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

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111 page PDF

351.7 kB

Contents
The KILBRANDON Report
Page 6

111 page PDF

351.7 kB

THE KILBRANDON REPORT

Part One
CHAPTER I
The Basic Problem: Its Scope and the Practical Issues Arising

INTRODUCTORY

5. Our remit refers to "juvenile delinquents and juveniles in need of care or protection or beyond parental control". Juvenile delinquents and juveniles in need of care or protection or beyond parental control, we take to mean broadly those juveniles who may in certain specified situations or circumstances be brought before a juvenile court. The law recognises four such groups - juveniles alleged to have committed crimes or offences, children in need of care or protection, children who are refractory or beyond parental control, and children who are persistent truants. In any of these situations, if the facts and circumstances alleged are proved to the satisfaction of the court, the children concerned may be the subject of court orders, involving compulsory measures which may in greater or lesser degree entail infringement of personal liberty and of parental rights. By law juvenile offenders comprise offenders aged 8 or over and under 17; a juvenile of any age under 17 may be the subject of care or protection proceedings or proceedings arising from refractory conduct as being beyond parental control. Proceedings arising from persistent truancy may be applied to any child of school age.

THE CHILDREN APPEARING BEFORE THE COURTS

Juvenile offenders

6. The criminal law proceeds on the basis that crimes and offences carry a liability to prosecution, and, if proved before a court of law, a liability to certain penalties. An offence once detected does not, however, necessarily result in prosecution-a traditional and basic feature of the law being that (exceptional cases of private prosecution apart) in each case the decision whether or not to prosecute lies with an independent public prosecutor acting in the public interest. In each case it is his duty, and his alone, to consider not only whether there is sufficient evidence to support the prosecution, but also whether the case is of such a nature that the public interest demands prosecution. Given the tremendous range of acts recognised as offences under statute or common law, it is plain that in practice the police have always-and necessarily-exercised some measure of discretion, at a variety of levels, in the reporting of alleged offences, and that equally prosecutors for their part may, on considering reports made to them, decide not to institute proceedings, and sometimes to deal with the matter by warning. These factors are common to the consideration of proceedings in respect of offenders of all ages, but have for long been recognised as having particular application to children, and clearly any assessment of the volume of juvenile delinquency must take account of the effect of these preliminary sifting processes.

7. The published Criminal Statistics, which record the number of juveniles proceeded against. and dealt with by the courts, need to be studied with caution particularly where an assessment of longer-term trends is being sought. Not every crime or offence is detected; and, even if the offender is detected, it may be impossible to bring it home to him. Statistics can give an indication only of recorded crime, and apparent trends may, for example, at any given time on examination be found to be attributable to changes in methods of detection, arrest and charging by the police, to changes in the law itself, or in the action of the courts, or even to side-effects of the statistics themselves. For example, if shoplifting appears to be on the increase, greater vigilance may well be exercised and possibly more shop detectives employed in large stores, and even more detections result. If more juvenile offenders are dealt with by police warning or by informal supervision, fewer juveniles may as a result appear before the courts. Again, public concern about certain types of crime may be reflected in an increased rate of police activity in respect of those crimes. Changing standards may result in some offences, e.g., fights involving youths, being prosecuted as more serious crimes involving bodily harm, which earlier might have been reported as simple assault, if reported at all. In Great Britain police strength between 1949 and 1959 rose by 20 per cent, and, after allowing for population changes, there were about 100 fewer persons to every policeman than 10 years previously; the police are backed by better and more scientific resources and communications, and are assisted by a greater number of civilian employees. These factors operate in various directions, but together they underline the need for caution in assessing the criminal statistics.

8. Appendix A shows that during the ten years 1950-1960, juvenile delinquency in Scotland showed a gradual decline during the mid-1950s, but thereafter it increased again, and by the end of the ten-year period was greater than in 1950. At the same time, until 1960 the increase does not appear to have done much more than keep pace with the increased child population. Despite the increase in crimes and offences, the annual rate remained fairly steadily between 2 and 2.5 per cent of the child population at risk. 1960 and later years appear to show signs of a different trend, but it is probably as yet too early to form any firm assessment. The figures suggest that, in relation to the total child population, juvenile delinquency in Scotland has remained over the post-war period at a surprisingly steady rate, which is not greatly in excess of the pre-war rate (1.8 per cent in 1938). Juvenile delinquents in fact still represent a very small minority within the child population as a whole, and it is clear that a very substantial proportion are brought before the courts for offences which must be reckoned on any objective criterion as in themselves trivial. By that we by no means imply any criticism of the action of the public agencies concerned. Such offences, which have all been under scrutiny both by senior police officers and public prosecutors before coming before the courts, are generally such as to justify public cognisance being taken of them. The major question fundamental to our inquiry is, of course, the form and machinery under which such cases should be made the subject of public action, and this we discuss in later chapters of this Report. What can be said is that this small minority of children who are offenders are, and must remain, a continuing source of public anxiety-because children's misdemeanours must naturally cause concern; because of the forms which such delinquency sometimes takes, and the worry, distress and loss which in particular cases they may cause for the persons whose property is the subject of these attentions; and because they form a recruiting ground for the adult criminal. Moreover, if the field of juvenile delinquency is widened so as to include young adult offenders, i.e., those of 17-21, we find that about 28 per cent of all Scottish crimes and offences were committed by persons under 21about 13 per cent by those under 17, and 15 per cent by those of 17-21. The latter group include in many cases young people who have had previous court appearances, and among the under-17s over 18 per cent had been the subject of a previous finding of guilt. (The latter figure is artificially low. Probation and absolute discharge do not technically result in a recording of guilt, and since the Criminal Statistics show only previous appearances resulting in a recording of guilt, this masks the fact that there is in reality an even higher proportion of previous appearances.)

Children in need of care or protection

9. The law recognises such children as a separate class. In such proceedings the child is not, of course, charged with any offence, and the procedure is essentially a civil one, although it may have criminal or quasi-criminal undertones-either in that it arises on a parent's conviction of child neglect, or because the facts or circumstances in question, while falling appreciably short of conduct justifying criminal sanctions, are of a kind which imply serious shortcomings on the part of the parents-shortcomings of such a nature as to justify the intervention of a court of law. Under existing law, children in need of care or protection are not a numerous class. We understand that in 1961-1962, 266 children were committed to the care of local authorities and 112 to approved schools on care or protection proceedings. Allowing for others who may have been committed to the care of other "fit persons" or placed under supervision, the annual total is probably not in excess of 500.

Refractory children beyond parental control

10. The figures mentioned in the previous paragraph include a small number of such cases. Circumstances justifying such action are clearly exceptional, and where they do arise are likely to call for careful inquiry into the home background and parental attitudes. Such cases are dealt with on what amount to 44 care or protection" proceedings. One of the questions discussed later in our Report is whether parents themselves should continue to be empowered to institute proceedings on such grounds.

Persistent truants

11. Truancy so persistent and serious as to justify court proceedings fortunately arises fairly rarely, and proceedings are likely to follow only where earlier discussions between parents and schools, and action by education committees, have failed. Truancy may be the product of a variety of causes, and may arise from-maladjustment whether due to personal or environmental factors. Whatever action may be, necessary, it will in almost all cases include treating the effects of- some degree of educational retardment, and may thus often' involve a period of residential school training. In 1961-62, 35 children were committed to Scottish approved schools on truancy proceedings. Here again, the proceedings are analogous, to "care or protection" proceedings.

THE UNDERLYING SIMILARITIES

12. Any answer to the question-what is the best machinery for the treatment of juvenile delinquency-must reflect the acceptance of certain broad principles as to what are considered to be its essential function, since function affects both procedure and constitution. What then is the essential function? The object must be to effect, so far as this can be achieved by public action, the reduction, and ideally the elimination, of delinquency. If public concern must always be for the effective treatment of delinquency, the appropriate treatment measures in any individual case can be decided only on an informed assessment of the individual child's actual needs. Where the legal ground for public intervention has been established, this is the practical task to which the juvenile courts must address themselves in every case. This practical test-the needs of the individual child is already recognised under statute inasmuch as the juvenile courts are required in every case to have regard to the welfare of the child and to secure proper provision for his education and training.

13. The children appearing before the juvenile courts do so for a variety of reasons, the circumstances in each case being such as to fulfil the criteria provided by one or other of the four legal classifications discussed in the preceding paragraphs. The great majority of the witnesses with whom we discussed this matter agreed, however, that in terms of the child's actual needs, the legal distinction between juvenile offenders and children in need of care or protection was-looking to the underlying realities-very often of little practical significance. At one extreme, there were cases in which children committed as being in need of care or protection were by reason of background and upbringing suffering from serious emotional disturbance. This found expression in conduct and behaviour which, while not resulting in criminal charges, clearly demanded sustained measures of education, training and discipline. The problems were of a degree and intensity calling for far more radical measures than in the case of many minor delinquencies committed by juvenile offenders. Equally, there were cases in which, where an offence had been committed by a child, no very drastic steps appeared to be justified on the basis of the offence itself. But these included cases in which, looking to the whole background, it might be that the child's quite minor delinquency was simply a symptom of personal or environmental difficulties, so that, for the prevention of more serious offences and for the future protection of society as much as in the child's own interests, more sustained measures of supervision were equally called for. From the standpoint of preventive measures, children in both groups could equally be said to be in need of special measures of education and training-" education" being taken in its widest sense. The emphasis in these training measures might vary according to the circumstances of the individual case; in some the protection of the child would be of prime importance, in others the training regime might place more emphasis on discipline. Each case had, however, to be assessed on its merits, and the type of training, whether stressing the protective aspect, the disciplinary, or for that matter the need for special instruction in formal educational subjects on account of educational backwardness, had no necessary connection with the legal classification of children as delinquents or as children in need of care or protection.

14. The same is true of children brought before the courts as persistent truants or as beyond parental control. In the experience of the witnesses, persistent truancy is in many cases a manifestation of emotional disturbance often attributable to factors in the home and family background. So also the fact that a child is so refractory as to be beyond parental control calls in all cases for careful enquiry into the home and family circumstances and is likely to be attributable to factors personal to the child or to the parents themselves.

15. The consensus of experienced opinion which emerged from our discussions was that, for the purposes of treatment measures, these various classifications could not in practice be usefully considered as presenting a series of distinct and separately definable problems, calling in turn for distinct and separate principles of treatment. The basic similarity of underlying situation far outweighs the differences, and from the point of view of treatment measures the true distinguishing factor, common to all the children concerned, is their need for special measures of education and training, the normal up-bringing processes having, for whatever reason, fallen short. Against that background, we have had to consider how far the present treatment measures, as available and as applied, can be said to fulfil the criterion of actual need as revealed in our discussions.

THE EFFECTIVENESS OF THE PRESENT TREATMENT MEASURE: VIEWS OF WITNESSES

16. We received various suggestions for changes in the detailed arrangements governing some of the existing forms of treatment. These, however, implied the broad acceptance of the underlying soundness of these methods, and over the entire field, we received, with few exceptions, little positive evidence as to their general effectiveness or otherwise. This is, of course, in no sense a criticism of the witnesses. The fact is that in these matters there is a practically unlimited and as yet almost untouched field for systematic study and research. Even were systematic information of this kind available on a far greater scale than at present, it could never amount to more than a body of valuable general information, whose successful application to the severely practical daily task of adjudication, in children's problems especially, calls for a high degree of skill and discrimination, and for special qualities of insight and understanding. Nevertheless, the test of any treatment measures must ultimately be the practical one of their apparent effectiveness or otherwise, and the general tenor of much of the evidence before us indicated a fairly strong, though not always fully articulate, sense of dissatisfaction and unease on this score.

17. In the main, the existing arrangements for the treatment of juvenile delinquency appear to be based on what is essentially an educational principle, in that they seek to apply measures of social education, in the great majority of cases carried on while the child remains within the home, but which may also sometimes involve his removal for temporary periods for more specialised and intensive residential training. The underlying aim of all such measures must always be, wherever possible, to strengthen and further those natural influences for good which will assist the child's development into a mature and useful member of society. The most powerful and direct of these influences lies in the home-and in almost all cases, however the measures applied are expressed as a matter of formal or legal terminology, they must necessarily imply working in the closest co-operation with the parents. This ought to be so not only where the child is subject to special measures within the community (i.e., while normally continuing to live at home), but equally where he has to be removed from home for residential training. It is, we think, necessary to stress this. While the importance of parental influence on the child is universally accepted, the conclusion sometimes drawn is that action needs to be directed as much (if not more so) against the parents as the child.

18. The latter view often finds practical expression in-proposals for ( a) the greater use of fines (and an increase in the financial limits of fining powers) against parents for the misdemeanours of their children, ( b) requiring parents to make financial restitution for damage caused as a result of their children's delinquent behaviour, and ( c) the placing of parents directly under compulsory measures of supervision in consequence of their children's misdemeanours. Proposals on these lines were put before us by several witnesses, though we think it fair to say in most cases on a tentative basis and recognising that they were not free from serious difficulties both of principle and practice. All of these proposals stem, as we have said, from a recognition of the importance of parental influence and attitudes in the child's up-bringing. They are aimed at bringing home to parents their responsibilities; and by that means strengthening and furthering those natural instincts for the good of the child which are common to parents, even though in particular cases these may be temporarily latent or overlaid by extraneous factors.

PARENTAL RESPONSIBILITY AND HOW IT CAN BE FURTHERED

19. We have found great difficulty in reconciling such proposals with their declared aims. Under existing arrangements criminal sanctions can be applied against adult persons only in carefully defined situations amounting to the commission of crimes or offences. Where the adult is also a parent, criminal sanctions relating to matters within the home can arise only in the most extreme situations amounting to either to criminal neglect or to the commission of unnatural offences against the children. We recognise that there may be a variety of situations falling short of the stringent standard of criminal neglect in the legal sense, in which children may be the sufferers and in which there may equally be present many of the factors of incipient delinquency (in some cases leading to the actual commission of acts of juvenile delinquency). Such situations are, however, scarcely capable of being stated in a form which would ever be appropriate to the criminal law. With hindsight one can say that such and such a parental failure contributed to this child's delinquency; it is an entirely different matter, with different children all with different needs, to attempt to state parental duties in such a form that criminal sanctions might be applied. In a free society, we do not consider that proposals for so sweeping an extension of coercive powers against adult persons-on the basis of facts and circumstances failing far short of any existing standard of criminal. neglect or criminal misconduct-could ever be tolerated as a result of proceedings instituted in a juvenile court ostensibly concerned with the child's delinquency, or, in some cases, incipient delinquent tendencies.

Supervision of parents

20. It seems to us that society has for long taken the view

(a) that adults are in general to be regarded as responsible agents, and that, however limited the practical range of choices open to ,them. they are free agents:

(b) that this does not, however, apply universally, and various classes, e.g., children, do not enjoy the same rights and privileges, nor are they in consequence subject to the same duties;

(c) that equally it is impossible in practice to trace a direct responsibility for one person's acts to another, even where the individuals concerned are parent and child.

On the propositions stated, the application of coercive measures by way of supervision directly on the parents seems to us untenable. Under the guise of promoting the welfare of the child, such proposals appear to be in risk of ending in the application of coercive measures against the parents on the basis of a somewhat vaguely-defined aim of improving the quality of family life; and of assuming a prescriptive right not merely to try to prevent juvenile delinquency but to improve, by direct coercive measures, adult people-on the footing that there is a duty in the State to promote universal happiness among its citizens.

21. These arguments do not in any way detract from the usefulness, as a practical basis of approach to the problem of juvenile delinquency, of regarding the child as an individual within a system of family relationships in a particular context. Indeed, in practice, all social case-work proceeds on the basis of persuasion and co-operation; and presupposes that the individual is to be regarded as a free agent, who on a fuller insight into the nature of his problems and responsibilities, is capable of a voluntary response, however halting, and that indeed change can be brought about successfully only if there is such a response. Within the widely varying scale of growing responsibility in children this factor will also be present. The child's response can in many cases be appreciably influenced by parental attitudes. So far as case-work in relation to the parents is concerned, however, since ultimately the whole basis must be persuasive and co-operative, it is difficult to see what further useful results could be obtained in such circumstances by placing the parents directly under supervision; and assuming they were, how as a practical matter-short of evidence sufficient to justify a criminal charge of neglect-they could ever be adjudged to be culpably in default to a degree justifying further sanctions (which other than financial could probably not amount to anything other than imprisonment). Compulsory supervision of the child can, and often will, take the shape of family case-work; when it does, it can be a highly beneficial process. Its basic approach is, however, utterly different from one implying compulsory measures on the parents directly.

22. If for these reasons, we must reject proposals for placing parents under supervision, equally the practice of fining parents for their children's misdemeanours seems to be open to serious objection. As a simple, expeditious measure not involving continued demands on the parent or intrusion into the home it may be felt to commend itself. In principle, however, it seems to us equally incompatible with what purports to be a system of measures for the education and training of children. Fining of parents is essentially a punitive measure, and, while we certainly do not wish to suggest that punishment as applied to children themselves has never any educational value, the fact is that fining in these circumstances amounts to a vicarious liability on the parents, who are punished (by financial deprivation) for acts committed by their children. The educational value, in relation to the parents, must in the circumstances be highly doubtful; and the argument that the process win indirectly be of educational value to the child we consider to be untenable.

Fines on parents

23. The practical difficulty, to which we have already referred, of establishing convincingly in a particular situation a direct relationship between general parental attitudes and specific acts committed by the child, has, of course, been recognised under existing law governing the imposition of fines in such circumstances. Under Section 59 of the 1937 Act, if the juvenile offender is a child, any fine imposed must be on the parent, unless the court is satisfied that the parent cannot be found or that he has not conduced to the commission of the offence by neglecting to exercise due care of the child. In the case of a young person, a fine may be imposed either on him or his parents, but in ordering a fine to be paid by the parent, the court has to be satisfied on the same considerations as to failure to exercise due care.

24. Prior to the passing of the Children Act, 1908, it seems doubtful whether the question of fining juvenile offenders arose to any extent. In earlier times juveniles were for the purpose of criminal proceedings treated in the same way as adults. While thus in theory liable to the same penalties as adults, given the economic and financial conditions then prevailing it is doubtful whether the penalty of fining (as distinct from other sanctions) was in practice applied to any great extent. In so far as it was applied, the fine would be likely to be imposed on the juvenile directly and not on the parent. Moreover, there have always, under Scots law, been strict limitations on parental liability in civil law for the delictal acts of minors.

25. Section 59 of the 1937 Act was in fact a re-enactment of a provision of the Children Act, 1908 (a Great Britain measure); and so far as fines are concerned, it therefore appears that in Scotland the present position in relation to juveniles is of fairly recent statutory origin, and that, in so far as it imports the idea of applying, subject to certain qualifications, penalties on the parents for the misdeeds of their children, it represents a concept not otherwise found in the criminal law, or to any appreciable extent in the civil law. The effect of the 1937 Act is to create a rebuttable presumption-the onus being on the parent (not the court) to show that he did not fail to exercise due care of the child or young person. In other words, it is not necessary for the court to be satisfied affirmatively that the parent has conduced to the commission of the offence; and in practice courts are no doubt guided, in the absence of any positive attempt at rebuttal by the parents, by the background report and other information before them, and by the parents' general demeanour on appearance before them.

26. The report of the earlier Departmental Committee on "Protection and Training" * suggested that the effect of the provision (now re-enacted in the 1937 Act) was misunderstood in some juvenile courts, which tended to assume that the onus rested on the prosecution to prove that the parent or guardian had conduced to the commission of the offence-before a fine could be imposed and, in their words, "this proof is almost impossible to obtain". Because of this misunderstanding of the provisions of the Act, and the fact that at that time imposition of a fine resulted in a conviction being recorded against the child, the Committee felt that the provision was not as widely used as it might be, and they expressed the hope that their comments and recommendations would lead to greater use of fines. In 1925, the number of fines imposed by juvenile courts was 3,182.

27. While such research studies as have been made of the effectiveness of different methods of treatment are necessarily subject to qualification, there is reason to think (e.g., from the study appended to Report, by the Scottish Advisory Council on the Treatment of Offenders, on "Short Sentences of Imprisonment" **) that fining is on the whole not an ineffective method of treatment in relation to wage-earners, and it may be in modern economic conditions that a financial penalty will in many cases be particularly effective. This can, however, scarcely apply to children of school age who are with few exceptions not wage-earners; and for the reasons indicated above, it seems to us doubtful whether fining of parents is an appropriate or effective method of dealing with juvenile offenders. If, as the Committee on "Protection and Training" argued, it is impracticable to place an onus on the court to be satisfied that parents have failed to exercise due care and control, it is equally difficult to see how, on the basis of the present rebuttable presumption, in many cases the parents, however well-meaning, can be expected to discharge the onus of satisfying the court that they did not in fact fail to exercise due care of their children. Cases can readily be cited of apparently wanton damage to costly public installations, by young children; but, in many populous areas, it seems doubtful whether in such circumstances there can be said to be in any definable sense a failure of parental control. The streets are to some extent the playgrounds, and public installations have natural attractions. This by no means implies that the children in question are not in need of some kind of lesson, but in such circumstances it seems questionable whether fining the parents is likely to be an effective remedy.

28. In 1962, 8,428 fines were imposed in respect of juveniles under 17, of which 5,788 were imposed on children under 16. Of the latter figure 5,042 were imposed on the child, and the remainder on the parent or guardian. Most of these fines were, we assume, in fact paid by the parents, the alternative (where imposed on the child) in event of default being the child's detention in a remand home. We cannot regard either of these results as being satisfactory either as an effective measure of training for the child or as being likely to secure genuine parental co-operation. The situation seems to us to be quite different in the case of young people beyond school-leaving age, and in 1962, of the 2,640 fines imposed in such cases all but 26 were imposed directly on the young person.

29. At present a fair number of minor offences (more especially involving road traffic and "municipal" offences) committed by juveniles are dealt with by fines. No very complicated or sustained measures may be necessary in many such cases; if so, it seems to us that, in the case of non- wage- earners, they could more appropriately and effectively be dealt with by other means. It is generally recognised that many children nowadays receive substantial pocket-money, and where fines are imposed, courts frequently offer exhortations to parents to stop a child's pocket-money in whole or in part towards meeting the cost of the fine. This is no doubt sometimes a useful practice as a matter of exhortation; it is not one which could, we suggest, be a matter for statutory provision.

Restitution by parents

30. Under existing law, the juvenile courts have no power to order the payment of the cost of damage resulting from acts done by juvenile offenders. The statutory provision in the Children Act, 1908 (a Great Britain measure) which formerly enabled them to do so was (like other provisions relating to orders for restitution by the criminal courts) repealed by the Criminal Justice (Scotland) Act, 1949, on the ground that these were not matters appropriate to the criminal courts. We do not propose that there should be provision for the making of such orders against children, inasmuch as children are not to any appreciable extent wage earners and cannot be expected to make financial recompense. In discussions before us, however, the idea of restitution by the child was sometimes expressed in rather wider terms implying that he might on occasion be required to make indirect restitution through, for example, attendance at some specified centre where he would be required to undertake certain prescribed, and socially useful, tasks. While such a concept is not without value, it is, we think, extremely difficult to translate into practical terms which could find expression as a statutory measure of treatment. Equally, the widely varying capacity and understanding of children at various ages makes it difficult to ensure that more indirect measures of this kind would be seen clearly by the child to have any element of recompense for those who have suffered loss or serious inconvenience from his actions. In saying this, we do not rule out the idea of the child's attendance at a specified centre as an appropriate method of treatment in certain cases, but we doubt whether such an arrangement would in fact convey any idea of restitution to the child. In so far as it involved loss of leisure for him, it would be seen simply as a punishment; if it involved useful social training, this would not be likely to be regarded by the child as an act of restitution.

31. Restitution, not by the child, but by his parents, is, however, not uncommonly advocated. As regards the liability of a parent to make restitution for damage caused by his child, the civil law in fact entertains such claims only in very restricted circumstances, and it may thus be helpful to set out at some length the present civil law principles governing parental liability in this field. This is done in Appendix B. At the present stage it is, however, sufficient to say that the essential principle of Scots law is that a parent is not liable in respect of damage caused by his child unless he himself has been at fault. Actions against parents for the wrongful acts of their children (to the very limited extent recognised under the civil law) raise legal questions arising on claims which are essentially matters for adjudication in the civil courts of law.

32. The question of civil actions apart, we are of opinion that it would be inappropriate, as part of the treatment measures to be applied in respect of the delinquent child, to introduce a statutory power to order the payment by parents of the cost of repairing damage done by their children. As we have already indicated, such a proposal seems to us to assume a directness of relationship between a parent's actions and the individual actions of the child which could hardly ever be established. Where the child's actions had been committed spontaneously, it would also be well-nigh impossible to establish convincingly that there had been a failure of parental control. While the actual damage done is often extensive in financial terms, the objects concerned are very often to be found in places to which children have the readiest access and of whose value they have no real understanding. Even if in many cases the background circumstances are such as to create a presumption that there is in a general way a lack of parental guidance, it would equally be necessary to consider how far this may be attributable either to external circumstances or to constitutional defects personal to the parents. The effect of such factors can in many cases be mitigated with the skilled help and guidance of trained social workers, but it seems extremely doubtful whether-assuming such measures were adopted the simultaneous application, on a compulsive basis, of financial sanctions in the form of restitution would be beneficial as an educational process; they would be likely to be even less intelligible to the child. Restitution on this basis would, we think, in many cases be seen as simply a financial sanction virtually indistinguishable from a fine-imposed in circumstances in which the parent would frequently be quite unable to regard the acts in question as arising in any definable sense from a lack of parental control on his part.

33. Restitution on a voluntary basis, arrived at with the agreement of parents, seems to us on the other hand to be highly desirable, and the present practice in some areas of inviting the co-operation of parents in this way is to be commended and encouraged.

Corporal punishment

34. In reviewing the suggestions brought before us, it is convenient to refer at this point to corporal punishment as a public measure for the treatment of juvenile delinquency. Few of the witnesses who submitted evidence to us offered any comment on this subject, and the few who did so were divided-those in favour of its reintroduction making clear that they contemplated its limitation to younger children who had committed relatively minor delinquent acts for which no sustained measures were necessary. The imposition of corporal punishment as a public treatment measure raises issues entirely separate from those relating to its use in the home or in schools. Its employment as a public treatment measure, even in the limited form suggested, inevitably raises serious practical questions both as to its efficacy and as to the agency which might be made responsible for its administration. Prompt action taken by parents for their children's misdemeanours may be both readily intelligible and salutary to the child. Similar action at the instance of a public agency, with the element of delay necessarily resulting, seems unlikely to be either efficacious or often readily comprehensible to the child. Even assuming that such action were felt to be appropriate in principle, we strongly doubt whether either the police or any of the existing social services would willingly undertake the task of administering corporal punishment ordered as a public treatment measure. More important, however, -it seems to us that such proposals represent a negation of parental responsibility, since they assume a degree of parental failure or of lack of parental willingness to co-operate in the child's education such as to justify public intervention. That intervention would, however, on the proposals discussed, take a form which from its nature scarcely implied so serious an assessment of the underlying situation. The educational effect, whether in relation to parent or child, must in such circumstances be extremely doubtful, and public intervention between parent and child, if justified, should clearly be carried out in a manner which is likely to be effective. None of the witnesses who commented on the matter was able to offer any evidence of the effectiveness of such action in the past, and for our part we are unable to accept that corporal punishment of children can appropriately form part of the range of public treatment measures.

SOCIAL EDUCATION AND WHAT IT IMPLIES

35. The principle underlying the present range of treatment measures is, as we have indicated, primarily an educational one, in the sense that it is intended, wherever possible, not to supersede the natural beneficial influences of the home and the family, but wherever practicable to strengthen, support and supplement them in situations in which for whatever reason they have been weakened or have failed in their effect. Proposals for a more sweeping extension of coercive powers in relation to parents of juvenile delinquents are in our view not only unacceptable on general grounds (as implying the application of criminal sanctions against adult persons in circumstances in which no definable criminal offence has been committed); but are ultimately incompatible with the nature of educational process itself, more particularly in the context of the parent-child relationship. Such a process of education in a social context-or "social education" as we now describe it-essentially involves the application of social and family case-work. In practice, this can work only on a persuasive and cooperative basis, through which the individual parent and child can be assisted towards a fuller insight and understanding of their situation and problems, and the means of solution which lie to their hands. There is, we consider, already ample evidence that, to the extent that it is already applied, such an approach finds a ready response. This is especially so with parents, enlisting as it does their active commitment as participants in a process which for their part they are increasingly led to see as being in the true interests of their children. Such an approach seems to us to be a proper and appropriate one for the solution of the problems of the child within the family. Indeed, we consider that the alternative already discussed, based as it is on the view that in matters so closely concerning their children the co-operation of parents as adult persons can be enlisted by compulsive sanctions, is fundamentally misconceived and unlikely to lead to any practical and beneficial result.

36. If then the existing arrangements are nevertheless unsatisfactory, this does not seem to us to point to some new and totally different basis of approach, but rather to a consideration of the points at which the present machinery fails to give full effect to the educational principle on which the existing treatment measures in general purport to be based. If the conclusion which emerged from the evidence before us was that the better up-bringing of their children cannot be secured by compulsive sanctions on parents, we were also convinced that in various directions the present arrangements do not go far enough in enlisting the co-operation of parents and in some situations appear positively to militate against it. Fining of parents may, on the arguments already discussed, work against parental co-operation in this way. Other examples brought to our notice relate to the nature of proceedings in the juvenile court itself, and to the high proportion of cases dealt with there by absolute discharge or admonition. The proceedings are, by their nature, primarily directed towards the child himself; but section 42 of the Children and Young Persons (Scotland) Act, 1937, requires that, with certain exceptions, one of the parents must be present, and empowers the court, in any case, to order the presence of both parents. (We understand that this latter power is seldom used.) From our experience we are satisfied that the present procedures fall far short of what is desirable in obtaining parental cooperation. We accept that many juvenile courts are overworked-a situation for which society itself must bear responsibility, but, that apart, the parent who accompanies the child very frequently makes a "plea in mitigation" for the child, a plea that the offence should be regarded as an isolated piece of juvenile mischief; and we think that few courts can, or do, spend time in persuading parents to face the potential seriousness of the situation or in obtaining their cooperation in the necessary treatment measures. Unless probation or some other form of formal supervision ensues, there is little opportunity for sustained action to obtain parental co-operation at the outset.

37. In fact, 37.3 per cent of disposals by juvenile courts in 1962 took the form of absolute discharge or admonition. This may be an accurate pointer to the relative triviality of a large proportion of juvenile offences viewed as such. On the assumption that admonition or absolute discharge was the best available disposal, doubts arise whether in all such cases court appearance was strictly necessary. We recognise that there may be cases in which a warning seems the appropriate outcome, and that appearance before a court may itself sometimes be considered to have a salutary effect. In many other cases the educational effect of warnings given in the circumstances of a criminal court-whether in relation to parent or child-seems to be seriously in doubt. Equally, the high proportion of admonitions and absolute discharges leaves a doubt whether, in some cases at least, background features arc fully taken into account; and it may be that as a result some cases are in effect being dismissed where there is in fact a need (whether or not by formal supervision) to enlist the parents' active cooperation and support in the education of the child.

38. Further, where the child's removal from home for residential training has to be ordered, the result in many cases at present cannot, it was suggested to us, fail to appear to the parents as extinguishing their responsibility. With the child's removal from the scene they are still too often left largely to their own devices; and, while it is accepted that in most cases the child must eventually return to the home, official contact where maintained with the parents tends at best to be tenuous and intermittent. In such circumstances it is in many cases almost impossible, in the absence of any really close continuing relationship with the parents, to assist them to any informed understanding of the processes at work for their child; to persuade them that they have any immediate or future part in them; or to assist them in making the personal adjustments necessary either to overcome those factors, personal or external, which led to the child's removal, or which in the changed situation will equally be necessary if he is to settle down satisfactorily on his eventual return. It was represented to us that too often the results of the present arrangements may in this respect appear to amount to a process of shuffling from one agency to another, in which at various transient points in time the intervention of the courts is momentarily invoked. At no stage can there be said to be any clear sense of comprehensive direction; no single agency being specifically charged with a definite, inescapable and continuing responsibility for the child's training needs; and the parents for their part being reduced to the role of passive spectators.

39. In the light of these criticisms, it would appear that, if the concept of educational process were to be fully accepted, this would entail nothing less than the formation in every area of a locally-based treatment authority, recognised as having specific responsibility for the prevention and reduction of juvenile delinquency; either having 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 continuous responsibility for the children within its jurisdiction; and affording the fullest scope for enlisting the parents' co-operation and support in the measures to be applied at all stages. In the next Chapters, we examine more fully, first, how far the present arrangements meet these criteria; how far such shortcomings as may exist are attributable to mere defects of machinery or are fundamental to the whole basis of the present scheme of juvenile courts; and in the light of such an examination, what appear to us to be the practical alternatives confronting society at the present time.

* Protection and Training": Report of Departmental Committee, 1928
** "Short Sentences of Imprisonment": Report by the Scottish Advisory Council on the Treatment of Offenders, 1960.