Children’s Justice: A View from America
Donald N. Duquette
The children’s justice systems of the United Kingdom and the United States of America evolved from common legal traditions and similar social philosophies. The first US juvenile court in 1899 rested upon a philosophy very familiar to the British: the US juvenile court was intended to address the needs of the whole child, the welfare of the child, and not just focus on the particular offences of a child (Watkins 1998). The early US juvenile court included both delinquent and ‘dependent’ children in its jurisdictional mandate (Act of 21 April 1899, Ill. Laws 131). ‘Dependent’ means a child who is offended against, such as abused or neglected children. ‘Dependency’ therefore refers to that portion of the juvenile court’s business that handles the victimisation of children through child abuse and neglect or what is referred to as child welfare law1 (Ventrell 2005). The focus of the early US juvenile court was ‘saving’ potentially criminal children from becoming criminal, irrespective of whether the condition that brought them to the court was delinquent conduct or dependent status (Ventrell 2005). There was no separate set of dependency proceedings.
The parallels between the early US juvenile court philosophy and the Kilbrandon philosophy of the Scottish Children’s Hearings System are striking. Professor Sir Neil MacCormick captured the essential Kilbrandon philosophy in his 2001 lecture:
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.
As the international community struggles with developing jurisprudence and social welfare systems to achieve justice for children and youth, what lessons may Britain and other countries learn from the evolution of the US juvenile justice system? One key question explored in this book is ‘whether the ends of justice and effective intervention are better served by treating young people according to the grounds upon which they come to public attention or on the basis of their individual needs in the context of family support’. In response, the thesis of this chapter, drawing from some of the US experience, is that it is not an either/or choice. Some level of procedural due process, particularly in finding grounds for coercive state intervention, seems required as a basic element of individual liberty. Yet there is a valid concern, voiced by Bill Whyte among others (see Chapter 8), that procedural correctness will divert both scarce funds and our attention from the needs of the whole child (and her/his family). This chapter suggests a broader view of ‘justice for children’, in the sense of ‘social justice for children’, which opens up the possibility that the hard edges of formal legal process can be softened, through restorative justice, mediation and family conferencing, as well as similar conflict-resolving and problem-solving devices, without losing the essential protections of personal liberty. If, whenever possible, social supports for children and youth and their families are extended generally, voluntarily and without coercion, the social supports may reduce the need for coercive intervention to assist the child and family and, because they raise no question of limitation of personal liberty, may be administered without the formal processes of the courts.
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.
Accordingly, the highest motives and most enlightened impulses led to a peculiar system for juveniles, unknown to our law in any comparable context. … Juvenile Court history has again demonstrated that unbridled discretion [emphasis added], however benevolently motivated, is frequently a poor substitute for principle and procedure. In 1937, Dean Pound wrote, ‘The powers of the Star Chamber were a trifle in comparison with those of the juvenile courts…’ The absence of substantive standards has not necessarily meant that children receive careful, compassionate, individualized treatment. The absence of procedural rules based upon constitutional principle has not always produced fair, efficient, and effective procedures. Departures from established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness. (Re Gault)
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))
Gault formally and technically addressed delinquency2 cases only – and not dependency cases, i.e. child protection cases. Nonetheless Gault had a profound effect on the development of the law and procedure in relation to dependency. Although the procedures and purposes for dealing with dependency differ somewhat from those concerned with delinquency, both types of cases involve the needs of children and youth, and they continue to be handled by the same court, the family or juvenile court. Much of the constitutional analysis of Gault applies to children and parents in dependency cases, and subsequent decisions of the US Supreme Court and the various state supreme courts have recognised the fundamental and constitutionally protected rights and interests at stake in dependency (child protection) cases. These rights, for parents and children, include the right to be let alone, to personal privacy, to autonomy and to family relationships. The principal and most generalisable lesson of Gault and subsequent cases is that these rights and interests cannot be limited without ‘due process’.
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 United States and United Kingdom the importance of the child’s interests and right to be heard has a long history in law. In the American case of Harvey v. Harvey (22 D 1198, 1860) the court said: ‘the wishes and feelings of the child are entitled to a degree of weight corresponding to the amount of intelligence and right feeling which he may exhibit’.
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.
In delinquency cases, where the young person is accused of a crime, there is no distinction between the child’s right to be heard and the right to be legally represented. They are essentially part of the same concept and blend in American legal practice. The lawyer is directed by the wishes and goals of the young person and is obliged to try whatever means seem likely to achieve the client’s goals. That could mean calling the youngster to formally testify or not, as the circumstances and the judgement of client and lawyer dictate.
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.
For over two decades the major dilemma in the development of the child advocate’s role in America has been the extent to which the lawyer represents the child’s wishes or the child’s best interests as determined by the lawyer. The debate is still not resolved. A 1998 survey by the National Council of Juvenile and Family Court Judges found that 40 of the 50 US states appoint counsel for children in child abuse and neglect cases. In 30 of these, an ‘attorney-guardian-ad-litem’ is typically appointed who serves a dual function of representing both the best interests and the wishes of the child. The actual name of this legal representative may vary from state to state and guidance to the lawyer as to how to identify the ‘best interests of the child’ is generally lacking. The result is often that the individual attorney decides when and to what extent he or she defers to the wishes of the child when determining the goals of the case. In the ten other states that appoint counsel for a child, a guardian ad litem is appointed in addition to an attorney so that the attorneys perform the single role of representing the child’s wishes. In the remaining ten states where an attorney is usually not appointed for the child, in all but one a non-attorney guardian ad litem is appointed for the child (National Council of Juvenile and Family Court Judges 1998a).
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.
There is more agreement about the child advocate’s role in US child protection cases than the above discussion would lead the reader to think. Whether the goals are determined by the child-client or by the ‘best interest of the child’ judgement of the lawyer, there is widespread agreement that the lawyer for the child should be an active and aggressive advocate. While recognising the difficulty of determining the goals of the litigation in the face of a client of limited capacity, every major authority speaking on this subject has nonetheless endorsed the portions of the American Bar Association Standards that address the basic obligations and required actions of the lawyer for the child (American Bar Association 1996; US Children’s Bureau 1999). Whether or not a child is competent to direct the attorney and even if the role of the attorney is defined as other than purely client directed, the wishes and preferences of the child are always relevant and should be communicated to the court in the US proceedings. There is strong support in America that no matter what weight is given to the child’s preferences in determining the goals of advocacy, the attorney should elicit the child’s preferences in a developmentally appropriate manner and communicate those preferences to the court (American Bar Association 1996; Fordham Conference 1995; US Children’s Bureau 1999).
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).
One of the most problematic elements of the Scottish Children’s Hearings System is that parents often do not understand their rights and are unable to obtain counsel to act for them when disposals are being made (Lockyer and Stone 1998). Commentators and panel members are often concerned about lawyers negatively impacting on the System with irrelevant technicalities. But one person’s technicality is another person’s ticket to liberty. More importantly, the negative effects of adversarial process (to which US and UK lawyers are accustomed) can be mitigated by training and selection of lawyers. The most effective advocacy for parents and young people is often done in a problem-solving style, which can be promoted by training and selection of the lawyers. Even though a collaborative family law style, in contrast to a criminal defence style, is likely to be more effective for most parents, children and the System, a resort to the traditional adversarial process is an important guarantee in those cases where irresolvable issues of fact or law persist.
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
Mere procedural formality does not achieve justice for children. A predictable and fair process is an essential – but not sufficient – component of a justice system for children. Procedural formality fails without caring, competent, individualised, professional, helpful intervention wrapped in a philosophy of rehabilitation and hope. The first step in implementing a model of justice that treats children appropriately is the manner and tone in which the grounds are established, and the clinical judgement of what intervention is appropriate. The hard edges of the adversarial process can be softened without losing their basic integrity. (I have seen this done in Scottish Children’s Hearings with considerable sensitivity and skill.) The USA is learning that non-adversarial case resolution provides a process of decision-making and problem-solving that can divert large numbers of cases from formal processes and set an important rehabilitative tone going forward.3
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:
Our system is not a welfare system that works better than a justice system. It is a better system because it matches a better conception of justice than in this context the so-called ‘justice model’ would do. …My final homily would be, never accept that our system, whatever its merits, diverges from what could properly be called a justice model. That is to sell a conceptual pass that should be defended in the last ditch. Say rather, that we have here a model of justice that tells us why to treat children differently from adults. (MacCormick 2001)
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’.
This extensive involvement of the judiciary in child welfare service delivery is problematic and should not necessarily be copied by other legal systems. For most of its history, the juvenile court in America has been a hybrid mix of a judicial body and a social services delivery system with its own staff of probation officers, caseworkers and psychologists. These individuals work for the court directly, with the judge or court administrator as their ultimate superior. This mix of judicial and executive functions creates a conflict in many situations, including when a party might ask a judge to hold a caseworker in contempt of court for failing to provide a service ordered by the judge. Is the judge to hold his employee in contempt of court?
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:
If we were to develop a child welfare policy ab initio would we choose a juvenile court as the most effective agency through which to deliver social services? And make criminality a condition precedent to the receipt of services? …States should abolish juvenile court’s delinquency jurisdiction and formally recognize youthfulness as a mitigating factor in sentencing… (Feld 1997, p.91)
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.
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.
1.‘Dependency’ cases or proceedings correspond approximately to that which we have elsewhere elected to call ‘care and protection’ cases or proceedings. We have left the author’s American term in place except where care and protection is the more appropriate term.
2.Another note on terminology: while the word ‘delinquent’ has largely passed from use in many jurisdictions it remains popular in the USA. This is synonymous with use elsewhere of phrases such as ‘youth crime’ or ‘young offending’, for example.
3.Non-adversarial case resolution (NACR) is a term coined by Howard Davidson, Director of the ABA Center on Children and the Law (see US Children’s Bureau 1999).
American Bar Association (1996) ABA Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases.
Drizen, S.A (1999) ‘The Juvenile Court at 100.’ Judicature 83, 9, 14–15, July/August.
Duquette, D. (2000) ‘Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles are Required.’ Family Law Quarterly 34, 441, Fall.
Duquette, D. and Ventrell, M. (2003) ‘Certification of child welfare attorneys: the next step in building a profession dedicated to justice for children.’ Children’s Legal Rights Journal 23, 53.
Edwards, L.P. and Baron, S. (1995) ‘Alternatives to Contested Litigation in Child Abuse and Neglect Cases.’ Family and Conciliation Courts Review 33, 275–285.
Feld, B.C. (1997) ‘Abolish the Juvenile Court: Youthfulness, Criminal Responsibility, and Sentencing Policy.’ Journal of Criminal Law and Criminology 88, 68, 91–97.
Fordham Conference (1995) ‘Fordham Conference on Ethical Issues in the Legal Representation of Children.’ Reported in Fordham Law Review LXIV, 4, March 1996.
Howell, Kelly, Pallmer and Mangum (2004) ‘Integrating Child Welfare, Juvenile Justice and Other Agencies in a Continuum of Services.’ Child Welfare 83,143; special issue, Child Welfare and Juvenile Justice: Improved Coordination and Integration. March/April.
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