Referral Grounds

What is the statement of grounds?

The statement of grounds is a document produced by the Children’s Reporter which sets out the concerns about the child who is referred to a children’s hearing. Each statement will have a section 67 ground at the top. Section 67 refers to the part of the Children’s Hearings (Scotland) Act 2011 which sets out a list of 17 broad reasons why a child might be referred to a Children’s Hearing. These are the grounds of referral. See the grounds listed in section 67 of the Children’s Hearings (Scotland) Act 2011.

Underneath the s67 Ground are the supporting facts. These supporting facts are specific to Lucy and her circumstances and set out the reasons why the s67 ground applies to her situation.

What happens at Lucy’s children’s hearing when there is a statement of grounds to be considered?

A children’s hearing cannot consider making a Compulsory Supervision Order (CSO) until either the Statement of Grounds is agreed by Lucy and each relevant person, or the grounds have been held to be proved by a court. At a children’s hearing where a statement of grounds is to be considered, the Chair of the hearing will read out the ground and each statement of fact and ask the child and relevant persons in turn if they accept or deny the statement. If the ground and statements of fact are agreed by all, the hearing can go on to consider whether or not a CSO is necessary.

What about if Lucy or her relevant persons deny the statement of grounds?

The hearing can at this stage discharge Lucy’s referral and she would not therefore have to attend any further children’s hearings. This would only happen if the hearing were satisfied that the concerns about Lucy had lessened since the grounds were drafted. This is relatively rare since not a lot of time will have passed between the grounds being prepared by the Children’s Reporter and the hearing arranged to consider them. The hearing also have the ability to amend the statement of facts, either by changing words or deleting a statement, until the statement is agreed. The hearing however must be careful that the statement of facts still reflect the concerns about Lucy accurately. Anything other than small changes will probably not be considered by the hearing. Instead, if Lucy or her relevant persons deny the grounds (or if the child who is subject to the hearing is too young to understand the grounds) the hearing will refer the grounds to the Sheriff for proof.

What does it mean to refer the statement of grounds to the Sheriff?

If there is disagreement about the statement of grounds, it is the Sheriff’s responsibility to decide if the ground is established (proved). The Children’s Reporter presents evidence to support each statement of fact. This would usually involve calling witnesses to give evidence at court or presenting reports or documents. Lucy and her relevant persons can also present evidence to the court and challenge the evidence presented by the Children’s Reporter. Anyone challenging the evidence presented by the Reporter would be advised to have legal representation to help them to do this. It is possible, at any stage when the grounds are being considered by the Court, for the Children’s Reporter, Lucy and her relevant persons to come to an agreement on the grounds by changing words or adding or deleting parts of the statement of facts. The Children’s Reporter can also withdraw the grounds if new evidence comes to light that suggest the statement of grounds won’t be established or Lucy’s circumstances change. Ultimately, if no agreement can be reached, the Sheriff will hear evidence and make a decision.

Does Lucy have to go to the court?

The law says that Lucy must attend court. She could however be excused from attendance like she can be from a Children’s Hearing. In practice, very young children and those who do not wish to participate in the court process will usually be excused without much of an issue. If you were supporting Lucy and she is sure that she does not want to take part in the court proceedings, you could inform the Reporter of this who will in turn be able to advise the court. If Lucy did want to take part in the court proceedings, either with a view to persuading the Sheriff to find the grounds established, or because she does not think that the grounds are accurate, she should instruct a solicitor to help her.

Depending on the circumstances, Lucy may have to give evidence to the court to help prove the Reporter’s case. The Reporter would speak to Lucy about how she feels about doing this and if there are any measures that could help her give evidence in court. Children are considered vulnerable witnesses when they are asked to give evidence to the court and can request to give evidence from behind a screen or via a video link. They can also have someone sit with them while they give their evidence, called a ‘supporter’. If you were supporting Lucy, and she was cited as a witness for court, you could help her decide what measures would might help her feel most comfortable when giving evidence and discuss this with the Reporter.

Who will be at court?

The court room will look a little different to a Children’s Hearing. Though it varies from court to court, the room will be much more formal. Although a time will be given for Lucy’s case to be heard by the Sheriff, it is common for many cases to be given the same time and for there to be a lot of waiting until it is your turn to go into the court room.

The judge, called a Sheriff, usually sits on a raised platform called the bench. The Sheriff is assisted by a Sheriff Clerk, who is in charge of the court diary and ensures that the Sheriff has the correct papers for the hearing. There is usually a Bar Officer in court too, who will call out the name of the cases when it’s time for them to be heard by the Sheriff and who will bring witnesses into the court when it is time for them to give evidence.

The Children’s Reporter will be at court and when the hearing begins, the Reporter will speak to the Sheriff first to tell the Sheriff briefly about the case and what stage Lucy’s case has got to. There may be a number of procedural hearings before a hearing is fixed to hear the evidence. Procedural hearings give those involved the chance to tell the Sheriff if they are ready for evidence to be heard or if they need more time to prepare their case. It is the Reporter’s responsibility ultimately to bring evidence before the Court to prove the statement of facts.

Lucy and each relevant person (if not excused) will be there, each with their own legal representatives if they choose to instruct one.

A safeguarder may also be present. Safeguarders can be appointed by either the children’s hearing or by the Sheriff. They are there to safeguard the interests of the child throughout the court proceedings. Safeguarders do not represent children and young people in the proceedings and are not instructed by the child, although they will give the child’s views to the Court. If the grounds of referral are established, the safeguarder will write a report for the children’s hearing to make recommendations of whether or not a CSO is necessary for the child, and if so, what measures might be attached to it.

How long does it take for the Sheriff to make a decision about the statement of grounds?

If the children’s hearing directs the Children’s Reporter to refer Lucy’s grounds to the Sheriff for proof, the Reporter send them within 7 days.  There must then be a hearing before the Sheriff within 28 days. This first hearing before the Sheriff is just procedural. The Reporter and the legal representatives for Lucy and the relevant persons will explain to the Sheriff where the disagreements lie and how long they are likely to need to prepare their case. Every case is different, however the Sheriff will then fix a further date to come back to court, either to hear evidence if everyone is ready, or to have another procedural hearing to check what preparations have been made and what remains to be done. The hearing of evidence can take anything from a few hours to a few weeks depending on the amount of witnesses and the complexities of the issues. The hearing of evidence is called the proof. The majority of referrals to the Sheriff are agreed with amendments (sometimes called settled) between the parties involved which means that the grounds can simply be found to be established and no evidence is required to heard. If the Lucy’s grounds are agreed, or if they are found to be established by the Sheriff after hearing evidence, the Sheriff will send the matter back to a Children’s Hearing to consider the Lucy’s circumstances and decide if a CSO is necessary. If the grounds of referral are not established, the referral is discharged and there will not be a further children’s hearings for Lucy.

If the referral to the Sheriff for proof can take weeks or months to resolve, what happens if Lucy needs support or protection more urgently than that?

The children’s hearing, before referring grounds to the Sheriff for proof, will consider if any measures are needed to protect Lucy in the meantime, while the matter is at court. The hearing is able to put in place an Interim Compulsory Supervision Order (ICSO) if it is urgent and necessary that they do so. This looks much the same as a CSO except it can only be in place for a maximum of 22 days before it is reviewed again and a decision taken to extend for a further period of up to 22 days. A children’s hearing can only make ICSOs up to a maximum of 66 days before the Reporter has to instead apply to the Sheriff for an extension. In practice, there is no limit to how many ICSOs can be made in succession and, if they are deemed necessary, Lucy could have ICSOs being extended over many months if the grounds are still being considered by the court.

Measures that can be attached to an ICSO are flexible and varied, much like a CSO, but typically they would specify where Lucy is to live if she is not safe at home, or who she can see over that period. Unlike a CSO, an ICSO doesn’t have to name a specific place that Lucy should live, it is enough to say that she should reside in a place of safety. The children’s hearing and the Sheriff must allow Lucy to express any views on the terms of the ICSO and consider these views before making an order. If Lucy is not legally represented in the court process relating to the grounds, you should consider how the Sheriff could be made aware of Lucy’s views on the ICSO. A written or verbal summary of the child’s views could be put to Sheriff by the Children’s Reporter or your attendance at court to convey the child’s views may be permitted by the Sheriff. You could discuss the possibilities with the Children’s Reporter and/or the Sheriff Clerk of the court where the application is being heard.