Not enough or too much? Scotland's unique children's hearings system to undergo radical change
Scotland’s unique children’s hearings system is to undergo its most radical change in 60 years
It was a simple yet radical guiding principle - needs not deeds.
In 1964 the Kilbrandon Committee’s report fundamentally altered how young people in trouble with the law were to be treated in Scotland.
Rather than leave children to the mercy of the judicial system, trained volunteers would make decisions in the best interests of families in their own communities.
And so Scotland’s unique children’s hearings system was founded, focused on welfare over punishment, early intervention and family participation.
Volunteers make high level decisions that impact children’s lives - where they live, how often they see their parents, on foster placements or secure care.
Yet 60 years later, the critical decisions lay tribunal members make have become increasingly complex - and calls to reform the hearings system increasingly loud.
Legislative changes passed this month in the Children Act will see the most radical change to Children’s Hearings Scotland since the system began.
Rather than three volunteer tribunal members, the panel will be made up of a paid chair and two volunteer side-panel members.
Some decisions will be taken by the chair acting alone.
It is a seismic change affecting thousands of vulnerable children and young people and, critics say, fundamentally alters the ethos of the system.
“My preference is that we call it an enhanced chair that happens to be remunerated,” said Elliot Jackson, National Convenor of Children’s Hearings Scotland.
“It's an opportunity to reboot and reset relationships with social work and all the key stakeholders in the system.
“This is a real opportunity to make a difference for children, young people and their families,” he added.
Mr Jackson admits that he now has a “job of work” to do to convince the system’s 2,500 volunteer panel members of the merits of introducing a paid chair.
Semantics aside, the new chair role will differ from the existing role.
Mr Jackson believes the enhanced chair will reduce deferrals and appeals, albeit the number of appeals is low - in 2024/25, there were 250 appeals from 21,313 hearings.
The legislation gives a provision that the chair can meet with the reporter - the professional who arranges and monitors but does not take part - ahead of the hearing to plan who will attend and what reports might be needed.
They will also, due to legislative changes, be able to conduct single-person hearings, with the chair able to make a unilateral decision for certain types of hearing.
The chair will also take responsibility for writing the reasons and decision of the panel, which currently is a strictly collaborative effort by all three tribunal members.
An initial suggestion for salaried chairs was rejected early in the legislative process - largely for cost reasons - and instead the arrangement will be “sessional chairs”.
Mr Jackson sees them working three days per week, giving more scope for continuity.
Currently, a panel can ask for panel member continuity and request that one of the tribunal sits at the next hearing.
In practice, this is facilitated only around 10 per cent of the time.
Mr Jackson believes the changes will result in a reduction of children and young people coming into the hearing system.
He expects it will lead to earlier and more effective interventions, and that a duty on social workers to engage in family group decision making will also help.
But is this the first step towards professionalising the system?
He would, Mr Jackson says, resist this as a “proud national convener”.
“I'm proud of the welfare nature of the hearing system. I'm proud of Kilbrandon principles, and I stay as true to that as I possibly can,” he added.
“I think legislators have achieved the sweet spot of transformational reform that preserves the ethos of our system while delivering critical change for children and young people.”
He sees these changes as sustaining the system for the next decade at least.
The children’s hearing system is the only tribunal system in Europe that is 100 per cent volunteer-led.
You could argue that is a source of pride, Mr Jackson says, or it is a sign of a need for reform.
Certainly, hearings are far more complex than in the 1960s; a redirection of Legal Aid funding introduced more solicitors into the system, making it increasingly litigious. Meanwhile, a raft of forthcoming legislation is set to make training and execution more complex again.
Recruitment for panel members, particularly post-pandemic, has become difficult - as has retention.
The average length of service is now three years and there is reluctance from some panel members to chair hearings.
Diversity is another challenge, despite recruitment drives aimed at securing panel members from BAME, working class and younger demographics.
A concern from panel members is that the paid chair will be legally qualified.
Mr Jackson understands this concern. “Would that lead us into stepping into a bit of a tunnel into a litigious system?” he said.
“My preference is that they would become legally competent, and not necessarily be legally qualified.”
He is hopeful that the majority of new advanced chairs will come from within the existing panel community.
This seems a difficult ask. If the aim is to alter the average profile of a panel member - white, female, aged in the mid-50s - it might be hard to find many outwith that demographic who can commit three days a week to the system.
What Mr Jackson ultimately wants to see is a commitment that children and young people spend no longer than two years in the hearing system before moving to a good outcome.
Sheriffs will now have 90 days to hear a case and establish the grounds. During the pandemic, this sometimes took up to 18 months.
Now, 16 and 17-year-olds who are involved for reasons of offending will be brought into the hearing system and kept away from the criminal justice system.
Jeffrey Jay has been a panel member for 16 years.
He shares the concern of other panel members that the role of the paid chair will undermine the autonomy of the panel.
Dr Jay is further concerned that a paid chair would be seen to be a function of the government, rather than independent.
Currently, each panel member makes their own decision and gives reasons for it without conferring.
This happens in front of the family, for the sake of transparency, and an overall decision is reached unanimously or by a majority.
“It strikes me as quite wrong and unworkable and detrimental, the idea of having a paid chair in continuity for the whole panel journey of the family,” Dr Jay said.
“I think it would destroy the independence of the panels in terms of making individual decisions, a family would then be stuck with a paid official a bit like a paid judiciary.
“The separation of powers in decision making would just be all pigs and whistles, because that paid chair would have authority over the others, no matter how much you dress it up.”
He agrees that good hearing management should negate several of the issues raised that have led to the move to introduce paid chairs.
Another panel member, who asked not to be named, said it was vital that the system allowed for families to appeal for the appointment of a new chair.
She said: “We talk about mitigating deferrals and making sure the hearings run smoothly but sometimes it is the families themselves who are causing delays.
“You have to be deft enough to manage it but parents can kick off in a hearing, they may absolutely refuse to work with a certain chair.
“The current system allows for a fresh start at each hearing - we must be cautious about undermining that.”
Richard Leonard, the Labour MSP, said he had been approached by panel members with concerns about professionalising the hearing system.
“Some have been apoplectic about it,” he said.
“If recruitment is an issue, then further marginalising lay person input will mean even less chance of attracting people to do it.
“This has lawyerisation written all over it. And if they’re saying that this is so complex that someone with legal training is needed to chair then what does that say about the chances of comprehension by the children and young people involved?
“It is a fundamental assault on the Kilbrandon principles, and there are consequences that maybe haven't been thought through.
“It cannot become an arms race, where the lawyers take over completely.
“We live in a socially segregated society, so I'm sceptical that having highly skilled salaried professionals chairing children's hearings will mean that the people leading those panels have got any life experience whatsoever of living in deprivation and poverty.”
The NSPCC has been working with babies and families who come into care in Scotland for more than a decade.
Its Glasgow infant family team works with families where a baby has been received into care but where reunification is the goal.
Workers assess the quality of care-giving, leading to the charity being able to give a robust recommendation as to where that child should call home.
The NSPCC was part of a recent study, led by University of Glasgow Professor Helen Minnis, that looked at improving the mental health of newborn to five-year-olds in foster and kinship care.
One of the most significant findings was the limitations of the children’s hearing system to make robust and timely decisions for very young children.
Joanne Smith, Policy and Public Affairs Manager at the NSPCC, points to a deferral of decision making by panel members.
“It's completely a human response to be reluctant to make kind of life-changing decisions about a child, safe care, without the kind of robust literature that you need to feel informed to make that decision,” she said.
“The design of the system builds in delay, and we're not really honest about what would need to be in place to make really robust and timely decisions in an infant's best interest.”
One third of the children in the hearing system are younger than two-years-old.
Ms Smith said the NSPCC position is that a paid chair is the most competent route forward for the hearing system.
When comparing the legal decision making process in Scotland and England, England has a judicial-led family justice process.
“Not having that judicially competent, strategic oversight feeds into that drifting delay,” Ms Smith said.
“I’m less concerned about whether they should be paid or otherwise”, she added, saying there is evidence that the English system leads to quicker, better decision making.
One of the outcomes for children that is dealt with more promptly in the English system is permanency.
Adoption and permanency orders are ultimately dealt with by a sheriff but children’s hearings have a role to play in the decision making process.
Decisions around permanence happen four-and-a-half times more quickly in England than they do in Scotland.
Ms Smith acknowledges that the English system is criticised for its “rush to adoption” while Scotland has a clear ethos of endeavouring to keep families together.
Ms Smith says the Scottish government is “burying its head in the sand” in terms of the changing demographic of children in the hearings system.
“The ambition rapidly diminished, and we ended up with this very small-scale tinkering across a disconnected set of areas with no coherence in the Act,” she said.
At the end of the stage three process for the Children Act - which forms part of ‘The Promise’ pledges to improve the lives of care experienced people in Scotland - there was an amendment that would commit the government to review the permanence process in Scotland.
While that commitment is welcome, for the NSPCC it was a missed opportunity not to change the legislation.
The charity believes that review process will highlight real inequalities compared to the rest of the UK.
It is a fine balance. The wider system - health, social work, education - should do everything possible to ensure children remain at home and families stay together.
However, late placement for adoption increases the likelihood the adoption will break down.
There are significant links between late adoption and poorer outcomes throughout the rest of a child’s life.
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The charity also calls for specialist panel members who would have expertise in the specific needs of babies and infants, who show distress in a very different way to older children.
Mr Jackson hopes that, with the reforms underway, the system can move to a place where children actively want to come to a hearing “because they believe they can have agency over that hearing”.
“I want this to be an opportunity to change the mechanics of the hearing into this rich space where people can have a really sensible conversation without negatively affecting the child,” he said.
Young people were asked what they hoped for from a hero.
“They wanted a superhero who was batting for them, who was there to listen to them and to try to work with the professionals to advocate for a good outcome,” he said.
“Ultimately, that’s what the system must provide.”
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