Why does Scotland's children's hearing system remain so unique?

Two children under 10, a brother and sister, sit on a sofa, sandwiched between an array of adults. They are here, in the Scottish Children’s Reporter Administration building in Glasgow, for the annual review of the child protection orders that removed them from the care of their mum.

Alongside the three members of the children’s panel (the volunteers charged with making decisions), there is grandad, mum, both foster parents, a teacher, a social worker and a lawyer. While the children seem happy to answer questions about their interests, their time at school and even each other, they go silent when asked how they feel about the arrangements for seeing mum and grandad.

The children are clearly uncomfortable being asked their opinion. They want to keep the adults in their lives happy and not upset any of them – a difficult dilemma when each adult is, not unreasonably, hoping for a different response. And so far easier not to say anything.

Such a scenario is one of the reasons behind a key recommendation in a recent report on Scotland’s unique children’s hearing system: to have paid panel chairs who, as far as practicable, follow a child throughout their time in the hearing system.

Sheriff David Mackie, who chaired the review, explains such a change would allow the chair to become “someone they would get to know… the chair would become a familiar person to them, and hopefully a reassuring  one”.

We emphasise that it’s a redesign, not a dismantling. And we’re really trying to restore it, to get back to that non-adversarial, inquisitorial approach

The recommendation represents a big change to a system introduced in 1968. While the review backed the continuation of the ‘needs, not deeds’ approach, it acknowledged the system needed to “evolve and adapt”.

Speaking to Holyrood, Mackie explains: “I have no doubt at all that’s the correct approach. But what’s happened over the last two to three decades is that the system has become a bit overwhelmed, more adversarial and I think the experience for children can be confusing.

“We heard repeatedly that they felt that they weren’t having their voice heard, the decisions were made about them, not with them… An imbalance was developing that was leading to a bad experience for everybody and most worryingly, I think, some poor decision making.

“I think that the review was necessary, but as you’ll see from the report, we emphasise that it’s a redesign, not a dismantling. And we’re really trying to restore it, to get back to that non-adversarial, inquisitorial approach.”

As part of the review, he spoke to a number of care-experienced young people – the work is part of The Promise – and he says what came across quite strongly was a “desire not to have to tell their story repeatedly to a new panel every time”.

This did not come as a surprise, having experienced for himself cases which had gone on for years and which involved “no less than 50 different panel members and about 20 different chairs”. His view is that, while it may be difficult to guarantee the same panel for every hearing, it shouldn’t be too hard to ensure the same chair is used – so long as they are paid, therefore allowing them to carry a caseload.

Stephen Bermingham, head of practice and policy at Children’s Hearing Scotland (the body that recruits and trains children’s panels), agrees about those benefits. He says: “From a trauma-informed basis, the children aren’t meeting different people each time and you’ve got a chair that’s got case grip around that child’s case. It’s not, from the child’s perspective, feeling they’ve been shunted from pillar to post based on who’s available on the rota that day. And you’ve got chairs that can actually follow that child and hold the statutory authorities to account for delivering of orders… The appeal of having essentially a supercharged chair taking responsibility for that child and that family and following them through is a real plus.”

The hearing system has always been assumed to be a good thing, morally a good thing, and evidence of Scotland’s progressive credentials. However, the evidence for that is harder to find

As well as empowering the chair, Mackie’s review also calls for an end to the voluntary system. Panel members, it says, should be remunerated. One argument for this is the increasing complexity of the system.

Bermingham says: “We’re probably getting to the tipping point, I would say, in terms of what we’re asking of our panel community. They’ve become more and more complicated as years have gone by. It’s been in existence for more than 50 years and every bit of new legislation just layers additional responsibilities onto panel members. They now have to think about safeguards, about independent report writers, there’s been an increase in legal representation, the hearing room has become more cluttered and complicated.

“Is it fair that we ask people to make really difficult decisions under quite pressurised environments on a volunteer basis? Is that sustainable? Probably not, particularly if the system continues to become more complex.”

Other recommendations include decision-makers being given specialist training in trauma, child development and communication, putting a child’s plan at the heart of the process, and streamlining accountability measures. But these changes will take time to deliver. The Scottish Government has been asked to respond to the report by the end of this year and a Promise Bill is anticipated before the end of this session of parliament.

Hearing rooms across Scotland are currently being refurbished in a bid to make them more child-friendly

In the meantime, the Children (Care and Justice) Bill is aiming to deliver other changes to the system sooner. The bill, which is currently awaiting its first stage debate in parliament, will expand the children’s hearing system to cover all under 18s. At the moment, it is only open to under 16s and 16/17 year olds who already have contact with the system.

Children’s Hearing Scotland is supportive of the bill, though it comes with a “significant resource implication,” Bermingham says. Modelling suggests there will be around 2,400 additional hearings per year, involving an extra thousand young people.

Bermingham adds: “We think it’s the right thing to do, because essentially children are children. At the moment you’ve got a two-tier system, particularly for those children who come into conflict with the law. Those that are subject to compulsory supervision orders, i.e. have been through the hearing system, are treated differently to 16 and 17 year olds that haven’t been in contact with the hearing system before. From a rights perspective, those 16/17 year olds should be treated as children.

“We’ve very supportive of that, but it does come with challenges and I think probably the biggest challenge will be about the resourcing. It’s going to unearth quite a lot of unmet need in relation to some particularly vulnerable children and young people that are going to be referred into the system that haven’t had statutory services involved in their lives before.”

The biggest challenge will be about the resourcing. It's going to unearth quite a lot of unmet need in relation to some particularly vulnerable children and young people

Holyrood’s Education, Children and Young People Committee last week released its report on the bill, supporting the increase to under 18s. But the committee also heard repeatedly about the financial pressures it brought, particularly for social work teams. It called on the government to provide updated costings ahead of the first debate.

Bermingham made the same point: “What it comes down to is the issue of resourcing and continuity at a local level. This is the key thing about the bill, right? It will fail unless there’s adequate resourcing at local authority social work level to support these really vulnerable children, either preventing them coming into the hearing system in the first place, which is the best, or when they do come into the hearing system, making sure that they’re getting the right support and the orders are actually carried through.

“The hearing system itself – which is one part, an important part, the decision-making part – actually is much less important than the support structures in and around that child, and ideally those support structures should kick in at an early point.”

The bill doesn’t come without concerns, though, particularly when it comes to dealing with serious crimes. In a submission to the committee, Rape Crisis Scotland expressed concerns about how it will apply to alleged sexual offenders who are under 18. “Young people over the age of 15 are generally dealt with in the criminal justice system for cases like this. What is not clear to us is whether the new legislation will inevitably mean that this changes for such offending in 16 and 17 year olds,” the organisation says. 

The decision on whether to prosecute under 16s or to refer them to a children’s hearing is currently taken by the Crown Office and the children’s reporter. That will become the case, if the bill passes, for under 18s – but the charity says this leaves survivors in an “uncertain position”. It also warns that there is “very little intervention that could be achieved” from a children’s hearing because compulsory supervision orders expire at the age of 18.

Children need help, support and education more than prosecution and punishment

Fiona Dyer, director of the Children and Young People’s Centre for Justice, says such decisions should be made on a case-by-case basis. “There is a presumption that the children’s hearings will deal with children, but when it’s serious cases and it’s in the public interest to prosecute, the Procurator Fiscal will take the case.”

She adds: “There may be circumstances which would allow a serious case to go to the children’s hearing system if that’s where the right support and help can be provided, and it’s not in the public interest to prosecute.”

Mackie makes a similar point. “There’s almost a presumption that any child who has come into conflict with the law will be referred to the children’s hearing rather than prosecuted. But prosecution is not ruled out.

“We recognised back in the 60s with Kilbrandon [the report that led to the establishment of the children’s hearing system] that even in relation to children who commit offences – and as far as Kilbrandon was concerned, especially in relation to children who commit offences – it is most often, almost invariably, a consequence of a childhood trauma. That’s not the expression they used then – we better understand trauma and adverse childhood experiences now than we did then – but fundamentally that’s what they were recognising, that children need help, support and education more than prosecution and punishment. And personally I believe that’s the correct approach.”

Despite all the positivity around Scotland’s children’s hearing system, though, it remains unique not just in the UK, but around the world. And when asked, neither Mackie, Bermingham or Dyer have an explanation as to why that might be.

Mackie says: “I often make that point and I don’t know the answer to that… The welfare approach is one that I think has been adopted and followed. Other countries have seen it working in Scotland, but the actual process of a children’s hearing system hasn’t [been adopted]. So I don’t have an answer for that, other than to say that I think that the welfare approach has been adopted by other countries and is much admired, which is what lies at the heart of our system.”

Maggie Mellon, an independent social worker and social work policy consultant, is a little more sceptical. Though she is supportive of a more “rights-informed” and “child-friendly” approach to dealing with both children’s criminal justice and welfare issues, she points to a lack of evidence that the children’s hearing system delivers this.

“The hearing system has always been assumed to be a good thing, morally a good thing, and evidence of Scotland’s progressive credentials. However, the evidence for that is harder to find, I would say,” she says.

She points to the Edinburgh Study of Youth Transitions and Crime – a research programme spanning more than two decades focusing on the causes and consequences of young people’s involvement in crime – which found that any contact with a system of justice, including a welfare-based one, can have negative impacts, including pushing some young people into offending and increasing the chances of reoffending.

Asked why she thinks Scotland’s system has remained unique, Mellon says partly it’s because it was “kept in cotton wool for 30 years” without the need for review being built into the original legislation. As a result, she says, it has “almost been venerated as unquestionable, don’t criticise it, don’t review it, don’t challenge it, don’t rock the boat”.

She adds: “What’s never actually been bottomed out is, is it a wonderful thing? And do we actually have any better results? Do we have any fewer children in care? Do we have better family resources? Is care safer in Scotland than it is in England? Are the outcomes for children better? Do we have more family support or less family support? We don’t know any of those things.”