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Changes to Panel Member practice - Coronavirus (Scotland) Act 2020 07 April 2020

The UK and Scottish governments have passed legislation authorising major restrictions on public movement and changes to how public services operate in order to deal with the coronavirus pandemic. On 7th April the Coronavirus (Scotland) Act 2020 (“the 2020 Act”) comes into force. New emergency powers in the Act are designed to make best use of limited staff and resources in the hearings system and in local authorities, and to enable children’s hearings to continue to take place safely and securely during this period of reduced numbers of Panel Members, Children’s Reporters and court staff. The need for these powers will be reviewed by the Scottish Parliament every six months. Read full Government guidance here.

The use of these emergency powers should:

  • take account of children and young people’s, and families’ human rights;
  • be limited to the extent necessary, in response to clearly identified circumstances;  
  • last for only as long as required;  
  • be subject to regular monitoring and reviewed at the earliest opportunity;   
  • facilitate effective participation, including legal representation and advocacy for children, young people and family members, wherever possible and appropriate, and
  • be carried out in partnership with SCRA and other partners in the hearings system. 

The powers –  contained in Schedule 3 of the 2020 Act – aim to ensure children’s hearings are able to continue operating, and promotes effective participation by children, families and representatives wherever possible.  It extends the timescales for appeal rights to guarantee individuals’ rights are not impacted by illness, social distancing or reduced staffing levels.

The Act applies to many different organisations and affects many public services.  These are the key changes which apply to children’s hearings and local authorities:

The make-up of children’s hearings and pre-hearing panels (Schedule 3, para 1):

  • The 2020 Act relaxes the requirement for both male and female members to be included in every hearing.
  • Children’s hearings can now proceed with less than three Panel Members.
  • However, Panels should only proceed with less than three Panel Members in exceptional circumstances, as explained below.

At the best of times, finding three Panel Members with a mix of genders to sit on hearings can be difficult. In the current pandemic it may not be possible to arrange hearings to include three panel members of the appropriate gender thereby placing children at risk. The Act amends the legal requirement to have three Panel Members and a mix of genders “so far as it is practicable”.

The National Convener and all ASTs acting on his behalf will continue, wherever possible, to select three Panel Members to sit on each children’s hearing but if technology failure or sudden illness means that a Panel Member can no longer participate in a scheduled children’s hearing, the hearing will be able to proceed with two Panel Members. CHS policy will still be to have three Panel Members if at all possible, seeking volunteers from other AST areas before reducing the number of Panel Members sitting on a children’s hearing.

If a Panel Member has technical problems and is unable to join the hearing, their rota manager and Area Partner should be notified to attempt to identify a Panel Member of any gender to step in. SCRA will invite the new Panel Member to the virtual hearing room. If no Panel Members are available, it is for the chairing member to decide whether to proceed with two Panel Members.

The National Convener (Elliot.Jackson@chs.gsi.gov.uk) and/or the Practice and Partnerships Lead (Jackie.McRae@chs.gsi.gov.uk) must be informed before any hearings with fewer than three Panel Members take place.

Attendance at children’s hearings (Schedule 3, para 8):

  • The Act means that there is no longer any obligation on a child or relevant person to attend a children’s hearing in person unless specifically directed to by a children’s hearing.

Children and relevant persons currently have both a right and a duty to attend children’s hearings. Recognising that physical attendance at a hearing may place individuals at risk, the 2020 Act removes their duty to attend unless specifically directed to attend by a children’s hearing. Rights of attendance are unaffected.

Video attendance at hearings is already possible for children and relevant persons but the Act opens this up to all participants including those with a right to attend and those whose attendance is at the discretion of the chairing member. This allows Reporters to invite representatives and professionals via videoconferencing to enable more participative hearings.

Child Protection Orders (Schedule 3, para 2):

  • The Act removes the requirement to have a children’s hearing to review a Child Protection Order (CPO) on the second working day after the order is granted.

Such strict timescales may not be possible at present. The Act has therefore removed the requirement for a review of a CPO on the second working day after it is granted. A CPO will lapse on the eighth working day and there will still be a grounds hearings arranged for that date.

To protect the rights of all involved, those with a right to apply to the Sheriff to vary or terminate the CPO before the second working day can now do so until the seventh working day. That is the child, a relevant person, anyone who would meet the relevant person test, the person who applied for the CPO and/or the person who is required to produce the child under the order.

This means that a hearing will not review the CPO before the grounds hearing but it can still be reviewed, varied and terminated by the Sheriff if necessary.

Grounds Hearings (Schedule 3, para 7):

At a grounds hearing, if Panel Members direct the Children’s Reporter to make an application for Proof, the Reporter now has 14 days to lodge the application with the court, rather than seven days. This does not affect Panel Members’ decision making.  It gives the Reporter more time to make an application if staff shortages make this difficult.

Interim Compulsory Supervision Orders (ICSOs) and interim variations (Schedule 3, para 4):

  • Interim Compulsory Supervision Orders will now last up to 44 days.

Arranging additional hearings to prevent short-term orders from lapsing may not be possible if there are not enough Panel Members available. To prevent this, the 2020 Act has increased the relevant period for ICSOs and interim variations of a CSO from a maximum of 22 days to 44 days.  Children’s hearings can still make up to 3 ICSOs before grounds are established or proven and an unlimited number after that.

Compulsory Supervision Orders (CSO) (Schedule 3, para 3):

  • If it has not been possible to arrange a review hearing before its original expiry date, the 2020 Act prevents a compulsory supervision order from expiring immediately. 

The Principal Reporter will try to arrange a hearing before the order expires wherever possible, and as soon as possible thereafter, but if that does not happen the Act automatically extends the duration of the order for up to a further six months or the child’s eighteenth birthday, whichever is earlier. Review rights are unaffected and a child, relevant person or local authority can still request a review at any time. SCRA will arrange a full review hearing before the end of the six month review period.

Appeal rights (Schedule 3, para 7):

  • The 2020 Act extends the time limits for the making, disposal or determination of appeals or the making or lodging of applications for appeal from 21 days to 42 days or in relation to certain appeals from three days to seven days.

The effects of the 2020 pandemic including social distancing, illness and self-isolation will reduce the capacity of SCRA and the courts to deal with appeals. The 2020 Act extends the timescales for applying and dealing with appeals to ensure that children and families continue to have effective means of challenging orders and that timescales can still be met so that orders do not expire potentially placing children at risk.

This means that chairing Panel Members must tell any person with appeal rights attending a hearing of the new timescales at the end of the hearing.

The following table includes all changes to appeal rights made by the 2020 Act.  These apply only to decisions made after 7th April 2020:

Appeal Against

Time in which to appeal

  •   Make, Vary, Continue, Continue and Vary or   Terminate a CSO

 

  •   Discharge a referral

42 days

  •   Make a CSO with secure authorisation or a   movement restriction condition

 

  •   Make an Interim Compulsory Supervision Order   (ICSO)

 

  •   Make an interim variation of the CSO

 

  •   Make a Medical Examination Order

 

  •   Issue a warrant to secure attendance

42 days – the   Sheriff must decide on the appeal within 7 days although the order will no   longer lapse if this is not possible

  •   A relevant person determination

21 days – the   Sheriff must decide on the appeal within 7 days

  •   Contact direction review

42 days – the   Sheriff must decide on the appeal within 7 days

  •   To implement or not implement a secure   authorisation

 

  •   To remove a child from secure care

42 days – the   Sheriff must decide on the appeal within 7 days

 

Authenticating records of proceedings (Schedule 3, para 9):

  • The 2020 Act enables the chairing Panel Member or the Reporter to electronically authenticate documents.

In a virtual hearing Panel Members will be participating remotely in a different place from the Children’s Reporter.  It will not be possible for the chair of the children’s hearing to provide the Reporter with a personal signature for the record of the hearing’s proceedings.  To allow decisions and reasons to be sent out as soon as possible without requiring physical signatures from Panel Members, the record of proceedings to be authenticated by either the chairing member or the Reporter using a scanned signature or typing their name into the document.

Other provisions which affect children’s hearings but not Panel Member practice:

  • Local Authorities have been granted additional time to carry out assessments authorised by Child Assessment Orders.
  • A review hearing must take place within seven working days, rather than within three days, of a child moving from one placement to another in an emergency.
  • Foster care regulations have been relaxed to allow foster carers to care for more children than they are currently approved for. They can also care for more than the current maximum of three children.
  • The timescales for reviewing a child placed in emergency kinship have been extended, and reviews may not be required as long as the Chief Social Work Officer is satisfied that the placement is in the child’s best interests and a review is held as soon as practicable. The number of reviews required within six months is also reduced.
  • A Chief Social Work Officer may authorise a child to be placed in secure accommodation without the authorisation of a children’s hearing or Sheriff for a total of 96 hours in any 28 day period. This is an increase from the current 72 hours.