Children’s Justice: A View from America

We look at children in trouble, whether they are in trouble on the basis of their own actions or the actions of others, ‘needs and deeds’ as the saying has it, and we seek such remedial action as will improve the situation in the child’s interests. (MacCormick 2001, p.11)

The later US path has hardly been a smooth one, however. After 70 years of pursuing the goal of the welfare of the child, the US Supreme Court concluded that the rehabilitative welfare ideal of the juvenile court, as implemented to that point, was a failure. In the landmark case of in re Gault (387 US 1 (1967)), the US Supreme Court determined that Gerry Gault and young people like him suffered from the worst of both worlds – getting neither the benevolent guidance and assistance promised by the juvenile court founders nor the procedural protections guaranteed to persons by the US Constitution.

Procedural fairness and in re Gault

On 9 June 1964 in Gila County, Arizona, Deputy Probation Officer Flagg picked up Gerry Gault, aged 15, and took him to a detention home for the crime of making an obscene phone call ‘of the irritatingly offensive, adolescent sex variety’ to one Mrs Cook. Gerry’s parents were not told of his arrest but found out where he was and appeared for an informal hearing in juvenile court the next day. Gerry remained in state custody. The informal hearing before Judge McGhee was held in chambers with no notice of charges against Gerry, no witnesses except for Officer Flagg’s hearsay statements, no record and no lawyer representing Gerry. A propos of the discussion later in this chapter, there was no community involvement in the episode in the form of youth services, prevention, mediation or diversion services. Gerry was held in detention from June 8–11 and then sent home.

Following a second informal hearing, on 15 June 1964, Judge McGhee committed Gerry to the State Industrial School until he was 21 – a period of some six years. An adult convicted of a similar offence would be subject to a fine of from $5 to $50, and imprisonment for no longer than two months. Commitment of young offenders to the state reform school for the duration of their minority was a common disposition at the time. A young person might be released earlier at the discretion of the state authorities if he (or, rarely, she) was evaluated by the staff as reformed and ready for release back to the community. Such was the operation of a juvenile system intended to be an informal but benevolent intervention for the welfare of the youngster.

Gerry Gault’s case eventually reached the US Supreme Court as a result of appeals from the Arizona courts. The US Supreme Court carefully reviewed the history of the juvenile court and, in stirring and now classical language, extended constitutional due process rights to youth accused of crime.

‘[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone,’ said the Court.

The Court offered this memorable and oft-quoted line: ‘Under our Constitution, the condition of being a boy does not justify a kangaroo court.’

The Gault court then required certain procedural protections in delinquency cases, including notice of charges, right to counsel, confrontation of witnesses, right against self-incrimination, and right to call and cross-examine witnesses. Although the court did not require it, subsequent reforms also generally include additional due process requirements of a record of proceedings, stated grounds for judicial conclusions and a right of appeal.

Gault has been called the ‘Magna Carta for juveniles’ (Kalman 1990) and, like the original Magna Carta, has lessons for citizens of many countries. The most relevant lesson in this discussion of whether intervention on behalf of youngsters should be on the basis of the grounds on which they come to public attention or their needs is that, under US law, where state coercion or abrogation of personal liberty is at stake, a disciplined, predictable process of finding grounds for intervention is absolutely required. Benevolent and good intentions alone do not justify encroachment on personal liberty. Let me quote yet another US Supreme Court opinion, this time a dissent by Mr Justice Louis Brandeis:

Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. (Olmstead v. United States, 277 US 438, 479 (1928) (Mr Justice Brandeis dissenting))

What process is due and is due process necessarily incompatible with a focus on the welfare of the child? The English and Scottish courts, like their American counterparts, require a finding of grounds or the establishing of legal ‘guilt’ before the questions of proper disposal are considered. That is as it should be and the implementation of the procedure for this should be monitored and subject to court or administrative review, as discussed later in this chapter.

Who should decide a child case? Diverse legal systems identify quite different persons to sit as fact-finders or judges. The US uses primarily full-time professional judges who are legally trained judicial officers of fairly high standing. Some American states provide for juries in child protection or delinquency cases in order that lay people determine ‘guilt’. England and Scotland both use lay persons in the judicial role as magistrates in England and members of the Children’s Hearings System in Scotland (although they enter into the judicial process at slightly different stages). Each of these approaches is compatible with basic due process provided that certain safeguards are in place. They are good examples of similar legal systems coming to somewhat different approaches to implement the central due process concept.

Legal representation of the child

In the Scottish context Sheriff Kearney writes:

The concept of the importance, if not paramouncy, of the interests of the child and the right of the mature child to express a view have long been recognised as principles which the courts would uphold, at least for those who could afford to go to law. (Kearney 1999)

In contemporary times the UN Convention on the Rights of the Child (UNCRC) provides for legal and other assistance for the child when liberty is threatened:

Every child deprived of his liberty shall have the right to legal and other assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action. (UN Convention on the Rights of the Child (37(d))

Though the USA is not a signatory to the UNCRC, the US experience reflects this international attitude about a child’s right to be heard and represented. The right to counsel in delinquency cases, based in the US Constitution since Gault, is now codified and implemented in all state laws. The role of counsel for the young person accused of a criminal offence is nearly always that of a traditional attorney, with the same duties of aggressive advocacy on behalf of the youth’s stated position, arrived at after counselling with the lawyer, as the lawyer would for an adult in similar circumstances. Where a lawyer is concerned that the young client may lack capacity to make important decisions related to the legal process, this should be handled in the same way as for an adult client with diminished capacity. Thus, the lawyer’s duties on behalf of a young person accused of an offence are not affected, modified or in any way diminished by the mere fact of the child’s minority, no matter the child’s age.

This clarity of the role of the child’s lawyer in delinquency cases, as champion, is not present in the child protection proceedings, however, where it is alleged that the child is a victim rather than an offender. The US Child Abuse Prevention and Treatment Act (CAPTA) (Public Law 93-273; 42 USC 5101, 1974; reauthorised in 2004) requires representation of children in child protection court proceedings as a condition of states receiving federal money for child protection services. CAPTA provides that each state require the appointment of a guardian ad litem for a child in every child abuse and neglect court case (42 USC 5106a(b)(A)(ix)). CAPTA permits the guardian ad litem representative of the child to be a legally qualified representative or a lay advocate, or both. It also requires the guardian ad litem to obtain, first hand, a clear understanding of the situation and needs of the child, and make recommendations to the court concerning the interests of the child. CAPTA requires that states make training available to guardians ad litem.

The role of the child’s legal representative, in other than delinquency cases, is unique in American jurisprudence and not well defined in law or tradition, and this is the situation in many other legal systems as well. A lawyer representing a child has a client who may or may not be competent and who may be competent for some decisions but not for others. There is little guidance for the lawyer as to how he or she should fulfil the role compared to the better-developed legal and ethical obligations governing lawyers as representatives of competent adults or corporations.

Both the pure best interests model and the pure wishes/client-directed model are criticised. The common objection to a pure best interests model is that the older child, faced with the loss of the fundamental interests at stake in child protection proceedings, deserves to have his or her voice heard and advocated. The older, mature child should have a right to counsel in such cases. But where should the line be drawn? Arguments have been made for this to be anywhere between age 7 and 18. One commentator advocates not for a specific age, but that there be an age specified, for example 10, 12, or 14, above which the young person is entitled to a traditional attorney (Duquette 2000). Another major objection to the best interests model is that it may inappropriately substitute the values and judgement of a lawyer for the older competent child so that the ‘wrong person’ ends up deciding the goals and objectives of the advocacy. With an infant or young child, the pure best interests approach fails to set out principles to guide the advocate’s discretion in identifying the child’s best interests (Duquette 2000).

Similarly, the pure wishes, or client-directed, model is criticised where a child of limited capacity and poor judgement sets immature and even harmful goals for the outcome of the case. For example, many younger abused children commonly want to return to the custody of the parent – even if it was that parent who caused the injuries. Child advocate lawyers say they do not wish to use their advocacy skills when they think this will put a child in continued danger.

Thus the child’s voice should be heard and should be independently represented by an advocate, preferably a lawyer knowledgeable in the child law field. Where does the court find the experienced child law expert? Recently the American Bar Association accredited the National Association of Counsel for Children (NACC) to certify lawyers as experts in child welfare law, representing the child, parent or state. The US Children’s Bureau has funded the NACC programme to pilot certification of child welfare lawyers in three states (Duquette and Ventrell 2003).

What legal assistance is required for the parents potentially deprived of custody in a child protection case? In the USA parents are entitled to counsel in child protection cases and most states provide parents on low income with representation at state expense, but the practice is not universal. If the case is complex, the US Supreme Court has held that a parent has a right to counsel in a termination of parental rights proceeding (Lassiter v. Dept of Social Services, 452 US 18 (1981)). Useful publications have begun to appear that guide lawyers in the role of representing parents in child welfare cases (see Rauber and Granik 2000).

Lockyer (1994) is rightly concerned about the danger of over-proceduralising society’s intervention on behalf of children. With respect to the Children’s Hearings System, Lockyer asks whether Scotland has moved beyond the traditional due process model. With the Scottish Children’s Hearings System now required by the Human Rights Act 1998 to apply the rights embedded in the European Convention on Human Rights (adopted in 1949), he asks the provocative question of whether, in effect, the welfare philosophy of the (Scottish Children’s) Hearings System is being sacrificed to the standards of criminal and civil justice of 50 years ago. This concern can be finessed in various ways, rather than faced head on, including exploring non-adversarial means of conflict resolution, building up the social network of family and child supports, and offering those services voluntarily or under court order. We turn to non-adversarial means of conflict resolution next.

Alternatives to legal formality and the adversarial approach

Professionals in the USA who work with children and parents have become increasingly dissatisfied with the customary reliance on the traditional adversarial system in resolving family-related disputes, including cases involving children’s protection, placement and permanent care. The power struggle in contested child welfare-related cases and hearings may foster hostility among the parties and dissipate money, energy and attention that could otherwise be used to solve problems co-operatively. Parties may become polarised, open communication may be discouraged, and there may be little investment in information-sharing and joint problem-solving. Children may suffer when adversarial tensions escalate and ameliorative services are delayed.

The formal system is, however, essential and well suited to resolving conflicts when differences are irreconcilable regarding the true facts of a case, or the proper response to a young person’s offence or family’s child protection-related problems. Nonetheless, most cases in the USA – delinquency and child protection – are resolved through informal settlement negotiations. Unfortunately, these settlements are often made quickly, in courthouse hallways, and the interests of all parties may not be carefully or fully considered. Hastily made agreements, or stipulations made immediately prior to a hearing, can do a disservice to both children and their families.

Non-Adversarial Case Resolution (NACR) has become an accepted and increasingly popular alternative to the traditional adversarial processes of the courts (National Council of Juvenile and Family Court Judges 1998b). The NACR approaches in child welfare and juvenile justice typically expect that a resolution agreeable to all disputants will be achieved. If no voluntary resolution is achieved, the parties are left to the formal court processes to resolve the questions. Some level of informal pressure is involved, but if parties are legally represented there is protection from resolutions that are not within the range of what a court would order, given the facts and circumstances. Thus due process rights are preserved and respected.

NACR approaches used in youth crime/delinquency cases take the form of restorative justice programmes such as victim–offender mediation, parent–child mediation, apology and reparation. These innovative conflict resolution mechanisms offer considerable promise in trying to achieve justice and rehabilitation for young persons accused of crime (US Office of Juvenile Justice and Delinquency Prevention 2003).

Two forms of NACR are in common use among the states and are particularly promising in improving decision-making in the courts: mediation and Family Group Conferencing.

Mediation in the child welfare context is well established in many jurisdictions. It is commonly defined as an intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no authoritative decision-making power but who assists the disputing parties in voluntarily reaching their own mutually acceptable settlement of disputed issues in a non-adversarial setting. Mediation is widely used today to resolve conflicts among substitute care providers, foster care caseworkers and case reviewers, and children’s court-appointed advocates about the needs of children during periods of substitute care. Furthermore, this approach may be adopted in order to resolve matters more promptly as part of the court process among the various attorneys and other advocates, caseworkers, therapists, other involved professionals, and the parents and other family members in child protection judicial proceedings.

Mandatory mediation facilitated by a trained independent mediator can help focus attention on collaborative problem-solving on behalf of the child (US Children’s Bureau 1999). Family and juvenile courts recognise that the adversarial process in child abuse and neglect cases can sometimes exacerbate hostility, divisiveness, and rigid position-taking between participants, most notably between the parents and the child protective agency and/or the child’s attorney. Mediation, on the other hand, brings all significant case participants together in a non-adversarial and problem-solving setting (Edwards and Baron 1995).

Family Group Conferencing is a fairly new and promising form of NACR that focuses on engaging the extended family in planning for a child, and does not necessarily involve the mediating of disputes. Recently imported to the USA from New Zealand, the Family Group Conference (FGC) may take the form of Family Group Decision-making or a Family Unity Meeting. These are characterised as a family-focused, strengths-orientated and community-based process where parents, extended family members and others come together to collectively make key decisions for children involved in the child welfare system (Merkel-Holguin 1996). Family Group Conferences are often administered by the child welfare agency, as in Oregon. An FGC can also be a form of court-approved NACR (Lowry 1997).

NACR techniques can be used in various ways and at various times in a child welfare case. Mediation and Family Group Conferences can both be used in a number of situations and to a variety of ends. Both approaches may be pursued in order to resolve conflicts between child welfare agencies and parents, concerning proposed case plans and final case resolutions, to help divert cases from the court system, and to work out disputes over a child’s supervision, placement, visitation, family reunification, and permanent plans for the child (e.g. mediated relinquishment of parental rights or guardianship, as well as facilitation of co-operative adoption agreements where appropriate and permitted by law). Furthermore, such approaches contribute to an increased intra-familial involvement among parents, relatives and other extended (kinship) family members in fashioning case resolutions and improving co-operation and co-ordination with government child protection and child welfare authorities.

Voluntary settlements arrived at through restorative justice methods, mediation, or Family Group Conferencing may be the basis for a finding of grounds if required in the court process, or may divert the matter entirely from legal process into the realm of social agency services. These are procedural devices that could help bridge the gap inherent in the tension between a youth’s deeds or needs.

Procedural correctness alone does not meet the needs of youth

The requirements of social justice cannot be met through the courts alone. Procedural correctness, while fundamental, is not the sole object of justice for children, and courts are not the exclusive means of delivering social justice. A responsive support system for children and youth and their families is an essential component. That is, although procedural correctness on the question of grounds is essential, a children’s justice system is not complete without follow-through services that reflect a rehabilitation philosophy.

It is not an either/or choice between achieving justice or achieving the welfare of the child. MacCormick (2001) is right to condemn a ‘welfare versus justice’ fallacy in the debate about the Scottish Children’s Hearings:

The primary responsibility for children and youth in trouble or at risk must not be vested in a judicial body but rather with a range of social groups that co-ordinate with one another (Howell, Pallmer and Mangum 2004). Court is required only if the services offered are not voluntarily acceptable to the child and family. Then there is a question of coercion and abrogation of liberty so that an adjudication by a court is required. The USA has moved to a system of strict judicial review of social services delivery in cases of child welfare and juvenile offenders. The principal theoretical justification for this judicial involvement is that the abrogation of personal liberty, which the court authorises through its orders, is justified in part by provision of effective rehabilitative services. The view has been codified extensively in the federal Adoption and Safe Families Act of 1997 (Public Law 105-89, Section 302 amending 42 USC Section 675(5)(C)), which requires state procedures whereby case plans are reviewed and ordered by the court and the parents, child and agency are held accountable for complying with those case plans. In the USA the orders of family or juvenile court implement the case plan, and the court can enforce the plan, and its orders, through contempt power. The US Adoption and Safe Families Act requires a judicial finding that the agency has provided ‘reasonable efforts to prevent or eliminate the need for removal’. It also requires a judicial finding within 12 months of a child’s being in placement, that the agency has provided ‘reasonable efforts to achieve permanency for the child’.

A more appropriate allocation of responsibility is to divide the judicial responsibilities for adjudication and determining the appropriate services (disposal) from the executive (service delivery) responsibilities. This distinction is useful both conceptually, in terms of understanding which due process requirements are appropriate at which stages, and functionally, as it clearly separates the procedural aspects of justice from the sentencing and service aspects.

The administration of youth services, separate from the judicial system, could be engaged on behalf of youth either as ordered by a court or on a voluntary basis without involvement of the court. The court need not, and should not, be the only or even the principal body involved in providing services to children and families. ‘Justice for children’ includes social programmes meant to assure an equal opportunity for success in life, including antipoverty programmes, early child enrichment, basic family supports, equal and adequate access to education, and early and preventive responses to antisocial youth behaviour. There is a considerable body of literature on delivery and co-ordination of services for youth. The provision of social justice for children is too important to leave to a single branch of society, the courts. The courts have a fairly narrow duty to determine when compulsory measures are justified, determine extent of deprivation of liberty, or what measures are justified. A separation of judicial powers from social service delivery is a key development.

The argument for separation of the powers of the court to adjudicate from the responsibility of organising and delivering services gets some support from an unlikely source – the American movement to abolish the juvenile court. Some commentators praise the American juvenile court movement as combining benign coercion and effective treatment. The Juvenile court was described, for example, as ‘one of the most important and enduring contributions the US has made to the world’ (Drizen 1999). However, others say that the US juvenile court has changed from a rehabilitative institution to a second-class criminal court. One of the leaders of this school of thought writes:

Feld argues that children get the worst of both worlds. The idea that ‘judicial-clinicians’ can combine social welfare and penal social control in one agency represents an inherent conceptual flaw and an innate contradiction (Feld 1997).

The criticism of Feld and others can be addressed in part by cleanly separating the adjudicative from the service delivery aspects of the court. Increased involvement of the broader community also goes a long way towards helping achieve the rehabilitative ideals of a children’s justice system. The United Kingdom certainly has a long tradition of community involvement and building upon that strength holds much promise.

Conclusions

Drawing on the American experience of youth justice it has been argued that a rigid distinction between treating young people according to the grounds on which they come to public attention and treating them on the basis of their individual social needs is unnecessary. The importance of due process in finding grounds for coercive intervention has been demonstrated, while at the same time the benefits of NACR methods have been clearly shown. They permit a softening of the hard edges of the judicial process without compromising the liberty of the subject. This reflects a core concern of this chapter, which is the fact that procedural correctness alone will not assure ‘justice for children’ as more broadly understood. Instead, a broader view of ‘social justice for children’ has been advocated. Central to this is the question of what society is to do to help a child in trouble and his or her family. The interrelationship of the court process, when it is engaged, and the social welfare services of the community could be carefully defined. Co-ordination of community services, whether engaged voluntarily or by court order, is essential to address both the needs and deeds of youth.

Notes

Rauber, D.B. with Granik, L.A. (2000) Representing Parents in Child Welfare Cases. American Bar Association, Center on Children and the Law.

Re Gault 387 US 1, 87 S.Ct. 1428 (1967).