Conclusions

Ideas about prevention and early intervention have been prominent in policy, theory and practice for some time with respect to both child care and protection and youth justice. There have been different emphases and there may be scope for mutual learning across the boundaries. In the UK, prevention in relation to child care and protection has often been conceptualised using stage or level models derived from public health and social policy frameworks (Canavan, Dolan and Pinkerton 2000; Hardiker, Exton and Barker 1991). The emphasis has often been on support to parents and/or strategies for changing parental attitudes and behaviour (Quinton 2004). Less commonly, it has been recognised that broader social inequalities, attitudes and practices require tackling (e.g. as regards poverty, the status of children and women, and ideas about punishment) (Boushel 1994; Dominelli 1999). Account also needs to be taken of wide-ranging demographic, social and technological changes that are impinging on family life and young people’s behaviour. For instance, trends such as individualisation and detraditionalisation (Beck and Beck-Gernsheim 2002) heighten opportunities for greater freedom and diversity, but also increase the scope for challenging consensual expectations about children’s care and behaviour.

Within youth justice thinking in the 1980s, opposition was strong towards certain kinds of preventive action, because it was feared that engaging young people at an early stage of their criminal career in formal preventive programmes might reinforce their criminal identity and lay them open to more intrusive sanctions if they did not co-operate. Hence influential academics favoured diversion or minimal intervention to prevention, and this approach influenced many practitioners as well as government policies in the UK (Burnett and Appleton 2004; Whyte). While this view still holds considerable sway in England and Scotland, recent policies have encouraged a return to preventive action at an early stage, though targeted at young people assessed as having a high risk of reoffending (Bottoms and Kemp). As Whyte notes, the minimal intervention approach may be appropriate for some who will simply grow out of crime, but may be a missed opportunity for others, whose earlier behaviour problems will escalate into persistent offending unless early service input is provided.

The links between decision-making and service delivery

While several chapters have referred to prevention, this book has largely focused on situations when prevention has failed, so that judicial or quasi-judicial decisions have to be made about whether compulsory state intervention is warranted to modify the care environment or criminal behaviour of children. National patterns for separating or integrating these decisions are diverse. In Finland and Sweden, offending is subsumed by courts within holistic appraisals of children up to 15, as in Scotland’s Children’s Hearings up to 16 (Hollander and Tärnfalk; Korpinen and Pösö; Whyte). In England and many US states, the courts differentiate offending cases from a younger age (Bottoms and Kemp; Creekmore). Irish policy has recently aimed to maintain within the care and protection system very troubled young people who commit crimes (Buckley and O’Sullivan).

Whatever the legal institutional context, decision-making is inextricably bound up with the actions of varied service agencies that carry out assessments and, most importantly, implement the decisions (Hollander and Tärnfalk; Kuenssberg). In most countries the service agencies and professionals are separate from the courts, but in some jurisdictions certain service providers or probation officers may be court based, while in the USA courts quite commonly provide a wide range of services themselves. Duquette believes it is not appropriate to combine judicial and executive functions and powers in a single institution and recommends that social services be separate from courts.

Just because the law or a judicial decision requires a service to be offered, this does not necessarily mean that the service will be provided to the extent or in the manner expected. While high priority is usually given to statutory obligations, there are other influences on practice (Creekmore), including the impact of resources, and differing values and interpretations at policy-making managerial and front-line levels. In a Scottish context, Waterhouse pointed to evidence about deficiencies in social work operationalisation of Children’s Hearings disposals – for example, vague plans and goals, inadequate staff resources to offer a sufficiently intensive service. Ennis described acute staff shortages in several areas. By contrast, in Ireland there has been a rapid expansion of public provision over the last 15 years (admittedly from a low base), due in part to a loss of confidence in religious institutions as a result of specific child abuse scandals and a more general trend towards secularisation (Buckley and O’Sullivan). The latter echoes earlier trends in other countries such as the USA (Creekmore). It has been noted in many countries that service effort has been focused on ‘high risk’ cases, whether these be of child abuse or youth crime, with intensive preventive and family support services relatively underdeveloped (e.g. Buckley and O’Sullivan; Kuenssberg).

In the USA a prominent recent development has involved steps to oblige welfare agencies to comply with judicial orders. Courts can review case progress, and if agencies have not provided the services stipulated they can be held in contempt (Duquette; Ennis). Similarly collective actions can be brought to court on behalf of children to compel provision of services they are thought to be entitled to (Robinson Lowry, Freundlich and Gerstenzang 2002). Such measures are not without problems, especially when sometimes the persons responsible for the services are employed by the courts (Duquette).

The nature and extent of separation in judicial or quasi-judicial management of decisions about offending and non-offending referrals may not have close correspondence in the service sector. In Sweden, youth offending from age 15 is dealt with by separate courts, but the sentences are carried out by the same service agencies as handle care and protection cases (Hollander and Tärnfalk). In recent years, the decision-making system in England has remained separate, with different kinds of courts (family proceedings and youth courts) dealing with care and protection and youth crime, and making distinct orders. However, there has been more ‘convergence’ within the associated services that implement orders, particularly as a result of government policies encouraging multidisciplinary approaches in recognition of the importance of ‘welfare’ issues as criminogenic factors (e.g. family matters, education and employment) (Bottoms and Kemp). At the front line, a shift in professional practice has occurred. The 1990s were characterised by sharp boundaries between remits and expertise in youth justice and child care, whereas in the early years of the new millennium, practitioners increasingly value co-operation (Bottoms and Kemp). The inter-agency partnership approach favoured by central government has helped create more comprehensive assessments and interventions, although with a risk that young people lack a single key person they can relate to (Burnett and Appleton 2004). Also problems about structures, roles and communication have arisen that echo those long experienced in child protection (Buckley 2003; Hallett 1995). By contrast, Scotland has retained its integrated decision-making system with the same forum and range of disposals for all kinds of referrals, but the service sector has become more specialist, especially with regard to young people over 15 (Whyte). Following the English pattern, Local Authorities now usually have distinct youth justice teams and children and families teams. These may provide helpful divisions of responsibility between different workers, but uncertainty and discontinuity can also result, as in the American experience (Creekmore). In the UK, child care and protection services have typically focused on family support or remedial care and assistance to the child. The links between deficient care and behaviour problems have been widely recognised (e.g. Cairns 2002; Taylor 2004), but interventions have paid little attention to the strong likelihood of future offending and methods for avoiding this.

It seems that in all countries, regardless of the approach, inter-agency co-operation is underdeveloped (Ennis; Jonson-Reid 2004). This can mean poor co-ordination between child care and youth justice agencies, as in the USA, but also involves other relations, as between children’s and health services (Buckley and O’Sullivan; Creekmore). A particular concern is that agencies that focus on helping adults (e.g. in relation to parental drug misuse) may neglect the needs of children (Ennis).

Most countries in western Europe have witnessed a shift away from residential provision as a way of responding to both children’s care needs and youth crime, except for the most extreme circumstances (Buckley and O’Sullivan; Hill 2000; Korpinen and Pösö). In Sweden, though, there was a growth in custodial sentences for young people in the 1990s, while there were also surges in the use of custody in the USA and UK during the later part of the twentieth century (Haines and Drakeford 1998; Hollander and Tärnfalk; Whyte). England and Scotland have far higher proportions of young people in custody and secure accommodation than most countries in western Europe, despite evidence of high rates of recidivism (Goldson; Whyte). This has paradoxically been accompanied by values that support social inclusion as far as possible, and also place faith in dialogue and activity-based measures in the community.

In many countries, including Sweden, England and Scotland, quite commonly the same residential establishments are used both for young people who offend and those with major care needs, even though this mix can be problematic for staff and residents alike. This applies to those placed in locked provision, whether to protect others or themselves (Berridge and Brodie 1998; Hollander and Tärnfalk; Rose 2002). Goldson argues that such confinement is often detrimental to young people’s welfare and unjustified as regards both rights and outcomes.

Monitoring and assessing whole systems

Integrated systems require to be judged on a wide range of dimensions concerning children’s safety, welfare and behaviour, which makes judgements about outcomes complicated (Waterhouse). Kuenssberg describes how the Scottish system has been subject at different times to criticisms that it is not meeting either its offending-reduction or its welfare-promotion goals well, but concrete evidence about actual effectiveness has been sparse. Waterhouse notes that crime rates for 12–15-year-olds in Scotland increased at a considerably slower rate than in England during the 1990s, but this cannot conclusively be attributed to differences in the systems (such as the higher proportion of cases formally processed in Scotland). Separate systems are judged on more specific criteria, but youth justice policies have implications for children’s welfare, while care and protection measures will affect children’s behaviour in the community and at school (Goldson; Waterhouse).

The paucity of research evidence has reinforced a reliance on inquiries and audits (Buckley and O’Sullivan; Ennis; Waterhouse). These can certainly provide helpful pointers to problems and potential solutions (Munro 2002), but are often prompted by extreme cases or particular concerns that may not represent typical practices.

A key feature of governance in the late twentieth and early twenty-first centuries has been the emphasis on seeking to control and improve organisational performance by means of setting targets and standards, combined with the production of agency statistics to judge the actual performance in relation to these goals (Kuenssberg; Lawrence 2004). A crucial consideration is thus how appropriate are the targets. Also, critical awareness is necessary about the construction and meaning of numerical indicators and the sometimes unintended or even perverse consequences these may have, alongside the benefits of knowing how well organisations are meeting their goals. Kuenssberg observes that it is essential to understand the outcomes of intervention at the level of both the individual child and aggregate populations. Hence both case and statistical data are required. Decision-makers like members of Scottish children’s panels and English Youth Offender Panels are involved in regular reviews of progress (Bottoms and Kemp; Reid and Gillan). Hence they are aware of individual outcomes at least in the sample of cases they are exposed to, whereas commonly judges do not know the effects of their sentences unless the same person reappears on a new charge. Kuenssberg also highlights the importance of feedback from service users (mainly children and parents) about the quality of communication and services.

Having considered the ways in which different systems may be organised, we now concentrate on the position of children and community members, with the notion of citizenship providing a connecting thread.

Citizenship: rights and responsibilities

The ambiguous status of children permeates current theory and policy on citizenship (Lister 2005; Lockyer 2003). There is considerable uncertainty as to whether those below the age of majority should be regarded as current citizens or what Marshall calls ‘citizens in the making’. This depends partly on whether a legal entitlement to vote in state elections is deemed a necessary condition for being a citizen or whether it is sufficient to have the social rights and responsibilities associated with state membership. These include rights to safety and protection, as well as responsibilities to behave lawfully. The expansion of the rights and duties of young people that has taken place in the last three decades supports the case for conceptualising them as active citizens, before they are invested with all the political rights of adults.

Viewing children as citizens involves acknowledging both their rights and their responsibilities. Evidence suggests that children themselves see citizenship to be closely tied to accepting responsibilities towards others beyond the family and not harming them (Graham et al. 2005; Lister et al. 2003). Observing the law is an important aspect of respecting the rights of others. The reciprocity between rights and duties is more than a logical relationship; that involves an ethical connection immature citizens must learn about (Lockyer 2003).

It is a long-standing and widespread criticism of the ‘welfare approach’ to dealing with young offenders that well-meaning adults, whether parents, community representatives or agents of the court, have too much discretion to determine what children need. Making children’s interests paramount, or ‘a primary consideration’ (as required by Article 3), is no safeguard against indeterminate loss of liberty and a harmful outcome (Bottoms and Kemp). The experience of juvenile justice in America exemplified by the Gault case and the judgment delivered by the US Supreme Court, carries a universally valid warning about the dangers of unrestrained paternalism (Duquette). However, it is not so clear whether or not salvation lies in using the standards of due process that apply to adults, and replacing indeterminate compulsory welfare by determinate and proportionate sentences (Goldson; Korpinen and Pösö). Seeking to reconcile proportionality and suitability in relation to an offence with appropriateness for the child’s welfare needs is a complex matter (Hollander and Tärnfalk). In child protection proceedings, increasing formality runs the risk of losing the participation of parents (Duquette).

A potentially powerful check on the excesses of paternalism is provided by the principle of Article 12 of the UNCRC to take account of children’s views and give them ‘due weight in all matters that affect them’, and ensure children’s views are represented in any judicial proceeding. But adopting the formal principle of listening to children and making provision for child advocacy carries no guarantees of ‘due weight’ or ‘equality’, which Marshall observes is required by the European Convention on Human Rights. It is necessary to strike a balance between the rights of children and of parents, including their respective rights to privacy, while also taking account of the legitimate interests of the state in preserving peace and order (Marshall).

Shifts in the US and Canadian systems for dealing with youth crime, away from consideration of children’s welfare and towards approaches based on protecting communities from offenders and on targeted responses, have been associated with a growth in custodial responses (Creekmore; Waterhouse). Young people in their teens have increasingly been treated in just the same way as adults, which has often meant punitively. In England, too, there has been a sharp increase in the incarceration of young people and of tragic consequences of this following the transfer of youth offending to criminal justice legislation and organisations, away from child care legislation with its emphasis on minimum necessary intervention (Goldson). In contrast, Ireland has a clear statutory commitment to use of detention as a last resort, albeit accompanied by a growth in actual provision (Buckley and O’Sullivan).

One of the virtues of the UNCRC is that it acknowledges that children develop from dependency to relative autonomy within particular cultures, with states having universal obligations to observe human rights and respect cultural differences. All states recognise that children have rights to welfare and protection before they acquire duties to others. States must intervene with remedial measures if parents fail to meet fundamental welfare needs. Once children have developed the capacity to exercise liberties, or enjoy participatory rights, they must also be able to acknowledge their responsibilities, including respecting the rights of others. This does not mean that care and protection gives way abruptly or smoothly to the rights of competent agency and the exercise of civic duties. There is a developmental process that is cognitive, psychodynamic and social; it includes learning within families, from peers, at school and in the associations of civil society. Viewing childhood as the development of citizenship acknowledges an interdependence of the personal and the public interest.

Although development is varied and gradual, all jurisdictions operate with age thresholds, including an age of presumed incapacity below which young people cannot be held to have committed a criminal offence. In the Introduction we noted that these are widely variable. A common feature, though, is a mechanism for compulsory intervention below the age of criminal capacity to respond to serious harm caused by children, as well as when children are victims or at risk. There is no neat shift from child protection to child prosecution. The need for the former is not cancelled or negated by the occasion of the latter. The overlapping identity of offenders and those in need of care has been a recurring theme in this book (e.g. Buckley and O’Sullivan; Creekmore; Goldson; Waterhouse).

What has been relatively neglected in the preceding chapters is the ground for intervention that often correlates with both offending behaviour and inadequate parental support, namely failure to attend school. What Aristotle called ‘right upbringing’, at home and in the community, is education for citizenship as well as for individual self-realisation. It is certainly something in which the community at large must have an interest and is equally a duty that the citizen owes to be able to make his or her due contribution to state and society. Failure to attend school may be viewed as a comprehensive loss to individuals, families and communities alike, quite apart from associated dysfunction and trouble. Conversely, compulsory measures to improve children’s care or behaviour are forms of remedial education. Uncertainty about how best to handle school non-attendance is shown by the fact that at different times and in different countries it has been dealt with, in court or elsewhere, as an offence by child and/or parent or an administrative matter, with the child’s welfare or behaviour as the primary focus (Blyth and Milner 1999; Wardhaugh 1991).

Community involvement

English youth courts have typically been presided over by lay magistrates (with advice from a legally qualified clerk), while Finnish juvenile courts normally comprise one legally trained and three lay judges (Korpinen and Pösö). In Scandinavia, it has been common for elected representatives to play a key part in major decisions about children, as with Swedish Social Welfare Boards, whose conclusions are normally accepted by the courts (Hollander and Tärnfalk). This democratic mode of community representation contrasts with selection elsewhere based on status, expertise, random choice or open application (Reid and Gillan).

Lay panel members have been central to the Scottish Children’s Hearings System over the past 35 years and their role in making disposals has recently been paralleled by Youth Offender Panels in England, which deal with initial offending referrals, except that one of the three panel members is a youth offending professional (Bottoms and Kemp). In all these instances, the involvement of lay people is associated with greater informality compared with the courts. This is generally seen to provide greater opportunity for decision-makers to engage with young people and their families in the decision process.

The Scottish Children’s Hearings System is presented by Reid and Gillan (and endorsed by Kuenssberg, Marshall and Whyte) as an appropriate model for lay decision-making. As both Marshall and Duquette observe, there are provisions within this system to protect the rights of parties, including importantly the right of appeal to a more formally constituted court. Nonetheless Ennis argues that subject-specific expertise concerning the nature and implications of child abuse is essential for appropriate decision-making. He questions whether it is right for lay people to make decisions about children’s protection, given the complexity of the individual cases and the wide range of relevant knowledge required. While the history of child abuse inquiries is largely the story of professional failings, this cannot itself be the sole ground for greater reliance on community common sense.

Similarly, Finnish lay social welfare boards have been criticised for lacking the qualifications to make complex decisions about families (Korpinen and Pösö). While the knowledge and understanding thought necessary to make sound decisions can be provided by professional testimony and reports, lay people may be thought incapable of assessing risk and resisting the plausible assurances or emotional appeal of distraught family members.

According to Ennis and others, lay people lack the knowledge necessary for effective decision-making in child protection even though they do receive some training. An opposite criticism can be made that any significant training is undesirable as it will professionalise lay decision-makers, thereby distancing them from ordinary citizens and detracting from their community representation. Reid and Gillan suggest that this misrepresents the nature of appropriate training. Drawing on Scottish experience, they argue that its purpose is not to create experts. Training teaches how to conduct proceedings according to the rules and how to make use of specialists. At least as important, it promotes learning through peer discussion about the bases of decisions. Discursive reflection on common experience helps citizens think through the moral precepts held by themselves and members of the communities they represent.

Most western countries have now developed their own versions of the New Zealand Family Group Conference (Duquette; Korpinen and Pösö), itself modelled on traditional kin network ways of dealing with family problems and deviance from approved behaviour. These can apply with respect to concerns about child safety, youth offending or both. For instance, Irish law now requires a Family Welfare Conference to be held when admission of a child to secure accommodation is being considered (Buckley and O’Sullivan).

When we consider that for many the primary influences for good or ill are located within the familial community, its exclusion from decision-making forums is a major weakness of formal juvenile justice systems. However, there is an implicit trade-off between the virtues of due process and impartiality (also perhaps proportionality) and the partiality of family-based justice. For this reason state officials seldom hand complete control to the extended family and significant others. They normally retain a right to impose their disposals where necessary, but seek to facilitate and prioritise an agreed informal solution whenever possible.

Such measures are primarily aimed at eliciting family help to divert children from formal action (Duquette). At the same time, many countries have introduced measures to compel the family to control its members more effectively. In Ireland, as in England and Scotland, parenting orders are now available to oblige parents to attend treatment or training (Buckley and O’Sullivan) and in California parents can be required to attend drug treatment facilities (Ennis). There are obvious dangers in adopting what may be seen by parents as punitive measures, especially since the shortcomings of parents and their partners often include the disposition to blame the child. Measures to encourage and facilitate parental responsibility are normally best delivered outside the formal court setting.

Especially in relation to youth crime, the popularity of restorative justice principles has encouraged the development of a wide range of community-based problem-solving and mediation practices (Duquette; Korpinen and Pösö). These often involve members of civil society, including victims, being willing to engage with the response to criminal activity. Creekmore says that these indicate a convergence in approaches to social welfare and youth justice. In Duquette’s view, they offer a means of reconciling the value of access to informal processes with the safeguards of procedural protections to personal liberty, softening the hard edges of the adversarial process.

While the research on the effectiveness and success of restorative justice projects is mixed (Haines 2000), the significance of confronting young offenders with the consequences of their actions and providing the opportunity for those directly harmed, or indirectly affected, to elect to contribute to rehabilitation should not be underestimated. The concept of listening to the young, seeking to understand them and allowing them to contribute to the resolution of problems, whether of their own creation, or those for which others bear more responsibility, is a way of investing them with the respect due to citizens. The degree to which state institutions permit or encourage community solutions to problems arising therein has important implications for the extent to which the citizens affected, child and adult, are included in their communities rather than separated from them.

Conclusions

The origins of this volume lay in widespread beliefs that integration of care and protection issues alongside offending, and indeed school non-attendance, in the Scottish Children’s Hearings System formed a sharp contrast with most other countries in western Europe and North America, where many commentators indicated that youth justice systems were largely separate from care and protection (e.g van der Laan 2003; Muncie 2004). Closer review of the literature and contributions to the book have shown that the situation is much more nuanced. Quite often youth crime is dealt with by separate courts and on a different basis compared with care concerns, but in many countries this division operates only above the age of 15, so integration persists for younger children. The position of associated services, ranging from community-based initiatives to secure accommodation, are also complex, with much overlap in clientele and attention to both children’s needs and deeds.

Similarly, both academic literature and policies have commonly presented the case for and against separation of youth offending in terms of a debate between so-called ‘welfare’ and ‘justice’ approaches. Both the terminology and polarisation are misleading. Integration does foreground the child’s best interests whatever the grounds for considering state intervention, but is also based on age-old principles of justice. Conversely, arguments in favour of separation are based on support for formalised procedural rights partly because of beliefs that this results in better and fairer outcomes for children. The principles underpinning compulsory state intervention related to social justice, children’s rights and notions of punishment, suggest the need for all systems to take account of children’s welfare whatever the basis for action, as required by the UNCRC, but do not lead on to a presumption that either integration or separation is inherently right. Rather any system has to balance a complex set of principles as well as an array of empirical evidence about the origins of childhood problems, the effectiveness of different kinds of intervention and the importance of inter-agency collaboration.

What we learn most emphatically when examining child protection and youth offender systems in parallel is that the subjects of intervention are neither typically passive innocents nor demonic reprobates, but young citizens in trouble having both rights and duties. It is clear that the causes of risks to children and of risks posed by children to others have much in common, while often the same individuals will be involved with decision-making bodies and service agencies on the basis of both welfare needs and behaviour. Hence, whether or not systems are integrated, conjoined, separated or overlapping, our thinking about young people does need to be integrated and holistic.

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