A Guide to Referral to the Children’s Reporter

Your knowledge
This presentation assumes a basic understanding of Scotland’s Children’s Hearings System and the role of the reporter. There is another presentation specifically outlining this also available on the home page of the learning hub.

Aims
This presentation will help you to:

• Understand the legal tests determining referral to the children’s reporter
• Be able to apply this test
• Explain the practical considerations in making a referral to SCRA
• Help ensure the right referrals are being made to SCRA at the right time
• Introduce the Children’s Hearings Improvement Partnership’s Guide on Referral to the Children’s Reporter

The role of the Children’s Reporter
The children’s reporters’ role relates to children who may require to be subject to a compulsory supervision order. The reporter has a number of functions, set out in statute.

There are 5 key aspects of the role:

1. The receiver of referrals – the reporter can receive referrals from any person.
2. Investigator – The reporter will investigate referrals received by seeking information from partner agencies and taking into account the views of the child.
3. Decision maker – On receiving a referral, the reporter will decide if there is a sufficiency of evidence to allow SCRA to further investigate. They will make an initial decision on how to conduct a proportionate investigation and make a final decision on whether a children’s hearing is necessary, to refer the child to the Local Authority for voluntary supports or  to refer the child to a children’s hearing for consideration of making a compulsory supervision order.
4. Administrator The reporter will arrange a children’s hearing and has administrative duties within the  hearing.
5. Legal agent – the reporter will conduct any proof or appeal proceedings at the sheriff court.

Our focus in this training will be on the first function and how to make a referral to the children’s reporter.

Legislation
The principal legislation defining the role and functions of the Children’s Reporter and referrals to them is the Children’s Hearings (Scotland) Act 2011.

The 2011 Act details the statutory tests for referral to the Principal Reporter by different agencies or persons.

• Section 60 is for the local authority
• Section 61 is for the police
• Section 62 is for the courts and
• Section 64 is for any person

Any person can refer a child to the children’s reporter. This includes any individual such as a family member or members of the public but also other professionals or agencies such as those in the Health sector.

We will focus in this presentation on sections 60 and 64.

Statutory tests for referral to the Principal Reporter
The legislation outlines that, if the local authority have concerns for a child, they must make inquiries in relation to that child. On doing so, if it is found that the child is in need of protection, guidance, treatment or control AND it might be necessary for a CSO to be made, the child MUST be referred to the Reporter.

It is important to recognise that the local authority does not need to decide that a Compulsory Supervision Order IS necessary, only that it MIGHT be necessary.

Note the word ‘must’ in section 60(3). IF both of the parts of criteria apply, then the Local Authority is obliged to make a referral to SCRA. There is no discretion to be exercised.

Who else can refer to the reporter?
Section 64 of the 2011 Act outlines the same test criteria for referral to the children’s reporter as in other sections. These being that:

• the child is in need of protection, guidance, treatment or  control, and
• that it might be necessary for a compulsory supervision order to be made in relation to the child.

The distinction to be drawn is in the responsibilities of the referrer, as under this provision that person may give the Principal Reporter all relevant information which the person has in relation to the child.

Please note the use of the word ‘MAY’ rather than ‘MUST’ in this section, meaning there is no obligation on that person to refer, even if the answer to both subsections of section 64 which outline the criteria is YES .

This is the relevant threshold for partner agencies who are NOT the local authority for example, health and third sector. It is also the threshold  for individuals, such as members of the public, who may be concerned about a child.

The Children’s Hearings Improvement Partnership (CHIP)
The Children’s Hearings Improvement Partnership, referred to as the CHIP, is a national, multi-agency group that is chaired and co-ordinated by the Scottish Government. It brings together partners from across the Hearings System.

The CHIP is built on partnership and co-operation – within a defined set of roles, duties and obligations. Bringing these key interests together – with a focus on delivering change and improvement.

Children’s Hearings work best when each person understands not only their own role and responsibility but also the roles and responsibilities of other participating agencies in the Hearings System – and how these interact with each other.

The Children’s Hearings Improvement Partnership has developed a guide for anyone who is thinking about making a referral to the Children’s Reporter.  The guide covers the following areas:

• The law
• The approach to take when making a referral to the Children’s Reporter and
• Practical advice

The guidance can be accessed via the CHIP website:  www.chip-partnership.co.uk

How does this fit with GIRFEC?
The Getting it Right for Every Child or GIRFEC approach is one of the policy frameworks for the Children’s Hearing System and focusses upon children having the right support, at the right time.

All support focus on a child’s wellbeing, as assessed by the SHANARRI wellbeing indicators.

When a child has any needs that are not being met, professionals will work with the child and family together  on a voluntary basis in an effort to have those needs met.

Sometimes the child or their family are unwilling to do what is necessary to meet the child’s needs. On other occasions it may be that they are willing to work with professionals but that they aren’t able to make the necessary changes.

The key question is whether what is happening will result in the child’s needs being met. If the answer is “no” then compulsory measures may be required.

A referral to the Children’s Reporter should be considered, to decide if a compulsory supervision order may be needed.

The GIRFEC approach aligns with referral to the children’s reporter as the right support for a child may be a compulsory supervision order.

The GIRFEC approach of multi-agency working and proportionate sharing of information may have caused some confusion amongst partners about who can make a referral to SCRA and when.

In a world of multi-agency working, it is perhaps more likely that referrals for children on GIRFEC pathways will come via social work, following a multi-agency meeting.

Individual Local Authorities and partnerships may have agreed processes for making a referral to SCRA, such as holding a GIRFEC meeting first. However, those agreed processes do not remove your statutory responsibilities.

An agency may be in disagreement with the decision of a GIRFEC meeting not to make a referral of a child to SCRA. When there is such a disagreement your Local Authority may have an escalation policy that you should refer to.

However, each agency still has a statutory responsibility to consider a single agency referral in line with the legislation. The test should be if the child meets the statutory criteria, a referral should be made.

Remember under Section 64 of the 2011 Act, any person can refer to the Children’s Reporter.

Voluntary Support v Compulsory Measures
The statutory threshold in the test for referral is that a child is in need of protection, guidance, treatment or control and that it MIGHT BE NECESSARY for a CSO to be made in relation to them.

Sometimes a compulsory order might not be necessary and supports can be provided on a voluntary basis. This can be a difficult matter to assess, and the following questions may assist:

• Are the child’s needs already being met by the local authority through voluntary support in the form of advice, guidance or assistance.
• What is the impact of current and/or prior intervention and how effective have voluntary supports been in reducing concerns or risk to the child. If they have not done so, a CSO may be required.
• Is there a lack of engagement or non-cooperation by children and/or their families? – if so, voluntary supports are unlikely to make any impact.
• How serious are the concerns? – the more serious, the more chance that a CSO may be necessary  – although not in itself a deciding factor
•  How serious is the risk or potential  risk to the child? Again, the higher the risk to the child, the more likely a CSO may be required.
• Is the family unable to understand or accept the areas of concern? If, in spite of support and explanation, a family does not accept the concerns, voluntary supports are likely to have limited impact.
• Does the family lack motivation to change? Even if a family accepts the areas of concern, if they are not motivated to change, again voluntary supports will have little impact.
• Does the family lack the capacity to change even with supports in place? A family may look like they are cooperating fully but if they do not have the capacity to change, there is little point in using voluntary measures to promote change.
• Is the family difficult to engage – some families may appear available and engaging, but consider whether positive outcomes are being achieved?
• Is there prior knowledge about the family to suggest that voluntary supports will not be sufficient – it is not necessary for voluntary supports to have been tried and failed.

None of these factors by themselves are decisive. For example, there may be a very serious concern about a child, with a family lacking the capacity to change. However, the family may agree to the child residing with a relative and a CSO may not be required to secure that.

Equally, answering yes to only some of these questions may be enough to show that compulsion is necessary.

This next section provides more information about making a referral and includes some key questions to consider.

Making a referral to the children’s reporter? There’s 5 key questions you need to consider:

1. What is getting in the way of this child or young person’s wellbeing?
2. Do I have all the information I need to help this child or young person?
3. What can I do now to help this child or young person?
4. What can my agency do to help this child or young person?

What additional help – if any – might be needed from others?

Timing of referral:  The right referral for the child at the right time
Referrals should be proportionate. Children should not be referred into a statutory system, considering compulsion, unless the criteria are met

BUT

It is not necessary for support to have been tried before a referral is made – early intervention and a CSO are not mutually exclusive. Having a child on a CSO may prevent greater interference in their lives, at a later date.

Short term statutory intervention may be appropriate – it should not be considered or used as a last resort.

It is important to consider the ‘likelihood’ of voluntary supports being effective.

It is not necessary for voluntary supports to have been tried and failed before a referral is made.  And you do not have to have exhausted all voluntary supports.

If partners wait too long before making a referral, the family may have reached an unnecessary crisis point; that the reporter cannot react to urgently.

When a referral is made, It simply allows for further assessment. It does not mean a children’s hearing will automatically be arranged.

Making the right referral for the right child at the right time is in the best interests of that child.

Who can be referred to the Children’s Reporter?
The law currently allows a child to be referred from birth up until their 16^th birthday.  It also allows a 16 or 17 year old to be referred in certain circumstances.  These include:

If they already have a current CSO or if they were already referred before they turned 16 and that referral is still being dealt with.

Approaching a 16^th birthday is not, in itself, a reason for not referring a child.  A referral can be accepted as long as it is received by SCRA before the child’s 16^th birthday and the child can remain on a CSO until they are 18.

If you are unsure whether a child over 16 is on a CSO or has an open referral, please get in contact with your local SCRA office.

As a note for reference:  The Children’s (Care and Justice) (Scotland) Act 2024 will amend the definition of “child” in the 2011 Act, this enables referrals to be made for all children under 18 years old if they meet the test for referral to the reporter. However, this part of the Act is not yet in force.

Child already on a Compulsory Supervision Order
If a child is already in the hearing system and subject to a CSO, a referral can still be made. In some instances however, a review hearing may be sufficient to address concerns and make changes to a CSO.

When should a referral be made rather than a review requested?
A referral may be more effective than a review hearing to support the child when the child’s welfare requires that a specific and different new statement of grounds is considered by the hearing.

For example, if a child is on a CSO due to lack of parental care concerns, and then come into conflict with the law, new grounds to reflect this new (and quite different) concern, may be required.  This referral may lead to new grounds being drafted and court activity to establish new grounds.

In contrast, if the child’s CSO can be reviewed and varied to incorporate new concerns, without new grounds being necessary, a review hearing can be a sufficient response to additional concerns arising.

Making a referral – do I let the family know?
You do not require consent from a family member when making a referral to the reporter about a child, but nevertheless, it is good practice  to inform a family member when referring.

There may be occasions when informing the family may not be appropriate, in particular, if it is likely to endanger the child or lead to the family moving away.

Where you have not informed the family, please advise the reporter of this.  This will likely have implications for the reporter’s own communications with the family.

What information should be provided in a referral?
The CHIP guidance gives suggestions about the sort of information to provide in a referral, when available.

This includes:

When a professional or agency is making a referral to the children’s reporter, this must  be  in writing. If a member of the public is making a referral, this does not require to be in writing.

If possible, a referral should be in the form of a child’s plan, either a single agency or multi agency plan, but this is not essential and should not delay referral. A letter, referral form or any combination will also be acceptable.

Information shared must be proportionate and necessary, but must contain sufficient information to allow the reporter to make a decision and draft grounds at the earliest opportunity.

Even if a referral is received accompanied by a multi-agency plan, the reporter may need to request further information, to fully consider the child’s circumstances.

Referral form/template
Appendix 2 of the CHIP guidance provides a national referral template for agencies to use in making referrals to SCRA.

This can also be found on SCRA’s website within the Resources/Information for partners section.

Thank you for taking the time to read this presentation. If you require more information, please get in touch.

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