Hearing a new tale

It’s a classic policy tug of war. Who will prevail, those wanting teenage neds locked up, or those who insist that criminal justice-based systems have repeatedly failed young people and it would be a tragic blunder to turn our backs on the Kilbrandon approach?

Scotland’s pioneering children’s hearing system, now 33 years old, is again under scrutiny. The Scottish Executive has launched a two stage review process (see third panel), with the stated aim of establishing the principles and aims of the systemfor the future.

Turning back the tide

While issues relating to young offenders make most of the headlines, it is notable that it is cases brought under the welfare grounds for referral that have seen a dramatic rise in number – from under 5,000 in 1976 to over 25,000 in 2002-03, whereas offending cases have remained more or less static. Indeed this led the National Children’s Homes inquiry under Bishop Richard Holloway, which published its own report early this year after a 15 month investigation (see second panel), to comment that the system is being “engulfed in a rising tide of care and protection cases that distract it from its primary purpose”.

Perhaps a surprising description of an explicitly welfare-based system, the comment is not widely supported. “I don’t agree that the system is being used for purposes for which it wasn’t designed. Either the philosophy is correct or it’s not”, says Alison Cleland, Convener of the Scottish Child Law Centre. “Care and protection cases are exactly what the system would have been designed to deal with, but our understanding of abuse is growing and there needs to be a subtle, intelligent response.”

Nor does Alan Miller, Principal Reporter in the Scottish Children’s Reporter Administration, accept the picture painted. “Certainly the number of non-offence referrals has grown hugely, but I don’t agree that we’re being swamped.” He cites social changes such as the impact of drugs and family breakdown. The legacy of children let down by the system is also obvious. “There is evidence that children can be referred to reporters before people have tried to address problems informally. At the same time there is also evidence, sometimes of a tragic nature, that children who clearly need formal protection are not being brought to our notice early enough. We are working with referring agencies to sort this out.”

“Once children come to the reporter”, he adds, “the statistics demonstrate pretty clearly that we only take the minority to hearings for consideration of compulsory measures – wherever possible, we let the family sort things out or look for informal support.”

Separating justice and welfare

The bigger issue, which according to some reports is receiving more attention from the Executive, is whether to create separate divisions of hearings for offending and non-offending cases. On this, those close to the system are virtually unanimous. “There is no support whatsoever among panel members for the creation of separate hearings for welfare and offence grounds”, says George Anderson, head of the Children’s Panel Chairman Group. “The two issues are seen as inextricably linked in the vast majority of cases.”

“I am passionate about this”, Alan Miller also responds. “In a recent study we found that two-thirds of the most persistent offenders were first referred on non-offence grounds, typically at about age eight. A very high proportion had suffered horrific abuse as young children. I’m not saying that abuse necessarily results in offending, but family and parenting factors are clearly a major influence on how children behave. And the other unambiguous message from research is that to cut offending by a young person you have to take a unified approach – challenge the offending but also work on the problems that make them more likely to offend.”

Joan Rose, children’s hearings training officer at the Edinburgh training unit, points out: “Experience in England and the US has shown that separation of welfare and justice doesn’t lead to a reduction in offending, nor does it address all the needs of the young person, which may be complex.”

Child law specialist Elaine Sutherland of Glasgow University is also firmly against the “juvenile justice” route, although she does see important human rights issues arising from the decision in S v Miller 2001 SC 977, that a referral on an offence ground does not constitute criminal proceedings.

“The result is that the human rights guarantees found in article 6(2) and (3) of the European Convention do not apply to the hearings system”, she explains. “That decision, combined with the increasingly punitive ethos of the Executive, opens the way for a system which exposes the child offender to being denied a range of human rights protections at the same time as being subject to punitive sanctions.”

Human rights concerns are one matter the Executive hopes to resolve. Alan Miller recognises an issue about whether the hearing is independent of the reporter. “Possibly it hasn’t been challenged because we have very clear guidance for reporters about supporting and not supplanting the hearing’s decision making role. The Executive’s review offers a great opportunity to resolve this issue for the long term.”

But does the system work?

Supporting the principle of the hearings system dealing with youth offending leaves a large question as to its track record. Alison Cleland recognises this as its main weakness. “I’ve always thought that at the moment the system sets young people up to fail when it brings them in under the offence grounds, because it hasn’t tackled their offending behaviour and that’s one thing I agree with the Executive about. But that doesn’t mean that it’s wrong. It simply means it hasn’t tackled it.”

For her there is plenty of evidence as to what works. “Projects that work intensively with young people who offend to change their behaviour have always had a good success rate. I know it’s awfully easy to criticise when you’re not a policymaker, but it seems blindingly clear that what you need is resources to put those projects in place.”

Elaine Sutherland agrees as to the way forward. “The answers are there if we want them but they cost money. From a wholly pragmatic perspective, this should be no obstacle since, when they ‘work’ (in the sense of diverting a child from a life of crime), they cost less than dealing with a young person who goes on to become an adult offender. In any event, we need to get away from the idea that juvenile justice is something that can be done ‘on the cheap’.”

George Anderson believes the system can be effective with offenders, but accepts it is difficult to tell without continuing oversight of the outcomes. “The ever-present difficulty for everyone is, how do you measure success? The complexity of many of the cases dealt with is such that it is almost impossible to quantify success in any really meaningful way. Is a reduction in the number of offences a success? Is a change in the severity of offence a success?”

A matter of agreement

Three things keep recurring in the respondents’ comments as to what would deliver best results: fast tracking of offenders; the most flexible use by hearings of their powers to attach conditions to supervision orders; and proper implementation by local authorities of disposals. Simon Di Rollo QC, “counsel for children” before the Holloway inquiry, reflects the views:

“The hearings system, used imaginatively, can deal with ‘offenders’ in any way (there is no restriction in section 70 of the Children (Scotland) Act 1995 as to what a condition of a supervision requirement can contain).

“There seems to be a perception that the hearings system is ‘too soft’ and that returning to a court based approach would be to ‘get tough’. This type of thinking is driven by a tendency to politicise issues of this kind (with quick fix, headline grabbing solutions) rather than genuinely attempting to deal with the underlying problem. The system can be used to impose whatever disposals are thought to be appropriate in any given case.

“What is needed is a modernised hearings system, properly resourced. Those involved have to be properly trained and given adequate recognition and status. Cases involving children that ‘offend’ need to be dealt with far more quickly and the disposals ordered by panels actually followed through (we found significant delays in the processing of cases and a failure in the following up of disposals due to a shortage of resources – there is a chronic shortage of social workers).”

Alan Miller agrees that the challenge is to make proper use of the disposals already available. “The English approach of introducing a panoply of highly-targeted new orders sounds good but can be very confusing in practice.” However on the resource issue he adds: “It’s not as simple as saying ‘we need more’. A key problem right now is finding the people, particularly social workers, rather than finding the money to pay for them. Far more social workers now work in community care than with children and families; does that best use their training and expertise?”

Failure down the line

Although the position varies from area to area, there is a shared concern that hearings’ decisions are not being properly implemented by the local authorities responsible – a problem identified by the Council on Tribunals two years ago (see first panel). “It should be remembered that hearings make ‘supervision requirements’,” comments Elaine Sutherland. They do not hand down ‘guidance’ or ‘recommendations’. Thus, the failure to implement decisions is nothing short of inexcusable. Perhaps the only silver lining of what is otherwise the cloud of the Antisocial Behaviour (Scotland) Bill would give the hearing the power to direct the Principal Reporter to apply to the sheriff to have the local authority ordered to implement decisions.” Alan Miller prefers to see that as a backstop option to working with authorities to resolve the issue.

George Anderson feels that the nature of the system may lead to it receiving a lower priority. “While panel members do not particularly like to make the comparison between the way their decisions and those made in the courts are actioned, the conclusion must be that they are not seen in the same light. This does not mean that the whole process should be moved to a court setting in order to ensure full compliance, but rather the existing legal requirements in relation to hearings’ decisions just have to be enforced.”

Indeed it is readily overlooked that the whole system depends on the willingness of volunteers to serve as panel members – a commitment which includes a demanding training programme. Nevertheless the quality of panels won praise from the Council on Tribunals. “There is now a competence framework for panel members which sets very clear standards for performance”, says Joan Rose. “As a result standards have been raised in the last few years.” Her main concern at present is lack of equality of access to training, due to variations in size of panels and local budgets. And despite some reports of low morale among the 2,700 serving panel members, both she and George Anderson believe this mainly belongs to those areas with the poorest records for implementing hearing decisions.

Bring in the lawyers?

A suggestion from Elaine Sutherland that a legal qualification might become a requirement of chairing a panel does not find much support. It would resolve the human rights issues arising from the role of the reporter vis-à-vis the hearing, and the narrow circumstances in which legal representation is provided. Joan Rose believes on the other hand that the current training provides a sufficient answer: “All members should do the training for chairing; once they have, the majority will be able to chair effectively.” George Anderson considers such a move would “alter the whole ethos of the system and lead to a greater degree of formality without any apparent benefit”. He also fears it might engender a more adversarial atmosphere and discourage the participation of children and families. “The fact that very few hearing decisions are appealed, despite every hearing stressing rights of appeal, would indicate that the system is currently working well legally.”

“It wouldn’t be my first option”, Alan Miller replies. “I’d like to see a structure of development and support for panel members that recognises the hugely challenging job they do”. That could embrace a clerking and advisory role.

Parents and other problems

The Executive review opens up other possibilities. A renewed focus on parenting problems may result in powers over parents additional to those contained in the Antisocial Behaviour Bill. But Elaine Sutherland is concerned that such powers also reflect a shift in ethos, from working with the child’s family towards a constructive solution, to an extension of the “blaming culture”. George Anderson in contrast offers “a resounding yes” to new powers. “Every panel member can easily recall case after case where the problem lay not with the child referred but with the parents/relevant persons. There are complex issues to be addressed, but if decisions are to be made in the best interests of children then some powers must be exercised over the wider environment in which they live.”

A more radical suggestion in the Executive paper is that children’s hearings might evolve into “family hearings”, considering what has to be done for each individual for the benefit of the family. Alison Cleland does not think that would be a positive step. “The child is intended to be at the centre of the process, the child’s welfare is paramount, and although the family must be heard, that must be in order to contribute to a decision that always is in the child’s best interest.” The hearing is not there, she says, to try and solve deep rooted family problems. Again, however, George Anderson sees a great deal of merit in the concept. “Individual children cannot be seen in isolation and family hearings may be a very good forum to bring out all the underlying issues which may affect other family members, especially younger members, in the future.” But he does recognise that the concept “may present another very different set of problems and should therefore be the subject of a great deal more debate”.

“Getting it Right for Every Child” restates the Executive’s support for the fundamental principles of the system, while asking whether they can be enhanced. Alison Cleland fears that “the goalposts have shifted” as a result of the Antisocial Behaviour Bill pursuing a court based approach; her fears are shared by Elaine Sutherland. But the arguments that provokes may belong to the second stage of the review – how to achieve the principles and outcomes agreed. Alan Miller’s concluding comment foreshadows that debate:

“To get a clear and final answer to the question ‘what resources are needed?’ we need a number of things to be in place: the changes the Executive wants to make to the planning of children’s services, the ongoing efforts to join up services more effectively, the creation of clear outcomes and standards for the hearings system, and improved information about which services work well and for whom. And we also need to be able to show that resources are justified because helping a family to deal with their problems and bring up their children more confidently pays long-term dividends for the child, the family and society as a whole. I’m confident that case can be made.”