Spotlight on … Rights

On Human Rights Day, we shine the spotlight on rights in the Children’s Hearings System. We talk to Melissa Hunt, our Policy and Public Affairs Manager and Jennifer Orren, our Participation Lead to find out more…

Q) What are some of the most important rights children have in the Hearings System 

Perhaps the things that matter most to the children we work with are the things that are set in stone across the Children’s Hearings System. That is the right for a child to give views to the Reporter about whether a Children’s Hearing is needed. The right to attend a Hearing. The right to receive papers for a Hearing. The right to be represented at a Hearing. The right to appeal Hearing decisions. The right to take part in Hearings at court which are linked to the Children’s Hearing. Even thought we think these rights are set in stone many children don’t know about them. If they are not known then how can they be met? 

More generally, one of the really important things about the Children’s Hearings System is that it works with all children, aged 0-18 and is going to do more of this in the future. We know that older children don’t like to be thought of as children. However, for the Children’s Hearings System it is important that we think about all the children who come to the Hearing as a child. As children get older they change. Part of this change is that they understand more about everything. They can also take more control over their own lives. This is an important thing for children’s rights. Parents have a very important job when they have children. the job of a parent changes as a child gets older, and is able to make their own choices. 

Children’s Hearings make decisions about children like whether a child and their family need support from a social worker or other person. They can also decide  where a child should live, who they can and can’t see and where they can go to school. These are decisions that are normally made by a child’s family. However, for many reasons, the ‘state’ sometimes needs to step in, to make decisions on behalf of a child and family. This ‘statutory intervention’ happens in Scotland through the Children’s Hearing. The Children’s Hearings System is the term used to describe the process of assessment and decision making which can lead to a Children’s Hearing making decisions for a child. 

The Children’s Hearings System begins with a ‘referral’. Most referrals are made by Police Scotland or a social worker. But, anyone can refer a child if they are worried about them. A referral goes to the Children’s Reporter. The Reporter then considers the referral. They may ask for reports from professionals. Once they have enough information, the Reporter has to decide if a Children’s Hearing is required. 

If a Hearing is required, the Reporter needs to write a document to explain why. This is called the ‘grounds for referral’. A Children’s Hearing asks a child and family if they agree with the grounds. If they do not agree, the grounds may need to be decided by a sheriff in a court. After grounds are agreed or established a Children’s Hearing can decide what to do. A Children’s Hearing can issue an order called a Compulsory Supervision Order (CSO), which lasts for up to a year. Before the end of 12 months the CSO needs to be reviewed by another Hearing. 

This process takes some time. It is also a legal process and children and families can need legal advice or advocacy support. The Children’s Hearings System works within international rights law. That means that the European Convention on Human Rights (ECHR) and the United Nations Convention on the Rights of the Child (UNCRC) are important. In the hearings system two ECHR articles are often considered: 

• 6 – right to a fair trial 
• 8 – right to respect for private and family life. 

In summer 2024 Scotland incorporated UNCRC into its own laws.  Now the UNCRC is something which applies in full.  UNCRC rights are central to all Children’s Hearings, and Children’s Hearings decision making.

Q) Is there more information you think may be helpful for children and families to know about children’s rights?  

Yes! All Children’s Hearings are child-focused. Every Children’s Hearing needs to know what the views of the child are, before they make their decision. Children can come to their Hearing and tell the Hearing what they think. However, we also know that sometimes a Children’s Hearing can be a difficult experience. People don’t always agree what should happen. People can get emotional. Children may want to be supported by a friend, family member or teacher. A child can also have a legal representative, if that is helpful. A child can also be supported by an advocacy worker, who can help them explain what they want to happen. 

Children should be supported to stay with their families, whenever that is possible. If they can’t live with their families then family relationships should be maintained – if it is safe to do so. If children are in conflict with the law then they should be treated with dignity and respect, have a fair trial that takes account of their age and experience a reintegration into society. Children have a right to an education, the right to live free from abuse, be protected from drug abuse, sexual exploitation and human trafficking. 

Some children need to spend time in ‘secure care’. Secure care means that there are additional limits on what a child can do. If a child needs secure care, then a legal representative and an advocacy worker can support a child when this happens. Sometimes decisions about children need to be made very quickly. These emergency decisions can also mean children need some additional support.

Q) There were some recent changes following incorporation of the United Nations Convention on the Rights of the Child (UNCRC) into Scots Law this summer. What do the changes mean for children?

The incorporation of UNCRC in the summer was very exciting. It is something SCRA has supported for a long time. Recognising UNCRC across all of our laws in Scotland means that children’s rights always need to be considered – by all of us. Adults are not the only people who can make decisions. Children also have thoughts, feelings, wishes about the things that affect them, their environment, their planet and their world. Children can often articulate things more clearly than adults and can get to the heart of the matter. 

All the UNCRC rights for children are as important as each other. That makes it quite difficult to say which are the most important. However, the process around a Children’s Hearing does mean that some UNCRC rights are not affected and others are more affected.  We think that is the case from the first involvement a child has with the Hearing, a referral to the Children’s Reporter. And it carries on to the end of any Compulsory Supervision Order that has been made for a child. The UNCRC articles that we think are highlighted in the Children’s Hearings System are:

• 3 – best interests of the child.
• 9 – separation from parents.
• 10 – family reunification.
• 12 –  respect for the views of the child. 
• 16 – right to privacy.
• 19 – protection from violence, abuse and neglect.
• 20 – children unable to live with their family.
• 25 – review of treatment in care.
• 28 – right to education.
• 39 – recovery from trauma and reintegration.
• 40 – juvenile justice.
• 42 – knowledge of rights.

The Children’s hearings system has always tried to work within the framework of international human rights.  This is one of its strengths. As a result, we did not have to make major changes as a result of UNCRC being incorporated into Scots Law.

SCRA has changed the way in which we work at the earliest stage. We now ask children to give their view about what they think should happen after a referral to the Reporter. 

We are always  thinking of ways to make things easier to understand  and we are looking again at the information we give to children and families. We think that could be improved. We think that information can really help children understand what will happen in the Children’s Hearing. We also think it can help them understand what support they can get.   

Children who understand what is happening and are supported are also children who will be able to ask questions. This is a really important part of UNCRC. Children should be able to challenge things when their rights are not respected, or met. Children will be supported when they want to challenge things. 

Q) Brothers and sisters also have participation rights in the Children’s Hearings System, can you explain how these work? 

When a Hearing makes a decision, that decision is about a single child. However, the decision may also have an effect on others. This can happen when a child moves to live somewhere else. It could affect brothers and sisters in a family, or stepbrothers and sisters. It could affect foster brothers and sisters. 

As a result, the law changed in July 2021. The law now recognises that other people who have lived with a child can be affected by decisions about that child. When this happens, there should be ways for them to be involved in the decision making. People with ‘participation rights’ can now be involved in most Children’s Hearings. They can also be involved in some court Hearings and when a child has moved after an emergency transfer. Participation individuals would not be involved in Hearings to give advice to the court, which do not make a decision about a CSO. We have to say that participation rights are not very straightforward. There are a lot of things to think about. 

Four things need to be in place for a person to have participation rights.

1. The person is living with the child or the person has lived with the child.
2. There is an ongoing relationship. That ongoing relationship is like a brother / sister relationship. 
3. The children’s hearing is likely to make a decision that significantly affects contact, or the possibility of contact.
4. The person is able to form a view about their contact with the child. 

There are two ways for a person to get participation rights. A Reporter can decide that all four of the things that need to be in place are there. A Pre-Hearing Panel (PHP) can also decide if the participation rights apply to a person. People can ask for a PHP to think about whether they have participation rights. 

People who don’t have participation rights can also let the Reporter, their legal representative, an advocacy worker or a social worker know they want to be involved in the Hearing. They may be invited. People can send views in writing to the Reporter. These views will be shared with the Hearing if they are about the decision the Hearing is being asked to make. 

A participation individual and their supporters will be involved in the Hearing for any discussion which is about their contact with the child. They won’t be in the full Hearing. They will be told what decision was made about their contact, if any, after the Hearing. 

Participation individuals can ask for decisions to be reviewed. They can’t appeal a decision. 

Other people may have ‘established family life’ with a child. They could be older brothers or sisters who don’t live in the family home, or other relatives. They will have an ongoing relationship with the child. If they want the Hearing to think about their contact with the child, or if the Hearing is likely to make a change to their contact, the Reporter will invite the person to the Hearing. The person can also give their views in writing. At the Hearing, the chair of the children’s panel in the Hearing will decide how to involve the person.   

We know all of this can be difficult. Decisions about who has rights are made before every Hearing and they can change. If you didn’t have the participation rights before, you may now. If you are not sure, then ask. The Reporter’s office can help you and the professionals supporting you when things are unclear or confusing. 

Q) Can children get help to ensure they know their rights in the Hearings System? 

Absolutely. 😊 We encourage any child to ask questions about their Children’s Hearing. It is important that they understand what the Hearing is all about, so that they can give the Hearing their views. Every Hearing wants to know what the child thinks. If a child wants to attend their Hearing to say what they think, that is brilliant. Some children may want an adult to speak on their behalf and they can have a supporter, who can be an advocacy worker. They can also have  a legal representative. Children may want to give the Hearing their views in writing. If they do this, then what they write will be shared with everyone who comes to the Hearing and has a right to the information. If you don’t want to give information to people, then please speak to your social worker and the Reporter, to see what can be done. 

Children may not agree with the decision of the Hearing. When this happens children can appeal the decision. They can be supported to do this. A child may want a decision to be reviewed and they can be supported to ask for this to happen. Children may want to be involved in decision making about brothers and sisters they care about. They can be supported to be involved. 

Children may also want to complain about something. SCRA has a child friendly complaints process. However, a child may want to be supported to make a complaint as well. 

There is a lot of information online on SCRA’s website. It can really help. 

Q) What does SCRA do to ensure children’s rights are upheld and promoted? (Melissa?)

Children’s rights are really important to everyone at SCRA. The children’s hearing is a meeting about a child and should also be a meeting for a child. Every child should feel able to come to their Hearing and to give their view. They should also feel confident that their view is heard, and has an impact on the decisions that are made about them. SCRA is trying to involve children across our work. We are seeking out views from children when we are thinking about referrals. We are signposting children to advocacy supports. We are trying to find out what children want to happen when they have a Children’s Hearing. We don’t want children to miss out on other things as a result of their Hearing and we don’t want a Hearing to have a negative impact on children in school. Technology can help some children to attend their Hearing. 

Children’s rights are not the only rights that Reporters think about. Some adults also have rights in the Children’s Hearing. When this happens it is very important that everyone with rights knows that they can challenge the decision. It is important for children and families to know about how they can appeal decisions. It is also important for them to be able to access a simple and effective complaints procedure. 

Children’s rights have been central to the Children’s Hearing and the work of Reporters for many years. We are continuing to look for ways to improve our work, so that children can exercise their rights. This should mean that the experience children have of their Children’s Hearing should improve. They should understand the Hearing. They should know how they can be involved in the Hearing in a way that works for them. They should feel supported. They should be able to question things they don’t agree with and they should be able to say when things don’t feel right. 

And they should feel – and be – safe.