act. The 1995 Act

places a duty upon a local authority to provide information to the Principal Reporter

Section 78 deals with the referral of certain matters for pre-hearing determination. This

includes dealing with requests to excuse a child from attending their Hearing. We are

very disappointed that the Local Authority is still not included in the list of people who

can request a pre-hearing panel, especially since a social worker is likely to be best

placed to assess whether a child should be excused from attendance. Current

practice is that the impetus for a business hearing will frequently come from the local

authority social worker. Providing the local authority with a right relative to prehearings

would seem to be sensible.

We would like clarification on whether the Bill provides for hearings to have the power

to part discharge the grounds placed before them .

It is unclear whether the definition of ‘compulsory supervision order’ as provided for

within the Bill includes a ‘home’ supervision order. Given that the majority of children

placed on supervision remain within their family home it would be very strange for the

definition not to cover those circumstances.

Sections 69 and S70 cover this in the existing Act and there is no explicit reference to

'home supervision'. The assumption has, therefore, always been that this would mean

supervision at home unless the panel imposed a condition to the contrary. The new Bill

does not make this clear and we would welcome confirmation that this will continue to

be the case.

These references are in the current legislation and have continued into the new Bill.

UNISON is disappointed that the new Bill has not taken the opportunity to address this

in terms of focussing on the child's welfare, perhaps using wording, such as, "in the

interests of the welfare of the child, including the need where necessary for protection

etc..."

We understand that steps will be taken separately from this Bill to clarify the situation

in respect of the Rehabilitation of Offenders Act regarding young people who accept

offence grounds at their Children’s Hearing. At present, these are recorded and

retained for the purposes of the Act, even where (as often happens) the offences have

been accepted rather than proved beyond reasonable doubt (the test in criminal

proceedings). The experiences of our members is that children can sometimes accept

grounds where that evidence might not exist and without proper advice and guidance.

This means that the child will then have a criminal record without the grounds having

ever been tested or proven. This can have significant implications for them in later life.

We are therefore very keen to see provision in place to ensure that this does not

continue, or if it does, to ensure that children and young people have access to proper

support, legal advice and guidance when offence grounds are to be put to them.

UNISON believes that the definition provided by the Bill is too wide (i.e. any person

with ‘significant involvement’) – and that as a consequence there could be a multitude

of people with a right to attend a child’s hearing. The impact of this could be very

large hearings with a multiplicity of adult voices and competing interests and lead to

the child’s own voice being ‘lost’. There are also considerations regarding the right to

privacy which require to be considered more fully.

In addition, where relevant person status is conferred by a pre-hearing panel it does

not appear that this is able to be reviewed at a later date by a further panel in order to

reflect changes in the child’s life.

We would wish clarification about whether panel members will still be able to get the

advice and support from Reporters that they used to have before changes were

introduced in September 2009. The current situation is that Reporters can 'make

submissions' during a hearing, but can not provide any legal advice or assistance.

Reporters were advised at that time that they were not to continue to provide advice or

spend any pre-hearing (or post-hearing) time with the Panel; nor could they advise

Panel members when they are writing reasons for decisions. This was done in order to

meet ECHR concerns. UNISON believes that this is a detriment to current panel

members and that ways should be found to reinstate this practice which we do not

accept breached ECHR guidelines.

matt.smith@unison.co.uk

0141 342 2842