Section 90 – Grounds to be put to child and relevant person
134.This section places a duty on the chairing member of the hearing to explain to the child and each relevant person at the hearing each of the grounds for referral, and to enquire whether those grounds are accepted by each of the parties or not. A statement of grounds may contain more than one ground for referral and each ground needs to be accepted (or not accepted) by the child and each relevant person. The chairing member must not simply read out the grounds as stated by the Principal Reporter but the chairing member must endeavour to ensure that the child and relevant persons understand the nature of the grounds by explaining each ground for referral. The chairing member is not obliged to pursue the explanation where the child or relevant person is unable to understand the grounds for referral, for example, where the case relates to a very young child see section 94(3).
135.Sections 91 to 97 below deal with the subsequent stages of the Children’s Hearing depending on the outcome of the chairing member’s enquiry about the acceptance or denial of the grounds for referral.
Section 91 – Grounds accepted: powers of grounds hearing
136.This section provides for the Children’s Hearing to proceed to a consideration of the case where the child and each relevant person in relation to the child have understood and accepted each ground specified in the statement of the grounds for referral or at least one of those grounds. The hearing must then consider whether or not to make a substantive decision based on the accepted ground(s).
137.The consideration of a case is only complete when the hearing is in a position to make a decision as to what course of action is in the best interests of the child. Deferral of a decision under subsection (2) may be considered appropriate, for example, because a particular report has not been completed in time, or the accuracy of a report is being challenged or because the child requires further assessment in order to fully determine the child’s needs. A hearing may decide to defer a decision to a subsequent hearing if the hearing needs more information in order to fully determine the best outcome for the child. If the hearing does not defer making a decision, the hearing must either make a compulsory supervision order for the child if satisfied that it is necessary for the protection, guidance, treatment or control of the child or discharge the referral.
Section 92 – Powers of grounds hearing on deferral
138.This section sets out the options available to a Children’s Hearing which has deferred making a decision as to whether to make a compulsory supervision order under section 91(2). Section 92(2) provides for the current hearing to make an interim compulsory supervision order where it decides that the nature of the child’s circumstances is such that it is necessary, as a matter of urgency, for the protection, guidance, treatment or control of the child. Section 86 defines “interim compulsory supervision order”. Subsection (3) provides for the Children’s Hearing to make a medical examination order in order to obtain further information. A child may for example be required to reside in an assessment centre, attend an educational psychologist or be subject to a medical examination. Section 87 defines “medical examination order”.
Section 93 – Grounds not accepted: application to sheriff or discharge
139.This section sets out the procedure where at least one of the grounds specified in the statement of grounds is not accepted by the child and each relevant person in relation to the child and the hearing does not consider it appropriate to proceed on the basis of the ground(s) that are accepted or where none of the grounds are accepted. The grounds hearing must direct the Principal Reporter to make an application to the sheriff for a determination on whether each ground that is not accepted is established or discharge the referral.
140.Subsection (4) applies where the hearing decides to refer the ground(s) to the sheriff for establishment of grounds, the chairing member must explain the purpose of this application to the child and each relevant person who is there and inform the child of the child’s obligation to attend the hearing before the sheriff. Subsection (5) enables the Children’s Hearings to make an interim compulsory supervision order if the hearing considers it is necessary for the protection, guidance, treatment and control of the child and that it is necessary as a matter of urgency. Where an interim compulsory supervision order is made it may not include a requirement to arrange a medical or other examination under section 83(2)(f)(i). This reflects current practice; examinations are for investigative purposes linked to the needs of the child and are not for the establishment of facts relating to the grounds for referral.
Section 94 – Child or relevant person unable to understand grounds
141.This section sets out the procedure for the grounds hearing where a child or relevant person is unable to understand the grounds for referral and so can neither accept nor deny the grounds. The requirement to explain the grounds applies in relation to each individual ground and if the chairing member considers that the child or a relevant person would not be capable of understanding the explanation of a particular ground then the chairing member need not provide the explanation for that ground and may refer that ground to the sheriff for establishment. If the child or relevant person is capable of understanding some of the grounds the chairing member must still explain those grounds and seek acceptance of those individual grounds.
142.Subsection (2) provides that the hearing must either direct the Principal Reporter to make an application to the sheriff for establishment of the ground(s) or discharge the referral in relation to the ground(s) that is not understood. Subsection (3) provides that if the hearing consider that the child or relevant person would not be capable of understanding an explanation of the grounds, for example, if the child is a baby, then the chairing member is not required to proceed with an explanation under section 90(1) in so far as it relates to the person who is not capable of understanding the ground. The explanation still needs to be given to those who are capable of understanding the ground. Subsection (4) applies where the hearing directs the reporter to make an application to the sheriff for a proof hearing and the child has not understood the grounds for referral. It follows that the child may also not understand the explanation provided by the chairing member explaining the purpose of the application to the sheriff.
Section 95 – Child fails to attend grounds hearing
143.This section relates to circumstances where the child does not attend a grounds hearing, has not been excused from attending, and provides that the hearing may require the Principal Reporter to arrange another grounds hearing.