THE KILBRANDON REPORT
A New Machinery-The Juvenile Panels
82. In the latter part of the preceding Chapter we have indicated in broad outline the considerations governing the constitution and operation of the juvenile panels which we envisage as replacing the existing juvenile courts. We now indicate in more detail the practical implications of our recommendation.
THE GUIDING FACTORS
83. All three matters - constitution, powers and procedure - are closely interrelated. While examination of the powers of juvenile courts is often taken as meaning a consideration of the entire range of measures at their disposal, it is, we think, helpful at the present stage to note that the powers of the present juvenile courts are limited to powers of decision. They are in no sense executive agencies, and their powers, so far as treatment measures are concerned, are thus limited to deciding the particular treatment measures to be applied, their decisions being essentially in the form of orders or authorisations instructing various executive agencies, recognised as being specially qualified to do so, to carry out one or other of the treatment measures authorised by statute. Such measures having been instituted, the court's function is at an end. At present, the courts powers in this sense are limited to two broad classes of decisions - decisions authorising the child's supervision by various executive agencies within the community, and decisions committing the child to various forms of residential training (in many cases implying de facto the temporary assumption of parental rights by those responsible for the management of the homes or schools concerned).
84. The following powers of the juvenile courts may be applied in relation to any of the classes of children brought before them, i.e., whether as juvenile offenders or as being in need of "care or protection".
(1) supervision (in the case of juvenile offenders under a probation order; in other cases, under a supervision order in which either a probation officer or some other supervising officer may be nominated);
(2) a requirement on the parents to find security for the child's care and guardianship or good behaviour;
(3) committal to the care of a "fit person" (including the local authority);
(4) committal to an approved school.
In relation to juvenile offenders, the courts have (or will have once the Criminal Justice (Scotland) Act, 1963, is fully in force) the following further powers:
(1) deferred sentence;
(3) absolute discharge;
(5) according to age-committal to a remand home (under an order for punitive detention), detention centre, borstal institution or young offenders institution.
85. Over a comparatively wide field, the same range of measures is thus already regarded as being properly applicable to any child irrespective of the precise circumstances, in terms of legal category, in which he is brought before the courts. It is generally recognised that a fair proportion of juvenile offences, particularly among younger children, amount to acts of petty mischief which must be dealt with, but which are unlikely to call for elaborate and lengthy measures of training and supervision. It would, moreover, in the great majority of such cases be quite absurd to postulate either serious emotional disturbance in the child or parental neglect (unless that term is defined so widely as to go far beyond any currently accepted usage). On the other hand, there are undoubtedly cases in which either or both factors may be present, whether the grounds of action are at present juvenile offences or circumstances justifying care or protection proceedings. Over the whole field, equally there are numerous instances in which the children, and sometimes other members of the family as well, have already come to the notice in one way or another of various public agencies as being in trouble or difficulty, and in need of help and guidance: in such situations it may well be largely accidental that in individual cases the call for further measures is a consequence of the commission of an offence by the child.
86. In recent years, there has been increasing public recognition of the need for early forestalling action in the case of children in need-such action being taken through a wide variety of public and voluntary agencies. It has been accepted that such needs cannot be met by treating the child in isolation but rather as a member of a family unit in a particular environment. The removal of factors adverse to the child has thus increasingly been seen to lie in the application of what is essentially an educational process-educational both for the child and his parents. What is implied is the continuing application, by persuasive action, of skilled advice and guidance, with the aim of evoking in turn from the parties concerned a constructive response, based on an increased awareness and understanding of their underlying problems and responsibilities. Such a process amounts essentially to one of helping others to help themselves. It cannot work without adequate machinery for early identification and diagnosis. The wide variety of public and voluntary agencies contributing to this field make it essential that there should be clear channels of communication for reporting all cases; and given the widely varying nature of family problems which diagnosis may bring to light, and the importance of bringing to bear the skills of the particular social worker or group of workers best fitted to meet those needs in any given case, co-ordination of effort is equally important at all subsequent stages. These principles have already received substantial recognition in relation to children in need (other than those coming before the juvenile courts) in the Children and Young Persons Act, 1963, which places new responsibilities on local authorities in these directions.
87. It is, we think, accepted that more often than not the problem of the child who is in need and the delinquent child can be traced to short-comings in the normal "bringing-up" process-in the home, in the family environment and in the schools. What has, we think, not hitherto been equally recognised is that the question which confronts society (in the shape of the juvenile courts) in every case is the essentially practical one, namely, the child's need for special measures, since the normal educational process has for whatever reason fallen short or failed to have effect. Our proposals ultimately imply no more than a full and realistic acceptance of that fact and the consequences flowing from it.
88. The application of what is essentially an educational process in this way demands both a flexibility of approach and a continuing oversight and scrutiny of the actual measures being applied. These factors are, for reasons which we have discussed in the previous Chapter, present only to a limited extent under the present juvenile court arrangements. Under existing arrangements the individual measures to be applied are subject to various statutory time-limits. With certain exceptions, notably breach of probation and discharge of "fit person" orders and their replacement by other measures (e.g., of residential training), there is no general provision whereby an order, once made, may be reviewed, even where it may be clear at an early stage to the supervising agency concerned that the measures adopted are not achieving the result hoped for. Further formal action can in these circumstances only be taken in the event of even more serious circumstances arising, which justify the bringing of entirely fresh proceedings in consequence either of a further offence or of a situation justifying "care or protection" proceedings. Existing procedure, focused as it is on certain defined acts and situations, and resulting in training measures subject in most cases to preconceived, and in that sense arbitrary, limitations of time, is inimical to any idea of continuing educational process. Further, the agency (at present the juvenile court) responsible for deciding those measures, having made its determination, retains no continuing responsibility over the children concerned. The court's task is to determine what it considers to be the appropriate measures and to authorise their execution by one or other of a variety of social agencies, whether in the public or voluntary field. Equally, no formal means exist, nor is there any formal responsibility on anyone, to inform the juvenile courts in any particular case of the apparent effectiveness or otherwise of the measures applied. Moreover, while the range of social agencies responsible either for reporting initially or for executing the courts' decisions is fairly large, few of them can be said to be in really close day-to-day contact with the courts, whose decisions are thus necessarily limited to authorising executive action at the hand of agencies with whom they have little or no effective subsequent contact.
89. The probation service apart, the existing social services concerned with children have developed independently of the juvenile courts. Under present arrangements, there is at the outset a duality of reporting agencies in that while the submission to the courts of social background reports is required by statute in all cases (other than trivial), those involving juvenile offenders are made by the probation service, and those involving juveniles in need of "care or protection" by the children's service. Moreover, while juvenile offenders are brought before the courts at the instance of the appropriate public prosecutor, a number of agencies (including the local authority, the police and the Royal Scottish Society for the Prevention of Cruelty to Children) are authorised to bring "care or protection" proceedings. Thus, while any one of the agencies mentioned may have been involved up to the point of the initial referral and in some cases also responsible for the social background reports, the degree to which they may be called upon to maintain continuing contact with the individual child will vary widely according to the disposal decided upon by the court. The court may entrust the child's further training to any of a variety of agencies which at that stage may involve (if supervision within the community is decided on) either the probation or the children's department; or, if custodial measures result, the staff of institutions responsible to a variety of agencies (including children's committees, education authorities, approved school managers or other voluntary managers, or the Secretary of State, who is responsible for detention centres and borstals). Once such action has been taken, the court's effective responsibility ceases.
90. Under the arrangements we propose, the juvenile panels will have a continuing jurisdiction over all children brought before them, subject only to a statutory upper age-limit. Below that age the panels will have complete discretion to alter or vary measures initially applied. These special educational measures would include both supervision within the community or, where appropriate, more intensive and usually shorter term periods of residential in-training, the completion of which would as part of a natural process normally be followed by resumed supervision on the child's return into the community. At all stages the child would remain within the panel's jurisdiction.
91. It is essential to such arrangements that the panels should be provided with a single executive agency, comprising a chief officer (whom for brevity we shall call, at this stage, "the Director") and a suitably qualified staff of various disciplines (including qualified social workers) operating under his general direction. The Director would be responsible not only for the submission to the panel of social background reports in all cases (whatever the initial sources of referral), but for making recommendations to the panel as to the measures to be applied, and for exercising continuous oversight of all children who are subject to the panel's order. Apart from any specific direction for review of cases made by the panel itself, he would have complete discretion to report back to the panel at any time, where it appeared to him that the measures already ordered were not working well; and to make further recommendations accordingly. By that means, the panel through the Director would have continuing access to and oversight of the full range of measures at its disposal. In each case, the initial decision would be that special educational measures were required (thereby implying that the child would automatically become subject to the oversight of the Director as the panel's executive agent). This decision would in certain cases be amplified by the further order that the child should undergo additional special measures, e.g., a period of residential home or residential school training. In such situations, however, the child would remain within the panel's jurisdiction, and ultimate responsibility would not pass as at present to the managers of the home or school-continuous contact with the child being maintained through the Director. The organisation to provide these services-which we shall refer to as "the social education department"-its staffing, and the measure of reorganisation necessary for its creation-we discuss in a later Chapter *. Our proposals have to be seen as a comprehensive scheme, and we wish to make plain that we regard the provision of the new department (and the reorganisation which it implies) as essential to the operation of the juvenile panels which we are recommending. Unless the panels are provided with an executive agency responsible for reporting, for recommending, and for supervision in all cases, we do not see how they can effectively discharge their responsibility for continuing oversight on an adequately informed basis. Equally, unless such arrangements are accepted, implying the possibility of sustained and continuing educational measures beyond those which can be applied at present, we see little prospect of a truly effective treatment of juvenile offenders, which is the legitimate public aim. Against that background, we now discuss in more detail the arrangements for the constitution, powers and procedure of the juvenile panels.
* In view of references to education authorities in intermediate Chapters, we should make it clear at this stage that we do not think that the social education department should be divorced from the general education services. Like them, the authority responsible for providing the social education department should be the education authority.