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The Evaluation of Children's Hearings in Scotland: Volume 3 - Children in Focus

Chapter ONE

Introduction

In 1994 The Scottish Office commissioned 2 studies to examine the operation of the Children's Hearings - a study of decision making by the University of Stirling (Hallett et al, 1998), and this 2 year follow-up study by the University of Edinburgh. The follow-up study looked at the backgrounds and circumstances of children and young people involved in February 1995 in the Children's Hearings system. This report sets out the findings of the study. Its remit was to:

  • provide a description of the children and young people, using statistical and professional information
  • outline changes in their circumstances over time
  • report the views of parents and some young people about their experiences of the system
  • discuss outcomes in relation to compulsory measures of supervision for the children.

This is the most recent survey of its kind to be carried out in Scotland. Findings from the first major empirical study (Martin, Fox and Murray, 1981) of decision making in the Children's Hearings were reported in the early 1980s. Since then coverage of the system has concentrated on critiques of the philosophy of the system, for example, combining child welfare and juvenile justice (Adler, 1985; Bruce and Spencer, 1976), or its legal (Norrie, 1997; Kearney, 1987) and administrative functioning (Finlayson, 1992). Statistical information on referrals and decisions has been kept throughout the life of the system.

The remainder of this chapter gives a brief description of the Children's Hearings system and how it works; an outline of the approach used to study the children who were involved in 1995; and the structure of the report. A detailed account of the design and methodology of the study is set out in Annex 1. The limitations of the study are also addressed here.

The Children's Hearings system

The Children's Hearings system was established under the Social Work (Scotland) Act 1968 as a direct result of the recommendations of the Kilbrandon Committee (1964). It came into operation in April 1971 and remains an innovative system, which integrates decision making for children who offend and those lacking care or protection within the same forum. The policy intention was to introduce a straightforward procedure, which avoided legal technicalities by having a lay panel of volunteers make decisions in a child's best interests, after discussion with parents and child.

There are 4 central features of the Children's Hearings system. First, the philosophy of the system has a clear welfare orientation with 'needs' rather than 'deeds' the basis for decision making and intervention. The Kilbrandon Committee (1964) found the legal distinction between juvenile offenders and children in need of care and protection was irrelevant when the underlying circumstances and needs of the children were examined.

Second, an official, the Reporter (usually qualified in law or social work), receives all referrals to the hearings system and must decide if there is sufficient prima facie evidence to establish a condition of referral and, if so, whether a child 1 may be in need of compulsory measures of care. This allows Reporters considerable discretion in decision making and they remain the 'linchpin' of the system (Thomson, 1991).

Third, the courts are only involved where the facts of a case are in dispute; for appeals, and dealing with more serious offences 3. There is a clear separation between the functions of looking at the needs of the child and establishing the facts of a case, or the guilt of a child who has allegedly committed an offence. Children under 16 years of age can only be prosecuted in the criminal courts on the instructions of the Lord Advocate. The age of criminal responsibility in Scotland is 8 years.

Fourth, because the Children's Hearings system uses a network of lay volunteers, it provides a community view of a child's best interests. The Children's Hearing is not a court but a tribunal serviced by lay people, drawn from the community of the child, with knowledge of children and family life. The aim is to work in partnership with parents or carers to identify needs and consider solutions in the best interest of the child, the assumption being most parents will want the best for their child.

The Reporter's role

Anyone may refer a child to the Reporter although the majority of referrals come from the police, followed by education and social work sources ( Statistical Bulletin 1997: 8, Table 3).

Children can be referred to the Reporter on a range of grounds which, prior to the Children (Scotland) Act 1995, were set out in section 32(2) Social Work (Scotland) Act 1968. Grounds or conditions of referral include situations where a child has committed an offence (section 32(2)(g)) and those where a range of non-offence-related issues predominate including, amongst others, truancy or where there are concerns for the care and/or protection of a child. A child may be referred on more than one ground and these may include both offence and non-offence grounds.

The grounds of referral during the course of the study were as set out in section 32(2) Social Work (Scotland) Act 1968, and are as follows:

  • (a) the child is beyond the control of his parents: or
  • (b) the child is falling into bad associations or is exposed to moral danger: or
  • (c) lack of parental care is likely to cause the child unnecessary suffering or seriously to impair his/her health or development: or
  • (d) any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1975 has been committed in respect of the child or in respect of a child who is a member of the same household: or
  • (dd) the child is, or is likely to become, a member of the same household as a person who has committed any of the offences mentioned in Schedule 1 to the Criminal Procedure (Scotland) Act 1975: or
  • (e) the child, being a female, is a member of the same household as a female in respect of whom an offence which constitutes the crime of incest has been committed by a member of that household: or
  • (f) the child has failed to attend school regularly without reasonable excuse: or
  • (g) the child has committed an offence: or
  • (gg) the child has misused a volatile substance by deliberately inhaling, other than for medicinal purposes, that substance's vapour: or
  • (h) the child is a child whose case has been referred to a Children's Hearing in pursuance of Part V of this act: or
  • (i) the child is in the care of a local authority and his/her behaviour is such that special measures are needed for his/her adequate care and control.

The Reporter, after investigation of a child's situation, may make one of the following decisions. S/he can:

  • take no further action 7 (section 39(1) Social Work (Scotland) Act 1968)
  • refer the case to the local authority with a view to its making arrangements for the advice, guidance and assistance of the child and his/her family (section 39(2) Social Work (Scotland) Act 1968)
  • arrange a Children's Hearing if it appears to the Reporter the child is in need of compulsory measures of care (section 39(3) Social Work (Scotland) Act 1968).

There is one further form of initial action that a Reporter may take in addition to those set out above, and that is to refer the child to the police for a warning, often in practice given by the relevant force's juvenile liaison officer. Reporters are also involved in arranging hearings to review supervision requirements, for warrants and other related matters.

The process of the hearing

A Children's Hearing involves 3 lay members (one of whom chairs the meeting); generally the parent(s) or guardian 8 of a child; in the majority of cases the child; a social worker, and the Reporter. S/he provides legal advice to the hearing but does not take part in the proceedings. There is provision for parent(s) and/or the child to bring a representative, who may be a friend or a legal adviser, although legal aid is not available at this stage. The chairperson has the responsibility for the formal aspects of the proceedings and sets out the grounds of referral to the child and his/her parent(s). If the grounds are accepted by all, the hearing proceeds. If the child and/or relevant person(s) do not accept the grounds, or the child is too young or is unable to understand the grounds, then the proceedings stop. Unless the referral is discharged, the chair asks the Reporter to refer the matter to the sheriff and a formal court hearing will be heard in chambers to establish if the conditions for the grounds are met. Legal aid is available at this stage.

If the grounds are established the case is remitted back to the children's hearing for disposal; if the grounds are not upheld the case is discharged. For all cases that proceed to a hearing where a supervision requirement is made, there is a system of review to establish progress and ensure that compulsory measures of care continue to be necessary. Review is annual unless requested earlier by the child and/or the parent(s)/guardian or the local authority 9.

The reasons for this study

Since it came into operation in 1971, the Children's Hearings system has given rise to debate about the balance to be struck between natural justice for parents and the welfare of children. The separate Scottish Office inquiries in 1992 into both the Orkney and Fife cases brought these issues into public focus. The decision in O v Rae (1992, SCLR 318) drew further attention to a Children's Hearing using information which could have founded a condition of referral but had not been tested before a sheriff.

Critics of the hearings system have questioned the ability of hearings to deal with complex cases of child abuse, especially where allegations of child sexual abuse are to the fore ( viz. the Orkney Inquiry). Similarly debates have arisen as to whether juvenile offenders are best dealt within a justice-oriented approach, which emphasises the importance of guilt and punishment rather than a welfare approach, which stresses needs and services (Adler, 1985).

Much of the debate about the merits and demerits of the Children's Hearings system has arisen against a relatively under-developed state of empirical research. National statistics, published annually, offer an analysis of broad trends within the hearings system but provide little information about the circumstances of the children, or the patterns of involvement children in the hearings system may experience.

Against this background it is important to find out about the children in the hearings system. What are their personal and social circumstances? How do they fare within the hearings system?

The central aim of this study is to examine outcomes 2 years on for a national cohort of children involved in the Children's Hearings system. We hope to encourage a deeper understanding of the adversities and protective factors in the lives of children in Scotland who become involved in the Children's Hearings system. A further aspect of the study focuses on the interface between the Children's Hearings and the criminal justice system, including an examination of any progression to the adult criminal justice system.

During the period of this study (January 1994 to November 1997), the Reporters' service throughout Scotland was reorganised and a new, centralised, national service created (Scottish Children's Reporter Administration - SCRA) with effect from 1 April 1996, coinciding with local government reform 10. The 9 Regional Councils (excluding the Islands Councils), previously responsible for the Reporters service, were replaced by a number of smaller local authorities involving the abolition of 53 district councils and the creation of 29 unitary or single-tier authorities. Moreover, the Children (Scotland) Act 1995 was fully implemented by 1 April 1997. These 2 events impacted on Reporters' ability to complete research questionnaires and contributed towards attrition rates.

The approach of the study

The results reported here are based on information from 3 main sources:

  • postal questionnaires on the children and their social and personal circumstances completed by Reporters and, where relevant, social workers and schools
  • government statistics routinely gathered on all children in the hearings system
  • interviews with a small sample of parents and young people aged 16 years or older, exploring their development over time and their views on the hearings system.

The study was carried out in 3 stages - the initial data was collected in the period after 1 February 1995 (Stage 1), involving Reporters, social work and educational staff. Two follow-ups were carried out with Reporters only in February 1996 and February 1997.

How children entered the study

The children were selected for the study in cases where there had been some kind of formal contact made, or action taken, by a Reporter in Scotland in the period from 1 to 15 February 1995 (excepting one rural Reporters Department). This ensured a national 'snapshot' of the full range and type of work carried out by Reporters, rather than simply looking at new referrals.

Cases broadly included children:

  • referred to the Reporter during the sample period; these children may have already been known to the Reporter or been subject to a supervision requirement
  • identified as due for annual review (section 48(3) 1968 Act)
  • who were requesting a review, or whose parents or social work department were requesting a review (section 48(4),(2))
  • who had been jointly referred to the Reporter and Procurator Fiscal because of the nature of his/her offence; children who had been referred by the court to gain the hearing's advice, or remitted to the hearing for disposal (section 173, 372 Criminal Procedure (Scotland) Act 1975); or where a child was subject to an offence and referred to the Reporter (sections 168, 364 Criminal Procedure (Scotland) Act 1975)
  • who were transferred from another Reporter's area in Scotland.

Different types of cases were selected, including children with little or no experience within the hearings system; those who had lengthy histories and children referred on a variety of grounds. This also permitted an analysis of children with varied histories, especially those who had prior contact with the hearings system, providing an overview of their progress, linked to referral grounds and current circumstances. Table 1.1 below sets out the reasons why the children came to be included in the cohort study. Annex 3 provides information on provisions relating to the review of supervision requirements and the reasons for review requests in relation to the children.

Table 1.1
Reason for the children's inclusion in the cohort study

Reason for Reporter contact

Number

Per cent

new referral

798

70%

review requested

148

13%

annual review

131

11%

reference/remit 1

16

1%

transfer

2

0.2%

jointly reported 2

11

1%

new referral + review

40

4%

other

1

0.1%

more than 1 reason

1

0.1%

Total

1148

100.4%

1. children referred or remitted to the Children's Hearings system by the court.
2. 'jointly reported' i.e. they were referred by the police to the Reporter and the Procurator Fiscal after allegedly committing an offence.

The number of children in the study

The total sample of children identified as eligible for selection in the period 1 to 15 February 1995 was 1,976. This figure gives a clear indication of the high numbers of children Reporters deal with nationally within fairly short time periods.

Three hundred and fifty-three children and young people withdrew (or were withdrawn by their parents) from the study, representing just under one-fifth (18%) of the initial sample of 1,976 children identified.

Of the remaining cases, Reporters returned a completed questionnaire on 1,155 children in stage 1 of the study (after February 1995). There were fewer questionnaires returned by Reporters at stages 2 and 3 of the study (February 1996 and February 1997). Overall the sample was distributed as follows:

  • in the period 1 to 15 February 1995 there were 1,155 children on whom Reporters' returns were available, resulting from formal contact or action by a Reporter in Scotland
  • there were 619 children on whom Reporters' returns were available as of February 1996
  • there were 510 children on whom information was available as of February 1997.

Overall the data collected represented a substantial range of information about children and young people in the hearings system. Full details of the sample are set out in Annex 1.

Why returns diminish over time

As with all longitudinal studies, the attrition rate increased with the passage of time. The study was carried out during a period of major organisational change within the Reporters' service, involving the creation of a national unified Reporters' service from the 12 pre-existing regional Reporters' departments. This appears to have had a significant impact on the rate of return at stages 2 and 3 of the study.

By February 1996 Reporters were more able to provide information on children who were subject to a supervision requirement and therefore still active within the Children's Hearings system. This is likely to have influenced Reporters' return of questionnaires. This was to be expected as many children would have been diverted from further involvement in the Children's Hearings system at an earlier stage, or would have exited after being subject to compulsory measures of care. Current information, therefore, on their social circumstances was not readily available to Reporters. By 1 February 1997 increasing numbers of the sample children had been diverted or left the Children's Hearings system.

Overall, Reporters appeared most able to provide information about certain aspects of a child's life such as schooling or whether s/he was looked after away from home, rather than more detailed questions about the nature of family relationships. If the latter were of particular concern, however, this was most likely to be noted by Reporters as a general concern in the child's life.

The structure of the report

References throughout the report are to the Social Work (Scotland) Act 1968 Part III, which contained the primary legislation relating to the Children's Hearings system during the research period. With effect from 1 April 1997, the Children (Scotland) Act 1995 Part II, and associated rules and regulations, now contains the relevant legislation. The 1995 Act introduced some changes to the hearings system but these were not fundamental and the basic philosophy of the system remains as before (Norrie, 1997). Parallel provisions between the 2 Acts are indicated in footnotes where relevant.

A detailed account of design and methodology is available in Annex 1, and statistical notes are provided in Annex 2.

Presenting statistical information in a user-friendly way is never easy. The system itself is complex, and official government statistics do not make for easy reading. Every effort has been made to provide the information in as clear and straightforward a way as possible. The report combines information on the Children's Hearings system alongside the statistical analysis. Some readers will be very familiar with the system and how it works, and others will be relative newcomers.

We hope you will find the report worthwhile for whatever reason you come to read it. In the remaining chapters, the history and social circumstances of the children whose cases are represented in this study begin to unfold. It is important to remember that until now little has been known in a collective sense about who the children are, despite the international interest the system has attracted on political, legal and philosophical grounds. This report, we hope, makes a start.

Chapter 2, The Children And Their Social And Personal Circumstances in February 1995, looks at the children's current living circumstances, their age, gender and ethnicity, family composition and the material circumstances of their families. Information is provided on their health; the concerns that Reporters had about the children; adversities and positive features in their lives; their public care and education histories.

Chapter 3, Official Decision Making Prior To 1 February 1995, traces the history of children in the cohort sample who were already known to the Reporter. It draws on official annual government figures that are kept on referrals to the Reporter.

Chapter 4, The Children: One And Two Years On (Parts I and II), considers the progress of the cohort children over the years February 1995-1996 and February 1996-1997. It draws on information from questionnaires completed by Reporters for the purposes of this study, and SWS21 official statistical returns.

Chapter 5, Children And Young People Who Offend, concentrates on the backgrounds and progress of cohort children referred for offending.

Chapter 6, Parental And Young People's Attitudes Towards Children's Hearings And Referral, is concerned with the first-hand accounts of some parents' and children's views of the Children's Hearings system.

Chapter 7, Conclusions.