State intervention in the Scottish children’s hearings system : welfare, proportionality and participation

Donnelly, Michelle; Wudarski, Arkadiusz, ed. (2024) State intervention in the Scottish children’s hearings system : welfare, proportionality and participation. In: The State’s Powers to Intervene in Family Life. Mohr Siebeck, Tübingen. (In Press)

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Abstract

It is widely accepted that as the fundamental societal unit, the family is enti-tled to state protection. The status of the family as a protected group is recog-nised by all major international human rights instruments, which uniformly provide rights to respect for family life to ensure that established family rela-tionships are recognised and maintained. While a hallmark of democratic societies is that families are free to lead their lives without unjustified inter-ference from the state, family autonomy is not absolute. There are circum-stances under which the state is compelled to intervene in family life to pro-tect children who have suffered, or are at risk of suffering, harm in the family environment. As McGrath notes, ‘where a child’s safety is at risk or has al-ready been compromised, the state has a strong and legitimate interest in pro-tecting the child, which justifies piercing the cloak of privacy that typically surrounds the life of a family.’ Although (at times) justifiable, compulsory state intervention profoundly disrupts private family life. Child protection interventions necessarily inter-fere with family autonomy and integrity, where the fundamental rights and interests of family members are at stake and can come into conflict. This article offers a perspective on Scottish child protection, with a focus on com-pulsory state intervention pursued within the children’s hearings system (CHS). The CHS is the primary legal process for imposing child protection interventions in Scotland. It is a unique tribunal system, dealing with both non-offence and offence cases in an integrated way, and has been subject to international interest, praise and criticism during its 50-plus-year lifespan. The article provides a critical overview of the development of the CHS, exam-ining the historical prioritisation of the welfare of the child, the strengthening of due process rights by enshrining proportionality principles, and the ongoing expansion of participation rights to balance the powers of the state with the interests of family members. It argues that while there is much to be com-mended about the underlying principles of the CHS, more work must be done to reconcile those principles with the experiences of children and families who are brought within its jurisdiction.