Publication - Independent report

The KILBRANDON Report

Published: 1 Oct 2003

Report of the expert committee on how to deal with children in trouble which influenced the establishment of the Children's Hearings system

111 page PDF

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111 page PDF

351.7 kB

Contents
The KILBRANDON Report
Page 10

111 page PDF

351.7 kB

THE KILBRANDON REPORT

CHAPTER V
The Constitution and Procedure of the Juvenile Panels

CONSTITUTION

92. Broadly, and subject only to certain limited exceptions which we discuss in paragraphs 124-126, we recommend that those classes of children who are at present subject to the jurisdiction of the juvenile courts should in future be dealt with by the juvenile panels. Each panel should at any given sitting comprise three persons. Panels should be set up in each education authority area, their number and location being determined in each case by the appropriate Sheriff. For this purpose it would be the Sheriff's duty from time to time to appoint a sufficient number of persons to serve on the panels, and to designate a chairman and two deputy chairmen for each. In making appointments the Sheriff should have the widest discretion, subject only to the general considerations that

(a) those selected should be in his opinion persons who are specially qualified either by knowledge or experience to consider children's problems.

(b) appointments should be such as to ensure wherever practicable the presence of a woman member at any sitting of an individual panel.

(c) while the list of persons appointed should be sufficiently numerous to staff the membership of the panels, bearing in mind that in almost all cases service will be in a voluntary and part-time capacity, acceptance of appointment would be expected to imply willingness to serve on the panel regularly and for a continuous period of not less than three months annually. (d) the appropriate education authority, in its capacity as the authority responsible for providing the "social education department" which we are recommending, should be required at such intervals as may be provided to submit for this purpose a list of persons (who may or may not be local authority members) to the Sheriff.

93. The last recommendation has to be read in the light of our detailed proposals, discussed in a later Chapter, for reorganisation of existing local social services concerned with the needs of children. For the reasons there indicated, we are recommending the unification of those services in. a new department under the education authority, and it seems to us appropriate that to this extent the local authority having statutory responsibilities in this sphere should be associated in the constitution of the panels, in a manner which will at the same time maintain the principle of independent appointment at the hand of the Sheriff.

94. Appointments would be for a period of three years, and members would be eligible for re-appointment, subject to an age-limit of 65 (at which all appointments would in any event terminate).

95. Such arrangements bear certain similarities to those governing the appointment of the juvenile courts in the four areas in relation to which Orders have been made under Section 50 of the Children and Young Persons (Scotland) Act, 1937. In these areas, however, the membership of the juvenile courts is drawn from the body of justices as a whole. Our proposals on the other hand are in no way linked with the appointment of justices and pre-suppose a system of direct appointment by the Sheriff.

MACHINERY FOR REFERRAL TO THE PANEL

96. At present the decision whether or not to institute criminal proceedings in any particular case rests with the appropriate public prosecutor, who is entirely independent of the police. This principle applies equally to juvenile offenders. Juveniles alleged to be in need of "care or protection" are dealt with under non-criminal procedure, and may under statutory provisions be brought before a juvenile court by the police, the local authority and other "authorised persons", e.g., the R.S.S.P.C.C. In certain areas, we understand that the actual presentation before the court of the petition alleging need for "care or protection'.' is handled on behalf of the local authority by the public prosecutor (where there is a fulltime prosecutor) or, in cases where the petition relates to further proceedings with a view to committal of a child already in local authority care under the Children Act, 1948, by the probation service. In both of these situations it has, we understand, been felt to be advantageous that the court should have the assistance of an independent official who is not strictly a party to the case and can be relied upon to present an impartial viewpoint.

97. The issues before the proposed juvenile panels will in future-as we have indicated-be entirely confined to decisions about treatment measures, and will not be concerned with disputed questions of fact. It might thus be thought that the presentation of cases before the panels could well be handled throughout by the director of the appropriate social education department. We are, however, proposing that any dispute about the factual basis of the allegation should be decided by a court of law (the Sheriff Court), and whether or not the allegation is disputed will be known only on the child's first appearance before the juvenile panel. It is accordingly important that any case before presentation should continue to be the subject of scrutiny by an independent official possessing the necessary qualifications to enable him to determine whether there is prima facie sufficient evidence in law to support a referral to the panel. This is in fact essentially the first question which the public prosecutor has to consider in every prosecution at present. The prosecutor has, however, the further duty of deciding whether, assuming that in his view there is such evidence, the nature of the offence is in itself of such public importance as to justify a prosecution. At present, therefore, in a number of cases involving juveniles, prosecutors may decide simply to take no proceedings or to deal with the matter by warning, almost invariably in the case of juveniles, administered on their instructions by the police. Under our proposals, since the test will be whether special educational measures are required, the nature of this latter discretion will be substantially changed; and the advice of the director will clearly be an important consideration. But the question may obviously in certain cases involve a difficult and delicate exercise of discretion in assessing where the public interest truly lies, and so far as our proposals are concerned, we do not consider that the decision whether or not a referral should be made to the juvenile panel can be left to the initial reporting agencies (whether the police or the local social services).

THE "REPORTER" TO THE PANEL

98. We therefore recommend that referral to the juvenile panels should in each area be at the instance of a single independent official, who to that extent would be exercising functions having similarities to those of a public prosecutor. In practice, however, the actual handling of cases, as they proceed before the juvenile panels, will rarely raise legal issues, and will for the most part be concerned with the measures to be applied in the child's best interests. On that basis the presentation of cases before the panels seems to us to call for a degree of practical knowledge and understanding of children's problems which cannot readily be combined as at present with the role of public prosecutor, whose functions are necessarily concerned primarily with questions of prosecution arising from adult crime. Since therefore it seems to us that the referral of cases to the juvenile panels should be in the hands of an independent official competent to assess both the legal issues (in so far as these are involved) and also the wider question of. the public interest, he should preferably be an officer combining a legal qualification with a period of administrative experience relating to the child welfare and educational services. Working in close touch with such services, this officer would be independent of any of them. The decision whether or not to make a referral to the panel would rest entirely with him.. All reports, whether from the police or other statutory or voluntary agencies, would be made to his office without distinction as to whether the basis of referral were founded on delinquent acts or on facts or circumstances such as might at present be thought to justify "care or protection" proceedings. In situations of the latter kind, the present powers of various public agencies and "authorised persons" to institute referrals at their own hand would thus be abolished.

99. Prosecutions in Scotland are, as already indicated, almost invariably and with few exceptions brought by the appropriate public prosecutor. This practice applies equally to juvenile offenders. Prosecution of juveniles at the instance of private persons is for practical purposes unknown. Certain public bodies are, however, excepted from the general rule, the major exception being prosecutions at the instance of the British Transport Commission, who, on reports by the British Transport Police, are authorised to bring before a juvenile court juvenile offenders involved in offences (in practice, malicious damage and theft) involving railway property. We understand that in 1961 such prosecutions involved 1,019 children and young persons. The prosecutions were in all cases brought before Sheriff Courts, except in the four areas in which specially constituted J.P. Juvenile Courts at present operate. We can see no justification for the continuance of this procedure under our proposals. Indeed, it seems to us important that the same criteria should from the outset be applied in all cases, and on similar grounds we have already recommended the abolition of the power of "authorised persons" to bring "care or protection" proceedings. On the same basis, "railway" offences involving juveniles would, under our proposals, be reported by the British Transport Police to the appropriate reporter responsible for referrals, who would as in any other case decide whether or not the case should be brought before the panel. We recommend accordingly.

100. As well as deciding on individual referrals to the panel, this official, whom we describe as "the reporter", would act as legal adviser to the panel as necessary. He would also be responsible, in the event of referrals about disputed issues of fact, or appeals against decisions of the panels, for presentation of the evidence or, as the case may be, the reasons underlying the panel's decision, before the Sheriff Court. He would also be responsible for maintaining formal records of the panel's decisions and for their formal intimation to those entrusted with the child's care. In so far as the panel might instruct review of cases already under their jurisdiction, it would be his duty to see that further reports were timeously made.

101. The reporter would, of course, require to be provided with accommodation and clerical assistance. With such arrangements we see no need for a separate appointment of clerk to the panel. In so far as the panel may to a limited extent need legal advice, this would be provided by the reporter. In practice we envisage that a member of his staff would attend in order to record the panel's proceedings, the actual presentation of the cases to be considered being made by the reporter himself.

102. Given the combination of qualities to be looked for, we do not consider it possible to lay down hard and fast qualifications for the office. We do, however, for the reasons already indicated, attach importance to a legal qualification, though this alone is in our view far from being the sole qualification. The range of experience to be looked for might well be found among officers employed in County or Town Clerks' departments, who have acted as clerks to children's committees or probation committees. We appreciate, however, that this can be no more than an illustration of the type of qualification and experience to be looked for. At the same time, the duties of reporter to the panel and the responsibilities entailed are such as to make these appointments fundamental to the operation of the scheme as a whole. In view of the independent nature of his office, it seems to us appropriate that such appointments should be made by the Sheriff, the costs, together with that of the panels as a whole, being met by the appropriate local education authority. In his particular field, the reporter should enjoy a special independent status, and the exercise of his day-to-day functions should not be the subject of education authority scrutiny. In the matter both of appointment and removal from office, the decision should rest with the Sheriff.

THE PANEL'S EXECUTIVE ARM

103. The duties of the reporter to the panel, as we have described them, involve

(a) all decisions as to initial referrals,

(b) the handling of appeals against the panel's decisions,

(c) administrative responsibility for the general ordering of the panel's business.

104. These duties are clearly different from those involved either in the provision of social background reports, of making initial or subsequent recommendations about treatment, or of maintaining continuous oversight of children subject to the panel's directions. The latter functions, which are essentially of an executive nature, call for a high degree of specialist skill, training and experience in social work. The chief executive officer (the "Director") of the department to carry out these functions would, as we have indicated, be responsible to the panel for (a) social background reports in all cases referred to the panel and (b) for making recommendations (initial or subsequent) for treatment measures in any individual case. On the panel's deciding to apply special educational measures, he would be responsible in every case for seeing that they were carried out either by the staff of his own department or some other local service or, in cases in which residential training was involved in establishments not directly under his control, for exercising continuing oversight of the child's progress and for reporting further to the panel at any time, either on their instruction or on his own initiative. His department would in each area be the central co-ordinating channel of information to the panel on all matters bearing on the child's treatment needs. He would in all matters affecting initial referrals to the panel act in close consultation with the reporter to the panel. Initial referrals would, however, as previously indicated, be at the instance of the reporter, who as an independent official would be the final arbiter of such referrals. In all matters relating to the treatment needs of children referred to them, however, the director of the social education department would be the panel's recognised source of informed advice, and he would at any subsequent time be free to make recommendations to them, in the light of the child's progress, for the alteration or variation of the measures initially decided upon. He would thus in all treatment matters be the panel's executive agent, directly responsible to them for all children under their jurisdiction.

PROCEDURE BEFORE THE JUVENILE PANELS

105. As we have indicated, all referrals to the panel should be at the instance of the reporter. The form of referral should in each case consist of a short statement of the facts and circumstances constituting the grounds of the referral.

106. Where a police report is made to the reporter, a copy should simultaneously be sent to the director of the social education department. This procedure would replace the provisions under Section 43 of the Children and Young Persons (Scotland) Act, 1937, for notice to be given to the probation or children's departments. Where a case is referred to the reporter by any other person, the reporter should similarly arrange for the preparation of a social background report by the director of the social education department.

107. The reporter would also be required to send notice to both parents, setting out shortly the basis of the referral and the place and time at which they were expected to attend. While we recognise that it is very desirable that both parents should attend before the panels, we appreciate that it would be impracticable to insist on this in every case. In many cases at present, only the child's mother attends, the father - being at work. We consider that the normal practice should be to notify both parents, and that in every case the panel should inquire as to the reasons for failure of one of the parents to attend, and should in any appropriate case if necessary consider an adjournment to enable his or her attendance.

108. On appearance before the panel, the first step would be to explain the grounds of the referral to the child and his parents. Where considered appropriate, the child could be seen separately from the parents, and the parents from the child. Thereafter, if the grounds of referral are disputed, proceedings would be stayed, and the case referred by the reporter on a petition to the Sheriff.

109. Within that general framework and bearing in mind that discussions in the panel will in almost all cases be directed solely to the treatment measures which can most appropriately be applied, we do not consider that it is either necessary or desirable to seek to lay down any rigid framework governing the panel's proceedings. The questions arising are in our view likely to emerge most clearly only in an atmosphere of full, free and unhurried discussion, as a result of which the underlying aim and intention is made apparent to all concerned. We would expect that in many cases it would be possible to enlist the co-operation of the parents from the outset, and as a result adopt appropriate measures informally and by agreement without resort to an order by the panel. Some of the witnesses who appeared before us, who were in general sympathy with this aim, described the intention as being to create something of a "committee" atmosphere. We doubt whether such a description is altogether appropriate. If the desired atmosphere is to be achieved, the proceedings must in our view be conducted in all cases in private, and only the parties and officials directly concerned should be present. Indeed, bearing in mind that the proceedings will in every case entail the presence of three panel members, the reporter and a clerical assistant, as well as the child and his parents, we think it important that the number of social workers and other specialist advisers whose attendance may be required should at any given point be kept to a minimum, so that the sittings of the panel should not be such as to convey the impression of a large gathering of people. Responsibility for the ordering of the panel's business will in this respect lie with the reporter, and it will be for him to ensure, in conjunction with the director of social education (he himself or one of his staff of course being present), that, where information supplementary to the initial social background report is required, this is so far as possible made available by means of further written reports from the specialist advisers concerned.

REFERRALS AND APPEALS TO THE SHERIFF

110. We have already recommended that, in event of any dispute as to the grounds on which a referral to the panel is made, the proceedings should be stayed and the case referred on a petition to the Sheriff. The Sheriff should then be empowered to make an order authorising the panel to exercise jurisdiction, if satisfied that the grounds of the referral have been made out. In hearing such an application, the procedure before the Sheriff would follow as nearly as may be that in the case of a complaint by the procurator fiscal, or of a "care or protection" petition, where the facts are disputed. In the hearing of such referrals, the Sheriff's function would be the normal function of a court of law in determining disputed issues of fact on the standards of evidence laid down by law. He would either sustain or dismiss the referral.

111. Appeals to the Sheriff raise somewhat different issues. While we contemplate that in an appreciable number of cases the juvenile panels will be able to proceed with the agreement of the parents, there will undoubtedly remain a number in which compulsory orders will have to be made, including those involving the child's removal from home and from parental control. Such disputes will not, of course, involve any legal issue of fact, the question simply

being whether the measures ordered are in all the circumstances warranted in the interests of the child, or whether they amount to unjustified interference between parent and child amounting to unwarranted infringement of individual liberty. Such issues, which essentially represent a dispute between the parents and the duly constituted public authority authorised to deal with such questions, can, we believe, be resolved in a manner acceptable to public opinion only on an appeal to a judicial officer, in this case the Sheriff. Such appeals are likely to arise most frequently on decisions involving custodial treatment, and the panel's order should in all such cases record briefly the reasons for its decision. The right of appeal should, however, apply in relation to all orders made by the juvenile panel, written intimation of appeal to be lodged with the reporter within seven days of the making of the order. The appeal should thereupon be intimated immediately to the Sheriff Clerk by the reporter, and the appeal should be heard within seven days thereafter.

112. Appeals should be heard by the Sheriff in chambers; the Sheriff would for this purpose be empowered to make such enquiries as he thought fit; to hear such persons (including the reporter and the child) as he thought fit; and the parent and any material witness whom he or she may desire to call should be given an opportunity of being heard.

113. If the Sheriff upholds such an appeal he should be required to state his reasons. He would then be empowered either to quash the order outright or to refer the case back to the panel for consideration, in the light of the judgement, of other methods of treatment.

114. In our discussion of referral and appeal provisions we have throughout referred to "the Sheriff ". In this context this term should be taken as including the Sheriff- Substitute.

115. Under our proposals it is, we consider, desirable that there should be a right of appeal on questions of law, arising from proceedings before the Sheriff, to the Court of Session; and we recommend accordingly.

116. Proceedings before the Sheriff will involve either disputed issues of fact (on referral at the outset) or appeals against measures authorised by the juvenile panels either initially or as a result of subsequent review. It seems to us important that, at either of these stages, involving as they may do decisions amounting to major interventions between parent and child, there should be a right of legal representation for any parent who desires it, and that for this purpose arrangements should be made for extension of State-assisted legal aid to persons who cannot afford to make their own arrangements for legal representation.

117. In setting out these recommendations at some length, we are conscious that they may be in risk of conveying an impression of an unduly cumbersome if not unworkable machinery. If the result of our proposals were to be a duplication of hearings before the juvenile panels and the Sheriff, they would, we recognise, be unacceptable both 'on grounds of principle and practicability. We see no reason to fear such a result. Our proposals would on the one hand relieve the Sheriff Courts of some 90 per cent of the juvenile cases with which they are at present dealing. On the other hand, these courts would have to resolve disputed issues of fact in some juvenile cases which would formerly have been dealt with in juvenile courts other than the Sheriff Juvenile Court On the information before us, the total is unlikely to amount to more than 1,300 a year, a fair number of which are in any event dealt with at present in the Sheriff Court. As to appeals, appeals against decisions of the juvenile courts are at present made to the High Court of Justiciary. The total number is relatively small, but even allowing for the effect of the new right of appeal to the Sheriff and the possibility that under the new arrangements there might initially be some increase in appeals, we see no reason to think that after the juvenile panels have been in operation for a limited period, the total volume would be markedly greater than at present. Moreover, in so far as appeals may be more likely against custodial orders, it should also be borne in mind that under our proposals ( see paragraph 122), borstal and detention centre orders for juveniles beyond the age of 16 will continue to be made by the Sheriff Courts, and will thus to that extent not represent a new or added demand on the time of those courts.