Is justice for the community, justice by the community The Childrens Panel

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Is justice for the community, justice by the
community?The Childrens Panel

• Professor Stephen Phillips
• West Dunbartonshire Childrens Panel

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Is justice for the community, justice by the
community?

• The short answer should be yes for the
  Childrens 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 Childrens Hearing System has been going
  since April 1971 largely unchanged which might be
  a good indicator that it works.
• Families view a common reality.

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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 concernedincluding 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.

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Juvenile justice system

• The Panel frequently referred to as Scotlands
  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.

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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.

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From Scottish Childrens Reporter Administration
(SCRA) the steps in a young person coming to
the Panel and the process.
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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
  communitys guardian of the family and childs
  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.

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Some history
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Some facts and figures from SCRA Annual Report
2006/7 how many children are in trouble?
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Numbers of children referred to the Reporter over
10 years numbers continue to rise. In 2005/6
6 of all children referred.
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Where do referrals come from?
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West Dunbartonshire
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Family situation of children referred where do
the children come from in the community?.
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Grounds of referral
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Kilbrandon the beginning

• Committee first met under Lord Kilbrandon in
  1961, recommendations made in 1964 and embodied
  in legislation in 1968. Childrens 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 Childrens Hearing,
  in an atmosphere conducive to the child and
  familys participation.
• Kilbrandon principle was that most cases were a
  failure of upbringing and of social
  education.
• Treatment agency/authority would be Social
  Services.

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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.

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Kilbrandon proposed abolition of the Juvenile
Courts and establishment of a juvenile panel.
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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 childrens 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?

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Who are the volunteer Panel Members, selected by
the local Childrens Panel Advisory Committee ?

• 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)

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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?

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Results of 1992 for Childrens Panel Chairmans
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 21).
• 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.

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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.

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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.

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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.

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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.

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• 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.

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Gaius Petronius Pontius Nigrinus, consul 37 AD
and governor of Aegyptus

• 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?

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The End