The Relationship between Youth Justice and Child Welfare in England and Wales
Anthony Bottoms and Vicky Kemp
In a recent analytical survey of youth justice in Great Britain, it was argued that ‘the differing structural relationship between what used to be called the “criminal” and the “care” jurisdictions [of the juvenile court] is now probably the most profound way in which the systems in England and Scotland diverge’ (Bottoms and Dignan 2004, p.124). In this chapter, focusing on the situation in England and Wales,1 we attempt two tasks. The first is historical: to explain how this Anglo-Scottish divergence came to occur, bearing in mind that in the late 1960s – the time of the genesis of the Scottish Children’s Hearings System – there were marked commonalties between official policies in the two jurisdictions. Our second task is more contemporary: to explain how the relationship between the youth justice system and the child welfare system now operates in England and Wales, and how this relationship might be changing in the light of recent policy proposals.
The Children and Young Persons Act 1969
In 1968, the UK Parliament passed the Social Work (Scotland) Act, the founding statute for the new Scottish Children’s Hearings System. A year later, though with much more political controversy, the Children and Young Persons Act 1969 was enacted for England and Wales (see Bottoms 1974). At this time, as in Scotland, the youth justice and child welfare systems closely converged in English policy thinking. However, this was for only a brief period, followed by growing separation over the next two decades. As we shall explain, elements of the 1969-enacted policy vision were not implemented, and others were later discarded.
The procedures envisaged by the 1969 Act are most easily understood, in the first instance, in relation to children under 14. Their central feature was the concept of care proceedings, a civil procedure that required two separate criteria to be met before the juvenile court could make an order. The first criterion (the ‘primary condition’) could be met by any of a number of factual situations, if satisfactorily proved; these included parental neglect, the child being beyond control, school truancy, or the commission of an offence. The second criterion (the ‘care/control test’) required the juvenile court to be satisfied that the child was ‘in need of care or control which he is unlikely to receive unless the court makes an order’ (Section 1(2)).
The 1969 Act provided that, except in cases of homicide, no child under 14 could be subject to a criminal prosecution. A child aged 10 and under 14 who had committed an offence should, instead, be considered for care proceedings, using the offence as the ground for the primary condition.2 As already noted, however, proving an offence (or any other primary condition) would not, in care proceedings, justify the juvenile court in making an order; the court also needed to satisfy itself that the child was in need of compulsory care or control, taking into account his/her own welfare needs. There was therefore a strong resemblance between this system and that enacted in the late 1960s in Scotland (Bottoms 2002, pp.425–433), though with the difference that in England the juvenile court was retained.
In the 1969 Act, the focus on welfare, and the commonality between the ‘offence’ and ‘care’ aspects of the work of the juvenile court, was evident not only with regard to procedures, but also for outcomes after successful care proceedings. Thus, in offence-based cases, possible outcomes after such proceedings did not include ‘punitive’ disposals such as fines. Instead, it was intended that the two main orders would be the supervision order and the care order – and both were available in both offence-based and non-offence-based cases. Again, this was very similar to the Scottish Children’s Hearings, whose main disposals then and now involve home supervision and supervision with a requirement to live away from home, applicable to all types of reason for referral. A further similarity was that, in both jurisdictions, the primary role in supervising such cases was to be given to a new unified Local Authority social work agency – in Scotland known as Social Work Departments, and in England as Social Services Departments (SSDs).3
A special word is necessary about the care order, since it was to be the subject of much controversy in England in the 1970s and 1980s. The effect of this order was to give the local authority (or, in practice, the SSD) most of the legal powers of a parent over the child in question, so that, even if both natural parents were alive and mentally competent, in law the child’s parent became for most purposes the Local Authority. Unless discharged, a care order once made would run until the child’s 18th birthday; and once a child was subject to a care order, he or she could be placed by the Local Authority wherever it saw fit. As with a Scottish supervision requirement, therefore, placements under a care order could range widely – from allocation to a residential school to allowing the child to live with his or her natural parents. Under the Children and Young Persons Act 1969 – unlike the previous law in England – the intention was that the care order would in time become the only way in which young offenders, and others coming before the juvenile courts, could be placed in residential institutions. With that goal in mind, quite ambitious plans were developed for reshaping, in a more welfare-orientated direction, the content of programmes in residential institutions run by Local Authorities or voluntary bodies, to be known as ‘community homes’ (Home Office 1970; Sparks and Hood 1969).
Turning now to older children (aged 14 and under 17), the intention of the 1969 Act was that in this age range those who were alleged to have committed offences would again normally be dealt with in care proceedings, though in restricted categories of cases a criminal prosecution would be possible. After a successful prosecution, the juvenile court could continue to impose one of a range of familiar sentences such as a fine or attendance centre order. In addition, the care order would be available as a disposal following criminal proceedings, as well as after care proceedings. Custodial sentences (served in Prison Service establishments) were initially retained, but the intention was that these should eventually be phased out in favour of care orders and the new welfare-orientated ‘community homes’.
Implementation of the 1969 Act
So much for the theory of the 1969 Act. In practice, however, for 20 years after 1969 England had a complex system based on only partial implementation of the Act.
On the ‘child welfare’ side, the 1969 Act was fully implemented in 1970 (i.e. ‘care proceedings’ were put in place for all primary conditions except the offence-based condition). By contrast, on the ‘crime’ side, matters were very different. In 1970 a new Conservative government was elected, which rapidly put the brakes on the gradualist implementation of the Act that had been planned by the previous Labour government. Reflecting the more traditional policy preferences that the Conservative front bench had enunciated in opposition to the 1969 Act during its passage through Parliament, the new government introduced the following changes.
•No order requiring the use of care proceedings in offence-based cases for any age group was issued by the government, nor was there to be any restriction of juvenile prosecutions. Care proceedings in offence-based cases were allowed, if the police wished to use them, but criminal prosecutions were also freely permitted for all age groups over the age of criminal responsibility. In practice, therefore, from 1970 onwards the police virtually never used care proceedings in offence-based cases, instead employing criminal prosecution. Thus, in England from 1970, care proceedings were effectively confined to non-offence cases, though both care and criminal proceedings continued to be dealt with in the same juvenile court.
•The intention to phase out custodial sentences for older juveniles was initially postponed and eventually abandoned.
This emasculation of the 1969 Act had some complex and unintended consequences for the relationship between the ‘crime’ and the ‘care’ elements of English youth justice policy.
Care order controversies
The care order became a major target of controversy in England in the years after 1969. There were two main sources of opposition: first, juvenile court magistrates; and, later, some influential voices in academic social science and in the social work profession.
Especially for younger children, the main order that the care order replaced was the ‘approved school order’, whereby the juvenile court could send a young offender (or a child deemed in need of care and protection) to a reform school for an indeterminate period of up to three years. Significantly, whereas an approved school order made by the court guaranteed an institutional placement, under a care order the Local Authority (in practice the SSD of the authority) had full discretion to decide the child’s placement, and was not obliged to remove him or her from home to an institution. Hence, decision-making power in this kind of case shifted to a considerable extent from the juvenile court magistrates to the SSDs.4 This proved extremely unpopular with magistrates. Claims were made in influential contexts that in some cases magistrates had made a care order intending placement in a residential institution, but then the Local Authority had immediately sent the child home (for various possible reasons, including a deliberate treatment decision or simply the need to wait for a suitable residential placement). Although the data that were available on this matter indicated that cases where the child was sent home were fairly rare, and created little risk of reoffending (see Zander 1975), in political terms such cases were of great importance. In this rather tense atmosphere, it certainly did not help matters that decisions as to a child’s placement under the care order were the sole preserve of the new SSDs, whereas juvenile magistrates made it unequivocally clear at this time that they greatly preferred the probation service, with which they were much more familiar as the traditional providers of social work services to juvenile courts.
As a result of these developments, during the 1970s there was a significant decline in the use of care orders in offence-based cases. By contrast, custodial sentences for older juveniles increased, since in the eyes of the courts these guaranteed an institutional placement (see Bottoms 2002, Table 15.4).
Notwithstanding the numerical decline of the care order, research at the end of the 1970s suggested that care orders after criminal proceedings were, in the main, being made on the recommendation of social workers, and that rather than the care order being a remedy of last resort (as had been, in general, the approved school order) not a few recommendations for care orders were being made for first offenders (Giller and Morris 1981). These and similar findings then led to a substantial critique of the welfare assumptions of the 1969 Act from social scientists who espoused a more justice-orientated (or deserts-based) perspective – that is, who believed that court interventions in offence-based cases should above all be proportionate to the severity of the crime and the length of the criminal record (Morris et al. 1980; Taylor, Lacey and Bracken 1979). From these and other sources was born the ‘juvenile justice movement’, to which we now turn.
The ‘juvenile justice movement’: offence focus and minimum intervention
An important element in the 1969 Act was the concept of ‘intermediate treatment’ (IT). IT was, from the outset, intended to offer interventions intermediate between residential and ordinary supervision, as a requirement of a supervision order, and hence to act as an ‘alternative to custody or care’. However, the term ‘intermediate treatment’ was also given a wider connotation, not necessarily linked to court orders but having a ‘preventive’ function. In the early 1980s, it was defined by the then government as available for identified offenders, and children at risk of offending, ‘including where appropriate those who may be the subject of care proceedings’ and available also on both a compulsory and a voluntary basis (see Bottoms et al. 1990, Appendix A).
When a comprehensive national survey of IT was undertaken in the mid-1980s (Bottoms et al. 1990), it was found to be widespread, and wide-ranging in its scope. However, a strong movement was also under way to redefine it. This movement had much in common with the social-scientific critique of ‘welfare’-based decision-making, but it was mounted from within the social work profession, especially by academics at Lancaster University (e.g. Thorpe et al. 1980) and like-minded practitioners. They suggested that two negative unintended consequences were occurring as a result of the development of ‘preventive IT’. First, ‘net-widening’ meant that, it was claimed, young people who were only on the fringes of trouble were being drawn into the formal system by welfare-based interventions like IT. Second, ‘up-tariffing’ was said to occur because courts were inclined to use institutional disposals if and when the preventive welfare-based treatment eventually failed; and, it was argued, the more intrusive the welfare-based intervention, the more likely it was that this would happen, as the court went ‘up tariff’ in search of an appropriate solution.5 From beliefs of this kind, three policy consequences were thought to follow: first, preventive IT should no longer be offered; second, only an offence could justify IT interventions; and, third, where an offence had been committed, then the minimum possible intervention on the current occasion should be argued for, in order to avoid future custody or residential care (a policy that was taken as paramount). These became some of the key axioms of the so-called ‘juvenile justice movement’, which, from an uncertain beginning, rapidly acquired a position of ideological dominance in English youth justice during the 1980s and early 1990s. This movement developed especially in SSDs, thus effectively marginalising the probation service contribution to English youth justice from the mid-1980s onwards.
One celebrated consequence of the ‘juvenile justice movement’ was to achieve a significant reduction in the use of custodial sentences and care orders in criminal cases in the 1980s (Allen 1991). Another consequence, of more immediate relevance to the present discussion, was to help create among middle managers within SSDs a strong preference for a separation between offence-based and needs-based interventions. Haines (1996) has provided a good case study of the implementation of this approach in one Local Authority area (Cambridgeshire) circa 1989–91. One key feature of both policy and practice in this county was an attempt to draw clear organisational boundaries between the work of the specialist juvenile justice teams and the generic Area Teams within the SSD, illustrated by this extract from an interview with a juvenile justice worker:
We take a very pure justice approach…I’ve got a case at the moment…a [post-school age] kid who’s got tremendous welfare problems – a mental age of about 10, his mum has kicked him out, he’s got no job or money. In a sense he would respond ever so well to [a] Supervision [Order], you could do such a lot of work with that kid on supervision but it wouldn’t be about his offending it would be about his social skills, his ability to work, and my recommendation to court is attendance centre.6 [If that recommendation is accepted] I will make a referral to the Area Team and say will you look at doing something with him [on a voluntary basis]. (Haines 1996, p.108)
Within the same county, however, it was acknowledged by front-line workers that, if they worked with young offenders for any length of time, it could be very difficult to maintain these kinds of boundaries:
The juvenile justice issues are all in relation to the court issues and [the kids] complying with the Supervision Order. But…if the family has fallen apart at the seams, then you get hauled in to that, going in to try and calm things down because at the end of the day that can backfire onto the Supervision Order and they will get into more trouble… So I think it [maintaining boundaries] is difficult. (Haines 1996, p.109)
It is, of course, not at all surprising that maintaining a strict justice/welfare boundary proved to be very difficult in practice, because criminal careers research has consistently shown that young offenders have a disproportionate incidence of family and social problems (Farrington 2002; Waterhouse et al. 2000).
In most local areas, SSD juvenile justice teams retained into the 1990s a separate identity from teams handling child care and protection. This organisational separation was radically different both from the Scottish system (Bottoms 2002) and from the English policy espoused only 20 years earlier in the Children and Young Persons Act 1969.
The Children Act 1989
We briefly pause in the chronological story relating to criminal justice to take a look at a parallel set of developments relating to children in need. Important research on this topic was completed in the early 1980s, which in turn led to a wide-ranging review of child care law, a White Paper and, eventually, the Children Act 1989, which significantly remodelled the whole framework of the law relating to child protection and children in need (Bainham 1990; Eekelaar 2002).
Two features of the Children Act 1989 are of special interest for present purposes. First, the ‘care order’ was replaced by new provisions. As part of this process, the power to impose such an order (a welfare measure) following criminal proceedings was abandoned (though by 1989 care orders were in any event rarely used in criminal cases). Second, it was decided to separate the long-standing dual crime and care jurisdictions of the juvenile court. Henceforth, care cases were to be dealt with in the ‘family proceedings court’ (a civil section of the magistrates court). The juvenile court thus became, for the first time since its creation in England in 1908, exclusively a criminal court; it was subsequently renamed the ‘youth court’ and given a higher upper age for initial jurisdiction (18th birthday rather than 17th birthday) in the Criminal Justice Act 1991. Once again, therefore, though for different reasons than in the case of the ‘juvenile justice movement’, a policy of separation between the child care and juvenile justice systems was being applied in England, in radical contrast to the 1969 policies.
Ironically, these developments happened at a time when recent evidence was available highlighting the close interconnection between care issues and offending. A study by Packman (1986) examined the characteristics of both those admitted to care and those seriously considered for care but not admitted in two towns in the south of England. In over half these ‘care and protection’ cases both parents and social workers identified significant behaviour issues (mainly delinquency, truancy, runaways, aggressive behaviour and unmanageability/disruptiveness). By contrast, only one policy document was encountered in the two Local Authorities that referred to troublesome behaviour among those being considered for care. In other words, troublesome behaviour was a reality in the care and ‘considered for care’ populations, but was not acknowledged as such in official thinking. Once again, the cross-over between the kinds of cases dealt with in the parallel English jurisdictions was being demonstrated.
The post-1998 youth justice system
The Labour Party came to power in May 1997, and reform of the English youth justice system was a priority for the new government (Bottoms and Dignan 2004; Gelsthorpe 2002). Proposals for reform were strongly influenced by the Audit Commission’s (1996) report Misspent Youth, which criticised the youth justice system for being inefficient and ineffective. The report argued that little was being done with the majority of young offenders identified by the police (for example, three-fifths of young offenders apprehended by the police received a caution without intervention, and many court proceedings ended in a discharge). It also suggested that too much money was being spent on procedural matters (for example, repeated court appearances before a final disposal), instead of focusing on effective interventions to reduce future reoffending. Recommendations in the report therefore included the adoption of a more interventionist approach when working with young offenders and better co-operation between youth justice agencies to achieve greater efficiency and effectiveness. Necessarily, the new government’s acceptance of this approach entailed a conscious rejection of the formerly influential approach of ‘minimum intervention’ espoused by the ‘juvenile justice movement’.
The centrepiece of the new government’s approach to youth justice was the Crime and Disorder Act 1998. An important feature of this was that, for the first time, it set out a ‘principal aim of the youth justice system’, namely ‘to prevent offending by children and young persons’ (Section 37) – though since the reference here is to the ‘youth justice system’, the focus is actually on the prevention of reoffending by persons who have already offended. However, despite the strong research evidence on the extent of family and social problems among young offenders, the government’s 1997 White Paper, on which the Act was based (Home Office 1997), made virtually no reference to the child welfare system.
An important feature of the post-1997 reforms is a ‘stepwise’ or ‘progressive’ approach to reoffending, sometimes called the ‘automaticity principle’. Thus, the old cautioning scheme for young offenders was abolished, and a new system of pre-court reprimands and warnings introduced. Under the new scheme, for a first minor offence a formal reprimand is recorded,7 while for a second offence (or a first offence that is relatively serious but does not require prosecution) a final warning is given. A feature of final warnings is that the young offender must be referred to the Youth Offending Team (see below), who must consider an intervention, or ‘change package’, with the expectation that such packages will normally be part of the final warning approach. On the commission of a further offence in the two years after a final warning, the scheme requires the offender to be prosecuted.
On a first appearance in the youth court, a young offender must be given a ‘Referral Order’, unless the offence is minor or very serious. This involves referral to a separate and more informal panel, the ‘Youth Offending Panel’, consisting of lay community representatives, and with the victim invited to participate. The expectation is that an ‘offending behaviour contract’ will be entered into; that is to say, the young offender engages with the panel to construct a tailor-made ‘package’ to reduce reoffending (see Crawford and Newburn 2003). (The referral order is also intended as a version of ‘restorative justice’, with an emphasis on young offenders making amends to their victims for the offence committed.) For second and subsequent offences dealt with at court, the offender can be given a community sentence or a custodial sentence. Thus, the automaticity principle anticipates that offences by juveniles will, in sequence, trigger particular criminal justice responses; as a consequence, there is limited room for discretionary consideration of welfare needs in taking decisions on individual cases.
In addition to these changes in intervention strategies, the 1998 Act also created a new organisational framework, presided over by the national Youth Justice Board (YJB) and with each Local Authority required to co-ordinate the delivery of youth justice services through the setting up of a local multi-agency Youth Offending Team (YOT). The membership of YOTs must by statute include, at minimum, a police officer, probation officer, social worker, a health authority representative and a person nominated by the education department. (YOTs thus differ significantly from the pre-1998 ‘juvenile justice teams’, which were intra-SSD teams comprised mainly of social workers, though often with seconded probation representatives.) The composition of the YOTs has been deliberately framed to take a wide-ranging view of offending and its prevention, including health and education issues, and this evidently requires some inclusion of both ‘justice’ and ‘welfare’ considerations.
Initial evidence on welfare/justice links
While it is clear that the reforms have been effective in encouraging an interventionist approach (Bailey and Williams 2000; Burnett and Appleton 2003; Holdaway et al. 2001), the evidence is more patchy on the extent to which welfare issues are addressed by YOTs. Empirical research suggests there was some initial resistance to the reforms by former youth justice workers, but this slowly dissipated. The inclusion within YOTs of representatives from other agencies has come to be accepted, and collaborative work with young offenders is generally positively embraced (Bailey and Williams 2000; Burnett and Appleton 2003; Holdaway et al. 2001).
For some commentators (Goldson 2000; Pitts 2001), ‘punishment’ rather than ‘welfare’ was intended to be the dominant theme within the youth justice reforms. In carrying out an in-depth study of a YOT, Burnett and Appleton (2003) considered the extent to which punishment was the dominant philosophy. Having reflected on this, their ‘overwhelming impression’ was that the new legislation had resulted in joined-up services that increased the range of help and opportunities extended to young offenders. In particular, they state that faced with the ‘chaotic lives and often desperate social circumstances of their young charges, the provision of a supportive relationship and attention to welfare needs were the assumed essentials of the job’ (Burnett and Appleton 2003, p.132). As we have seen, this contrasts sharply with the assumptions of some former juvenile justice teams (Haines 1996).
There remains evidence, however, of sometimes fragmented service delivery across the crime/welfare divide. In 2002, for example, a joint Chief Inspectors’ report on the safeguarding of children commented that the work of the YOTs was detached from other services. Furthermore:
The focus of [YOTs’] work with young offenders was almost exclusively on their offending behaviour, and did not adequately address issues addressing their needs for protection and safeguarding. (Chief Inspectors 2002 para. 8.20)
The Chief Inspectors (2002) also found that in just one area was a YOT represented on the Area Child Protection Committee (ACPC).
In a later inspection HM Chief Inspector of Probation (2004, p.26) indicated that he was surprised ‘at the apparent lack of communication between [YOTs and SSDs], with liaison occurring with social services in only 61% of cases of “Looked After Children”’.8 On a more optimistic note, the Chief Inspector found that, at their best, YOTs were managing the tensions between the youth justice and child welfare agendas successfully.
More recent inspections show that YOTs have improved co-operation (Chief Inspectors 2005; HM Chief Inspector of Probation 2005). They ‘now view relationships with their key partners as a strength and have a much higher profile on Area Child Protection Committees’ (Chief Inspectors 2005, p.80). These improvements, however, are particularly at a senior level and ‘the challenge is to embed this commitment into practice’ (Chief Inspectors 2005, p.79).
Not dissimilar concerns have been raised by academics. When reviewing two books dealing with social work assessments, for example, Piper (2004) finds only brief reference to YOTs in one and none at all in the other. She states, ‘It is a sad reflection of the separate bureaucracies and professional cultures of the child protection and youth justice systems…that these texts do not make more obvious their relevance to youth justice’ (Piper 2004, p.63). Bottoms and Dignan (2004) comment on the paradox that the Crime and Disorder Act 1998 had brought the health and education services within the YOT framework, in an imaginative multi-agency partnership approach to youth offending, yet there too often seemed to be ‘a continuing sharp divide between the activities of the YOTs and the child protection teams’ (p.127). The origin of this divide lies in the continuing influence of pre-1997 practices; initially, the ‘social work’ members of YOTs were, in most local areas, members of former specialist SSD youth justice teams.
A recent Audit Commission (2004) report on youth justice in England found significant variability in the relationship between YOTs and SSDs. According to a 2003 YOT Census, for instance, fewer than 40 per cent of YOTs consider that they are ‘always’ or ‘mostly’ able to gain ‘timely and appropriate’ practical help from SSDs, while 30 per cent said they could do so ‘rarely’ or ‘never’ (Audit Commission 2004, p.127). The reasons for this, however, are not simply lack of communication between the agencies, but also the fact that in many areas SSD child protection teams are overstretched, with substantial workloads. In order to improve matters, the Audit Commission (2004) proposed seconding a SSD social worker who deals with child care and protection to the YOT, so that he/she can help to access action in individual cases from the department, just as the police, education and health members of the YOT may already do in appropriate cases.
One of the present authors carried out an observational study of a YOT at a time of transition from the pre-1998 to the present youth justice system (Kemp 2003). Contrasting the approach taken by YOT workers in two criminal cases where there were complex welfare issues involved helps to highlight some of the difficulties in practice where different agencies are dealing with crime and welfare matters.
In the first case, Kelly, a 16-year-old, was referred for her first offence of common assault, the victim being Kelly’s assistant care worker, with whom she resided. While Kelly was eligible for an informal action (a reprimand under the post-1998 scheme) her case was referred by the police to the YOT for a ‘caution plus’ (now a final warning) because there were complex welfare issues involved. The case was managed by a YOT worker who adopted a pure justice approach, seeking to focus solely on the offence, though the victim’s reluctance to engage in reparation limited the offence-based work that could be undertaken.
Kelly was, however, keen for the YOT worker to become involved in wider welfare issues, involving the safety of her child, given that Kelly’s partner was shortly due to be released from serving a term in prison as a Schedule One sex offender. The YOT worker stressed the need for boundaries between the offence and complex welfare issues (cf. Haines 1996). This meant that her involvement in the welfare issues was limited to making contact with the social worker assigned to Kelly and ascertaining details of the child protection case conference and the social work procedures involved. The YOT worker resisted Kelly’s request to attend the case conference and YOT involvement was terminated.
The second case, of Malcolm, a 14-year-old referred for a ‘caution plus’ (the equivalent of a final warning) for his second offence, provides an interesting contrast to Kelly’s case. The offence in this case (theft of a bicycle) was straightforward, because the bike had been returned and the victim did not want to engage with the YOT.
The YOT worker had great difficulty in communicating with Malcolm, whose replies were mainly monosyllabic. Nevertheless, she sought to get involved in the welfare issues, which included concerns over Malcolm’s poor physical and mental health and also the possibility of his taking drugs. The worker also offered to talk about a serious sexual assault that Malcolm had experienced, which was the subject of a forthcoming Crown Court trial, but Malcolm declined this offer. The worker did, however, act as an advocate on Malcolm’s behalf by engaging with a multidisciplinary network group that was meeting to discuss concerns over Malcolm’s health and welfare.9
The contrast between these two cases helps to highlight the difficulties, in ‘mixed’ cases, of deciding on appropriate action from the perspective of a YOT worker. The cases also highlight the fact that the ‘stepwise’ approach to youth justice, previously discussed, has been formulated with no reference to welfare issues. Thus, had the post-1998 system been in full force, Malcolm would have been prosecuted (because he had already received a ‘caution plus’ and committed this offence within two years of the earlier disposal), while in Kelly’s case – a minor first offence – the formal framework would suggest that a reprimand would have been issued by the police, with no reference to the YOT.
In Kemp’s (2003) research, seven out of the twenty unselected pre-court cases observed involved complex welfare issues so these two cases cannot be described as isolated incidents, as other research confirms (Farrington 2002; Waterhouse et al. 2000). In real life, therefore, ‘offenders’ and ‘children with welfare needs’ are not discrete categories. Where, as in England, there are separate agencies dealing with these issues, tricky cross-agency problems are almost bound to arise.
Children’s Trusts: the future?
Recent developments within children’s services in England appear to have the potential to bring the justice and welfare systems closer together. In particular, an inquiry into the death of Victoria Climbié (resulting from neglect and abuse while in the care of her great-aunt) found there to be a comprehensive failure in a number of agencies to co-ordinate their services to protect her (Department of Health and the Home Office 2003). The subsequent Children Act 2004 is intended to improve outcomes for children and young people by requiring agencies to work together in order to provide services to safeguard vulnerable children and, more generally, to promote children’s well-being through universal preventive services.
Under the 2004 Act, each local authority must set up a Children’s Trust. SSDs, education departments and health authorities are required to be members of these Trusts; YOTs are one of two other services that may be included (Department for Education and Skills 2003). It is intended that all local authorities will have a Children’s Trust by 2006, but, in the meantime, 35 Pathfinder Children’s Trusts are being evaluated by the University of East Anglia (UEA). As YOTs can decide locally how much, or how little, they are involved in the Children’s Trusts it is not surprising that the evaluators found there to be varying degrees of integration at the front line. In July 2004, just six of the thirty-five Pathfinder Children’s Trusts formally included YOTs as members of their boards (University of East Anglia 2004).
Informal discussions with government officials and some YOT managers indicate that significant developments have occurred in some areas since July 2004, not only in the Pathfinder areas but also in other areas where Children’s Trusts are now being set up. One YOT manager, for example, estimates that around half of Children’s Trusts now formally include YOTs.
In response to the report on the Climbié case, the Home Office (2003) set out further proposals for reform of the youth justice system in its so-called Next Steps document. The government was criticised by some for producing a separate publication on this topic, which was said to imply that children with social needs were separate from young offenders. Next Steps, however, makes it clear that the Home Office expects the youth justice system to continue to be distinct from the child care system. In this way, it claims, the youth justice system can complement more general supportive and preventive work ‘by ensuring a particular focus on those who despite all efforts do become offenders in their teens – which damages not only their and their families’ interest but also the wider community’ (Home Office 2004, p.9). These are in many respects wholly unexceptionable remarks, but they do not necessarily fit all cases well. In the case of Malcolm described above, for example, the government’s comments appear to require something of a ‘particular focus’ on the bicycle theft. At a seminar held in 2004 with very senior police officers, however, Malcolm’s case was discussed and a unanimous view expressed that Malcolm’s welfare needs, and the need to support him emotionally so that he could give good evidence at the Crown Court trial, were significantly more important than the theft.
The Youth Justice Board has also issued guidance to YOTs in the new context. It states that ‘YOTs must not be so embedded within the child welfare system that the confidence, support and contribution of criminal justice agencies and the public is lost’ (echoing concerns from the 1970s), but it then goes on to state that, equally, ‘YOTs must not be dominated by criminal justice services so that they are too distanced from other children’s services and cannot access the services needed to address the risk factors faced by young offenders’ (Youth Justice Board 2004, p.6). To ensure that YOTs retain their distinct identity, the guidance states elsewhere that ‘if a YOT is located within a Children’s Trust, it is essential that it remain a discrete team with a dedicated steering group/ management board and has clear links with the Youth Justice Board and local Crime and Disorder Partnerships’ (Youth Justice Board 2004).
The setting up of Children’s Trusts appears to provide an important opportunity for establishing a more integrated approach. Separation between the ‘family’ and ‘youth’ courts in England means that formal ‘justice’ and ‘welfare’ decisions are dealt with in different jurisdictions, yet there appears to be a convergence occurring at the service delivery stage, with some YOTs tending to work in conjunction with welfare services, as appropriate. It is early days in the creation of Children’s Trusts, but there seems to be the potential to create a vehicle through which to integrate children’s services more closely within a single organisational focus. Within the youth justice system, however, the automaticity principle continues to be dominant, limiting the attention that might be given to any welfare considerations that may arise. How this improved integration will work out in practice, therefore, remains to be seen.
1.Following the usual convention, throughout this chapter we often use the terms ‘England’ and ‘English’ instead of the more technically correct ‘England and Wales’ or ‘English and Welsh’.
2.The age of criminal responsibility remained at ten; below that age, care proceedings using an offence as the primary condition were not permitted.
3.An important difference, however, was that in England the probation service remained separate from the SSDs, whereas in Scotland it was incorporated into the Social Work Departments.
4.By contract, in Scotland the Children’s Hearing retains the power to decide whether or not a supervision requirement includes a residential component.
5.Although members of the ‘juvenile justice movement’ strongly believed in the existence of up-tariffing as a phenomenon, solid empirical evidence supporting this belief was thin on the ground (see Nellis 1987).
6.The reason for this recommendation is the ‘minimum intervention’ principle, linked to the avoidance of ‘up-tariffing’; attendance centres were seen as less intrusive (and hence lower on the tariff) than supervision orders.
7.Previously, some police areas used informal warnings quite extensively; official guidance now strongly recommends that this practice be restricted to ‘non-recordable’ (i.e. very minor) offences (Home Office 1999).
8.‘Looked After Children’ is a statutory term embracing children in the care of the Local Authority and those provided with Local Authority accommodation for special purposes.
9.The main aim of the network group was to try to encourage the SSD child protection team to hold a case conference, but this was resisted, partly because the SSD did not regard Malcolm to be at a high risk of future serious harm and particularly – and ironically – because a number of agencies were already involved in the case.
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