Commentary on Provisions Part 1 – children’s hearings system Section 8 – provision of information to person affected by child’s offence or behaviour
48.Under section 179A of the 2011 Act, certain persons are entitled to request information about the action taken by the Principal Reporter and the children’s hearing in relation to a child who has committed an offence or, while under 12, acted or behaved in a way that was physically or sexually violent, sexually coercive, dangerous, threatening or abusive and which caused harm to another person.(32) Those persons are: persons against whom the offence was committed; persons who were harmed by the child’s actions or behaviour; where either of those persons is a child, a “relevant person” in relation to that child; and persons specified by the Scottish Ministers by regulations.(33)
49.Section 8 amends section 179A(5) of the 2011 Act to place a duty on the Principal Reporter to inform the persons entitled to request information of their right to do so. The duty applies if it is reasonably practicable to do so. If, for instance, the Principal Reporter does not have and cannot find a person’s contact details, then the person does not have to be informed. New subsection (5A), inserted into section 179A by section 8, will modify the duty to inform, where a person against whom the offence was committed, or who was harmed by the actions or behaviour, is themselves a child, so that the Principal Reporter can inform just the child, or a relevant person in relation to the child, or both.
50.New subsection (5B) disapplies the duty to inform in certain circumstances as set out in that subsection, including where the Principal Reporter is satisfied that it would be detrimental to the best interests of any child involved for the Principal Reporter to inform persons of their right to request information. This mirrors section 179C(1)(a) of the 2011 Act, under which the Principal Reporter can decline to comply with a request for information.(34)
51.Section 179B of the 2011 Act makes provision for the information that can be requested and provided under section 179A. That information varies depending on whether the Principal Reporter has decided to arrange a children’s hearing or not in relation to the child. Where no hearing has been arranged, the Principal Reporter may(35) provide the information set out in section 179B(2)(a) – that is, what determination the Principal Reporter made under section 66(2) of the 2011 Act in respect of the child and any other action taken by the Principal Reporter. Where a children’s hearing was arranged, section 179B(2)(b) governs the information that may be provided – namely, information as to whether a CSO has been made in respect of the child or, where the child was already subject to a CSO, whether the CSO has been terminated, varied or continued, or, where a CSO was not made, terminated, varied or continued, information as to how the referral to the children's hearing was otherwise discharged.
52.Section 8(3) amends section 179B so that, where a children’s hearing is not arranged, the information to be provided is set out in a new version of section 179B(2). Where a hearing is arranged, the information and “further information” to be provided is set out in new section 179B(3) and (4). This sets out a broader range of information that can be provided where a children’s hearing is arranged and a CSO or ICSO(36) is made in respect of the child. It now includes information as to measures included in the order – namely, measures such as those that might be included in a CSO or ICSO as a result of section 83(2)(ca) or (cb) (as inserted by section 5(2)(a) of this Act), and whether a secure accommodation authorisation has been included. It also includes other information necessary to help with safety planning by or in relation to the person against whom the offence was committed or who was harmed by the child’s actions or behaviour. The Principal Reporter can now also provide updates on that information. So, further information can be provided about any subsequent variation or continuation of a CSO or ICSO made in respect of the child – but only in so far as it relates to the inclusion, variation or removal of a measure of the kind mentioned in section 179B(3)(b)(i) or (ii) – or any subsequent termination of a CSO or ICSO made in respect of the child. Similarly, if there are other developments in the child’s case, the Principal Reporter can provide further information necessary for safety planning purposes.
53.Section 8(4)(a) amends section 179C(1)(a) of the 2011 Act to bring it into line with new subsection (5B)(b) of section 179A. Section 8(4)(b) amends section 179C to insert a new subsection (4). This provides that the limitation in section 179C(3), on the ability of the Principal Reporter to provide information which is not directly related to the action taken in relation to the action or behaviour which caused harm or which constituted an offence, does not stop the Principal Reporter from providing information about the measures included in a CSO or ICSO if they relate to the person who requested the information under section 179A (or, where that person is a relevant person, the child in relation to whom that person is a relevant person).