Is justice for the community, justice by the community? The Children’s Panel

1. Is justice for the community, justice by the community?The Children’s Panel Professor Stephen Phillips West Dunbartonshire Children’s Panel

2. Is justice for the community, justice by the community? • The short answer should be ‘yes’ for the Children’s Panel if the aspirations of the Kilbrandon committee have been realised. • The Panel is made up of trained volunteers from the community, drawn from the whole of the community, and administer ‘justice’ on behalf of the community. • The Children’s Hearing System has been going since April 1971 largely unchanged which might be a good indicator that it works. • Families’ view – a common reality.

3. Community Justice – What is Justice? • Fairness, rightness, just conduct, reward for virtue and punishment for wrong doing, balancing the nature of wrong doing with the punishment chosen. • Justice concerns the proper ordering of things and persons within a society. • Justice requires according individuals or groups what they actually deserve, merit, or are entitled to. • What is right is what has the best consequences (usually measured by the total or average welfare caused). So, the proper principles of justice are those which tend to have the best consequences. • Justice is created by public, enforceable, authoritative, rules and injustice is whatever those rules forbid. • Justice is derived from the mutual agreement of everyone concerned……including equality and absence of bias. • Justice is a form of fairness. What is the proper/fair distribution? Equal, meritocratic, according to social status, according to need? • Justice demands equality of opportunity and for equality of outcome.

4. Juvenile ‘justice’ system • The Panel frequently referred to as ‘Scotland’s Juvenile Justice System’ (and Welfare System) – ‘justice’ for whom and what do we understand by justice in this context? • Justice for the child and family? • Justice for the Community? • Justice for the victim in the event of a crime? • Accepting that Byres Road man/woman for the most part have never heard of ‘the Panel’ (a major concern) justice as in ‘juvenile justice’ would mean receiving just deserts and inevitably in the context of punishment for an offence. (If by chance they have heard of ‘the Panel’ then it is the soft option). • Kilbrandon used the term ‘children in trouble’ and Byres Road man would again think of children who have broken the rules. If we asked Byres Road man to consider ‘a ship in trouble’ then his circle of reference widens and thinks of ships which has lost direction, lost power, foundering etc. much more a metaphor to describe the families and young people coming before the Panel. And of course as we will see soon this latter category is the largest.

5. Juvenile ‘justice’ system continued • BUT an unfortunate truism is that children cannot choose their parents and many young people come before the Panel, where by any criterion, their parents can be judged as failing them and are not doing them ‘justice’. • Justice for children is when they have equality of opportunity to fulfil their potential in a safe and loving environment. • My nightmare scenario.

6. From Scottish Children’s Reporter Administration (SCRA) – the steps in a young person coming to the Panel and the process.

7. A note on the procedure • The Panel has tremendous power and sometimes a frightening level of responsibility – e.g. a child can be taken out of the family home or from a mother within hours of being borne. • But the family and the child (when old enough) are central in the discussions leading to a decision. • The family can appeal the decision and ask for a review after 3 months. • Panels can appoint a Safeguarder as one of the community’s guardian of the family and child’s rights (and justice) to provide advice and comment before a decision is taken. • Legal representation is mandatory under certain circumstances and legal aid may be available for an appeal. • Although the Scottish public has little knowledge of the Panel there is much useful explanatory information on the web, both at Scottish Government level, SCRA, and some local authorities.

8. Some history

9. Some facts and figures from SCRA Annual Report 2006/7 – how many children ‘are in trouble’?

10. Numbers of children referred to the Reporter over 10 years – numbers continue to rise. In 2005/6 6% of all children referred.

11. Where do referrals come from?

12. West Dunbartonshire

13. Family situation of children referred – where do the children come from in the community?.

14. Grounds of referral

15. Kilbrandon – the beginning • Committee first met under Lord Kilbrandon in 1961, recommendations made in 1964 and embodied in legislation in 1968. Children’s Hearing System (The Panel) started on April 15th, 1971. • Radical proposal was to remove children under 16 years from adult criminal procedures. • Primary concern was with ‘children in trouble’ – children with delinquent behaviour, those in need of care and protection, those beyond parental control, those who persistently truant. • All these children shared a common experience – a failure in normal life experiences of upbringing and parenting. • A paramount consideration in the proposed measures of care and assessment was the ‘welfare of the child’, the concept of caring for the whole child. • Where ‘compulsory measures of care’ were thought necessary, children to be brought before a lay panel of three members, the Children’s Hearing, in an atmosphere conducive to the child and family’s participation. • Kilbrandon principle was that most cases were a ‘failure of upbringing’ and of ‘social education’. • Treatment agency/authority would be Social Services.

16. Kilbrandon – the beginning continued • The ‘Panel’ has no role in determining if the grounds of referral are true. Only proceed if these are accepted or have been found true by the sheriff. • The ‘Panel’ would be recruited locally with a background and work experience representative of the locality – only partially achieved (see later). • Fred Stone reminds us that big changes in Scottish Family Life since 1971 – rising rate of divorce, many children borne to parents with no formality of attachment, multiple relationships, change in sexual mores such no stigma attached to illegitimacy and earlier sexual experiences, single parent families more common, most frequently a single mother, alcohol and drug abuse. Although child neglect, child abuse, truancy, delinquency, family break up and difficulties of youth employment found in all social groups poverty can be a common underlying factor.

17. Kilbrandon proposed abolition of the Juvenile Courts and establishment of a ‘juvenile panel’.

18. Who should serve on the Panel as representative of the Community? • Kilbrandon – ‘persons who by knowledge or experience were considered to be especially qualified to consider children’s problems…’ • Developed by Scottish Office that panel members should be ‘representative of the community’ and ‘they should have knowledge and experience in dealing with children and families and should be drawn from a wide range of neighbourhood, age group and income group’, with personal qualities including the ability ‘to get through to children and their parents’ (Lockyer 1992). • Is the community Scotland or the local neighbourhood? • Does ‘representative’ equal ‘mirror’ the community? In West Dunbartonshire how many of my colleagues come from disadvantaged areas of the community?

19. Kilbrandon wanted a panel representative of the community - the best we can probably hope for is a cross-section of the community with a wide range of backgrounds. Diversity in background, culture and social groups allows panel members to learn from each other. Can we better represent the Community than be representative? Age of Panel members from 18 years – now no upper limit on age and no limit on how long can serve on the Panel (? Edinburgh) Who are the volunteer Panel Members, selected by the local Children’s Panel Advisory Committee ?

20. Who are Panel Members continued? • People should be judged by their peers, not by their social superiors, but does this require that recruitment should only come from the ranks of those that come to the Hearings? • At any Hearing the 3 panel members are very unlikely to be representative or a reflection of the families coming before them that day. • Does this prevent community justice being administered or can years of experience on the Panel provide insight and judgement into a section of the community outwith normal experience?

21. Results of 1992 for Children’s Panel Chairman’s Group Survey • Early days of the system Panels made up of predominantly ‘middle aged, middle class professionals’. In 1992 approximately equal representation of professional and non-professional classes (from 2:1). • Tend to be better educated than the average citizen and therefore have views on the value of education which might be different from the families and children. (Equally might help in taking the detailed training for panel members in their stride). • Average age around 43 years with 40% in the 30-50 years bracket. Only 6% under 30 years. • Most are married but now more are divorced or separated. Most are parents and ~80% in some form of paid employment. • In West Dunbartonshire the panel is 60% female, 40% male. • Lockyer makes the point that although the Panel may not mirror the make up of the communities from which the children and families come any one can apply to join.

23. Does it work – philosophy of the system against outcomes? • A personal view. • From the point of view of whom – the families, the Panel members, the Community, the professional agencies? • Stood the test of time with few changes - the Children (Scotland) Act 1995 • Research is sparse – e.g. Lockyer and Wilkinson 1992, Hallett 2000.

24. Perceived Strengths • Ethos of the system – needs and deeds, the holistic approach, not separating offenders from non-offenders (very high proportion of persistent offenders first seen as care and protection cases). • Child-centred and focuses on welfare. • Informality of the hearing system encourages family participation. • Attributes of (some) panel members and capacity of the system to involve and represent the community. • Keeps children and young people out of the criminal justice system. • Protects young people and children. • Families have right of appeal and system for reviews. • Makes good decisions. • Brings agencies together. • Deals well with Care and Protection cases.

25. Perceived weaknesses • Lack of resources to have the decision implemented. • Lack of social workers. • Reluctance sometimes for Panel to hold LA to account for failure to implement decisions. • Families lack knowledge of the system. • Panel lack understanding of families – ‘them and us’. • Families given too little opportunity to take part and to influence the decision – ‘you have already made up your mind!’ • Formality of the proceedings can intimidate the young people and family. • Some rotten and poorly trained Panel members. • Lack of accurate public awareness of the system.

26. Perceived weaknesses continued • Deals well with minor/first time offenders but not with persistent offenders (a soft option) – some persistent offenders said to hold the system in ‘utter contempt’. • Fails with school related problems such as truancy and school refusal.

27. Turn over in the Panel membership is too high and benefit which accrues from experience is lost – approximately 14-15% per year of the 2500 panel members. • Kilbrandon suggested that Chairman in LAs might be paid an honorarium - would this lose the Panel some moral authority.

28. We trained very hard, but it seemed that every time we were beginning to form into teams, we would be reorganised. I was to learn later in life that we tend to meet any new situation by reorganising - and a wonderful method it can be for creating the illusion of progress while producing confusion, inefficiency and demoralisation. The future? Gaius Petronius Pontius Nigrinus, consul 37 AD and governor of Aegyptus

30. The End