THE KILBRANDON REPORT
Professor Fred H. Stone
It is almost exactly a quarter of a century since the Scottish Children's Hearings were first convened, of itself a good reason for the reprinting of the Kilbrandon Report which gave rise to a new direction in dealing with our children and young people. To have survived till now with only minor changes is an occasion for modest celebration, confounding the critics who, at the outset, predicted its early demise! It is, moreover, particularly relevant to have the report available from HMSO at a time when child care legislation is under review, with possible implications for the practice of the Children's Hearings system.
The working party, under the chairmanship of Lord Kilbrandon, first met in 1961; its unanimous recommendations were published in 1964, and were embodied in Scottish legislation by 1968, though, as we shall see, with some important amendments. Nevertheless, this was a remarkable achievement, the implications of which could hardly have been anticipated from the official remit. For those of us who had the privilege of serving on the Kilbrandon Committee, these rapid developments were a matter of some surprise and satisfaction. One must, however, admit to some misgiving about the status which the report has achieved in the intervening years, amounting almost to a sacred text in the regard of some supporters of the Children's Hearings system. In one particular respect, however, acknowledgement is long overdue, namely, the elegance and clarity of the actual writing - not all that frequent in official publications!
The Kilbrandon principles
A useful starting point is to identify the principles on which the recommendations of the report were based, and how the committee understood their task. In the words of Lord Kilbrandon himself (1966), the primary concern was with "children in trouble". He was quite explicit in identifying the major categories as a) those with delinquent behaviour, b) those in need of care or protection, c) those beyond parental control, and d) those who persistently truant.
Clearly, this was a much broader consideration than simply "delinquency", but all these children had shared a common experience, a failure in the normal experiences of upbringing. The associated principle which underpinned all proposed measures of assessment and treatment was that the paramount consideration was the welfare of the child. And for such measures to be effective, the child had to be viewed in the context of the family.
The children, young people and families under consideration, to whichever category they might be assigned, would ordinarily have sought help from available agencies, health visitor, school psychologist, general practitioner, local police, or voluntary agency such as the Royal Scottish Society for the Prevention of Cruelty to Children. * The committee's concern was about situations where ordinary, voluntary measures had for whatever reason failed, or were likely to fail. In the past, such problems tended to find their way to disciplinary tribunals of the education authority, to a police warning, to a juvenile Court, few in number in Scotland, or, most frequently, to the local Sheriff Court. Of the many informed witnesses who gave evidence to the Kilbrandon Committee, on one point there was complete agreement, that the current arrangements for dealing with children were unsatisfactory.
The radical proposal, which was in due course put into practice, was to remove children under sixteen years of age from adult criminal procedures, with the exception of extremely severe offences, and to bring all cases in need of "compulsory measures of care" before a lay panel of three members, the Children's Hearing. This, it was judged, would provide the necessary conditions for satisfactory assessment and appropriate disposal, namely: an informal, relaxed setting, with reasonably skilled interviewers provided with reliable background information, with adequate time to promote effective communication between all concerned, and especially, an atmosphere conducive to the child's participation.
One further Kilbrandon principle must be mentioned, how the child and family were to be helped. As the common factor underlying most of the cases was a failure of upbringing", of "social education", the remedy would need to be a form of re-education of the child, and where appropriate of the parents. It must be admitted that the report was not very explicit about how this re-educative supervision was to be achieved, though fines or other forms of sanction were considered to be incompatible with methods of help depending greatly on co-operation. What was clear, however, was the intention that the "treatment authority" would cease to be "a small and specialised part of the criminal jurisdiction, but instead ... a small but important part of the system of social service" (Kilbrandon, 1966). As is customary, legislation was preceded by a discussion document or White Paper, Social Work and the Community (cmnd., 1966) which proposed a reorganisation of social work in the form of autonomous departments, serving all age groups and many other community needs, including the provision of reports and supervision duties for the Children's Hearings. And this was the arrangement which emerged in legislation (Social Work Scotland Act, 1968) rather than that proposed in the report, namely a new department within the education authorities.
Scotland was not the first country to create a body separate from the courts with the responsibility of making decisions in the best interests of the child. In Scandinavia, the Children's Welfare Boards had for some time pursued a welfare approach, and their use of lay board members with apparent success was known to the Kilbrandon Committee. Here again, however, the final plan had a somewhat different emphasis from that originally envisaged. From the rather brief account of the qualities expected of those to serve on the panels, the profile resembled those who had previously served on the juvenile courts, individuals with a commitment to child welfare with previous experience in this field. The final version, however, aimed at a panel recruited locally with a background and occupational spread representative of that locality, an aim which has only been partially achieved.
The actual procedures followed in the Hearings, however, have continued along the lines described in the report. Which children, or more accurately which families, enter the system is entirely the responsibility of the central official, the Reporter to the Children's Panel, who makes the prediction that "compulsory measures of care" will be required, a term which was intended to include protection, control, and guidance, as well as treatment.
In considering appropriate procedures and measures for children, the report faced the difficult task of taking into account the developmental factor, how far a particular child had progressed in understanding, in social awareness, in being held responsible for his or her actions. The traditional legal approach has been to identify a precise age as the "Age of Criminal Responsibility', in recent times in Scotland, eight years of age. After detailed discussion, the report recommended that this arbitrary age, differing widely from one country to another, and having no clinical reality, should be abandoned. This was one of the few proposals which was not accepted.
Twenty five years on
Before embarking on a review of the Hearings' first quarter-century, account must be taken of the massive changes which have taken place during that time in Scottish family life, and especially what these changes have meant for the role of parents and the experiences of children. In many ways it is a sombre picture. In recent years about one in four marriages have ended in separation or divorce. It has become commonplace for couples to set up home and produce offspring without the formality of marriage ties, religious or secular. New liaisons often take place, so that children find themselves with multiple relationships, and lacking continuity of care. The single parent family, usually mother and child or children, not rarely with transient partnerships, is frequent, not only because the father has left the home, but because the mother has chosen to raise children by herself Another feature, and a related one, has been the marked change in sexual mores for large sections of the population. Early sexual experience is common in both males and females, at least partly due to the availability of effective contraceptives. There is less secrecy and inhibition about sexual matters, and less stigma attached to illegitimacy. Yet many families rely on schools to provide sexual education for their children. The abuse of alcohol has remained a major problem in Scotland, and is frequently associated with violence by men towards women, adults towards children, and young people towards other members of the public. A significant proportion of schoolchildren are cigarette smokers; drug and solvent abuse is no longer rare, even at primary school level, with serious implications for health, behaviour, and, at times, survival. These decades, moreover, have been characterised throughout the United Kingdom by poor prospects of employment for many young people, and while child neglect, child abuse, truancy, delinquency, and family discord and disruption are not confined. to lower income groups, poverty is a commonly associated factor.
Child-abuse cases are often complex and extremely emotive for professional as well as lay workers, and as a result have over the years made increasing demands on the time and personal resources of Reporters, panel members, and social workers. During the early years of the Hearings system such cases were quite rare; of late, the proportion of non-offence cases referred to the Reporters has risen from about a fifth to nearly half, many of them involving very young children. Not surprisingly, there has been some concern expressed whether this trend has been to the disadvantage of the offender group, which was the primary concern of the Kilbrandon Committee. And, in particular, about those over 16 years, few of whom have benefited from the Hearing's discretion to extend their supervision for a further two years. Perhaps consideration of the style and setting of the Hearings would benefit both the oldest and the youngest who attend.
The Children's Hearings system has not lacked its critics. It has been suggested that the appointees to the panels are not sufficiently representative of the families before them, being weighted towards middleclass, professional people. It is true that there has been difficulty in attracting applications from the less advantaged, from ethnic minorities, from young adults, and in some places, from males. But the advisory committees responsible for selection have gradually achieved a broader spread of recruitment. It has been asserted that in contrast to the courts, the Hearings are viewed as a "soft option". By and large this has not proved to be the opinion of the police nor of the judges. What has to be acknowledged is that too many members of the public have little knowledge of the Children's Hearings system. And inevitably, cases successfully managed by Hearings and effectively supervised by social workers are seldom newsworthy, whereas the relatively few problematic outcomes have tended to receive widespread publicity. It is striking that both north and south of the Border, public enquiries have taken place almost exclusively in connection with "Care and Protection" situations.
From the outset, both child and parent may arrange to be accompanied to the Hearing by a "friend", companion, relative or solicitor, and many have chosen to do so. This, however, has not satisfied some critics, because this does not include formal legal representation, partly because legal aid is not available at this stage. Proposals to formalise legal participation have been resisted because an adversarial ethos would be at odds with the informality and maximal participation of child, family, and others. Such a change would, it is believed, recreate a form of court, which would seem to negate the central Kilbrandon principle. There is little doubt that this issue will continue to be debated. Attempts to introduce a more punitive approach in the management of young offenders and their families, as proposed in 1980 following the publication of the English White Paper Young Offenders, were firmly rejected in Scotland after consultation.
A new development in the mid-eighties (Children's Hearing Rules, 1985), was the introduction of "Safeguarders", primarily to meet situations where a conflict of interest was thought to exist between child and parents. Of the hundred or so appointed till now, either by the sheriff or the Hearing, the majority are solicitors, others mainly social workers. The Safeguarder is intended to be an independent mediator, representing the interests of the child. The first national seminar reviewing the role and function of the Safeguarder was held in 1993, where consideration was given to issues of selection, training, and accountability. This is an evolving activity, and is likely to be an important item of future legislation.
The imminent reorganisation of Scottish local authorities involving the creation of many autonomous bodies, gives some concern about the availability of adequate childcare resources throughout the country, in particular those required to meet the recommendations of Children's Hearings. Moreover, the internal reorganisation of the Reporter Service, which has just taken place, replacing a local by a national body, under the direction of a Principal Reporter for Scotland, makes inevitable a further readjustment for the Hearings system. It is fair to state, however, that since its inauguration, the Children's Hearings system has never stood still, and has coped remarkably well with changing demands. In 1988 the Secretary of State initiated a review of child care law in Scotland which, although suggesting many improvements, did not consider that any radical changes were required. The following year the United Nations General Assembly adopted its Convention on the Rights of the Child, which has been ratified by the UK but which reserves its right "to continue the present operation of Children's Hearings". However, whereas there continues to be strong support from many quarters for the preservation of the essentially non adversarial approach of the Hearings, there may well be changes in procedures involving the removal of a child from his or her family, or the taking over of parental rights by a local authority, both of which are likely to require the sanction of a court. The call for legislative changes affecting child care has arisen also from two Scottish enquiries in Fife and Orkney, whose findings were both published in 1992 as the Kearney and Clyde Reports respectively. The former was concerned to improve mutual respect and co-operation between a social work department and its related Children's Hearings service; the latter to improve procedures by all the authorities involved when the removal of children to a "Place of safety' was contemplated. Other considerations which have come to the fore -of late have mainly aimed to improve the quality of the Hearings themselves by increased flexibility and discretionary powers of the chairperson. The opportunity to implement new legislation regarding these and other related child-care issues arises timeously with the Children (Scotland) Act 1995.
Does the Scottish Children's Hearings system work? One answer must surely be that for an innovative, even radical system of juvenile justice to have continued for twenty-five years with few modifications, mainly in response to changing social conditions, is reassuring. As far as the public interest is concerned, there is no evidence that the removal of most delinquent children and adolescents from the jurisdiction of the courts has resulted in an escalation of antisocial behaviour. It is worth recalling that the starting point of the deliberations of the Kilbrandon Committee was the widespread dissatisfaction with court-centred procedures involving children, as these were frequently experienced as intimidating and poorly understood. Whatever the shortcomings of some Hearings, time is made available for careful assessment of problems, with the benefit of social background and educational reports, and, when indicated, the opinion of a children's specialist, with encouragement and opportunity for participation of child and parents. Yet Hearings have considerable powers, so it is hardly surprising that those attending may be anxious. Reporters and others take pains to ensure that children and adults are given clear explanations of what is taking place, with the help of information pamphlets. A particular merit of the Hearings system is the requirement to arrange a follow-up review within twelve months, but regrettably this does not always ensure continuity of panel membership. Chairpersons have always had the power to exclude a child from all or part of a hearing. A clear view expressed by older children is the wish to be allowed at least part of the hearing without the parents' presence, a sensible provision which is likely to be introduced.
It is encouraging to note that the Social Work Services Group has initiated research into the workings of the Hearings system on two fronts: a) factors involved in decision making, and b) a longitudinal study examining outcomes for a cohort of referred children. There will be no shortage of pressing research topics in the future. For example, we need to learn more about the techniques employed in the selection of panel members, whether special aptitudes are required for different types of child and family problems; in view of the continuing loss of quite a few panel members after relatively short periods of service, whether a probationary appointment should be routine. We also require information about the range of methods and skills employed in the supervision of children and adolescents, and the resources of proven value as yet unavailable. In England and Wales, the system of juvenile justice, while sharing essentially similar aims with Scotland, has continued to deal with young offenders in juvenile courts, and, with "Care and Protection" situations, in family proceeding courts, involving solicitors and guardians ad litem (Children Act, 1989). An opportunity is thereby presented for a potentially valuable study of the relative merits of the two approaches.
This overview would not be complete without special mention of the lay members of the Children's Panels. Volunteers have continued to come forward, to submit themselves to quite stringent methods of selection, to participate in training sessions, and to have their performance regularly monitored. The enthusiasm and commitment of the majority has been notable, and over 10,000' have been appointed during the past twenty years.
British Journal of Criminology, V1, Children in Trouble, p112-122, 1966. Shaw, J., Lord Kilbrandon.
Social Work and Community- Cmnd, 3065, October 1966.
The Report of the Inquiry into Child Care Policies in Fife, Kearney B. and Mapstone E. L. G. (1992) Edinburgh: HMSO,
The Report of the Inquiry into the Removal of Children from Orkney in February, 1991.
Clyde J. J. (1992), Edinburgh: HMSO.
The Children Act (1989) HMSO.
* Now called Children 1st.