Scotland's hearings system: A work in progress?

Forty-two years ago, Scotland set off in its own direction when it comes to dealing with children and young people in trouble and at risk. The Children’s Hearing System, introduced in April 1971, took over much of the responsibility for dealing with children under 16, and some 17- and 18-year-olds, who had committed crimes or needed care from the courts. The system has changed little since its introduction, but now the first major reforms to children’s hearings are about to come into force.

The changes, set out in the Children’s Hearings (Scotland) Act 2011, take effect from 24 June and have two primary goals – to improve consistency in decisions and to give children a bigger voice in the process.

The first goal is being met by the creation of Children’s Hearings Scotland, which will set and monitor national standards for recruiting, training and supporting the 2,500-plus people who sit on children’s panels. The goal of ensuring that children and young people are heard in the system will be supported through new advocacy support, designed to ensure that they get a say in the proceedings, know their rights and understand how hearings work.

The reforms attempt to continue the trend of reducing the numbers of 16- and 17-year-olds in custody and children in the criminal justice system by focusing on children’s needs.

Morag Driscoll, director of the Scottish Child Law Centre, says children’s hearings recognise that the children who commit offences are generally the same ones that need support. Children at risk are first referred to children’s reporters who determine whether they require intervention via a children’s hearing.

“When I was a children’s reporter, I didn’t often see children going through the hearings system for serious offences that hadn’t been known to social work for some time or even been on supervision as small children.

“In England, the courts may want social work involvement, but they don’t have the same compulsory system. In Scotland, if a child goes on to a supervision order, that puts a legal duty on the local authority to carry out the conditions of that order. If you commit an offence here and you are between 12 and 16, the only reason you would go to a children’s hearing is if the offence was very serious or there is something going on in your life that means you need compulsory measures.”

Driscoll gives the example of a child starting a fire. Nothing is badly damaged and nobody is hurt – it is a one-off act of silliness. The reporter establishes that the school is not worried about the child, the family is not known to social services, and the parents are supportive and are not alcoholics or living a chaotic life. So the reporter refers the child to a programme run by the fire brigade. “Nothing else would happen to you because you don’t need a compulsory supervision order,” says Driscoll.

However, less than a third of the 13,000 or so children referred to children’s reporters in 2012 had committed offences. The rest required protection.

“The question is: what’s going on in a child’s life that is leading them to offend? It doesn’t mean the child doesn’t have responsibility, but we try to fix the other things that reduce the chances of reoffending – it might be victim awareness, anger management or something else,” Driscoll says. “That’s why you would go to a hearing, not because you broke the school windows, but because we find out mum is struggling with a violent relationship or alcohol abuse, or you’re not coming to school regularly enough.”

Contrast between nations
Scotland’s commissioner for children and young people, Tam Baillie, who has also worked in England, draws a contrast between the approaches of the two nations: “In Scotland, we spend most of the time trying to figure out what’s to be done with this child. In England, they spend a long time trying to decide whether a child has committed an offence or not.

“I do think people look up to the hearings system with a degree of respect and pride – it has an international reputation. But we should not rest on our laurels at all because a host of things need to be improved,” he says.

In particular, Baillie points to the “very thin evidence base” about outcomes of children who are subject to the hearings system. In fact, research by the Edinburgh Study of Youth Transitions and Crime has suggested that once in the system, it heightens the chances of ending up in custody, he says. “We have to ask questions about our children’s hearing system. I absolutely believe in its approach, but we haven’t invested a lot of time, energy, money or research into demonstrating that it actually produces better outcomes.” While the reforms that take effect this June will aim to increase children’s voice, some lawyers worry this may cause delays in the system.

Baillie also warns against complacency about falling numbers of under-18s in custody. “The figures have been dropping, but they start from such a dreadfully high level – so a drop needs to be sustained over a long time before we can start to be confident that this going to stay,” he says.

In 2011/12, the number of 16-year-olds in Polmont, Scotland’s only young offender institution, was 71, less than half its peak of 159 in 2006/07. The total has fallen each year since then. For 17-year-olds, the number fell from 373 to 230.

“For young males who might previously have been in Polmont, we’re setting up more community-based support services to ensure they stay out of custody. These are managed at local level, with risk assessment also done at local level,” Baillie says. He accepts a number may need to be held in secure accommodation, but wants this kept to a minimum.

“The track record of young people experiencing custody at a young age is fraught with risk because of the levels of recidivism, so we have to look at the best way of trying to reduce reoffending in these children and young people over the long term,” he says. A “whole-system” approach has had an impact in the past few years by uniting various agencies in dealing with young people who offend. However, Baillie argues that far more attention needs to be focused on 16- and 17-year-olds, both in terms of the judicial system and children in care. “This transitional age is an area where we could do a lot better in Scotland,” he says.

As soon as children reach 16, they go through adult courts if they have committed an offence. A report in 2008 recommended specialist youth hearings for 16- and 17-year-olds, but Baillie would go further. “I suggest the range is in fact 16 to 21, which would capture many of the most vulnerable youngsters that we are currently moving on from damaged backgrounds or experiences in care to early experience of custody centres.”

He points out that too many young people leave care before they are ready, often becoming homeless and involved in offending. “We have to ask ourselves whether it’s good enough for children and young people to leave care at such a young age,” he says.

More support required
Baillie cites the example of Quarriers’ Stopover unit in Glasgow, which provides emergency accommodation to 16- to 25-year-olds. When he worked there 25 years ago, about half the residents had been in care. Today the proportion is the same. “That is not to say many other things have not improved in that time, but the fact is, children still leave care too early and too abruptly.”

Susan McVie, professor of quantitative criminology at Edinburgh University, has carried out extensive research into youth offending. “Children who end up in care don’t do so for no reason and when they get to 16 or 17, the majority of them still need care”, she says. “Ironically, when many young people get to within a few months of their 16th birthday, the social work department starts to actively encourage panel members to take them off supervision because they have to learn to take responsibility for themselves.

“Most parents wouldn’t assume that a child at age 16 is capable of doing this, but those who slip into the care system are quite often poorly supported by their parents or even abandoned to the care of the state, and the state has many other priorities.”

Here, however, figures released by the Scottish government in March give some grounds for optimism. The number of care leavers with a “pathway plan” has risen from 57 per cent in 2011 to 73 per cent in 2012, the highest rate since this information was first recorded in 2004. The statistics also revealed that 2012 had the highest rate of adoption from care since 2007.

In July 2012, there were 16,248 children looked after by Scottish local authorities, broadly consistent with the 2011 figure of 16,231. The Scottish Child Law Centre’s Driscoll says more resources to support children leaving care are required. “You can look to your local authority for help until you’re 21 and they’re talking about extending that to 25. But there isn’t a duty on the authority to provide it, just to assess whether you need it.”

As for custody, McVie accepts there will probably always have to be some facility for locking young people away. “The question is: are we locking too many away? Do we have the balance right?”


How the children’s hearings system works

The Children’s Hearings System is the care and justice system for Scotland’s children and young people. A fundamental principle is that children who commit offences, and children who need care and protection, are dealt with in the same system – as these are often the same children.

At the heart of the system are children’s reporters, based in local communities. Children and young people are referred to the reporter from a number of sources, including police, social work, education and health. They are referred because some aspect of their life is giving cause for concern.

The reporter investigates each referral and determines whether compulsory measures of intervention are required. If they are, a children’s hearing will be held.?The hearing consists of three children’s panel members, all trained volunteers from the local community.

The hearing listens to the child’s circumstances and then decides what measures are required. The child may require a particular type of treatment or intervention, they may be placed with foster carers, a residential unit or in secure accommodation. The hearing may decide that the child should remain at home with support from other agencies, such as social services.

The hearings system aims to ensure that the best interests of the child are met and that they receive the most appropriate intervention and support.

Source: Scottish Children’s Reporter Administration