The child or young person is central to the tribunal process and a tribunal is always interested in hearing their views. Some children and young people will have made their own reference, claim or UNCRC case. They become a ‘party’ when this happens, with all the same rights as an adult party. This page concentrates on children and young people who are not parties.
Section 12 (2)(b)(i) of the Education (Additional Support for Learning) (Scotland) Act 2004 places a duty on the education authority to take account of the views of the child or young person where they have capacity to do this. A tribunal will expect to be provided with evidence from the education authority of the steps they have taken to do this as well as what those views are.
Methods of Obtaining Views of the Child
The legal member or tribunal will always consider parties and the child or young person’s opinions on the best way to hear the views of the child. A child or young person may attend the tribunal hearing in person to share their views or to give evidence. They do not need to be there for the whole hearing. They can leave after they have spoken to the tribunal if they prefer. There are different ways to share views and these include:
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Writing and drawing or completing the My Voice! form. You can find this here: My Voice
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CD recording or video tape.
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Using a communication aid like Talking Mats.
The tribunal can ask an independent advocate to meet with the child or young person to partner with them to produce a report which sets out the child or young person’s views. Independent advocates are skilled in supporting the child or young person to express their views, opinions and feelings.
Where the child or young person attends a tribunal hearing the child can have their own independent advocate present to support them to express their views. If the child or young person does not want to attend the hearing they can ask their independent advocate to attend to express their views. The children’s views service is provided by My Rights My Say, the national children’s service.
Where a child or young person decides to attend the tribunal hearing, the tribunal can be very flexible about how they hear their views. For example, the child or young person can give their views with only the tribunal members and the clerk in the room. The legal member will explain all the options and try to make sure the hearing works in the best way for the child or young person.
The tribunal will always consider the welfare of the child when thinking about their views. There are particular rules the tribunal has to follow for children under the age of 12 years. These are rules 43 and 89 of The First-tier Tribunal for Scotland Health and Education Chamber Rules of Procedure 2018 These say mean 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 The Child, Young Person and the Tribunal 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 Independent Advocacy on instructing an independent advocate.
