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

351.7 kB

111 page PDF

351.7 kB

Contents
The KILBRANDON Report
Page 11

111 page PDF

351.7 kB

THE KILBRANDON REPORT

CHAPTER VI
The Limits of the Juvenile Panels' Jurisdiction

THE UPPER AGE-LIMIT

118. Under existing law the jurisdiction of the juvenile courts extends to children and young persons under the age of 17. In the light of the considerations discussed in Chapter III, it seems clear that, wherever drawn, the dividing line will to some extent be an arbitrary one, and indeed argument can be advanced for adopting any one of a variety of ages short of the age of 21, i.e., the age generally recognised as marking attainment of full adulthood. Below that age, the criminal law relating to juveniles already recognises a gradation of standards by drawing a distinction between "children", "young persons" and "young adults", i.e., those under 14, those between 14 and 17 and those between 17 and 21, though the practical effects-other than in relation to forms of custodial treatment-are fairly limited. The existing distinctions mark off those who may properly be described as children, and those within the age-range which includes those variously described in current usage as "adolescents", "young people" and "young adults". The problems involved in dealing with the higher age-groups seem to us to be quite different in character and degree from those arising from children's misbehaviour. The criminal law at present recognises the age of 14 as being the termination of "childhood"; and this is in keeping with the civil law, which has for centuries taken the dividing line as being the end of the state of pupillage (on attainment of the age of 14 (for boys) and 12 (for girls)), i.e., the period at which a child ceased to be regarded as in a state of tutelage under the control and direction of his or her parents. The latter principle seems to us to be essentially sound, and indeed reflects the criterion on which our proposals as a whole are based, namely, that the work of the juvenile panels stems basically from a preventive and educative principle. In every case where children in a state of tutelage, still undergoing compulsory education, appear before the panels, the question will in actual fact be one of special educational measures, the normal educational processes, whether in the home, the family environment or in the schools, having for whatever reason fallen short or failed in their effect. Accordingly, we recommend that the upper-age limit of the juvenile panels' jurisdiction should be related broadly to the age marking the end of compulsory full-time education. Generally speaking, this is at present 15, though, in view of the arrangements governing actual leaving dates, the school leaving age is in individual cases in practice often between the age of 15 and 16. The latter age is also the leaving age for pupils attending special schools, and it seems to us that as a matter of statutory provision the juvenile panels' jurisdiction should be extended to all children under the age of 16. (In the event of any future decision to raise the school leaving age beyond 15, we recognise that the upper age-limit of the juvenile panels' jurisdiction might need further consideration. The guiding factor in our view is the age-limit for full-time day school education.)

JURISDICTION IN RELATION TO YOUNG PEOPLE BETWEEN THE AGES OF 16 AND 21

119. Today, when young people on leaving school are increasingly enjoying an economic independence which is reflected in their leisure tastes, pursuits and mode of life generally, we see no purpose in continuing to draw distinction, for the purposes of procedure, between those between the ages of 16 and 17 (i.e., age 16-under 17) and those between 17 and 21. We therefore recommend that the age-group 16-21 should be regarded as a single intermediate group, who as a matter of procedure would be dealt with by the criminal courts of law under the normal criminal procedure applicable to adults. Summary jurisdiction in relation to young offenders between the ages of 16 and 21 would thus rest exclusively with the courts of summary jurisdiction (sitting in the normal way), and in consequence all existing juvenile courts would be abolished.

120. We consider it desirable as a matter of procedure that it should be a statutory requirement that a social background report should be provided in every case (other than trivial) arising within this age-group, thus extending existing provision for social investigation to all young offenders under the age of 21.

121. Our proposals may be felt to result in an unjustifiably drastic change in procedure at the age of 16. Below that age children will be dealt with under what is essentially part of the provision for educational measures: immediately thereafter they will be liable to be subjected to criminal procedure. We consider, however, that the effects can be exaggerated. The application of criminal procedure implies that the young people concerned have reached an age at which they can increasingly be expected to stand on their own feet and at which they have acquired a sufficient degree of maturity and understanding to enable them to assume responsibility for their actions. There has in recent times been much discussion about the extent to which the increasing physical maturity of young people and their increasing economic independence is matched by a corresponding degree of emotional maturity. We think that the gap, in so far as there is or may be one, has sometimes been exaggerated, and that, so far as emotional maturity is concerned, young people today compare by no means unfavourably with those of earlier generations, and that the processes of universal education (coupled with improved housing and public health standards) have already had effect. In any event, we do not think that it can be denied that this age-group are in actual fact largely an "autonomous generation". Where individual young people contravene the law, we see little purpose in subjecting them to a procedure which purports to treat them as children. Ultimately, the practical result will at that age, we think, depend less on the form of procedure than on the range of measures within the powers of the courts dealing with them. The application of criminal procedure will not, of course, imply as a matter of treatment the application of the full sanctions of the criminal law appropriate to adults; we contemplate that the existing powers of disposal of the courts in relation to this age-group will remain broadly unchanged.

122. Two exceptions to that arise. With the lowering of the age-limit, already discussed, from 17 to 16, we recommend that the Secretary of State should take steps to make detention centre training (in practice at present virtually restricted to the Sheriff Court for the 17-21 age-group) available also for youths aged 16 to 17.

123. The preceding paragraphs relate to young offenders between the ages of 16 and 2 1. There remain a residual age-group of young people between the ages of 16 and 17 who may at present be the subject of "care or protection" proceedings. Any extension of this age-range seems on our earlier arguments unrealistic and unacceptable, and under our proposals we see little justification for retaining compulsory protective powers in relation to the 16-under 17 group. At present, the practical question in relation to this age-group arises only to a limited extent, and primarily in relation to girls, the question usually being one of moral danger. We have serious doubts whether at such an age, where the young women concerned may or may not be married and may already be mothers, any useful purpose is likely to be served by their appearance before the courts, which under our proposals will, so far as this age-group is concerned, be concerned almost exclusively with young offenders; nor for that matter does it seem appropriate to extend the powers of the juvenile panels, which will be dealing with what are essentially children's problems, to such an age-group. We are in any event not satisfied that matters of the kind in question involving persons of that age can, in the absence of actual criminal behaviour, appropriately be the subject of compulsory sanctions by a court of law.

CONTINUING DISCRETION OF THE CROWN TO DIRECT THE TAKING OF PARTICULAR CASES BEFORE A CRIMINAL COURT

124. Our broad proposal is that all juvenile offenders under the age of 16, subject only to very exceptional cases, should be referred to the juvenile panels. The jurisdiction of the present juvenile courts is subject to the qualification that the Lord Advocate may under common law direct the taking of particular cases, exceptionally and for grave reasons of public policy, in the Sheriff Court or for that matter in the High Court of Justiciary. In practice, directions affecting juveniles have been almost entirely confined to the gravest crimes such as murder, attempt to murder, culpable homicide, wounding with intent to cause grievous bodily harm, and rape. Road traffic offences, where conviction carries a liability to disqualification, have been directed to the Sheriff Court on the basis that the juvenile courts had no power of disqualification; and under the Road Traffic Act, 1962, the Sheriff Court is now the sole court of summary jurisdiction which may exercise this power.

125. We consider that the common law power of the Lord Advocate should continue to be applicable to juvenile offences. Its exercise would, we assume, arise only exceptionally and on the gravest crimes, in which major issues of public interest must necessarily arise, and in which, equally as a safeguard for the interests of the accused, trial under criminal procedure is essential.

126. We do not consider it desirable to attempt to restrict the existing Crown discretion, which has for long been a basic feature of our system of criminal procedure and which, we believe, commands general public confidence. Our sole qualification relates to road traffic offences by juveniles. We see no reason in principle why such cases, involving children under 16, should not be dealt with in future by the juvenile panels. It would in our view be inappropriate to invest the panels with a power to order disqualification. Such cases seem likely to be comparatively few. If it is felt to be a matter of practical importance that the power to order disqualification should remain in respect of children of this age, the situation could, we think, be met under our proposals by making provision under which, on an order being made by the panel, the case would automatically be intimated by the reporter to the procurator fiscal. The latter would then be empowered to report the case to the Sheriff Court, which, if it thought fit, could order disqualification.

TERRITORIAL JURISDICTION OF THE JUVENILE PANELS

127. In the great majority of cases, the measures instituted by the juvenile panels will involve the child's supervision within the community, i.e., in his home area. In a number of cases, however, the facts or circumstances occasioning the referral will arise outwith the child's home area, and in some the child's home area may initially be in doubt. A juvenile panel anywhere should, therefore, be empowered to assume interim jurisdiction for the purpose of inquiries in relation to any child brought before it on a referral by the reporter; to make interim custodial orders; and to transfer the case to another area on the latter being established as the child's home area. Any interim order should at that stage be subject to confirmation or variation, or substitution by a permanent order by the "home area" panel. The foregoing comments relate to cases in which there are no disputed issues of fact relating to the grounds of referral. Where on appearance before the panel such disputes arise (and would under our proposals thus be referred to the Sheriff), we contemplate that the referral would be to the Sheriff Court having jurisdiction in the area in which the facts and circumstances grounding the referral arose, irrespective of whether or not this was the child's home area. If the Sheriff upheld the referral, the case would then be remitted to the "home area" juvenile panel for consideration of treatment measures in the normal way.

DEFINITION OF THE BASIS OF THE JUVENILE PANELS' JURISDICTION

128. We have already indicated that the children (under 16) coming within the juvenile panels' jurisdiction would be all those whose need for special measures of education and training was such as could be met only on the basis of public intervention. For the purposes of statutory definition of the range of cases coming within the panels' jurisdiction, we draw attention to the following matters:

(a) Juveniles in need of care or protection

Section 65(l)(a) of the 1937 Act defines this class as including-
a child or young person who, having no parent or guardian or a parent or guardian unfit to exercise care and guardianship or not exercising proper care and guardianship, is falling into bad associations or exposed to moral danger, or beyond control; ... and who, in any such case as aforesaid, requires care or protection;

It will be seen that this definition is such as to require positive evidence of two factors-(a) facts or circumstances postulating a need for "care or protection" and (b) an absence, of, or failure in, parental control.

129. It was represented to us that in certain cases the second factor may be extremely difficult to prove. The facts and circumstances may well be such as to show, on any reasonable criterion, a clear and urgent need for measures of care and training. It may, however, be extremely difficult to establish, e.g., in the case of a 15-year-old girl who persistently runs away from home, that there is in fact a failure in parental control. The difficulties seem to us to be essentially similar to those which we have discussed in Chapter I (in relation to parental responsibility and the imposition of fines on parents). In the latter situation it is under existing arrangements already accepted that it would be impracticable to place any positive requirement on the prosecution or the court to satisfy itself affirmatively as to lack of parental control. In "care or protection" proceedings, we consider that the existing standards as to the matters on which positive evidence has to be adduced-apart from the element of lack of parental control-are already stringent. It seems to us that the test should in each case be the child's present need for protective measures, and that it is placing an unduly restrictive, and unrealistic, burden on the petitioner to seek to require positive proof of lack of parental control. We recommend, therefore, that in the legal definition of the future equivalent of "care or protection", reference to the question of parental control should be omitted. On that basis the parents' general circumstances would continue to be one of the matters before the juvenile panels, and would, of course, be a relevant matter in deciding, where the need for special educational measures was established, the nature of the measures to be applied, e.g., in deciding whether to make a custodial order as opposed to a supervision order.

(b) Refractory children beyond parental control

130. Section 68 of the 1937 Act empowers a parent to bring his child before a juvenile court on the ground that the child is beyond his control. It was represented to us that, rare though such situations may be, it was most undesirable that parents should be able to put themselves in the position of 6~ prosecutor" against their own children, and that, while in extreme situations the child's removal from home might be necessary, such action should be instituted by some person or agency other than the parent. Under our proposals we would hope that the need for action of this kind before the juvenile panels would be even rarer than at present. The parents would, we assume, in most cases have already been in touch with the social education department (either direct or as a result of an approach to the "reporter") and measures would have resulted by agreement whereby advice and guidance would be made available through a child guidance clinic or other specialist agency. Where, exceptionally, an order by the juvenile panel was considered necessary, we contemplate that action would as in any other instance be at the hand of the reporter on the basis of reports made to him by the social education department. In these circumstances the power of the parent himself to bring the child before the panel would seem to us unnecessary, and we recommend that the existing provision should in this respect be repealed.

(c) Truancy and unreasonable failure to attend school

131. Under the Education (Scotland) Act, 1962, every parent has a duty to secure his child's attendance at school while the child is within the age for compulsory education. Unreasonable failure to comply with the provision is an offence punishable in the case of repeated failure with fine or imprisonment (or both). In practice, before prosecution is contemplated, discussions normally take place between the school, the education authority or one of its committees or sub-committees (frequently a school management committee) and the parents. If these fail, an attendance order may be served on the parent, against which he has a right of appeal to the Sheriff. A prosecution against the parents is normally instituted only where all these steps have failed. On a parent's conviction the court may (and shall if the education authority so require) direct that the child should be brought before a juvenile court, and in such circumstances the juvenile court may make any order which it has power to make in the case of a child or young person in need of "care or protection". The education authority is also empowered-whether or not proceedings are taken against the parent to bring the child before a juvenile court.

132. It was represented to us that the various steps provided for under existing legislation sometimes result in lengthy delays which can only be prejudicial to the child; that this arises more particularly where these matters are handled by school management committees, which deal with the matter only as one of a variety of unrelated functions; and that there is understandably often a reluctance on the part of such a committee to authorise steps for the institution of a prosecution.

133. Failure to attend school regularly (including persistent -truancy) may be due to a variety of causes, and under our proposals we consider it appropriate that all cases, where compulsory action on these grounds is in issue, should from the outset be referred to the juvenile panel. In many it may then be possible to decide on appropriate action with the agreement of the parents. Given the nature of the juvenile panels as we conceive them, there appears to be no useful purpose in a continuance of the present arrangements for preliminary consideration of these cases by the education authority or one of its committees. Unreasonable failure to attend school would under our recommendations become one of the grounds on which a child could be brought before the juvenile panels in the same way as any of the other classes of children requiring special educational measures, namely, at the instance of the panel's reporter.

134. The paramount question in every case must be the child's interests, and this can in our view best be considered on a referral to the juvenile panel. Under our proposals we contemplate that the great majority of cases will be dealt with in this way, and that the question of prosecuting the parents in the criminal courts will in practice thus rarely arise. We cannot, however, rule out the latter possibility entirely; situations (fortunately comparatively rare) may continue to occur in which it is clear that the child is being unreasonably withheld from school by the wilful action of his parents. Infrequent though such cases may be, parental action of this kind, which is already recognised as tantamount to criminal neglect, should clearly continue to be subject to the sanctions of the law; and the power under the 1962 Act to take proceedings against parents in such circumstances should continue to be available as a measure of last resort for breach of their statutory obligation to secure their children's education.

(d) Other situations involving the compulsory application of special measure . s of education and training

135. Two other statutory provisions seem to us to call for amendment. Under the Education (Scotland) Act, 1962, education authorities have a duty to ascertain what children in their areas, because of mental or physical disability, require special educational treatment or are unable to benefit from education and should be referred to the local health authority. At the time of the initial decision that a child falls into either category the parent has a right of appeal to the Secretary of State; in the case of a child referred to the local health authority there is provision for a further appeal to the Secretary of State after at least a year has elapsed. In either of these situations, involving the application of compulsory measures, it seems to us entirely appropriate, under our proposals, that in the event of disagreement between the education authority and the parents, the matter should be resolved by the juvenile panel (and not the Secretary of State) on the basis of a referral by the reporter acting on a report from the director of social education.

136. Secondly, under sections 2-4 of the Children Act, 1948, children received into the care of local authorities may in certain circumstances later be made the subject of a resolution by the local authority which has the effect of vesting parental rights over the child in that authority. Section 4 provides for appeal against such a resolution to the Sheriff. Under our proposals, it is appropriate that appeal against such action should be made to the juvenile panel (the issue again being simply another instance of compulsory measures involving deprivation of parental rights).

137. In both situations, the panels' decisions would, as in any other case referred to them, be subject to the general right of appeal to the Sheriff, already discussed.

Definition

138. We have already made it clear that, in our view, referral should be made to juvenile panels for one reason only, namely, that prima facie the child is in need of special measures of education and training. In the light of what is said above, we consider that the panels should be empowered to assume jurisdiction to order such measures for any child under 16 in respect of whom, on a referral, one or more of the following circumstances is shown to apply, namely, his falling into bad associations or exposure to moral danger; his being the subject of criminal neglect or an unnatural offence (or being within the same household as such a child); his having violated the law as to crimes and offences; his being beyond control; his failure to attend school (whether by reason of truancy or parental refusal to comply with a requirement by the education authority of attendance at a particular school); his parent or guardian having abandoned him or suffering from some permanent disability rendering him incapable of caring for the child, or who is of such habits or mode of life as to be unfit to have the care of the child.

139. At this stage it may be helpful to summarise our proposals as follows:

(1) (a) subject to the overriding discretion of the Crown (to be exercised exceptionally and for grave reasons of public policy) to prosecute in the Sheriff Court or the High Court of Justiciary, all juveniles under 16 should in principle be removed from the jurisdiction of the criminal courts;
(b) instead, juvenile panels should have power, on the grounds set out in paragraph 138, to assume jurisdiction over juveniles under 16 and to order special measures of education and training according to the needs of the juvenile concerned;
(c) disputed issues of fact relating to the grounds for assuming jurisdiction should be automatically referred to the Sheriff; and orders made by the panels should be subject to a right of appeal to the Sheriff;
(2) all existing juvenile courts should be abolished;
(3) the ordinary courts of summary jurisdiction should be the sole courts of summary jurisdiction in relation to young offenders between the ages of 16 and 21;
(4) provision for "care or protection" proceedings in relation to young people aged 16 and over should be abolished;
(5) any rule of law or statutory provision establishing a minimum age of criminal responsibility should be repealed.