Commentary on Sections Investigation and determination by Principal Reporter Section 67 – Meaning of “section 67 ground”
70.This section sets out the grounds upon which a child can be referred to a Children’s Hearing. This is an exhaustive list of the grounds.
71.The Principal Reporter must refer a child to a Children’s Hearing where any of the grounds in section 67 exist and the reporter is satisfied that the child is in need of compulsory measures of supervision. The section 67 ground(s) may relate: to situations where the child has been or may be harmed by others; or to a specific incident, incidents or pattern of behaviour by the child, or concerning the child. Whatever the ground(s) for referral for a child, there also needs to be an assessment by the reporter to determine whether the child requires compulsory measures of supervision in consequence of the ground(s) for referral and the child’s overall circumstances. Therefore the existence of a ground for referral is a necessary, but not a sufficient condition in and of itself, to trigger a referral to a Children’s Hearing. It is for the reporter to decide which ground or grounds for referral apply and then to draw up a statement of facts in support of the ground or grounds if the reporter considers there is a need for compulsory measures of supervision.
72.Section 67(2) sets out the ground(s) for referral to be considered by the reporter and to be accepted by the child and relevant person before a Children’s Hearing or, if the ground(s) are not so accepted, then established before the sheriff.
73.There are two situations where the grounds will not require to be accepted or established before a hearing or the sheriff respectively:
74.In these situations, the grounds are treated as having been already established by the sheriff.
75.Subsection (2)(a) to (g) and (p) relate to the conduct of persons in the child’s life; subsection (2)(h) relates to the child looked after by the local authority; subsection (2)(i) relates to the child who is subject to a permanence order; and subsection (2)(j) to (o) relate to the conduct of the child.
76.Subsection (2)(a) provides for situations of inadequate parenting on the part of the person who has parental care of the child. A lack of care may arise in a wide variety of ways and may be the outcome of the parent’s actions, such as emotional abuse, or of the parent’s omissions, as in neglect. The lack of parental care may result from a parent’s intentional or unintentional behaviour and could be a consequence of a parent’s alcohol or drug abuse, mental ill-health, limited ability or lack of parenting skills. Subsection (2)(a) can be applied on the basis of past or present incidents of lack of parental care but such lack of care needs to link to the impact on the child’s health or development, or may be a cause of the child’s suffering. The lack of care may relate to another child, but it is the likely impact on the child to which the ground(s) applies that needs to be considered. The ground(s) can be used to protect a new-born child joining the household where there is evidence of a lack of care towards other children or the lack of care can be drawn by inference from the parent’s lifestyle or capacity.
77.Subsection (2)(b), (c) and (d) relate to situations where Schedule 1 offences have been committed, such as sexual offences, an offence involving bodily injury, ill-treatment, neglect, exposure or abandonment. “Close connection” at subsection (2)(c) is defined in subsection (3).
78.“Household” at subsection (2)(d) can be given a wide interpretation. It means more than simply the bricks and mortar of the building where people live. When people are held together by particular bonds of affection or contact, even though people may not be living together at the same address, they may still be members of the same household.
79.Subsection (2)(e) is designed to protect the child exposed to significant negative influences. It may include situations of a child in a home frequented by drug addicts or alcoholics, a child who is frequenting a neighbour’s house where the child is being involved in harmful activity, and a child who has been groomed by a paedophile, whether within or outwith the home or online.
80.Subsection (2)(f) is designed to cover a child who is in an environment of domestic abuse.
81.Subsection (2)(g) makes provision for a child who has or is likely to have significant contact with someone who has committed an offence under Parts 1, 4 or 5 of the Sexual Offences (Scotland) Act 2009 such as rape or other serious sexual offences.
82.Subsection (2)(h) provides for children who are being looked after by the local authority through a voluntary agreement and who, for example, repeatedly abscond or endanger themselves or others by their own behaviour.
83.Subsection (2)(i) provides for children who are the subject of a permanence order under the Adoption and Children (Scotland) Act 2007 and who may require special measures for their support.
84.“Special measures” in subsection (2)(h) and (i) mean measures over and above being looked after by a local authority or under the terms of the permanence order. The Principal Reporter must still decide if the ground is evidenced and there is a need for compulsory measures over and above the local authority’s powers. The ground may apply, for example, where a child meets the criteria for secure accommodation or where the child has particular needs or behaviours that cannot be adequately addressed within the scope of the permanence order.
85.Subsection (2)(j) is based on section 52(2)(i) of the 1995 Act. This ground applies only to children who have committed an offence.
86.Subsection (2)(k) and (l) apply to children who have misused alcohol or drugs. “Controlled drug” is defined in subsection (6) by reference to the Misuse of Drugs Act 1971.
87.Subsection (2)(m) is designed to cover circumstances where the conduct of the child either has or is likely to have a serious adverse effect on the health, safety or development of the child (e.g. self-harm or serious risk-taking behaviour such as playing on railway lines), or has caused or is likely to have a seriously adverse effect on the health, safety or development of another person (e.g. gang behaviour or severe bullying).
88.Subsection (2)(n) is intended to cover situations where a child is behaving in such a way that the child does not respond to the reasonable controls and boundaries made by the parent(s)/carers/guardians. For example this may apply when a child is running away or continually staying out overnight without the consent of the parent. “Relevant person” is defined in section 200.
89.Subsection (2)(o) covers the situation where the child has repeatedly failed to attend school without reasonable excuse for the absences. “Reasonable excuses” are defined in section 42 of the Education (Scotland) Act 1980. The Act refers to difficulties with travel arrangements, health problems or special circumstances acceptable to the education authority or a court. Exclusion due to a child’s disruptive behaviour does not constitute a reasonable excuse for not attending school. A child who is being appropriately educated at home is considered to have a reasonable excuse
90.Subsection (2)(p) is designed to protect a child who is being, or is likely to be, subject to physical, emotional or other pressure to enter into a marriage or civil partnership, or is, or is likely to become, a member of the same household as such a child.
91.Subsection (4) enables the Scottish Ministers by order, to modify the grounds for referral. Such modifications may concern: adding a new ground; removing an existing ground; amending any existing ground; and amending the definition of an existing ground. Any such modification will require to be made by an order subject to affirmative procedure.