This Special Report, which has been supported by the Council on Tribunals, is made to Scottish Ministers under the terms of the Council's and the Scottish Committee's governing Act, the Tribunals and Inquiries Act 1992.
The Scottish Committee's aim in preparing this report has been to identify and highlight areas of good practice and some of concern which members of the Scottish Committee have observed during the course of their visits to Children's Hearings in Scotland.
Members have visited sixteen hearings in a variety of locations in Scotland during the last two years. They have concluded that this system operates to a high standard and their findings, which are published within this Report, could be of benefit to other tribunal systems if they choose to incorporate them into their own working practices.
In particular, the Report considers the following topics
The topics in this Report include:-
1. The Scottish Committee acquires a substantial amount of information about the working of tribunals in Scotland. That information comes to us from our programme of visits to hearings, from the statistics that we collect and from the discussions we have with people with relevant experience and expertise. We believe that in this way we are able to build up an informed view about the working of tribunals.
2. The Annual Report by its nature involves bringing together a large amount of material about the wide range of bodies which we supervise. Its timing has to depend on the preparation and collation of that material and is not therefore the best way of providing a structured report on a particular system. We therefore take advantage of our statutory powers and provide special reports from time to time on particular topics of importance.
3. For this, our second Special Report, we have chosen the Children's Hearings system because we want to draw attention to a tribunal which functions well and which touches the lives of so many families. Not surprisingly we do have some recommendations for improvement but, overall, we believe that this system offers an exemplar for other tribunals to follow. Our statutory remit extends only to the procedures operating in relation to the actual tribunal hearing. We have no role in relation to the judicial function carried out by the Reporter in deciding whether or not to refer a case to a hearing.
4. We are grateful to both the Scottish Children's Reporter Administration and the Scottish Executive Education Department for their advice on the factual issues contained in this report.
5. The Council on Tribunals has published a statement of general principles of the fundamental purpose of tribunals and concluded that the principal hallmark of any tribunal is that it must be independent and equally importantly it must be perceived as such. The preconditions for achieving these aims are:
It is against these standards that we view the Children's Hearings system.
6. The Children's Hearings system, which is unique to Scotland, was established following the recommendations made by the Committee on Children and Young Persons (The Kilbrandon Committee) which was appointed to consider the provisions of the law of Scotland relating to the treatment of 'juvenile delinquents and juveniles in need of care and protection or beyond parental control'. The practice then was for a single judge to consider the merits of, and dispose of, cases involving offending children and children in need of care. The Committee reported in 1964 on the working of the existing system of juvenile courts and suggested a radical restructuring of the procedures for dealing with children with problems, a class which it defined widely.
7. The Kilbrandon Committee concluded that this method of trial and disposal was totally unsuitable for all children appearing before the courts whether they had committed offences or were in need of care or protection. The Committee recommended the abolition of the existing system and that its replacement needed to incorporate a system that would separate trial and disposal. The Children's Hearings system was established to perform such a task. The Social Work (Scotland) Act 1968 provided the legislative framework for the setting up of the Children's Hearings system and in April 1971 the system took over from the courts most of the responsibility for dealing with children under 16 who committed offences or were in need of care or protection.
8. The Reporter is the official to whom all referrals must be made regarding children who may be deemed to need compulsory measures of supervision. The main source of referrals is the police but other agencies such as social work or education and indeed any member of the public may refer a child to the Reporter.
9. Reporters are now employed by the Scottish Children's Reporter Administration (SCRA), having previously been employed by local authorities. SCRA itself was set up as a non-departmental public body in 1995 with the statutory functions of managing the staff of the then seven, now four, regions of the Reporter's service throughout Scotland and providing suitable accommodation and facilities for Children's Hearings.
10. The grounds on which a child may be referred were initially set down in section 32 of the Social Work (Scotland) Act 1968 and subsequently amended, although not fundamentally, by section 52 of the Children (Scotland) Act 1995. These grounds include a child who is: beyond the control of parents; exposed to moral danger; being caused unnecessary suffering or serious impairment to health or development through lack of parental care; the victim of an offence including physical injury or sexual abuse; failing to attend school; indulging in solvent abuse; or has committed an offence. The Reporter must decide whether such a child is in need of compulsory measures of supervision, in which case he refers him or her to a Children's Hearing. If the Reporter decides there is no such need, there are various other ways in which the case may be dealt with.
11. Children under 16 are only considered for prosecution in court where crimes or serious offences such as murder or assault to the danger of life are in question, or where they are involved in offences where disqualification from driving is possible. However, in cases of this kind it is by no means automatic that prosecution will occur, and where the public interest allows, children in these categories are referred to the Reporter by the Procurator Fiscal for decision on referral to a Children's Hearing. Where children are prosecuted in court, the court may refer their case to a Children's Hearing for advice on the best method of dealing with them and the court, on receipt of that advice or in certain cases without first seeking advice, may remit the child's case for disposal by a Children's Hearing.
12. Members of the 32 Children's Panels throughout Scotland volunteer to serve and come from a wide range of occupations, neighbourhoods, income groups and backgrounds. They are unpaid. As a rule all have experience of, and interest in, children and the ability to communicate with them and their families. Members are carefully prepared for their task through initial training programmes and have continuing opportunities during their period of service to develop their knowledge and skills and to attend in-service training courses.
13. Individuals are appointed or re-appointed to panels by Scottish Ministers. The task of advising Ministers on selection is the responsibility of the relevant Children's Panel Advisory Committee (CPAC), a body formed by each local authority to provide advice on procedures and on the general administration of the panels. The majority of members, and the Chair, of each CPAC are appointed by Scottish Ministers with the remainder nominated by local authorities. In making its recommendations to Ministers, the CPAC will seek to ensure an appropriate balance of members which is representative of the community as a whole.
14. There is no statutory upper or lower age limit and most panel members range in age from 20 to the mid 50s; members generally stand down at age 65. The selection procedure adopted involves application forms, interviews and group discussions. The initial period of appointment for a panel member is up to 5 years and is renewable on the recommendation of the Children's Panel Advisory Committee. Over the country as a whole there are more than 2,100 panel members.
15. The Children's Hearing is a lay tribunal composed of 3 members who are selected by the Panel Chairman from the Panel for the area. The tribunal is charged with making a decision on whether compulsory measures of supervision are required in the best interests of the child before the hearing and, if so, what conditions should be attached to address the needs of the child.
16. The Children's Hearing can consider cases only where the child and its parents accept the grounds for referral stated by the Reporter, or where they accept them in part and the hearing considers it proper to proceed. Where the grounds for referral are not accepted, or the child does not understand them, the hearing must (unless it decides to discharge the referral) direct the Reporter to apply to the Sheriff to decide whether the grounds are established. If the Sheriff is satisfied that any of these grounds are established, the case is remitted to the Reporter to reconvene a hearing.
17. In certain specified circumstances Children's Hearings have powers to keep a child in a place of safety, following initial consideration, for periods not exceeding 22 days at a time.
18. The Chairman of a hearing, or the Sheriff in certain court proceedings, may appoint a person known as a safeguarder whose role is to prepare a report to assist in identifying what is in the best interests of the child. Through that process the hearing can reach a decision on the conditions which may be attached to any decision. All local authorities must maintain a list of persons appointed by them to the Panel of Safeguarders and only a member of that Panel may act as a safeguarder.
19. A hearing is usually held at a place in the child's home area. The layout of the room where the hearing takes place is informal with the participants generally sitting round a table. Normally the child must attend. The hearing may, however, decide that the child should not attend certain parts of the hearing or even the whole proceedings for example, if matters might arise that would be detrimental to the interests of the child. The child's parents should be present when the hearing considers his or her problem so that they can take part in the discussion and help the hearing to reach a decision. Their attendance is compulsory by law and failure to appear may result in prosecution and a fine. The parents may take a representative to help them at the hearing or each may choose a separate representative. The child also has the right to choose a representative but this does not exempt either parents or the child from attending the hearing.
20. Although proceedings at Children's Hearings are private, the Press is entitled to attend but in any subsequent account of the proceedings is not permitted to disclose the identity of the child. A member of the Council on Tribunals, or its Scottish Committee, has a right to attend as an observer but takes no part in the proceedings. Other persons may also be present, with the approval of the Chairman of the hearing, but they are not admitted unless they have a legitimate concern in the case or with the panel system. The hearing can therefore proceed in an informal way to give the child and its parents the confidence to take a full part in the discussion.
21. The hearing's task is to decide on the measures of supervision which are in the best interest of the child. The panel receives a report on the child and his or her social background from the local authority, normally the social work department and, where appropriate, a report from the child's school. Medical, psychological or psychiatric reports may also be requested. The panel discusses the situation fully with the parents, child and any representatives, the social worker and the teacher, if present. Should the hearing consider that the child is in need of compulsory measures of care it will place him or her under the supervision of the local authority by way of a supervision requirement. That requirement remains in force until such time as another hearing reviews it and decides it is no longer necessary.
22. As the hearing is concerned with the wider picture and the long-term well-being of the child, the measures which it decides on will be based on the best interests of the child. They may not appear to relate directly to the grounds of referral which were the immediate cause of the child's appearance. For example the hearing may decide that a child who has committed a relatively serious offence should not be removed from home, because any difficulties may be adequately dealt with and any need for care adequately met within the treatment resources available in the child's home area. However a child who has come to the attention of the hearing as a result of a fairly minor offence may be placed away from home for a time if it appears that the home background is a major cause of difficulties and the hearing considers that removal from home would be in the child's best interest.
23. The review process is an integral part of the system, allowing parents and professionals to re-examine the decisions and progress on a regular basis. As well as complying with the time limits for holding a review set out in statute, the parents, the child or the local authority may seek a hearing at other times to review any supervision requirement.
24. The child or its parents may appeal to the Sheriff against the decision of a hearing, but must do so within 21 days. Once an appeal is lodged it must be heard within 28 days. The Sheriff must decide whether the decision of the Children's Hearing is 'justified in all the circumstances of the case'; he may hear evidence from any party to the hearing and may call for updated reports. Any safeguarder who has been appointed also has the right to appeal on behalf of the child against the decision of a hearing. An appeal can be dismissed or remitted back to a Children's Hearing to reconsider the case. On a point of law only, a Sheriff's decision may be appealed to the Court of Session.
25. Legal advice is available free or at a reduced cost under the Legal Advice and Assistance Scheme to inform a child or its parents about their rights at the hearing and to advise about acceptance of the grounds for referral. Legal aid is not available for representation at the hearing, but can be obtained for appearances in the Sheriff Court either when the case has been referred for establishment of the facts or in appeal cases. New regulations came into force in February 2002, following the Court of Session's ruling in the S v Miller case, whereby the hearing can appoint a legal representative, drawn either from the panel of safeguarders or the panel of Curators ad Litem, in certain limited circumstances where there are complex legal issues to consider, where deprivation of liberty is an issue or where it is necessary to enable the child to participate effectively at the hearing.
26. As part of the statutory functions of the Scottish Committee, members undertake a series of visits during the course of the reporting year. It is through this visits programme that the Committee obtains first hand knowledge of the various tribunal systems operating under the Council's and the Committee's supervision. These visits provide members with the ideal opportunity to see tribunals in operation. They also provide an opportunity to discuss the workings of the system with those involved in the actual judicial process. It is an invaluable experience that provides this Committee with a unique insight into the workings of administrative justice in Scotland.
27. In the last two years we have attended sixteen sessions of Children's Hearings dealing with over 40 cases that have taken place throughout Scotland. We accept that this is a small sample given that the Children's Hearings system hears thousands of cases in a year but we believe that it is sufficient to enable us to make informed comment about the manner in which the Children's Hearings system operates.
28. It is natural that the first thing we see at a hearing is the accommodation being used. Taking into account the minimum attendance of the panel itself, parents, child, social worker, Reporter and school teacher it is not unusual for there to be upwards of 9 or 10 people present. This can put a strain on the availability and suitability of the premises being used. Children relate particularly to their immediate surroundings and we think it is very important that the facilities are appropriate to enable a panel to do its job better.
29. Some premises we visited were purpose-built hearing centres; somewhat disappointing, then, to note that in some of these locations the rooms were small and cramped and that there was not always suitable access for the disabled. In one newly acquired and adapted building in Edinburgh the facilities were good but the standard of soundproofing was such that conversation in raised voices in the hearing room could be heard outside.
30. At least four centres at Dundee, Dumfries, Elgin and surprisingly, we felt, the new premises at Tranent had no refreshments available, not even a basic drinks machine; we think this is unacceptable in the present day and age especially when children and anxious parents are involved. On the other hand, we welcomed the availability of a children's play area and toys at sites in Dumfries and Inverness which we visited. However we now learn that Inverness may lose that useful facility when the Dingwall office closes and its work is transferred to Inverness with the consequent need for extra hearing rooms. We also identified potential problems with premises in Glenrothes and Elgin where there was only one small waiting room: panel members point out to us that where those representing both sides of a case, for example parents in dispute with each other or the local authority over the care of the child, cannot be separately accommodated, the atmosphere could become somewhat charged. In one case there was a potential problem where a case was overrunning and there was the possibility of two different case families having to share one waiting room; this could lead to embarrassment and a breach of confidentiality.
31. We do praise those panel members who were aware of their accommodation's shortcomings and who made every effort to create a pleasant atmosphere and to be as welcoming as possible to all those who were attending the hearing.
32. We are aware that SCRA, assisted by the Scottish Executive, is examining the premises used for hearings and that SCRA has a property standards schedule which it aims to implement fully by year 2004. At present, however, there is clearly room for improvement in the facilities and standard of some locations and it appears to us that even some of the purpose-built hearing centres do not meet the agreed standards on all counts. Quite a number of panel members agreed with our concerns when we discussed a lack of some facilities. We trust that priority will be given to ensuring satisfactory access for the disabled: this was clearly not possible when we visited Kilmarnock, Kirkwall, Elgin and Dundee. Whilst we appreciate that it is unrealistic to have dedicated premises in remoter areas, we would like to encourage SCRA to consider combining with other tribunal systems, where appropriate, to ensure the provision of suitable premises. We know the Executive is looking at this but we acknowledge that it will need a pro-active approach for any arrangement to be drawn up.
i. That SCRA speeds up the implementation of its property standards schedule in consultation with panel members.
ii. That an accommodation monitoring scheme is introduced and regularly reviewed.
33. As we noted in paragraph 15, a hearing is a lay tribunal made up of members of the public who have been appointed by Scottish Ministers. There must be at least one man and one woman and one of the three members will act as chairman for each hearing. The chairman has no greater say in the disposal of the case than either of the other members but he or she does have various statutory duties to perform, namely determining and explaining the procedure to be followed; deciding who may attend the hearing; giving explanations; and signing orders.
34. We are aware of some difficulties in the recruitment of panel members. It was suggested to us that employers are becoming less willing to release staff members during the working day. We were also told of retention problems in some areas, with a high turnover rate in the north-east. We know there is a shortage of male panel members in the Borders and there has been a number of resignations there recently leading to a temporary shortage until new members are trained. The Children's Panel Advisory Group is aware that there is a problem and those involved in the recruitment process are currently considering how best to target the recruitment campaign. We commend the effort and initiatives which are put into both local and national campaigns. We endorse the stress on the importance of the Children's Hearings system and the encouragement for all sectors of the community to participate as panel members. However we have been told that some new recruits do not always appreciate the degree of commitment involved, not only with panel members having to be available for attendance but with the time needed for continuing training. Statistics prepared by the Scottish Executive suggest that of the 412 panel members throughout Scotland who resigned between October 2000 and September 2001, 30% did so because of work commitments: we suspect a large element of this is a lack of appreciation of the time commitment needed for panel membership.
Recommendation We urge the Scottish Executive and local authorities to increase their efforts to recruit new panel members.
35. In every case we observed we were impressed with the highly-motivated members. Their language was deliberately simple so that there was no chance of misunderstanding by the parties involved. The hearings were clearly independent and impartial and members demonstrated the right degree of compassion. We observed a good level of confidence in the chairing, assisted no doubt by the additional training which is given in chairing skills. We noted how the chairmen regularly checked that the parents and the child understood what was happening. Procedures were made as informal as possible given the seriousness of the occasion: general questioning was sensitive and appropriate and respect for the individual was evidenced on many occasions. We also observed sessions where, for example, there were three cases to be considered and each panel member chaired one case. These were impressive displays of skills.
36. We observed that the key issues were summarised at the end of the hearings and that members gave their separate decisions. When the chairmen compiled their reports the wing members were consulted throughout to arrive at the hearing's decision. Reasons for that decision were clearly articulated and focussed on the child. We endorse the procedure whereby the family remains in the room while the hearing discusses its decision; this ensures that the family is fully aware of the hearing's reasoning. We were particularly pleased to see how the chairmen and wing members worked together: we accept that the chairman has other statutory functions to perform but he or she is still part of a team and teamwork was very much in evidence at the hearings we attended.
37. Child participation is at the heart of the system and it concerns us how much responsibility can be placed on, how much formality should be used with, and how much allowance should be made for, the child. Despite the training of panel members and their best endeavours, involvement of the children and securing their commitment to the decision can be difficult to obtain.
38. The Rules require the child - no matter what age - to be invited to the hearing by a formal notice to attend. However the letter is too formal and perhaps even frightening - it talks about 'obligation' to attend, 'if you do not come the hearing may arrange for you to be brought', 'you may be kept in a place of safety'. We acknowledge that some solemnity may be required given the seriousness of the possible disposals which the hearing has to consider, but we were astonished at one hearing to find that the letter had been sent to children aged six months and two years. We understand that there was much debate about the letter but we urge SCRA to reconsider this 'invitation to attend' and make it as user-friendly as possible.
Recommendation That SCRA reviews the appropriateness of the current style of communication with children.
39. The statutory duty for training panel members rests with the individual local authorities but Scottish Ministers exercise their discretionary power to assist panel member training by supporting the four Children's Panel Training Units (CPTUs).
40. As a Committee we view training as one of the most important requirements for any tribunal system. We do not only mean knowledge of the particular legislative provisions or, increasingly, the need to be aware of human rights issues. We are particularly pleased to see that all members receive training in questioning skills and in the ability to elicit and weigh up facts and circumstances.
41. One of our members attended a Children's Panel In-service training day and in our various discussions with panel members at hearing venues we have explored the training available to them within this system. Training has a standard framework based on the 1999 Scottish Executive document 'Children's Panel Training: Design, Content and Evaluation'. Its stated aim is to ensure that the training of panel members is of high quality and is consistent throughout Scotland, such consistency being not only in content but in outcomes, the amount of training offered, assessment and evaluation. We applaud this kind of approach since it means that children, families and professionals who attend hearings in any part of the country should receive a comparable experience.
42. This good practice is in marked contrast to the findings in our special report on Education Appeal Committees which we published in June 2000. That is also a national system under Scottish legislation where training is the statutory responsibility of local authorities. However with EACs there has been no encouragement or leadership from the Scottish Executive for authorities to instigate relevant training programmes; authorities are left to their own devices with the result that some are reluctant to devote resources to something which is not perceived as being of high importance. Consequently training is spasmodic and patchy and there is no standardisation of treatment across authorities. We find it difficult to understand why the Executive can support one national system and not another: we hope it does not imply a belief that EACs are relatively unimportant.
43. Children's Hearings panel members must complete at least 40 hours of pre-service and 16 hours of new-member training satisfactorily as part of the full induction course: subsequently they are expected to attend in-service training of at least 10 hours per year. There are also refresher courses and some panels arrange their own local training programmes planned to meet local needs. There is also Chairmanship training for the more experienced panel members which they must undertake before they can chair hearings.
44. From our discussion with panel members it was clear that they welcomed and enjoyed the training opportunities. It is a significant commitment for panel members to attend the various compulsory evening and weekend training sessions and we are aware that it has proved too rigorous for a small number of new members who have decided to relinquish their role. But the benefits are clear to see in the way the hearings are carried out and provided the recruitment process leaves no doubt about what is being asked of potential panel members, the intensive training programme is, in our view, a small price to pay for a consistently well run hearings system.
45. On one visit we observed a post-hearing self-assessment by the hearing which was impressive. We have also seen the type of Observation Form used by the Children's Panel Advisory Committee to assess the performance of members, including their chairing skills. In some tribunal systems this might be seen by the panel members as a step too far, but if it is used to improve an individual's techniques and as a marker for training needs we believe such quality assurance is useful and justified and we encourage this approach.
46. The Reporter is the lynchpin in the system; he or she is effectively the case manager. The Reporter introduces the case at the hearing, can be asked to explain why the case has been brought and why it is felt that the child is in need of compulsory measures of supervision. He or she also needs to guide the panel in legal issues without encroaching on the panel's determinations. We were pleased to have confirmed to us that specialist training was planned by SCRA and delivered to all Reporters in advance of the implementation of the Human Rights Act, but we consider that ongoing relevant training is as important for Reporters as it is for panel members.
47. Human rights issues are likely to change the role of the Reporter. In some parts of Scotland it was the practice for the chairman to dictate the reasons for the hearing's decisions to the Reporter who wrote them down in front of the parties concerned. Now some hearings have suggested that the Reporter should not be involved in this physical writing since he or she was the one who had brought the case. However the Reporter still has a role in ensuring that the reasons are full enough and include all salient points so he or she has to be involved to some extent. There is also a suggestion in some areas that members should not ask the Reporter for legal advice as this could compromise the Reporter's independence. There may also be future issues about how the Reporter interacts with the new legal representatives.
48. We know that guidance on human rights issues was produced for the introduction of the Human Rights Act in 2000. However the concerns we have noted have arisen since then. We think that the role of the Reporter in relation to the panel should be the subject of discussion in relation to these human rights issues and that there should be further guidance to panel members to promote consistency of practice.
i. That Reporters receive ongoing effective training.
ii. That SCRA urgently reviews the role of the Reporter in relation to emerging human rights issues and that the Scottish Executive then issues further guidance to panel members on that role.
49. Our discussions with panel members have highlighted panels' frustrations, and raised concerns, about the adequacy of resources in local authorities to service properly the Children's Hearings system. The following were some examples:
50. It seems particularly inappropriate, given the substantial input from volunteer panel members, the excellent quality of the training and the real potential of a customer-focused system, that it should be jeopardised through lack of resources to implement the hearing's recommendations, especially when there are many instances of early intervention by the hearing preventing the requirement for further resources at a later stage. If our small sample of visits illustrates this kind of occurrence we are concerned that there is a more widespread problem. In some areas, report forms are available for members of hearings to comment on available resources and we commend this practice.
51. Since the operation of the whole Children's Hearings system is dependent on social worker involvement and appropriate disposals, we ask the Scottish Executive to satisfy itself that there is not an underlying difficulty and that local authorities have provided adequate resources.
i. That the Scottish Executive urges local authorities to devote adequate resources to support the hearings system.
ii. That the Scottish Executive carries out a strategic review of the available facilities, the latter to include consultation with panel members.
52. We understand that in some areas if a case is adjourned - justifiably so, for instance in order to obtain further reports - different panel members will be involved unless the adjourning hearing particularly asks to sit at the next hearing. We do not regard this as good practice. At the least it is lacking in continuity. We expect that at least one of the same members, preferably the chairman, should form part of the next hearing. We accept the argument that unacceptable delay may be experienced if the same members are to be reconvened but we suggest that in particularly complicated cases every effort should be made to effect continuity. Otherwise parties are being subjected to the ordeal of having to go through the process afresh in potentially harrowing circumstances and before a different hearing which, concernedly, may arrive at a different result. This applies equally to hearings where children's cases are being reviewed under the various statutory provisions. There is a careful balance needed between continuity on the one hand and the need for a fresh approach, without fixed views, on the other. We would like to see a re-examination of this issue.
Recommendation That the Scottish Executive examines the current position on continuity of hearing membership.
53. We are aware that in some locations the option of holding a hearing in the evening is not available other than by exception. This may make it difficult for parents to attend. We would wish to ensure that the flexibility of hearings outwith office hours to suit both those attending and the panel members should not be lost as this is a welcome feature of the system which ensures that it continues to be user-friendly.
54. We have considered the Scottish Executive's paper 'Making Scotland Safer' with its discussion on the feasibility of pilot schemes to find out whether 16 and 17 year old offenders could be dealt with by the Children's Hearings system more effectively than the courts. At present a Children's Hearing only becomes involved with 16/17 year old offenders if they are already under a supervision requirement or if a court decides to refer a young person who has pled, or been found, guilty of an offence to a Children's Hearing for advice. Huge resources will be needed to deal appropriately with these additional cases. We appreciate that there will be consultation on the necessary amending legislation to allow such pilots to proceed but this Committee will wish to be assured that the panels can cope with all of the implications. We believe that adequate resources must be made available to put in place programmes, placements and additional training.
55. Representation appears to be more frequent than it used to be; we believe in up to 25% of cases in some areas. On many occasions this is with solicitors, who can be a help in dealing with the perceptions of the children and parents although we were told that at times a chairman needs to dissuade a solicitor from making legal speeches which make the hearing too formal. Up until now legal aid has not been available for legal representation at the hearing itself although legal advice is available, free or at reduced cost, to inform a child or his parents about their rights and the grounds for referral. There have been arguments that the absence of a legal representative preserves the informal, welfare-centred and child-centred nature of the hearings system and that an increasingly legalistic system will destroy the ethos of lay panel members.
56. We read with interest the judgement of the Court of Session in August 2001 following the case of S v Miller. Although the Court concluded that the Children's Hearings system as a whole complied with the requirements of the European Convention on Human Rights, it was ruled that legal aid requires to be available in circumstances where there are complex legal issues to consider, where the child may not understand the process or where there exists the possibility of deprivation of liberty. In response to this, new provisions will allow the Children's Hearing to appoint a legal representative from a list and the cost will be met from public funds. Whilst we obviously support the availability of legal representation in these circumstances we are concerned that the criteria are limited and we recommend that its working be kept under review. This particular tribunal system requires skilled and appropriate representation. There needs to be a full debate on this.
57. We understand that there is to be a review of the Children's Hearings system with regard to ECHR matters but we urge that the remit should be broadened to consider other issues.
Recommendation We urge the Scottish Executive to keep under review the new provisions to appoint legal representatives.
59. We have been very much impressed with what we have seen: caring and skilled panels, well trained for their role in this distinctive system of juvenile justice.
60. Our report mentions some concerns but these are not with the tribunal system which we feel is fundamentally sound. Provided the Scottish Executive and SCRA are alive to the issues which we have highlighted, and can take action on them now, the system will continue to address the needs of children.
61. We believe that it is essential to keep the Children's Hearings system under review to keep pace with a changing society but we would not like to see change made just for the sake of it.
We recommend that:-
The Council on Tribunals and its Scottish Committee are independent advisory bodies first established in 1958, following the publication of the Franks Report on Administrative Tribunals and Enquiries and now operating under the Tribunals and Inquiries Act 1992.
The principal functions of the Council and the Scottish Committee, as laid down in the 1992 Act, are: