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

DECIDING IN CHILDREN'S INTERESTS

PROFESSOR CHRISTINE HALLETT, DEPUTY PRINCIPAL AND PROFESSOR OF SOCIAL POLICY, UNIVERSITY OF STIRLING & MS CATHY MURRAY, SENIOR RESEARCH FELLOW, DEPARTMENT OF APPLIED SOCIAL SCIENCE, UNIVERSITY OF STIRLING

INTRODUCTION

This paper reports some of the key findings of a study of the Children's Hearings system conducted from 1994-1997 at the University of Stirling, which is published in full, entitled Deciding in Children's Interests (Hallett and Murray et al, 1998). The broad aim of the study was to explore decision making in the Children's Hearings system. Its specific objectives were to explore:

  • Reporters' decision making in response to referrals to the Children's Hearings system
  • decision making in Children's Hearings
  • the legal, procedural, policy, organisational and resource contexts within which decisions were taken
  • the interface between the Children's Hearings system and other key agencies, namely social work departments, education departments and the criminal justice system.

In contrast to the Edinburgh cohort study, the study of decision making in the Children's Hearings system was designed to focus more on process than on outcome. The approach adopted was largely qualitative. Contemporary studies of decision making emphasise the contextual nature of decisions and the importance of the process in shaping decision outcome (e.g. Carroll and Johnson, 1990; Hawkins, 1994). An important part of the study, therefore, encompassed interviews with those directly involved in decision making at 2 key points: at referral and in Children's Hearings.

Phase I of the study comprised the observation of a sample of 60 Children's Hearings and semi-structured follow-up interviews with 98 participants from half (30) of the observed hearings. Interviews were held with 30 panel members, 28 social workers, 13 Reporters and 7 teachers, a total of 78. In addition 20 family members were interviewed.

In Phase II 54 Reporters were interviewed about their decision making in respect of a stratified sample of 130 referrals made in February 1995 and the generality of cases with which they deal.

In Phase III of the study 29 interviews were conducted with representatives of key agencies or professions at the interface with the Children's Hearings system, namely social work departments, education departments, sheriffs, procurators fiscal and the police. In addition, 5 area panel chairs were interviewed.

REPORTERS' DECISION MAKING

Fifty-four Reporters were asked to comment in general terms on the process and context of decision making and about the 3 main decisions which they could make at the time of the study 1on receipt of a referral: no further action; refer to the local authority for advice, guidance and assistance; and refer to a children's hearing. They were also asked about the specific decisions they had made in respect of 130 referrals. The characteristics of Reporters' decision making identified were:

  • an individualised and non-formulaic approach
  • the exercise of independent judgement
  • a wide amount of discretion
  • principles of diversion
  • minimal intervention
  • a degree of cultural relativism
  • the operation, at times, of a form of tariff.

Reporters made their initial decisions on the basis of referral information and, usually, supplementary written information, particularly from social work departments and schools. There was limited direct personal contact between Reporters and families at the initial referral stage. When Reporters were asked what factors they had taken into account when making decisions in respect of 130 referrals, the centrality of the families' co-operation and of school- related issues emerged, these being the 2 most frequently cited factors across all referral types. Other factors included evidential issues, current social work input, the child's age, risk to the child and aspects of family functioning. The child's prior offences were also key in respect of many offence referrals.

Reporters indicated that of the 130 referrals, decision making had been straightforward in 75%. Paradoxically, in discussion they considered difficult decisions to be the norm. More decisions to refer the case to the local authority for advice, guidance and assistance were categorised by Reporters as difficult than decisions to refer to a hearing or to take no further action. Reporters also took into account a greater number of factors in making the former decisions.

Time-scales

In 32% of the 130 referrals Reporters took the decision within a month of receipt of notification, in 28% between one and 2 months and in 39% more than 2 months. Reporters' decision making was quicker for referrals on offence than care and protection grounds (71% and 43% respectively in less than 2 months). While procedural and administrative delays occurred in Reporters' offices, decision time-scales were only partly within Reporters' control. There were long delays in notifications to Reporters - on average 58 days in respect of offences - and delays in receiving reports requested from schools and social work departments. Alternatives for achieving shorter time-scales are:

  • fast tracking initiatives for police referrals
  • setting and monitoring targets for case processing in Reporters' offices
  • earlier receipt of reports from schools and social work departments
  • the employment of social work staff in Reporters' offices
  • decisions to be made on the basis of the referral information alone in a greater proportion of cases.

OBSERVED HEARINGS

Sixty Children's Hearings were observed in the study. The issues of participation, rights and decision making are considered in turn below.

Attendance and participation at hearings

At least one child or young person was present at 52 hearings (87%). Mothers were present at more hearings (77%) than fathers (33%). Three panel members, a social worker and a Reporter attended every hearing, as they almost invariably do. Panel chairmen made more contributions to the discussion at the hearings than other participants and these were lengthier and characterised far more by questions. Fathers and Reporters made the lowest number of contributions to the hearings, with the Reporters' role being minimal. Children and young people made the second highest number of contributions, but very few asked questions or initiated discussion and what they said was frequently short or monosyllabic (with 76% of their contributions being one line or less of typed text).

Rights at hearings

Under the Children's Hearings (Scotland) Rules 1986, which were in force at the time of the study, the chairman must inform the family (and others) of their right to appeal against the decision and of their right to receive a statement in writing of the reasons for the decision. It was not included in the Rules that the chairman must inform the family about the availability of legal aid for appeals, but it is considered by Kearney a matter of 'good practice' (1987: 120). At the time of the study there was also no compulsion to tell the family about reviews, but this appeared to have been taken on as usual practice. In the observed hearings the findings in respect of these 4 aspects were as follows:

  • the family was informed by the chairman of their right to appeal against the decision in 98% of hearings
  • the chairman informed the family of their right to receive the reasons for the decision in 37% of hearings
  • in only 9% of hearings were families informed about the availability of legal aid
  • families were informed of the right of review at 72% of hearings, although this included many instances of either unclear or inaccurate information being given.

While the frequency of informing families of their rights had increased considerably since the Martin, Fox and Murray (1981) study, the process might be further improved by the provision of written information at the hearing or possibly by delegating this task of informing families of their rights to the Reporter.

Decision making

The decision made at nearly two-thirds of hearings (63%) was a non-residential supervision order, while the remaining third received either a residential supervision order or a discharge. A number of characteristics of the decision making were identified, including:

  • panel members reached a consensus decision in 89% of hearings
  • the final decision of the hearing was the only option discussed in 65% of hearings, while several options were discussed in over a third of hearings
  • in the majority of cases (84%) the decision of the hearing accorded with the social worker's recommendation
  • social workers' reasons were more diverse and more specific than those of panel members
  • panel members placed more emphasis on education in their decision making compared with social workers, thus creating a potential for different expectations of social work supervision.

FAMILIES' VIEWS OF CHILDREN'S HEARINGS

Families wanted to be more familiar with the system and how it worked. They experienced a range of feelings prior to the hearing, those who had previously attended hearings being more inclined to feel 'calm' or 'OK' about having to attend. They had varied views as to whether their contribution in the hearing had had any influence. Only 3 respondents were clear that the decision had been made during the course of the hearing: others indicated that they thought that the decision had in fact been made prior to the hearing itself.

Families considered that their attendance at the hearing was important. They believed their views and opinions were salient to any decision about their child's future, and also thought they had greater knowledge about their own children. Some said they wished to protect and represent their child's interests at the hearing.

Families identified factors which they thought facilitated their participation, including being confident, assertive and prepared. Inhibiting factors included: feeling nervous, insufficient time being allowed for hearings, difficulties in hearing or following the discussion, the presence of others (such as teachers and social workers) and some panel members, for example, those perceived as antagonistic or intimidating. However, some were said to be facilitative.

Formality and informality

The tension within hearings between informality and formality was noted by respondents. They were asked in the interviews to identify experiences akin to hearings. Their answers illustrate the sense of formality they associated with attending a hearing. Others, however, compared the Children's Hearings system favourably.

Procedural rights

Some parents were able to identify some of their procedural rights within the hearings system. Their knowledge was, however, partial, with only the right to appeal against a decision being identified by 6 parents and no one identifying the availability of legal aid in the case of an appeal against a decision. Awareness of the rights of children and young people within the Children's Hearings system was minimal.

Families identified a number of strengths and weaknesses, which they associated with Children's Hearings, as well as a number of suggestions as to how they could be improved. The main strengths were perceived to be the panel members, that the hearing was not a court and that the system was capable of producing desired outcomes and addressing problems. The main weaknesses identified were that families perceived themselves to lack knowledge and status and panel members to lack understanding of them. The key suggestions made by families for improving hearings concerned greater access to information and knowledge about hearings and greater family involvement in and control over the process.

STRENGTHS AND WEAKNESSES IN THE CHILDREN'S HEARINGS SYSTEM

Respondents identified several strengths and weaknesses, as follows:

Key strengths

  • ethos of the system.
  • participation of families in hearings
  • informality at hearings
  • attributes of panel members
  • rights (appeal or review) are available to families
  • keeps children and young people out of the criminal justice system.

Other strengths

  • involves several agencies
  • produces 'good' decision making
  • protects children and young people.

Key weaknesses

  • lack of resources
  • ethos of the system
  • limited participation by families in hearings
  • formality of the system
  • attributes of panel members
  • rights of families not fully protected.

Other weaknesses

  • lack of attention to victims in the system
  • lack of (accurate) public awareness of the system
  • restriction on children and young people at hearings because of parental presence
  • insufficient training of panel members
  • panel's lack of influence over implementation of decisions made at hearings.

The philosophy or ethos of the system, identified as its greatest strength, attracted widespread support from many of the respondents. Among its characteristics were deemed to be its child-centredness; its focus on welfare; the avowed avoidance of punishment and its holistic approach; looking behind the deeds of children and young people to identify and address their needs and 'best interests' on an individual basis; and flexibility. There was not, however, uncritical support for the ethos of the Children's Hearings system, with comments that the system was either too soft or too punitive.

The greatest weakness in the system was said to be a shortage of resources. Access to the resources required is far from easy. The powers of Reporters and panel members to command resources are limited, in contrast to some others, such as sheriffs in the criminal justice system.

The main resource shortages identified were in respect of older children and young people who persistently offended and those who persistently truanted from school. Residential supervision requirements are relatively infrequent disposals but they were said to be particularly difficult in terms of resource availability, especially in respect of residential schooling and secure accommodation. The need for a more imaginative use of resources was identified by some respondents. Examples were given in interviews of such schemes (e.g. Fife Mediation, Freagarrach), but they were few and far between and were often run by the voluntary sector on uncertain or short-term funding. The resource shortages were said to cause not only frustration for those involved but also to damage the reputation of the Children's Hearings system in the eyes of agencies and of families. These are fundamental concerns. The essence of the Children's Hearings system is an investigation of the circumstances of each case with a view to ascertaining the child's need for help and support. This is a labour-intensive and thus (with the exception of panel members whose services are provided free of charge) an expensive process. If ultimately the needs identified cannot be met, it raises profound questions about the whole process.

THE CHILDREN'S HEARINGS SYSTEM'S RESPONSE TO CHILDREN AND YOUNG PEOPLE REFERRED ON OFFENCE GROUNDS

Whereas many respondents expressed confidence in the system's capacity to deal with 'first time' or 'minor' offending, they were much less confident about its capacity to deal with a smaller group of older or persistent offenders. There appeared to be several reasons for this including a shortage of suitable resources and the ethos of the system, particularly its welfare focus which led to a reluctance on the part of some panel members directly to address in hearings the offences which constituted the grounds of referral and which required the cooperation of the young person in any attempt to provide help and support. The lack of overtly punitive disposals was said to lead some persistent young offenders to hold the system in 'utter contempt'. Some wished to see a different approach emphasising children and young people taking a greater responsibility for their offending behaviour. There was an acknowledgement, however, by many respondents that the small group of persistent young offenders posed a severe challenge to all systems.

Some respondents suggested alternative disposals for young people who persistently offend, for example mediation, reparation, a form of supervised attendance order, compulsory attendance at alcohol and/or drugs awareness training or intensive counselling. Such powers would require a sharper focus within the Children's Hearings system on tackling offending behaviour, possibly a more overt emphasis on punishment and perhaps less emphasis on the voluntary participation and co-operation of the young people. This would pose a challenge to the dominant discourse of welfare within the system. In practice, it was said that at present many of the young people who persistently offended ended up in the criminal justice system while still relatively young. Some, however, pointed to the valuable role played by the Children's Hearings system in delaying a young person's entry to the criminal justice system, in view of its costs and its potential for the amplification of deviance.

THE CHILDREN'S HEARINGS SYSTEM'S RESPONSE TO CHILDREN AND YOUNG PEOPLE REFERRED ON CARE AND PROTECTION GROUNDS

More respondents were very positive in their appraisal of the Children's Hearings system's handling of care and protection cases. Several reasons were suggested for the perceived success including aspects of the processes of hearings themselves (particularly a degree of informality with possibilities for participation, especially when contrasted with an adversarial court hearing) and panel members' increasing skills in this area. Perhaps because of the priority accorded in the multi-agency network, particularly by social workers and the police, to the initial investigation of child abuse, and the close liaison with Reporters, the quality of information presented to hearings was deemed to be good and initial protection successful. Respondents were also more satisfied with the resources available to hearings for care and protection cases than they were in respect of older persistent offenders, or, as is discussed below, cases of non-attendance at school.

THE CHILDREN'S HEARINGS SYSTEM'S RESPONSE TO CHILDREN AND YOUNG PEOPLE REFERRED ON GROUNDS OF NON-ATTENDANCE AT SCHOOL

In considering the capacity of the Children's Hearings system to meet the needs of children and young people referred on grounds of non-attendance at school, the overwhelming response was negative. The widespread, almost unanimous, view was that the referrals were made too late and, at that point, the system struggled to cope.

Differing views and some uncertainty were expressed in interviews about the nature of truancy as a social problem. Some, reflecting a view that the Children's Hearings system existed to consider 'needs not deeds', suggested that non-attendance at school could be symptomatic of other problems. Other cases, however, were seen as more straightforwardly a refusal to go to school, possibly associated with peer-group culture. These were described as 'pure and simple truancy'. There was a suggestion that such cases should perhaps be viewed less as an individual problem and more as a structural problem of the relationship between schools and their pupils. There was reported to be disagreement and dispute between agencies, particularly social work and education, about ownership of the problem and appropriate responses to it and a lack of powers and resources available for dealing with truancy cases. This led some respondents to question the appropriateness of the Children's Hearings system as an arena for handling referrals on grounds of non-attendance at school.

CONCLUSION

Despite the shortcomings and tensions and some gap between rhetoric and reality, it appears that the Children's Hearings system is one which attracts much support and enthusiasm from many of those involved with it and an acknowledgement from some others (notably families) that the alternatives may be worse. The Children's Hearings system has the flexibility to reach a considered decision and individualised view of what is thought to be in the best interest of a child (even though there may be different perceptions of this) and to do so in a way which is relatively non-stigmatising and, overtly at least, non-punitive. The commitment to welfare principles which has existed since 1971 remains strong.

REFERENCES

Carroll, J and Johnson, E (1990) Decision Research: A Field Guide California: Sage.
Hawkins, K (1994) The Uses of Discretion Oxford: Clarendon Paperbacks.
Kearney, B (1987) The Children's Hearings and the Sheriff Court London: Butterworths.
Martin, F M, Fox, S J and Murray, K (1981) Children Out of Court Edinburgh: Scottish Academic Press.
Hallett, C and Murray, C with Jamieson, J and Veitch, B (1998) The Evaluation of Children's Hearings in Scotland, Volume 1: Deciding in Children's Interests, Edinburgh: Scottish Office.
Norrie, K McK (1997) Children's Hearings in Scotland Edinburgh: W Green/Sweet & Maxwell.