Kilbrandon in the 21st century

Modernisation of the children’s hearings system is at the heart of new legislation due to come into force later this year.

The Children’s Hearings (Scotland) Act 2011 is due to come into force in the autumn. The Act effectively repeals all of part 2 of the Children (Scotland) Act 1995. At present, the 1995 Act gives legislative force to the principles contained within the 1964 Kilbrandon Report. The stated purpose of the Act is to strengthen and modernise the current system, while building on Kilbrandon’s philosophy. It introduces many changes to the children’s hearing system, including its structure and the regulation of personnel within it. Other significant and/or interesting changes relate to the grounds of referral and the status of relevant persons.

Shifting grounds

Section 52 of the 1995 Act contains 13 grounds of referral. Section 67 of the 2011 Act contains 16, aptly named, section 67 grounds.

If the Principal Reporter determines that a s 67 ground applies and a compulsory supervision order is necessary, he or she must arrange a children’s hearing. This is similar to the 1995 Act, which provides that the Principal Reporter must refer the child to the children’s hearing if satisfied that one of the grounds specified in s 52 was established and that compulsory measures of supervision are necessary.

Section 52(2)(f) of the 1995 Act provides that a ground of referral exists if the child is, or is likely to become, a member of the same household as a sched 1 offender (a person who has committed an offence against a child under 17 to which special provisions apply). The 2011 Act contains an equivalent ground. However, the wording is wider, providing at s 67(2)(c) that a ground exists if the child has, or is likely to have, a close connection with a sched 1 offender. A child has a close connection with a person in one of two ways: first, where the child is a member of the same household as the person; and secondly, even if the child is not a member of the same household as the person, but has significant contact with the person.

On one view, this change is useful. There exists a significant body of case law dealing with the meaning of “household”. In McGregor v H 1983 SLT 626, the Inner House held that “household”: “is plainly intended to connote a family unit or something akin to a family unit – a group of persons, held together with a particular kind of tie who normally live together, even if individual members of the group may be temporarily separated from it”.

The Act will remove the need for the meaning of “household” to be further stretched by the courts. Both the 1995 Act (s 52(2)(e)) and the 2011 Act (s 67(2)(d)) state that a ground exists when the child is, or is likely to become, a member of the same household as a child who is the victim of a sched 1 offence. In Cunningham v M 2005 SLT (Sh Ct) 73 a child was held likely to become a member of the same household as another, despite the fact that the other child was living elsewhere, and in fact was adopted, before the child in the proceedings was born.

It is of interest that the Scottish Government, in the explanatory notes to the Act, informs the reader that “household” can be given a wide interpretation. Apparently, the word means more than simply the bricks and mortar of the building where people live. Further, when people are held together by particular bonds of affection or contact and are not living together at the same address, they may still be members of the same household. What practical effect, if any, the introduction of the term “close connection” will have, remains to be seen.

Closing gaps

A wholly new ground can be found in s 67(2)(m). A ground exists when the child’s conduct has had, or is likely to have, a serious adverse effect on the health, safety or development of the child or another person. The Scottish Government envisages that children who self-harm, engage in serious risk-taking behaviour, or participate in bullying will be referred to a children’s hearing under this ground.

The consultation paper for the draft Children’s Services (Scotland) Bill made reference to the Parliament’s intention to address a possible gap in s 52 of the 1995 Act in respect of exposure to domestic abuse. Any gap which may have existed has undoubtedly been closed by s 67(2)(f). A ground exists when the child has, or is likely to have, a close connection with a person who has carried out domestic abuse. “Close connection” has the same meaning as in the context of the sched 1 offences grounds discussed above.

This is likely to be welcomed, on the one hand, as the clear wording minimises the likelihood of challenge to interpretation. The wording undoubtedly catches exposure to a parent’s partner who does not reside in the family home. On the other hand, this new ground may attract criticism for being too wide. It is important to bear in mind that, even if the ground of referral exists, it not does not necessarily follow that a children’s hearing will take place. The scope of the application is to some extent curtailed, as the Principal Reporter must consider that a compulsory supervision order is necessary before referral to a children’s hearing.

A further problem is that “domestic abuse” is not defined within the Act. Professor Norrie discussed this issue in detail at Journal, July 2011, 16. The writers agree with Professor Norrie that a broader interpretation of “domestic abuse” is appropriate. This is unlikely to be something with which the Principal Reporter and the courts will disagree. Cases involving the 1995 Act show that the courts are willing to interpret children’s hearings legislation widely, to ensure that a child at risk is protected.

The Act also introduces a new provision to the effect that a ground exists if a child has been, is being, or is likely to be forced into a marriage or civil partnership, or is likely to become a member of the same household as such a child. One of the Government’s aims was to deliver more modern grounds. This is an example of a successful outcome. A useful extension to the new forced marriage legislation is provided by protecting children who are not at immediate risk of a forced marriage but who have an older sibling who is at risk. It remains to be seen if this ground will ever be invoked insofar as it relates to forced civil partnership.

Permanence orders

The Adoption and Children (Scotland) Act 2007 came into force in October 2009. Since then, there has been a significant body of case law, much of it involving interpretation of the legislation. The 2007 Act has come under some criticism in relation to what is perceived to be poor drafting. The courts have been asked to make decisions about the relationship between the courts and the children’s hearing system during the course of permanence order applications.

Section 96 of the 2007 Act provides that generally where there is an ongoing application for a permanence order, a supervision requirement cannot be made or modified. The provision does not apply, however, where the court refers the case to the Principal Reporter. If a children’s hearing proposes to make or change a supervision requirement, it must prepare a report for the court. The report must contain details of the proposed supervision requirement or modification to an existing supervision requirement.

The terms of the 2007 Act, together with the emerging case law, suggest that during the permanence order application, children’s hearings are severely restricted in relation to the decisions they can make in respect of supervision. In Edinburgh City Council, Petrs 2011 Fam LR 83 it was held that during permanence order applications, the court should be the principal forum for decision making. It was difficult for the court to conceive of circumstances under which it would refer a case to the Principal Reporter. The relationship between the courts and the children’s hearing system is somewhat unclear, and it is perhaps disappointing that this point has not been clarified in the Act.

The philosophy of the children’s hearings system in the Kilbrandon Report was that the jurisdiction of the children’s hearing should extend to any child under 16 who is in need of special measures. It could be argued that the emerging interface between the courts and the hearings system in relation to permanence orders represents a move away from Kilbrandon.

Relevant persons

A further change introduced by the 2011 Act concerns the definition of “relevant person”, being an individual who has various rights and duties in connection with the hearing, including the right and duty to attend the hearing, and the right to appeal decisions of the hearing.

The definition of “relevant person” under the 1995 Act includes individuals with parental rights and responsibilities (“PRRs”) and those who ordinarily have charge of, or control over, the child. A mother qualifies as a relevant person, and thus has the right to participate in the hearing. The same cannot be said for unmarried fathers, who have no automatic PRRs (unless registered on the child’s birth certificate on or after 4 May 2006). The potential for unfairness in this context is evident, and was highlighted in the Supreme Court case of Principal Reporter v K [2010] UKSC 56.

Against the backdrop of that judgment, it will doubtless be a matter of considerable disappointment and surprise to many that the definition of “relevant person” in s 200 of the Act continues to exclude from its application, unmarried fathers with no PRRs, but who have a contact order or specific issue order under s 11 of the 1995 Act. With no opportunity for the courts to “read down” and apply a creative interpretation of the legislation to include unmarried fathers within the definition, as occurred in Principal Reporter v K, some may argue that the new definition is in fact regressive.

Notwithstanding that the father may have a longstanding and close relationship with his child, he still has no automatic right to participate in the hearing process. This is particularly concerning and unsatisfactory where allegations have been made against a father like K, who is afforded neither the opportunity to refute the allegations, nor any right to appeal against a decision.

It is now open to the unmarried father to apply to the newly established pre-hearing panel (“PHP”) under ss 79-81 of the Act, for relevant person status. This will be granted if the father can demonstrate that he has (or recently had) “a significant involvement in the upbringing of the child”. Unmarried fathers can still also acquire PRRs under the 1995 Act, s 11.

There are therefore methods by which unmarried fathers can attain relevant person status. However, the Supreme Court, in K’s case, was concerned that K had to overcome a “burdensome procedural hurdle”, given the potential time and costs involved. It could be argued that such a hurdle has not been removed by the Act. Where the unmarried father has established a family life with the child, there does not appear to be any good reason why he should not have an automatic right to participate in the decision-making process affecting his child.

The cornerstone of the children’s hearings system is the principle of the welfare of the child. One might reasonably question the extent to which this principle can be adhered to when the father of a child is excluded from the process, based solely on his marital status. Under s 200, the Scottish ministers have a discretionary power to widen the definition of “relevant person”, and it is hoped by many that they will use this power to address this issue.

Evolutionary process

It has been stated by the Scottish Government that this statutory reform will “strengthen and modernise the system; ensuring that it evolves to adapt to the changes faced by families and society”. Whether the system does evolve in this way will depend on how the Principal Reporter and the courts interpret the legislation. The children’s hearings will also be involved in this evolution, particularly in relation to unmarried fathers acquiring relevant person status.

Interesting times lie ahead. Hopefully the Act will operate to modernise the system, while retaining the fundamental principles of Kilbrandon. Autumn 2012 marks the beginning of the next step of its evolution.