Scott's Scenario
"You are to attend a hearing with Scott (age 13) next week. Scott lives in a residential unit. His Mum, her partner and his older sister (19) live together at home and he sees them all three times a week. Scott doesn’t have any contact with his father and hasn’t seen him in over a year, although he has heard that his Dad is going to come to the hearing next week and he is upset about this. Scott has lots of questions for you about who is allowed to be at the hearing next week. He asks if he can bring someone along with him for support. He is close to his Gran and it would help him just to know that she is there with him."
Who has the right to attend Scott’s hearing?
Does a child have to attend their own hearing?
Who can be a child’s representative?
Can someone be excluded from a hearing?
Can someone choose to, or be forced to, attend a hearing only by remote means?
What about Scott’s older sister, can she attend the hearing?
Who has the right to attend Scott’s hearing?
Certain people have the right to attend a children’s hearing. This means that they must be permitted to attend unless one of the exemptions applies (see – can someone be excluded from a hearing?) Those with rights to attend are:
- The child (see – Does a child have to attend their own hearing?)\The child’s representative (see –]Who can be a child’s representative?)
- A relevant person (see – Who are relevant persons?)
- A relevant person’s representative
- A safeguarder (if appointed)
- A member of the area support team (acting in that capacity)
- A newspaper representative (but there are powers to have this person excluded from the hearing if their presence is preventing the views of the child being obtained or causing, or likely to cause, the child significant distress).
Can anyone else attend?
Yes, other than those with rights of attendance, there are others who are authorised to attend (such as an individual afforded the right to participate or a custody officer), and those who may attend at the discretion of the Chair of the hearing, either because they meet the test laid out in legislation that they are “necessary for the proper consideration of the matter”, or that the Chair permits them to attend for some other reason. Though for the latter, if the child or relevant persons object to a person’s attendance then they will not be permitted to stay – an example might be someone wishing to observe the hearing for their own training or learning. The chairing panel member always has a duty to keep the number of people within the children’s hearing at any one time to a minimum.
Does a child have to attend their own hearing?
Like a relevant person, the child has an obligation to attend the hearing as well as a right to attend. It is the child’s hearing, and they should always be encouraged to exercise their right to attend to ensure that their voice is heard in proceedings. There are mechanisms to restrict the attendance of others from all or part of the hearing and these mechanisms should be explored first to see if the application of any of these would allow the child to attend, rather than excusing a child from attending their own hearing in an effort to protect them from any harm. If the child does not attend, and is not excused by the panel, then the hearing does have the power to grant a warrant to secure the child’s attendance at the next hearing.
An excusal does not prevent a child from attending, it simply removes the duty for the child to attend. If a pre-hearing panel has excused a child from attending, the child can still choose to exercise their right to attend.
There are three grounds on which a child may be excused from attending.
Where the matter concerns a Schedule 1 offence, a child may be excused if their presence at the hearing is not necessary for a fair hearing. Schedule 1 offences relate to physical or sexual abuse of the child.
Where the child’s presence at the hearing would place the child’s physical, mental or moral welfare at risk. (Note that the test is “would” and not “likely to”).
Where, considering the age and maturity of the child, the child would not be capable of understanding what happens at the hearing.
Who can be a child’s representative?
A representative is defined in the rules a person attends a hearing to “assist the accompanied person to discuss any issues arising for discussion before the children’s hearing or pre-hearing panel.” For a child, this is often an advocacy provider, however, sometimes this can be another family member (who doesn’t already have attendance rights as a relevant person), a carer, or someone else the child trusts. The key thing is that the child must want them to be there as their representative to fulfil that role. If a teacher or anyone else has been invited to the hearing by the Children’s Reporter because they have relevant information to give to the panel, or they have been permitted by the Chair of the hearing to attend, then they are not there as a representative of the child and should not be considered as such.
A representative for a child or relevant person can attend a hearing even if the child or relevant person is not there themselves (however see – Can someone be excluded from a hearing? for the exceptions to this). Representatives of an ‘individual afforded the opportunity to participate’ (i.e. someone given the new rights as a sibling under the recent changes that came in the summer of 2021) can attend for the length of time that the individual they are accompanying is permitted, and must leave when they are asked to leave. That is at the discretion of the Chair.
There were no new rights of attendance created for advocacy providers when the national scheme was brought into force. Existing rules that allow a child to bring one representative to a hearing allow for an advocacy provider to attend a hearing with the child. A child can have a legal representative as well. In Scott’s case, he would like to have his Gran with him as his representative, but he would also like you to attend to help him provide his views. Scott would have to choose at the beginning of the hearing who he would like to go into the hearing with him at the start, and the attendance of the other person will be managed by the Chair of the Hearing. A Chair has the power to admit a person into a Hearing if that individual is “necessary for the proper consideration of the matter”. Arguably, you, as an advocacy worker, attending a hearing to give the views of the child would meet this test and your attendance would be considered necessary, even where Scott already has another person acting as his representative.
Who is a relevant person?
Relevant persons have a right and an obligation to attend every children’s hearing. Individuals who have relevant person status are as follows:
A parent or guardian who has parental rights and responsibilities in relation to the child by virtue of either s11 of the Children (Scotland) Act 1995 or an adoption or permanence order. A contact order under s11 does not on its own confer relevant person status on any individual.
A person who is a parent of the child but who does not have PRRs in relation to the child. The exception to this is if the parent had PRRs and they were then removed by an order of the court, such as a s11 order or a permanence order.
A person deemed to be a relevant person by a hearing or pre-hearing panel due to satisfying the test of an individual who “has, or has recently had, significant involvement in the upbring of the child”. If the test is no longer met, then a person falling into this category can have their relevant person status removed.
In Scott’s case, we can presume that his Mum and Dad will be relevant persons, but his Mum’s partner will not be unless the hearing decide that he meets the test of someone who “has, or has recently had, significant involvement in the upbring of the child”. If Scott is upset at the thought of his Dad having a right to attend the hearing that he intends to exercise, then there are steps to consider that might help Scott. He could think about whether to raise with the Chair of the hearing if the tests for excluding his Dad are met (see below), and he could alert the Reporter to his worries prior to the hearing taking place, to see if the hearing could be managed in a way to minimise his contact on the day with his father. If Scott is worried about the papers that his father might receive, you should have a look at the information on non-disclosure – here.
Can someone be excluded from a hearing?
The 2011 Act and 2013 Rules stipulate that relevant persons, or their representatives, can be excluded from a hearing if the following tests are met:
The relevant person (or representative as applicable) is preventing the hearing from obtaining the views of the child or another relevant person: or
Is causing, or is likely to cause, significant distress to the child or another relevant person.
After the exclusion from the hearing has ended, the chair must explain to the individual what has happened in their absence.
There were some changes to the Rules in 2021 which extended the Chair’s powers to exclude individuals from a hearing. If an individual’s conduct at the hearing is violent or abusive, or otherwise so disruptive that the hearing could not continue with the individual present, then they can now be excluded from the hearing. There are no limitations in the Rules as to who this could apply to, so it could be used to exclude a relevant person, a safeguarder or even the child or their representative, which is a departure from the previous rules where a child could not be excluded from their own hearing.
Can someone choose to, or be forced to, attend a hearing only by remote means?
Anyone with a right to attend a children’s hearing can make a request to the Reporter that they attend remotely. The reporter must be satisfied that:
- there is a good reason that the individual is not attending in person, or
- the person would be more able to participate effectively in the hearing if they were to attend electronically rather than in person.
If either of the above criteria are met, the Reporter must take all reasonable steps to ensure that the person can participate remotely.
Certain individuals can be obligated to attend a hearing by remote means. A pre-hearing panel can determine that the attendance of a person should only be permitted by electronic means if that person’s physical presence is likely to either:
- prevent the hearing obtaining the views of the child or a relevant person, or
- cause significant distress to a child or a relevant person.
These provisions apply to:
- a relevant person or their representative
- a person authorised to attend the hearing as a sibling with participation rights (a participation individual)
- a representative of a newspaper or news agency.
In Scott’s case, if he believes that the presence of his father is likely to cause him significant distress or prevent him giving his views to the hearing, you could help him request a pre-hearing panel to consider if his father’s participation as a relevant person should be limited to remote participation only.
What about Scott’s older sister, can she attend the hearing?
Rules around sibling participation can be found in more detail here.
Have a question that’s not been answered on this page?
Contact us on the advocacy legal support helpline to talk things through with a solicitor. There doesn’t need to be a crisis to contact a lawyer, we are here to provide information on the law and children’s rights to those supporting children and young people at any stage through their journey.
