24th August 2020
The Scottish Parliament will consider the Children (Scotland) Bill at Stage 3, the final stage, on Tuesday 25th August (some time after 2pm), with the vote to pass the Bill expected between 5 and 6pm. You can watch the Scottish Parliament live here.
18th August 2020
Clan Childlaw is supportive of amendments lodged by Minister for Community Safety Ash Denham MSP on 17th August 2020 on the Opportunity to Participate in Hearing
These amendments to the Children (Scotland) Bill can be found on the Scottish Parliament website here.
If agreed to, the Bill as amended would modify the Children’s Hearings (Scotland) Act 2011. As a result of the changes, certain individuals, who are currently not able to participate in children’s hearings because they don’t meet the existing test that allows relevant persons to participate, would now be given that opportunity. Children’s Hearings procedural rules would set criteria which the individual must meet to be given that opportunity. Given the Minister’s comments to the Justice Committee at Stage 2, it can be expected that brothers and sisters are intended to be among those who can meet those criteria.
If they met the criteria, individuals would have the right to be notified of a hearing, the right to provide a report or other document to the hearing, the right to be provided with documents specified in procedural rules, authorisation to attend the hearing, and the right to be represented at the hearing. They could also require review of a Compulsory Supervision Order (CSO) after 3 months. If someone has not been at the hearing, but should have had the chance to be there, they can request the Reporter to initiate a review of a CSO, if they fulfil certain conditions (set out in proposed new section 132A). If a pre-hearing panel determines they don’t fulfil those conditions, the hearing would be discharged.
Clan Childlaw has been calling for legislation to lay down six essential participation rights in hearings for siblings. The amendments contain all of our essentials, with the exception of appeal rights.
The right to participate as a sibling in your brother or sister‘s children‘s hearing was at the heart of the recent case our client ‘ABC’ took to the Supreme Court (read our press release following the judgment here).
The Independent Care Review Promise states in relation to decision-making in Children’s Hearings that “there must be particular attention paid to the rights of brothers and sisters to ensure that they have all the necessary legal rights to have their voice heard in relation to their brothers and sisters. That must include the notification of forthcoming hearings about their brothers and sisters and speedy rights of appeal if required.” (Chapter 2: Voice, page 40).
In relation to brothers and sisters, The Promise states Scotland must ensure “a strong legal framework that acknowledges protects and promotes brother and sister relationships in and on the edges of care. Those legal protections must include the right to time together, meaningful participation in decision-making about their siblings and clear, simple rights to appeal.” (Chapter 4: Care, page 63).
In our view the right of appeal is fundamental to allowing full participation by siblings and avoids reliance on judicial review to remedy any technical, procedural issue, which is a slow, cumbersome process unsuitable as a means to remedy the decision of a children’s hearing. However, if the amendments proposed are passed, the changes to the current legislation would significantly improve the ability of brothers and sisters to participate in children’s hearing for one another. Clan Childlaw supports the amendments lodged.
The Scottish Parliament Stage 3 proceedings for the Children (Scotland) Bill are scheduled for Tuesday 25th August. If passed at this final stage, the Bill will bring in a number of changes to legal processes involving children.
The Bill makes significant changes to the law as it relates to care experienced brothers and sisters which we strongly support. It creates a new duty on local authorities to promote personal relations and direct contact with siblings; it expressly adds siblings to persons whose views must be ascertained by local authorities before taking decisions about a child; and it places a duty on children’s hearings to consider contact with siblings with whom the child does not reside.
If the Stage 3 amendments proposed by the Minister are passed, this would be significant step forward for care experienced siblings. The system should then be kept under review, and the right to appeal considered as part of the work to implement the Independent Care Review’s Promise to ensure siblings have legal protections including meaningful participation in decision-making about their siblings and clear, simple rights to appeal.
Download this position statement here.