David's Scenario

"You are supporting David (15). David is currently subject to a CSO which requires him to live away from his family home. His little brother Callum (8) lives with foster carers in a separate placement. Callum is subject to a CSO and attends Children’s Hearings too, but his hearings take place at different times to David’s hearings. David wants to see Callum. He tells you he last saw his brother about 6 months ago along with his Mum – Callum’s social worker had arranged it. He used to see Callum once a fortnight but then his Children’s Hearing stopped contact between Callum and his Mum and so David stopped being able to see him too. He’s not sure why contact was stopped."

Is it anyone’s responsibility to think about how David can keep in touch with his brother and sister?

Yes. The local authority have a duty to promote the relationship between a child in their care and their siblings, and to promote face to face contact, so long as appears appropriate to the local authority and having regard to their paramount duty to safeguard and promote the child’s welfare. This duty will apply to both David and Callum as they are both looked after by the local authority.

Also, when a Children’s Hearing (or Sheriff) is making, varying or continuing a Compulsory Supervision Order, they must specifically consider whether or not to include a measure of contact between the child and any relevant person or siblings the child is not living with. The Children’s Hearing therefore, when reviewing either David or Callum’s CSO, must consider contact between them and their siblings, including any siblings living at home. A sibling is someone that the child shares a common parent with, or someone that they have lived with and have an ongoing relationship with the character of a relationship between siblings. This extends the Children’s Hearings considerations to children who have shared a foster placement and developed a relationship of siblings.

You have spoken to Callum’s Social Worker on David’s behalf and he doesn’t think that contact between David and Callum is in Callum’s best interests right now as he’s about to move placement and is encountering a lot of disruption in his life. David is very upset and believes that Callum would really benefit from seeing him. Is there anything else he can do?

Since July 2021, a new category of persons who have limited rights before a Children’s Hearing has been created. They are known as a person afforded the opportunity to participate.

A person with this status is someone who meets all of the following criteria:

(a) they are living or have lived with the child at the centre of the hearing,

(b) they and the child have an ongoing relationship with the character of a relationship between siblings (whether or not they have a parent in common),

(c) the children’s hearing is likely to make a decision significantly affecting contact or the possibility of contact between the person and the child, and

(d) the person is capable of forming a view on the matter of contact between the individual and the child.

You explain the criteria to David and he thinks that he meets these in relation to Callum. What does he need to do next?

It depends if there is a Children’s Hearing coming up for Callum. If there is one happening soon, then the Children’s Reporter can determine for themselves that David should be afforded the opportunity to participate. You can contact the Children’s Reporter on David’s behalf to ask that they consider this. The Reporter might ask you for more information about David’s circumstances to help them make that decision.

If the Reporter is not sure that the criteria are met, they can arrange a pre-hearing panel to consider affording a person the opportunity to participate instead. The pre-hearing panel will then be tasked with deciding if David meets the criteria above. In considering whether or not the criteria are met, the views of the child and relevant persons must be taken into account.

If there is no children’s hearing coming up, the person afforded the opportunity to participate cannot ask for a hearing themselves if the last hearing took place prior to the new law coming into force (26 July 2021) and must wait for someone else to ask for a hearing (or the annual review) before they can be afforded the opportunity to participate at the next hearing.

What rights would David have in relation to Callum if he is given the opportunity to participate?

The rights given to a person who is afforded the opportunity to participate can be summarised as follows:

(a) the right to be notified of the hearing – David would be told when and where the hearing is taking place and if he is able to attend in person or virtually.

(b) the right to provide a report or other document to the hearing – David could provide a letter to the Hearing in advance if there is a lot of information he would like them to take the time to consider before the hearing.

(c) the right to be provided with documents specified in the rules – David is not entitled to all of Callum’s hearing papers. He will be provided with any decision previously made that regulates contact between him and Callum. He will also receive information within any document that is about him, his contact with Callum or information about how contact or the possibility of contact may be affected by a decision of the Children’s Hearing. This information is very important to allow David a chance to see what is said about him and his relationship with his brother and allow him the chance to respond to that.

(d) authorisation to attend the hearing – David does not have the right to attend the entirety of the Hearing. The Chair decides when he (and you as his advocacy worker if you attend with him) is permitted to participate in the hearing and when that participation ends. David should however be permitted to attend all parts of the hearing that relate to him and his contact with Callum.

(e) the right to be represented at the hearing – David can be represented by an advocacy worker or anyone else. He could also be represented by a solicitor, though currently there is no legal aid cover for this unless special permission is provided by the Government.


What if Participation Rights are Not Granted?

You make the request to the Children’s Reporter for David to be afforded the opportunity to participate. You are informed that a hearing took place 2 weeks ago to review Callum’s CSO. David didn’t know and wasn’t contacted. What can he do now?

If David believes that he meets the criteria of a person who should have been afforded the opportunity to participate, but he was not given that opportunity (so long as the hearing was after the new law coming into force on 26 July 2021), then he has the right to request that the Reporter arranges a hearing to review Callum’s CSO. This is a safety net built into the new law to ensure, if mistakes happen, they can be rectified. There are detailed criteria to be considered before the hearing will be arranged to review the CSO. The criteria, broadly speaking, are:

(a) There was no pre-hearing panel to consider whether the person should be a person afforded the opportunity to participate

(b) It is more than likely than not that had there been a pre-hearing panel it would have given the person the opportunity to participate

(c) There was a pre-hearing panel that deemed a person should be afforded the opportunity to participate but that person wasn’t able to due to the rules not being followed or other exceptional circumstances.

Appealing the Decision of a Hearing?

David attends Callum’s hearing and is given the opportunity to participate, including speaking to the panel directly about his contact with Callum. After David and you leave the room, you are told by another in attendance that discussions around contact continued in David’s absence before the panel reached a decision and David wasn’t given any opportunity to respond to the things that were said. No measure of contact for Callum and David is made. David thinks this is very unfair and wishes to appeal the hearing’s decision. Can he?

Unlike a child or relevant person, there is no right of appeal to the Sheriff for a person who is afforded the opportunity to participate, even where it is clear that procedural rules have not been followed.

Instead, David must wait until 3 months have passed in order to request a review of Callum’s CSO. He can make that request to the Reporter, and the Reporter will arrange a Hearing, if the Reporter is satisfied, or a pre-hearing panel or Children’s Hearing determines, that the individual met the criteria to be afforded an opportunity to participate (in the blue box above) at the time of the most recent children’s hearing that made, varied or continued the CSO.

If something about the hearing that David attended seems so unfair that usually an appeal against the decision would be likely, then contact our legal helpline for more information about David’s options.