2 Historical Context
Children and Courts
The first legislation to recognise the need for juvenile offenders to be dealt with separately from adults was the Children Act 1908. In Scotland, the minimum age of criminal responsibility was seven years and a child was classified as a juvenile up to the age of seventeen years.
Following the recommendations of a committee appointed in 1925 under the chairmanship of Sir George Morton KC to enquire into the treatment of young offenders and children requiring care or protection, the minimum age of criminal responsibility was raised to eight years in 1932. The Morton Committee also recommended the transfer of jurisdiction of cases of children and young offenders to specially constituted justice of the peace juvenile courts. It was intended that cases would be considered by justices who by knowledge and experience were specially qualified in such matters.
By 1961 when another review body was set up, children were being dealt with inconsistently in different types of courts. There were considered to be inherent difficulties in a model which tried to combine the processes of a criminal court with treatment of children who offended on a basis of prevention and education.
The Kilbrandon Committee
Remit and report
In May 1961 a committee was set up by the Secretary of State for Scotland under the chairmanship of Lord Kilbandon, a senior Scottish judge. Other members of the committee were four justices of the peace, four lawyers, a chief constable, a headmaster, a psychiatrist and a probation officer.
The remit of the committee was:
" 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 and, in particular, the constitution, powers and procedure of the courts dealing with such juveniles, and to report".
No-one could have envisaged the innovative and radical recommendations that the Kilbrandon Committee would produce which led to the setting up of the children's hearings system.
The Committee's report was presented to Parliament by the Secretary of State for Scotland in April 1964. With comparatively minor adjustments, and proposals, it survived three changes of government during the period of consideration and initial implementation as well as a major restructuring of local government arrangements, which included a complete revision of the way in which personal social service provision was organised.
At the time the Kilbrandon Committee deliberated, juvenile delinquency was a greater problem than cases in which children were victims of cruelty or neglect. It is one of the demands on the system that there has been a significant increase over the years in the number of referrals to children's hearings of children, against whom offences are being committed, or children who are members of the same household as a child or children against whom an offence has been committed. Researchers at Edinburgh University have found a correlation between children who are victims before they are twelve, being more likely to become offenders by fourteen or fifteen.
The Kilbrandon Committee concluded that:
- although there might be distinguishing circumstances, there was a basic similarity in the underlying situation of children who appeared before the courts. This was their common need for special measures of education and training as "the normal upbringing processes", for whatever reason, had failed or fallen short. The treatment measures operating at the time of the Committee's deliberations were based on an educational principle. It recognised and aimed to strengthen, and build on, natural influences which through education and training would assist the child to develop into a mature and useful member of society.
- the most powerful and direct of these influences lay within the home and any measures to treat children had to involve, as far as possible, working closely with parents. However, the Committee rejected any suggestions that parents should be subject to direct sanctions, such as supervision, restitution or fines, as it believed these measures were incompatible with the educational principle.
- a process of social education was required which, on the basis of persuasion, sought to strengthen, support and build on natural family instincts by engaging the co-operation of parents. A special agency - a social education department - should be established as a division of the education authority to undertake this work.
- the arrangements for dealing with children appeared to have developed in response to particular local situations rather than on the basis of conscious principles. There was an underlying conflict and incompatibility between the principle of establishing guilt and innocence and appropriate punishment and introducing future preventative measures. The balance between these concepts was particularly acute in relation to juveniles. The common law recognised that the element of youth might be a mitigating factor. Statute law placed increasing emphasis on the need to have regard to the child's future welfare and to provide measures of education and training in the child's best interests.
- if juvenile courts were expected to take into account circumstances outside of the actual offence, then treatment measures might appear to the child and parents to be out of proportion to the nature of the offence. This might affect the successful application of measures identified as necessary on an educational principle. The matter was complicated further by the fact that juvenile courts were also dealing with situations where children required care and protection and where a different standard of proof was required. The conviction of parents for criminal neglect or situations of serious moral danger (actual or potential) to the child, were commonly recognised as being possible precipitating factors towards future delinquent behaviour.
In taking all these factors into account, the Committee reached one of the most important and far-reaching conclusions. The over-riding and paramount principle was that the needs of an individual child required to be assessed so that appropriate treatment could be applied. This could only be achieved by objective examination of all surrounding facts and circumstances. It was inappropriate to expect a single agency to determine disputed facts and establish what an individual child's needs were in the light of the fullest information about the child's personal and family circumstances.
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