THE KILBRANDON REPORT
The Kilbrandon Report is a remarkable document. It was remarkable in its time and it still reads as a clear, fresh and enlightened document more than thirty years later. Few Government reports are reprinted not once, but twice, after their original publication. This is a tribute to the historical importance, the readability and the continued relevance of Lord Kilbrandon's report.
In May 1961, John Maclay, then Secretary of State for Scotland and later Lord Muirshiel, appointed a committee "to consider the provisions of the law of Scotland relating to the treatment of juvenile delinquents and juveniles in need of care or protection or beyond parental control". It was chaired by a distinguished lawyer and judge, James Shaw, Lord Kilbrandon. It contained in its membership two sheriffs, a professor of law, a solicitor, a headmaster, a chief constable, justices of the peace and a child psychiatrist.
The approach and style of the report reflect the composition of the committee. It is crisp and matter of fact. However, despite the apparently traditional membership, its recommendations were radical, humane and far-reaching. They have profoundly affected the way in which we approach children's problems in Scotland. In its conclusions, the committee set out the principles which underlie the establishment of one of our most remarkable institutions, the Children's Hearings. The report and the underlying principles are still the touchstone against which the work of the hearings is tested.
The key principles underlying the committee's proposals were: separation between the establishment of issues of disputed fact and decisions on the treatment of the child; the use of a lay panel to reach decisions on treatment; the recognition of the needs of the child as being the first and primary consideration; the vital role of the family in tackling children's problems; and the adoption of a preventive and educational approach to these problems.
It was these key principles which led Lord Hope, the present Lord President of the Court of Session, to refer in a recent judgement to "the genius of this reform [the Kilbrandon Report] which has earned it so much praise".
While the reprint of Lord Kilbrandon's report, and the continued reference to it by those who work in and discuss the Children's Hearings system, demonstrate its continuing relevance, it is necessary to prevent the system standing still or becoming fossilised.
The continuing support of the Children's Hearings through healthy recruitment, general public acceptability and the development of training and practice, demonstrate the vigour of the system. It has certainly not stood still and it has had to deal with increasingly difficult challenges.
In the early days the system was largely concerned with juveniles offending and in trouble. Latterly, increasing numbers of children who require care and protection have been referred to the hearings.
This change has been associated with a growing awareness that the interests of parents and children are not always the same. Greater emphasis is now given to listening to children and young people and taking account of their views. We have encouraged, through Scottish Office grants, the development of organisations which reflect the views of children, such as Childline and "Who Cares". I was particularly pleased that young people from the "Who Cares" organisation gave evidence directly to a committee of the House of Commons considering the Children (Scotland) Bill under our new procedures for Scottish legislation. Other developments have included the publication by us of children's views on child care law and the Children's Hearings. We look forward to the findings of the major research study commissioned by the Scottish Office and conducted by Edinburgh and Stirling Universities, evaluating the Children's Hearings system. It will include the views of children and families on their involvement in the Children's Hearings system.
These developments highlight the importance of reviewing the work of panels and the legal arrangements under which they operate. The Child Care Law Review looked closely at the work of the Children's Hearings and the report by Alan Finlayson on the work of the Reporter has contributed to the development of that service. The White Paper Scotland's Children published in 1993 sets out proposals for child care policy and law. The Children (Scotland) Bill which followed the White Paper will be the first major piece of legislation dealing with children since the Social Work (Scotland) Act 1968 which enacted the Kilbrandon reforms. The Bill contains many new provisions but also remains true to the original Kilbrandon principles.
The re-issue of the Kilbrandon Report comes at a time of major activity in the field of child care law. It is therefore fitting that the report from which so much of our present arrangements spring should be readily available alongside the new legislation.
Fraser of Carmyllie