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

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111 page PDF

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Contents
The KILBRANDON Report
Page 18

111 page PDF

351.7 kB

THE KILBRANDON REPORT

Summary of Conclusions and Principal Recommendations
PART I
THE BASIC PROBLEM: ITS SCOPE AND THE PRACTICAL ISSUES ARISING

252. (1) In terms of the treatment measures to be applied, the children appearing before the courts, whatever the precise circumstances in which they do so, show a basic similarity of underlying situation. The distinguishing factor is their common need for special measures of education and training, the normal upbringing processes for whatever reason having failed or fallen short (paragraphs 6-15);

(2) The present treatment measures for these children are in the main based on an educative principle, which recognises the practical need for education and training, the underlying aim being to strengthen and further those natural influences for good which will assist the child's development into a mature and useful member of society;

(3) The most powerful and direct of these influences lies in the home, and such measures in practically every case thus involve, or ought to involve, working closely with the parents (paragraph 17);

(4) The importance of parental influence is universally recognised. This recognition sometimes leads to proposals for the application of direct sanctions, whether in the form of direct supervision, restitution or fines, on parents for their children's misdemeanours. Direct supervision on the parents implies a degree of direct personal responsibility as between parent and child which could seldom be established. Any proposal to make parents vicariously liable for their children's actions seeks to apply what are virtually criminal sanctions in situations falling far short of any recognised standard of neglect. Such proposals seem, moreover, to be incompatible with any idea of educational process. We are unable to accept the view that in matters so closely affecting their children, the co-operation and support of parents as adult persons can be enlisted by compulsive sanctions; a process of social education on the other hand implies working on a basis of persuasion which seeks to strengthen, support and further those natural familial instincts which are in whatever degree present in all parents (paragraphs 18-34);

(5) The evidence before us suggested that at a number of points the existing arrangements, while purporting to be based on an educative principle, are incompatible with such an approach. Instead of enlisting parental co-operation, they frequently tend to militate against it (paragraphs 35-38);

(6) If treatment of juvenile delinquents were to be accepted as properly being an educational process, then to be fully effective this would seem to require the formation in each area of a locally-based treatment authority, recognised as having specific responsibility for the prevention and reduction of juvenile delinquency; having either under its direct control, or having a recognised right of access to, all those local social services (public and voluntary) primarily concerned with children's problems; having a direct and continuing responsibility for the children within its jurisdiction; and affording the fullest scope for enlisting the parents' co-operation and support for the measures applied at all stages;

(7) Against that background we have had to examine how far the present arrangements fulfil these criteria, how far such shortcomings as may exist are attributable to mere defects of machinery or how far they are fundamental to the whole basis of the system of juvenile courts, and, in the light of such an examination, what appear to be the practical alternatives confronting society at the present time (paragraph 39).

THE UNDERLYING PRINCIPLES

The Juvenile Courts: Existing Arrangements

(8) The constitution of the various types of juvenile courts in Scotland, and the arrangements which in various areas determine the choice of local court to which various classes of children are directed, appear to have been developed in response to particular local situations rather than on any consciously aimed principle. The common factor is that all are courts of summary jurisdiction, thus forming part of the machinery for the administration of criminal justice (paragraphs 40-50);

(9) Criminal procedure is in essence concerned with the establishment of guilt or innocence and the punishment of the guilty, and thus assumes a high degree of personal responsibility in the individual. On the one hand, it is directed to the past act, and the punishment appropriate thereto; sentencing on the other hand also looks to the future. In so far as it is concerned with the future prevention of crime, sentencing thus introduces considerations which may in practice conflict with those already mentioned. In practice the present arrangements represent a compromise, and in relation to any individual offender the courts have to seek a balance on an empirical basis between the conflicting claims of the two principles. In so far as such a balance has to be maintained, it may in individual cases militate against early preventive measures, and against individualisation and subsequent alteration of treatment measures once applied (paragraphs 51-54);

(10) The application of criminal procedure in the juvenile courts is, however, subject to further important qualifications, which have the effect of altering significantly the balance between the two principles already referred to, and which thus bring them, in the juvenile courts, even more sharply into conflict. The common law has always recognised, in relation to sentencing, that the element of youth may be a mitigating factor. More recent statute law has placed increasing emphasis on the need in every case to have regard to the child's future welfare and to secure those measures of education and training which are in his best interests. It requires the provision in all but the most trivial cases of social background information bearing on the child's home and family circumstances. These factors are clearly the practical expression of what is essentially a preventive or educational principle. The result, however, in many cases is that, whereas proceedings against children appear to start initially from some relatively minor act or default, when it comes to an assessment of the measures required, the juvenile court is expected to take into account circumstances right outside the complaint itself. As a result the treatment measures may often appear to the parent and child as altogether out of proportion to the nature of the offence; even more important, the present arrangements may sometimes inhibit the application of measures which, on an educational principle, are clearly needed, but which cannot readily be justified on the basis of the offence viewed in isolation as a mere infraction of the criminal code (paragraphs 55-57);

The non-criminal jurisdiction of the juvenile courts

(11) This conflict is further highlighted by the fact that the juvenile courts, in addition to their criminal jurisdiction, exercise a non-criminal jurisdiction in respect of children in need of "care or protection". Proceedings of the latter kind operate on what is overtly a protective and educational principle. They may be instituted consequent on the parents' conviction of criminal neglect, or, short of that, on facts and circumstances amounting to situations of serious moral danger (actual or potential) to the child. Such situations are commonly recognised as being likely to contain all the elements of incipient delinquency. The underlying situation with which the courts are faced in such circumstances may often be almost indistinguishable from that in which they are called upon to deal with juvenile offenders; as a practical matter, the real issue is thus in every case the needs of the individual child, which can be assessed, and the appropriate treatment applied, only on an objective examination of the whole surrounding facts and circumstances. Yet it is inherent in criminal procedure, as applied to juvenile offenders, that it is in any given case in risk of militating unnecessarily against that process (paragraphs 58 and 59);

How the present arrangements have developed

(12) The personal and moral responsibility of children may vary widely, and a child's capacity to distinguish right and wrong, though developed at an early age, may not be accompanied by a corresponding degree of emotional maturity which would enable him to act on that knowledge. This has from the earliest times been reflected in the civil law relating to the rights and responsibilities of minors. While it has equally been accepted that the treatment of juvenile delinquency raises different considerations from those arising in the treatment of adult offenders, the criminal law assumes the responsibility of children other than those of tender years. This is expressed in the form of a legal presumption that no child under the age of 8 years is capable of criminal intent and thus cannot be made the subject of criminal proceedings. Such an age-limit is, however, clearly an arbitrary one and bears no relation to observable fact. The fact that it has been felt necessary to make such a distinction can be seen on closer examination not to reflect any absolute principle, but rather society's concern in earlier times to exclude children from the more extreme forms of punishment which conviction under criminal procedure formerly attracted, and whose application to children became increasingly repugnant to the public conscience. Subsequent legislation has had the effect of modifying substantially the rigours of the law so far as methods of treatment of juveniles are concerned, and has introduced a series of broad distinctions at later ages-the effect of which is to debar the application to children below those ages of various penalties and forms of custodial treatment. The major question, however, is not whether children under the age of 8 years are capable of acts of juvenile delinquency, and whether they should be made subject to a form of procedure plainly recognising that fact. The question is whether (a) the application of criminal procedure to juvenile delinquents above that age has such compelling practical advantages as to outweigh the inherent disadvantages already discussed; or whether (b) in the interests of effective preventive measures, juvenile delinquents could be better dealt with under an entirely different form of procedure (paragraphs 60-67);

Suggestions for an alternative procedure

(13) One solution suggested to us was that all children, whether classed at present as delinquents or as being in need of "care or protection", should be brought before the juvenile courts under non-criminal procedure, the basis of the petition being in all cases the child's need for protective and educational measures as shown by the whole surrounding circumstances, whether or not involving the commission of acts which, if done by an adult, would amount to crimes or offences. We are unable to recommend such a course, which would to some extent represent little more than a change of nomenclature. More important, however, where the basis of action rests on the commission of an offence, it is in our view of the utmost importance that any dispute about the facts alleged should continue to be determined on the presently accepted standards of evidence, and not on any lesser standard as would be the case if these matters were governed by what would be essentially a civil procedure (paragraphs 68-71);

A new alternative

(14) The shortcomings inherent in the juvenile court system can, it seems to us, be traced essentially to the fact that they are required to combine the characteristics of a court of criminal law with those of a specialised agency for the treatment of children in need, whether in law juvenile offenders or children in need of "care or protection". It seems to us essential to separate clearly the two issues of (a) the resolution of any disputed issues of fact relating to the act or acts alleged, a task for which criminal, procedure is well-fitted, and (b) consideration of the measures to be applied where the basic facts are established. Given the very limited extent to which the basic facts are in actual practice in any way in dispute, we see no insuperable difficulty in devising a machinery whereby all juvenile cases would be referred to a new and specialised treatment agency or panel, concerned solely with such measures on the basis of agreed referrals. The limited number of cases in which there was a dispute about the basic allegation would then at the outset be referred to a court of law which, if it upheld the allegation, would then remit to the panel for consideration of treatment measures as in any other agreed case (paragraphs 72-74);

(15) The salient features of a juvenile panel of this kind would be that

(a) it would be neither a court of law nor a local authority committee;

(b) it would be essentially a lay body, comprising persons who either by knowledge or experience were considered to be specially qualified to consider children's problems, a criterion on which none of the present systems of selection can be said from the outset to be based;

(c) as the competent public agency vested with powers of compulsory action in this field, it should be seen to be an entirely independent agency, and the machinery of appointment should reflect that fact;

(d) under such arrangements there would be no question of taking juvenile offenders outwith the ambit of the law. Such children would, a few exceptions apart, be dealt with not by criminal procedure but by a new form of public agency on whom this special jurisdiction would be conferred by law;

(e) disputed issues of fact would be entirely outside the scope of the panels, being reserved for resolution by an appropriate court of law;

(f) while the range of legal powers available to such an agency might not differ appreciably from those of the present juvenile courts, the manner in which they could competently be exercised would be markedly and fundamentally different. The criterion of action by such a panel in every case being the child's need for special measures of education and training, this implies a continuity of process which is altogether impracticable under existing arrangements, and which could be achieved only if (i) the panel were empowered to exercise a continuing jurisdiction over all children referred to them, subject only to a statutory upper age-limit, and (ii) within that period were accorded the widest discretion to alter, vary, or terminate the measures initially applied in the light of the child's progress and response;

(g) the extension of continuing supervisory powers in this way would in certain cases clearly represent a substantially greater measure of intervention in matters affecting parent and child than is at present competent under the law. For this reason, wherever decisions by the panels were disputed by the parents, it would be essential that the latter should by law be afforded a right of appeal to an appropriate judicial authority (paragraphs 75 and 76);

(16) Delinquency is predominantly an activity of the young. Ultimately the matter must be resolved on practical grounds. On purely practical grounds it would seem essential to provide for preventive and remedial measures at the earliest possible stage if more serious delinquencies are not to develop. Such measures cannot, it seems to us, operate with any reasonable expectation of success unless under a procedure which from the outset seeks to establish the individual child's needs in the light of the fullest information about his personal and family circumstances. The establishment of those needs is in itself a task calling for essentially personal qualities of insight and understanding, and for skills quite different from those involved in adjudicating legal issues. It seems to us inappropriate that a single agency should be expected to combine the two functions (paragraph 77);

(17) The acceptance of an educational principle in this way implies a degree of continuity and flexibility of process which is impracticable under existing arrangements. It requires that juvenile panels (of the kind described) should be accorded, subject only to certain general limits laid down by law, the widest discretion initially in applying treatment measures, and in their subsequent variation, modification or termination in the light of the individual child's progress (paragraphs 78 and 79);

(18) It must be a matter of judgement how far, in relation to juveniles and their parents, the application of an educational principle in this way would in fact and in practice represent an appreciable inroad into personal and family life, amounting to a degree of interference such as to be unacceptable in our society. If on such grounds it were to be felt that a fuller recognition of the educational principle could not be accepted, it is necessary to face the practical alternatives. A return to a purer form of the "crime-punishment" concept seems to us altogether unacceptable. If so, society must consider whether it is satisfied with the status quo and is prepared to accept the social consequences. For out part we do not believe that a retention of the present system, resting as it does on an attempt to retain the two existing concepts in harness, is susceptible of modification in a way which would seem likely to have any marked impact on the problem. It is because we accept that society is indeed seriously concerned to secure effective measures for the prevention and reduction of juvenile delinquency, and because we consider that the method of approach which we are recommending has compelling practical advantages, that we have not hesitated to recommend major and radical changes (paragraphs 80 and 81).

Principal Recommendations
PART 11
A NEW MACHINERY-THE JUVENILE PANELS

General

(19)(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 referred to the Sheriff; 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 for 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 (paragraphs 82-139);

Constitution

(20) The juvenile panel or panels in each education area should be appointed by the Sheriff (paragraph 92);

Machinery for referrals

(21) Referral to the panel should in every case (irrespective of the basis or the initial source of the information) be at the instance of an independent official, to be known as the "reporter" to the panel (paragraphs 96-102);

(22) The right of the police, local authorities and other authorised persons to bring certain types of proceedings at their own instance should be abolished (paragraphs 98 and 99);

(23) The preparation of social background reports, recommendations for treatment measures, and their subsequent application, should be the responsibility of a new statutory social education department, by virtue of its general function as the panel's executive agency (paragraphs 103 and 104);

(24) The panels should be empowered to entertain only referrals in which the basic facts are agreed or admitted. The grounds of intervention where disputed should be subject to determination by the Sheriff Court. There should also be a right of appeal to the Sheriff (sitting as a judicial officer) against decisions of the panel; and to the Court of Session on questions of law arising from decisions by the Sheriff (paragraphs 110-114);

(25) There should be a right of legal representation (and provision should where necessary be made for legal aid) in referrals or appeals to the Sheriff (paragraph 115);

(26) Jurisdiction in all substantive treatment measures should be vested in the juvenile panel for the child's home area (paragraph 127);

Definition of the basis o the panel's jurisdiction f

(27) The jurisdiction of the panel should extend to any child of under 16 who is in need of special measures, education and training, in respect of whom, on a referral, one or more of the following circumstances are shown to apply, namely, his failing 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 as to 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 (paragraphs 128-138);

Treatment measures

(28) The treatment measures available to the juvenile panels should, as a matter of statutory powers, amount to the following:

(a) decision to take no action;

(b) admonition (with or without supervision);

(c) finding of caution on the parent (normally with a supervision order on the child);

(d) requirement that the child should attend at an attendance centre;

(e) assumption of supervisory jurisdiction over the child

(i) where living at home; or

(ii) where the situation so requires, including the additional requirement that he should be received into public care (and thus including, where necessary, residence in a children's home or residential school).

The foregoing relate to the panels' formal powers and are without prejudice to any measures that might be agreed informally with the parents, including the child's supervision on an informal basis (paragraphs 140-205);

Supervision within the community

(29) It is contemplated that supervision by the social education service would be the method of treatment most commonly applied by the juvenile panels. Within such a framework there will, however, be scope for supervision, formal or informal, by a variety of agencies. The police juvenile warnings system will continue to play a valuable part. Arrangements for informal supervision, under police juvenile liaison schemes, are equally to be commended. Since such schemes are essentially voluntary and informal, no rigid pattern is desirable, and other local experiments are to be encouraged (paragraphs 140-158);

Supervision involving special residential measures

(30) There is a serious need for further provision for special educational facilities (and especially residential schools) for children suffering from mental or physical handicap, or maladjustment. In particular, provision for the maladjusted child who also suffers from serious mental handicap is at present almost wholly lacking. There is also a shortage of hospital accommodation for children suffering from mental defect accompanied by serious emotional disturbance (paragraphs 172-177);

(31) The importance of early ascertainment of impaired intelligence and maladjustment, and appropriate special provision to meet such needs, is plain; and has an important part in the prevention and reduction of juvenile delinquency. Better provision in these directions would help to solve many of the problems within existing children's homes and residential schools (including approved schools). In so far as steps are planned or are already in train to remedy these shortages, we urge that they be pressed forward with all possible speed. A substantial need remains within the educational field (paragraph 178);

(32) The provision of special residential accommodation for all classes of children requiring special measures of education can in our view be assessed in proper balance and perspective only if handled by a single local authority, namely, the education authority, and the whole range of such provision should be available to the juvenile panels (paragraph 178);

(33) There is in particular a need for short-term residential school provision for pupils of junior secondary school-age who suffer from maladjustment; as well as separate residential provision for the training of younger boys (under 11) who, in the absence of more suitable provision, are at present accommodated in approved schools. New provision in these directions should in our view be made by education authorities (singly or in combination) rather than by additional approved school provision (paragraphs 187-189);

(34) Short-term detention (at present in remand homes) for children under 14 should be abolished. In so far as shorter-term residential training may be necessary for children aged 14-16 it can more appropriately be met within the special residential school provision which we have recommended (paragraphs 191-193);

Duration o orders

(35) The juvenile panels should have the widest discretion to vary subsequently the treatment measures initially applied. Subsequent variation, if involving any greater measure of deprivation of parental rights, should be subject to a right of appeal to the Sheriff, and all orders should in any event be subject to a right of statutory appeal at annual intervals (paragraph 197);

Assessment

(36) We endorse the recommendation of the Ellis Committee for the development of assessment centres on a regional basis. Reporting to assessment centres and clinics for assessment purposes on an out-client basis should be encouraged. Assessment centres should be under the control of the social education department, which should be accorded a recognised claim on the time of specialist services (medical, psychological and psychiatric) (paragraphs 206-217);

Consequential matters

(37) Where children have acted in the company of adults charged with criminal offences, the former should, wherever practicable, be dealt with by the juvenile panels (paragraph 224);

(38) Where exceptionally children are the subject of proceedings in the criminal courts these courts should be empowered to remit to the appropriate juvenile panel for consideration of treatment measures (paragraph 224);

(39) Provision should be made for appointment in appropriate cases of fulltime chairmen of juvenile panels; for lectures of training and instruction for panel members; and for payment of parents' expenses in cases of need in order to secure their attendance before the panels (paragraphs 225-230).

PART III
THE MATCHING FIELD ORGANISATION

(40) The existing statutory social services primarily concerned with children's problems should be reorganised so as to form a new comprehensive local department-to be known as "the social education department" (paragraphs 233-240);

(41) The most effective practical organisation consistent with our general proposals appears to us to entail the following:

(a) The present powers and duties of local authorities under the Children Acts, 1948 and 195 8, and the Children and Young Persons Act, 1963, should be transferred to education authorities;

(b) Under the Director of Education, a new department should be set up, headed by a Depute Director (with the title of "Director of Social Education"). Within the larger organisation of this new specialist department, catering for the needs of all children requiring measures of special education and training, would be merged the existing child care service as well as a substantial number of those at present serving in the probation service. With the removal of children from the jurisdiction of the criminal courts, the probation service would cease to deal with children. Initially, the work of the latter service would thus be appreciably diminished, though in the longer-term the use of adult probation by the criminal courts may be expected to expand considerably beyond-its present level;

(c) The education authority's existing responsibility for the educational child guidance service, the school medical service, and for school welfare and attendance officers would be discharged through the new department;

(d) In consequence of the transfer of the child care functions of local authorities (already mentioned), responsibility for the provision of assessment centres and children's homes would be vested in education authorities, and would equally be operated under the direction of the new department, which by virtue of existing education authority functions would also be responsible for all existing and future special residential schools provided by the education authority;

(e) The approved schools after-care service should be abolished, its function in future being discharged by the social education department as part of its general supervisory role in relation to all children under the juvenile panel's jurisdiction (paragraph 241);

(42) Arrangements -should be made for compensation for those social workers in the probation service and the approved schools after-care service displaced from employment as a result of the new arrangements and not reemployed in the social education service (paragraph 247);

(43) A statutory central training council should be established with responsibility for recruitment and training in the various branches of the social education department. It should be accorded certificate -granting powers. Provision should be made enabling the Secretary of State to fix a date or dates after which no person will be eligible for various classes of appointments in the social education department unless in possession of the appropriate certificate of recognition issued by the training council (paragraphs 248 and 249);

Concluding observations

(44) Society is, we believe, seriously concerned to secure a more effective and discriminating machinery for intervention for the avoidance and reduction of juvenile delinquency. If so, it must in our view be prepared not only to recognise that the practical issue is indeed in every case the application of special measures of education and training appropriate to the needs of the individual child, but equally to recognise the consequences of that fact. These lie not only in the provision of effective machinery for early detection of situations which unchecked may lead to delinquency, and the application of remedial and educative processes at that stage. They also imply, where actual delinquency has occurred, an extension of that same machinery providing a similar flexibility and, at all stages, a continuity of oversight. They further imply the possibility of sustained process by the application of more intensive training measures where necessary for considerable periods. Moreover, since the incidence of juvenile delinquency, the forms and patterns it takes, and in many cases the combination of factors apparently underlying it, vary widely from one area to another, these problems must in our view be tackled at local level and must be clearly seen to be a local community responsibility. These aims cannot in our view effectively be met other than through, in each area, a locally-based agency publicly charged with specific responsibility for the prevention and reduction of juvenile delinquency. The social education department, throughout the range of its activities (including the exercise of its continuous responsibility for children under the juvenile panel's jurisdiction) would in fact be such an agency.

From the earliest age of understanding, every child finds himself part of a given family and a given environment-factors which are beyond his or society's power to control. During childhood the child is subject to the influences of home and school. Where these have fallen short or failed, the precise means by which the special needs of this minority of children are brought to light are equally largely fortuitous. The individual need may at that stage differ in degree, but scarcely in essential character, and such children may be said at present to be, more than most, in a real and special sense "hostages to fortune". The time has come, we believe, when society may reasonably be expected so to organise its affairs as to reduce the arbitrary effects of what is still too often a haphazard detection process; and consequently to extend to this minority of children, within a sustained and continuing discipline of social education, the measures which their needs dictate, and of which they have hitherto been too often deprived (paragraphs 250 and 25 1).

(Sgd.) C. J. D. SHAW (Chairman)

JOHN C. BALFOUR HAMILTON LYONS
W. HEWITSON BROWN ANDREW MELDRUM
L. P. CAMERON-HEAD NORMAN MURCHISON
C. S. HAMPTON MARY W. REILLY
RONALD IRELAND F. H. STONE
MARGARET H. KIDD ALLAN G. WALKER
A. T. F. OGILVIE, Secretary
R. J. EDIE, Assistant Secretary

10th January, 1964