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 14

111 page PDF

351.7 kB

THE KILBRANDON REPORT

CHAPTER IX
Duration of Orders by the Panels, Rights of Appeal and Enforcement

DURATION OF ORDERS

197. We have already recommended that all orders by the juvenile panels should be open to appeal to the Sheriff within a specified period from the date on which they are made. We have also recommended that a child, once subject to the panel's jurisdiction, should in principle remain thereunder for such a period as the panel may consider necessary in the light of the child's training needs. Indeed, we consider it essential, if those needs are to be adequately met, that the panel should not be hampered by rigid statutory formulae governing the duration of particular forms of training. No doubt in practice and having regard to practical questions of administration, many of the panel's orders will from the outset stipulate a specific period of training-towards the end of which the child's progress will on their direction automatically come under their review. At that stage, in the light of circumstances, the case may be discharged, the existing order continued for a further period, or an entirely fresh type of order made. Equally, in our view, it should be open to the director of the social education department at any stage to bring a case before the panel for further review if it appears to him that the measures already ordered by the panel were not proving efficacious and should be reconsidered; or, if they had proved to be effective, to recommend their termination. Accordingly, in addition to the initial right of appeal against an order when made, we recommend that any subsequent order by the panel involving a greater measure of deprivation of parental rights, e.g., by subsequently adding to a supervision order a requirement that the child should be received into public care or by substituting for the latter requirement an order for admission to a residential school, would similarly be subject to right of appeal. Further, since orders would frequently be of indeterminate duration, we consider that there should be a statutory right of appeal to the Sheriff in every case against the continuance of an order at annual intervals. Within these general limits, transfer on the panel's order between, e.g., one children's home and another, or between one residential school and another, would not be subject to appeal.

198. The jurisdiction of the juvenile panels should in our view terminate in any event on the child's attaining the age of 16. Cases could then arise where a child is placed under supervision or ordered residential treatment at a relatively late age-it being clear that the training ought to be continued beyond the age of 16. In these circumstances we consider that the panels should automatically review such cases immediately before attainment of that age-limit, but that they should have power to continue measures, where considered appropriate, for further periods (subject to the rights of appeal already discussed) up to the age of 18. On attainment of that age their powers of supervision in any form would automatically cease. The panel's jurisdiction beyond the age of 16 would extend only to children already under their supervision prior to that age. First referrals would, as we have indicated, arise only in relation to children under 16.

ENFORCEMENT OF DECISIONS BY THE JUVENILE PANEL

199. Under our recommendations, orders made by the juvenile panels would have full force in law from the date on which they were made, subject to the right of appeal to the Sheriff already discussed. In normal circumstances difficulties of enforcement are unlikely, we think, to arise in securing the attendance of children and parents. Where for any reason, however, it is necessary to invoke the sanctions of the law to secure attendance, we contemplate that this would be done by the reporter on a summary form of application to the Sheriff Summary Court, which could then ordain the parties concerned to appear before the panel, or in appropriate cases grant warrant of apprehension. Failure to appear on citation would attract the normal sanctions of the law before the criminal courts.

200. While in general we do not envisage that difficulties will frequently occur as to enforcement of the panel's decisions, we think that such situations might on occasion arise on such matters as finding of caution. Cases may conceivably arise where a parent, having agreed before the panel to find caution, subsequently makes no attempt to do so simply out of carelessness or spleen, although on all the evidence he could without tremendous effort or sacrifice reasonably be expected to find the money. Finding of caution would be subject to the general right of appeal to the Sheriff at the time it was ordered. If thereafter caution is not lodged it should be open to the reporter to the panel to apply to the Sheriff to ordain caution judicially; any question of enforcement thereafter would he governed by the procedure for caution ordained by a criminal court. Equally, there may exceptionally be situations where on a parent's first or subsequent appearance before the panel, his whole attitude and demeanour is so unreasonable and insolent as to amount to what would in a court of law be contempt. We recommend that after a finding to this effect by the Sheriff on a statement of facts by the panel, the Sheriff should be empowered to deal with the matter by fine or imprisonment.

201. We have already indicated the objections to any idea of placing parents themselves directly under supervision. For similar reasons we have rejected suggestions for additional sanctions against parents in circumstances in which they appeared to be uncooperative in their relations with officers supervising their children under panel orders. Situations of this kind no doubt from time to time arise, in which the parents, having agreed to the making of a supervision order and to co-operate fully with the supervising officer, subsequently refuse to co-operate. This is not, of course, a new situation and is no doubt familiar to probation officers and others. Essentially, supervision of the kind starts from the assumption of willingness to co-operate, and over a very wide field it must, we think, be left to the essential skills of the case-worker to overcome initial difficulties of the kind. Faced with such attitudes, there appear at present to be two ultimate sanctions-that the parents' conduct eventually becomes so serious as to justify criminal proceedings for neglect, or that the situation develops to an extent which offers grounds justifying a further order for the child's removal from home. The whole purpose of supervision must, of course, be to prevent either of these situations arising-though it would be unrealistic to assume that even under the new arrangements recommended this could never arise. The possibility that the panel might order the child's removal from home would remain in the background, though it is assumed that in such circumstances the panel would issue a series of stern warnings before deciding on more drastic action.

202. Cases will undoubtedly arise in which inadequate, aggressive and argumentative parents are initially prepared to agree before the panel that their children should be subject to a supervision order, simply as a means of disposing of the matter and with no intention of co-operating subsequently. All this may well arise against a background of fairly minor misbehaviour arising from a lack of parental guidance and where on any reasonable criterion there could be no immediate question of removing the child from the home. The child himself may be amenable to supervision, but for the parental obstruction. In these circumstances it was suggested to us that there might possibly be an argument for making such conduct (if amounting to repeated, wilful and unreasonable refusal to co-operate after successive warnings by the panel) an offence punishable in the Sheriff Court by fine or imprisonment.

203. On the general arguments already outlined as to the nature of supervision (which is essentially family case-work) it seems to us very doubtful whether such measures would be appropriate. Practical questions would be bound to arise as to whether the parents' conduct could really be said to amount to repeated, wilful and unreasonable refusal to co-operate. At present in such circumstances parental behaviour of the kind is not a criminal offence, and it would seem rather paradoxical if the creation of juvenile panels, designed to assist and further parental responsibility within the family context, were to result in the creation of new classes of criminal offence falling considerably short of those already recognised in this sphere. The system of juvenile panels as a whole presupposes the need to deal at the earliest possible stage with neglect, actual or incipient, and is in fact based on a recognition that parental failure can extend to a far wider variety of situations than the criminal law at present recognises as neglect. It would, however, seem indefensible to us that, at the very time when preventive and remedial action is being instituted, in the shape of supervision by a social worker, conduct of this kind (falling far short of cruelty or neglect in any presently recognised legal sense) should be liable within a short space to be cited as a criminal offence.

CONTINUATION FOR INQUIRY AND ASSESSMENT

204. It is implicit in our proposals that the juvenile panels should have power to continue cases for inquiries for periods which we suggest should, subject to a power of renewal, be subject to a maximum of 21 days.

INTERIM CUSTODY PENDING APPEARANCE BEFORE THE PANELS

205. Our attention was drawn to Section 71 of the 1937 Act, which empowers juvenile courts to make interim orders for further inquiries in the case of children and young persons who have been detained in a place of safety by the police or other authorised persons pending appearance before the courts. Subsection (1) empowers the police or the other persons mentioned to take such action in the child's interests until he can be brought before a juvenile court on 44 care or protection" proceedings. It was suggested to us that unnecessary delays sometimes occur in bringing such cases before the courts, partly because the sub-section does not place a clear duty on any specific agency to do so, and partly because the provision has been interpreted (in our view erroneously) in some areas as implying authority to retain the child in custody without further warrant for a period of up to 28 days. In our view the 28 day maximum relates only to the powers of juvenile courts under sub-section (2) and not to a warrant for interim detention obtained under sub-section (1). In the latter case the general rule under the Summary Jurisdiction (Scotland) Act, 1954 (which by virtue of Section 52(2) of the 1937 Act applies to juvenile court procedure generally), is operative, namely, that on being taken into custody a juvenile should be produced wherever possible on the first lawful day. If, however, the question is in any way in doubt, we consider that it ought to be the subject of specific provision in legislation governing the bringing of children before the juvenile panels. In all cases, irrespective of the circumstances in which particular cases come to light, the general rule should operate, namely, that the child is, wherever practicable, to be brought before a juvenile panel on the first lawful day following his retention in custody.