The child or young person (for ease, we use the term 'the child' on this page) is central to the tribunal process and a tribunal is always interested in hearing their views.
Section 12 (2)(b)(i) of the Education (Additional Support for Learning) (Scotland) Act 2004 places an explicit duty on the Education Authority to take account of the views of the child (unless satisfied that the child lacks capacity to express a view). A tribunal will expect to be provided with evidence from the Education Authority of the steps they have taken to ascertain the child’s views as well as what those views are. At the case conference call the legal member will explore with parties whether further steps require to be taken to obtain the child’s views.
Methods of Obtaining Views of the Child
The legal member or tribunal will always consider parties and the child’s opinions on the best methods of obtaining the views of the child. The child may attend the tribunal hearing in person to provide views and to give evidence (the child does not have to remain throughout the hearing), the child may give his or her views by letter, CD recording or video tape. They can be recorded by a teacher or professional who works with the child.
The tribunal can engage an independent advocate, skilled in obtaining views of the child, to support the child to express their views, opinions and feelings. The independent advocate may prepare a written report giving the child’s views on the reference and on matters that the tribunal considers the child’s views would be helpful.
Where the child attends the hearing the child may wish to have the independent advocate present to support him/her to express his/her views. If the child does not wish to attend the hearing the child may wish the independent advocate to attend for the purpose of expressing his/her views.
Where a child decides to attend the tribunal hearing, the tribunal is flexible about the best way of his or her views being communicated. Views can be taken outwith the presence of parties (with parties agreement), although the tribunal will communicate those views back to parties; or by one member of the tribunal who will then feedback the views to the others. The case officer will remain in the hearing room and the child’s views will be recorded, in the same way the hearing is recorded.
The tribunal will always consider the welfare of the child when determining how to seek a child’s views but in respect of children under the age of 12 years, rules 43 and 89 of The First-tier Tribunal for Scotland Health and Education Chamber Rules of Procedure 2018 ('the 2018 Rules') (schedule to SSI 2017/366) require that the tribunal will only permit the child to give evidence where that evidence is necessary to enable a fair and just hearing and the welfare and interests of the child will not be prejudiced by doing so.
President’s Guidance Note No 01/2021 provides further information on how a tribunal will consider hearing from the child and there is also Guidance Note to Tribunal Members No 03/2018 on instructing an independent advocate.