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The Evaluation of Children's Hearings in Scotland: Volume 4 - Where do we go from here? Conference Proceedings

THE INTERNATIONAL CONTEXT: TRENDS IN JUVENILE JUSTICE AND CHILD WELFARE

PROFESSOR CHRISTINE HALLETT, DEPUTY PRINCIPAL AND PROFESSOR OF SOCIAL POLICY, UNIVERSITY OF STIRLING

When the Scottish Children's Hearings system was introduced in 1971, it marked the culmination of a comprehensive process of juvenile justice and child welfare reform in Scotland during the previous decade. Following the recommendations of the Kilbrandon Committee published in 1964 and founded upon the Social Work (Scotland) Act 1968 the system had, at its inception, a number of distinctive characteristics. Among these were:

  • a unified, welfare-based system for children and young people including those who had offended or were in need of care and protection
  • diversion from the courts with cases referred to a local official, the Reporter to the children's panel, to determine whether there was sufficient evidence to support the referral and whether there was a prima-facie need for compulsory measures of care
  • the establishment of a lay tribunal (known as a Children's Hearing)
  • an emphasis on family participation or relative informality
  • the separation of adjudication from disposal.

In the first major reform of Scottish child care law since 1968, the Children (Scotland) Act 1995 preserved the Children's Hearings system largely unchanged. Although some alterations to the system were made by the Act, they were principally of a procedural nature rather than any fundamental challenge to a system operating on avowedly welfare principles.

This degree of continuity in the essentials of the Children's Hearings system over almost thirty years is, perhaps, surprising in view of the rapid pace of change in systems of juvenile justice and child welfare evident elsewhere in the world during this period. Indeed, while suggesting that the Children's Hearings system is 'without doubt Scotland's most original and distinctive contribution to child welfare during this century', Murray and Hill also note that 'some concern has been expressed that those working within the system are excessively inward-looking and complacent, and failing to make use of ideas and perspectives that originate outside the system's own boundaries' (1991:298). The study of international trends (Hallett and Hazel, 1998) was undertaken to accompany a research study of the Children's Hearings system ( Deciding in Children's Interests, Hallett and Murray et al, 1998). It reviewed the key international developments in systems of juvenile justice and child welfare over this period with a view to contextualising the Scottish Children's Hearings system.

METHOD

The study was based largely on secondary analysis of literature. Relevant material was identified through computerised searches of databases. Particular use was made of the following databases on CD-Rom: SOCIOFILE from Silverplatter Inc; ChildData at the National Children's Bureau in London, the Juvenile Justice Clearinghouse in Rockville, USA, and the database of the Office of Juvenile Justice and Delinquency Prevention in Washington DC. In addition, World Wide Web sites on the internet were scanned through the use of popular search engines. Sites used following the searches include:

The international literature surrounding juvenile justice and child care and protection systems is large and a degree of selectivity was required.

THE CHANGING BALANCE BETWEEN JUSTICE AND WELFARE

It is common for systems dealing with children and young people in trouble to be differentiated along the two broad dimensions of 'justice' and 'welfare'.

Alder and Wundersitz (1994:3) summarised justice and welfare models as follows:

'The "welfare model" is associated with paternalistic and protectionist policies, with treatment rather than punishment being the key goal. From this perspective, because of their immaturity, children cannot be regarded as rational or self-determining agents, but rather are subject to and are the product of the environment within which they live. Any criminal action on their part can therefore be attributed to dysfunctional elements in that environment. The task of the justice system then is to identify, treat and cure the underlying social causes of offending, rather than inflicting punishment for the offence itself.'

By contrast, the 'justice model':

'assumes that all individuals are reasoning agents who are fully responsible for their actions and so should be held accountable before the law. Within this model, the task of the justice system is to assess the degree of culpability of the individual offender and apportion punishment in accordance with the seriousness of the offending behaviour. In so doing, the individual must be accorded full rights to due process, and state powers must be constrained, predictable and determinate'.

As with all ideal-types, it is not to be expected that these models will be found in a pure form in extant systems of child welfare and juvenile justice. On the contrary, in practice, many national systems combine elements of both approaches, with the emphasis shifting through successive phases of policy reform.

The widespread development of specialised jurisdictions for children in difficulty took place in many countries at the end of the 19th and early 20th centuries. Juvenile courts were established in many countries. A key element was the focus on the welfare of the child and a belief in the necessity for and effectiveness of state intervention in the name of child rescue or reform.

DUE PROCESS: A RETREAT FROM WELFARE

One of the most significant developments in recent decades in many countries has been a retreat from welfare associated with a concern for due process. This entailed strengthening young people's access to formal justice - a move away from discretionary, individualised welfare and towards proportionality and determinacy. These developments may be traced to the USA in the late 1960s, particularly the cases of Kent versus United States and Gault. Following these landmark cases, a concern for the greater protection of the rights of young people in juvenile justice and child welfare systems spread through many jurisdictions.

REPRESENTATION AND ADVOCACY

An important aspect of the emphasis on due process was the extension of children's and young people's rights to representation and advocacy. As Eitzen notes (1985:62): 'the Gault Court held that the state was neither the sole nor the proper representative of children even when it sought to further what it believed to be the child's best interest'. Since the late 1960s there has been a proliferation of schemes for promoting children's representation in judicial and, at times, administrative decision-making arenas (although such schemes are less well developed in the inquisitorial jurisdiction of many Continental European Countries). Representation and advocacy schemes stem from a growing acknowledgement of children as relatively independent or autonomous 'social actors' capable of and entitled to hold and express views concerning their lives. This was reflected in the UN Convention on the Rights of the Child, particularly in Article 12. This makes provision for the child to express his/her views, which should be given due weight, and the opportunity to be heard in judicial or administrative proceedings directly or through a representative.

The Scottish Children's Hearings system has been relatively immune to such developments in representation (although it was, perhaps ahead of its time in offering opportunities for children and young people to participate directly). Legal aid is not available for representation at hearings and in our study, Deciding in Children's Interests, few parents or children availed themselves of the right to be accompanied at the observed hearings by a representative or a friend.

Respondents' views on the issue of legal representation at hearings reflected the differences of opinion amongst commentators on the topic (e.g. Fox 1991, Duquette, 1994, Lockyer, 1994 and Norrie, 1997). Some respondents were clear that the routine involvement of lawyers in hearings was desirable and suggested that it could improve the quality of the hearing and that legal representatives (when present) could and did conduct themselves appropriately in hearings. Others were equally, if not more, strongly opposed to any such developments, supporting Lockyer's view that 'resisting the introduction of legal agency into hearings is necessary to preserve their informal non-adversarial and direct participatory character'. Many thought that the presence of lawyers undermined the relative informality of hearings and posed some difficulty for the lay panel members.

There is clearly a need to balance a degree of informality with the protection of rights. The limited contribution of the children and young people in the 60 observed hearings, and the comments of some of the children and young people interviewed following them, are perhaps indicative of a need for greater representation within the Children's Hearings system, although there are deeply divided views over whether it should be provided through paid legal representatives. Some recommended other advocates, such as Who Cares? workers.

DIVERSION

Diversion has been a hallmark of the Children's Hearings system, whether from the courts to a lay panel or, for example, by Reporters in making decisions in response to referrals other than referral to a hearing (23% of referrals in 1997/8 were referred to hearings [ SCRA Annual Report 1997/8]).

Since the 1970s, diversion and increasing community involvement have also characterised developments in juvenile justice and child welfare in many other countries, sometimes associated with moves towards restorative justice. The forms taken are many and varied. They include:

  • mediation and reparation schemes in juvenile justice
  • mediation in child protection services
  • police cautions
  • family group conferences
  • changing age thresholds.

AGE THRESHOLDS

In particular there is wide variation in the age of criminal responsibility in Europe and the age at which young people are transferred to the adult criminal justice system. In most European countries the age is 18 but it is higher in some (e.g. Austria, Finland and Germany) and can be extended up to 21 (e.g. in Sweden and Germany). By international standards, the usual age of transition to the adult system (at 16 in Scotland) is low.

In the study Deciding in Children's Interests some respondents considered the age of 16 to be an appropriate cut off point. This was argued on 3 main grounds. The first was that 16 was the school leaving age, the legal age of marriage and, developmentally the age at which 'children increasingly are becoming adults'. Secondly, it was suggested that the nature of the offending behaviour of some young people meant that the criminal justice system was a more appropriate arena, largely because they persisted in offending despite a long history of involvement in the Children's Hearings system and needed to be deterred. Thirdly, some respondents suggested that the Children's Hearings system itself was not an appropriate forum for dealing with those aged over 16. This was related to its title, the 'Children's Hearings system'; to its underlying principles with an emphasis on help rather than punishment; and to perceptions of children's and young people's view of the system.

Some respondents, however, expressed grave doubts about the wisdom of the transition at age 16. They referred to the vulnerability of many of the young people concerned; their potential for speedy progression up the tariff in the adult system; and the abruptness of the transition between the 2 systems. For these reasons, some respondents argued for an extension of the role of the hearings to deal with the vast majority of 16 to 18 year olds.

If such cases were to be dealt with by the Children's Hearings system, respondents were of the opinion that major changes would be required. For example, a clear differentiation between dealing with care and protection in relation to younger children and dealing with offenders in the older age group and some argued there would need to be a shift towards a more overt role for punishment in the system. Among the suggestions for structural change were a youth court, involving a trained lawyer as sheriff sitting with 2 panel members, a specialist cadre of panel members specifically trained to deal with older teenagers; additional disposals for children's hearings with a sharper focus on addressing offending behaviour; and 100% funding of social work services for this group.

MEDIATION AND REPARATION IN JUVENILE JUSTICE SERVICES

Diversion has been particularly characterised in recent decades by the development of schemes for mediation and reparation. There has been a proliferation of schemes for young people which have been implemented, for example, in Germany, Australia, Ireland, New Zealand, Austria, Finland, Belgium, Norway, the Netherlands, Sweden. Denmark, Italy, Portugal and the United States (Asquith and Samuel, 1994; Marshall, 1995; Dunkel, 1996). They are often voluntary, community based, may involve the victim and usually require the young person to acknowledge responsibility for the offence. When associated with restorative justice they usually have in common, inter-alia: a definition of crime as an injury to victims (both individual and societal); an orientation towards restoration; and active involvement of the offender in restoration. Family Group Conferences (now widespread following their origins in New Zealand) are one example. The Scottish Children's Hearings appears relatively untouched by such developments. As Asquith and Samuel note (1994:33) 'there does appear to be some reluctance to develop such schemes for young people in Scotland'.

NEO-CONSERVATIVE CRIME CONTROL STRATEGIES

Despite the emphasis on welfare and on diversion from traditional judicial systems in earlier years, the literature suggests contrary tendencies evident in the 1980s and the 1990s in countries such as the USA, Canada, Australia and parts of Europe. Often associated with new-right or neo-liberal governments, neo-conservative control strategies have emphasised more justice and less welfare in juvenile justice systems, asserting that youth crime was out of control and calling for tougher penalties.

The emphasis in such reforms was upon greater community protection achieved through criminal court jurisdiction and longer sentences, based on the seriousness of the crime (proportionality). Emphasising individual responsibility and maturity, many legislative and policy changes reported above replaced the term 'child' with the term 'youth'. Such emphasis seems indicative of a wider trend towards a polarisation of severity of state response according to the seriousness of offence and perceptions of personal responsibility (at times linked with age). Some moves to increase the age of criminal responsibility have reflected the emphasis on the individual responsibility of older juveniles for their offending behaviour. There is a trend towards tougher penalties for persistent or violent offenders in parts of Europe and elsewhere (e.g. Australia, USA).

The Scottish Children's Hearings system has been largely immune from the neo-liberal backlash and associated responses. In responding to need not deed the unified system, which makes no distinction, in principle at least, between offenders and children in need of care and protection, appears to have offered some protection for those under 16.

REFERENCES

Alder, C and Wundersitz, J (eds) (1994 ) Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism? Canberra: Australian Institute of Criminology
Alder, C and Wundersitz, J (1994) New Directions in Juvenile Justice Reform in Australia in Alder, C and Wundersitz, J (eds) op cit, 1-11.
Asquith, S and Samuel, E (1994) Criminal Justice and Related Services for Young Adult Offenders: A review, Edinburgh: HMSO.
Duquette, D (1994) Scottish Children's Hearings and Representation for the Child in Asquith, S and Hill, M (eds) Justice for Children Netherlands: Martinus Nijhoff Publishers 133-144.
Dunkel, F (1996) Juvenile delinquents in Carney, W (ed) (1996) Juvenile Delinquents and Young People in Danger in an Open Environment, Winchester: Waterside Press, 37-140.
Eitzen, T (1985) A Child's Right to Legal Representation in a Custodial Dispute Family Law Quarterly xix 1, 53-72
Fox, S (1991) Children's Hearings and the International Community - The Kilbrandon Child Care Lecture, Edinburgh: Scottish Office, HMSO.
Hallett, C and Murray, C with Jamieson, J and Veitch, W (1998) The Evaluation of Children's Hearings in Scotland, Volume 1 : Deciding in Children's Interests, Scottish Office Central Research Unit.
Hallett, C and Hazel, N (1998) The Evaluation of Children's Hearings in Scotland, Volume 2, The International Context: Trends in Juvenile Justice and Child Welfare, Scottish Office Central Research Unit.
Lockyer, A (1994) Interests and advocacy: Identifying the role of safeguarders in the Scottish Children's Hearings System, Children and Society, 8, 1,55-68.
Marshall, T (1995) Widening circles: mediation in criminal justice in McIvor, G (ed), Working with offenders: Research Highlights in Social Work 26, London: Jessica Kingsley.
Murray, K and Hill, M (1991) The recent history of Scottish child welfare, Children and Society, 5, 3, 166-281.
Norrie, K (1995) Children Scotland Act, 1995, Reading: W Green and Son.
Norrie, K McK (1997) Children's Hearings in Scotland Edinburgh: W Green/Sweet and Maxwell
Scottish Children's Reporter Administration (1999) Annual Report 1997/8.