The Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Amendment Rules 2021

EXPLANATORY NOTE

(This note is not part of the Rules)

These Rules make changes to the Children’s Hearings (Scotland) Act 2011 (Rules of Procedure in Children’s Hearings) Rules 2013 (“the Rules”), principally as a consequence of section 25 of the Children (Scotland) Act 2020 (asp 16). That section creates a new category of person within the children’s hearings process: those who are to be afforded an opportunity to participate. The opportunity to participate consists of the rights set out in section 79(5ZA) of the Children’s Hearings (Scotland) 2011 (“the Act”), as amended by section 25 of the 2020 Act.

New Rule 2A and consequential amendments

Rule 3(2) of these Rules inserts a new rule 2A, which sets out the criteria that an individual must meet to be afforded an opportunity to participate in a children’s hearing (“the individual”). In consequence, some further amendments to the Rules are provided as follows:

• Rule 11, which provides for the possibility of a representative accompanying a person who is or wants to be afforded an opportunity to participate at a children’s hearing.

• The substitution of a new Part 5 of the Rules (rules 19 to 20D), in respect of the attendance at a children’s hearing or pre-hearing panel of the individual or their representative, including by electronic means, or the exclusion of such an individual. The existing rules in that Part have also been updated for consistency in relation to the attendance or exclusion of other persons.

• Rule 22 (the notification of such hearings to individuals) is amended so that the individual must be notified of the children’s hearing.

• Rule 23A (information to be given with notification of such hearings to individuals) is inserted so that the individual must be provided with certain information in their notification.

• Rule 26 (provision of information prior to children’s hearing) is amended so that the Reporter must give the individual relevant information, as soon as practicable before the hearing begins. Similar amendments are made to rules 29 and 36.

• Rule 44A (specification of matters that may be determined by a pre-hearing panel) is inserted so that the matter of whether a person should be allowed to attend a children’s hearing only by electronic means can be determined by a pre-hearing.

• Rule 45 (arranging a pre-hearing panel – determination of relevant person status) is amended so that where the pre-hearing panel will also determine the matter of opportunity to participate, the notice of the pre-hearing panel must contain information about that matter.

• Rule 45A (arranging pre-hearing panels to determinate opportunity to participate - notice to persons other than person seeking opportunity) is inserted so that where a pre-hearing panel is determining the matter of an opportunity to participate the notice of the pre-hearing panel to persons other than the individual must contain information about that matter.

• Rule 45B (arranging pre-hearing panels to determine opportunity to participate - notice to person seeking opportunity) is inserted so that when a pre-hearing panel is to determine the matter of an opportunity to participate, the notice to the individual must contain information about that matter.

• Rule 46A (arranging pre-hearing panels to determine whether deeming of relevant person to end) is amended, so that when the pre-hearing panel will also determine the matter of an opportunity to participate, the notices of the pre-hearing panel must contain information about that matter.

• Rule 47 (provision of information to pre-hearing panel) is amended so that where a pre-hearing panel is to determine the matter of an opportunity to participate, the Reporter must give the individual relevant information.

• Rule 47A (procedure at pre-hearing panel – general) is inserted to provide the procedure to be followed at all pre-hearing panels.

• Minor amendments are made to rule 48 (procedure at pre-hearing panel determination of whether to deem an individual to be a relevant person) as a consequence of rule 47A.

• Rule 48A (procedure at pre-hearing panel - determination of whether individual to be afforded opportunity to participate) is inserted so that the matter of whether an individual meets the criteria in rule 2A can be raised at the pre-hearing despite this not having been referred in advance.

• Rules 49 (procedure at a pre-hearing panel determination of any other matter) and 49A (procedure at pre-hearing panel determination of whether to end deemed relevant person status) are omitted as a consequence of rule 47A.

• Rule 50 (notice of pre-hearing panel determination) provides for notice of a decision of a pre-hearing panel to the individual.

• Rule 52 (notification of matter to be determined under section 79 of the Act where not practicable to arrange a pre-hearing panel before the date fixed for the children’s hearing) is amended to provide for notices in the situation where a hearing will be considering in respect of the same individual the matter of opportunity to participate and relevant person status.

• Rule 52A (notification of matter to be determined under section 79 person seeking opportunity to participate) is inserted to provide for notice to the individual where rule 52 would not apply to that individual.

• Rule 53 (provision of information relating to matter referred under section 79 of the Act to the children’s hearing) is amended so that the Reporter must give the individual relevant information.

• Rule 54 (provision of information relating to matter referred under section 79 of the Act to the children’s hearing) is amended in consequence of other amendments.

• Rule 55A (children’s hearings’ power to determine whether person to be afforded opportunity to participate where no referral made under section 79 of the Act) is inserted to allow the matter of whether an individual meets the criteria of opportunity to participate to be raised at the hearing, despite it not being referred in advance.

• Rule 59 (procedure at a grounds hearing - grounds put to the child and relevant person) is amended as these matters are now dealt with in Part 5.

• Rule 88A (notifying decision of a children’s hearing to an individual afforded an opportunity to participate) provides that the Reporter must give to the individual a copy of any relevant decision.

• Rule 97 (travelling and subsistence expenses) is amended to allow the individual to reclaim such expenses.

Other amendments

Other changes made by these Rules are as follows:

• Rules 26, 29 and 36 are amended so that the Reporter is required to give to the chief social work officer for the relevant local authority or the implementation authority (for a child subject to a compulsory supervision order or an interim compulsory supervision order) a copy of the same report or other documents which the Reporter is required to give to the members of the children’s hearing (other than a copy of a report or document which that authority has given to the Reporter).

• Rule 98 is amended to allow documents to be authenticated by electronic signature.