The Scottish Children’s Hearings System: Thinking about Effectiveness

Over the past 30 years, Children’s Hearings have dealt with all cases referred using a similar format and with the same range of disposals (mainly variants of compulsory supervision), with decisions made to promote the child’s welfare. Small changes were made in the mid-1990s, but the overarching commitment to a welfare principle remains.

Over this same period, many western jurisdictions have witnessed an erosion of youth justice systems and the philosophies that underlie them. Sprott (1998) found public concern about the ability of the youth justice system in the province of Ontario (Canada) to accomplish anything beyond imprisonment. Doob and Tonry (2004) compared recent youth justice developments in England, Canada, New Zealand and northern Europe. They identified a move away from the principle of concentrating on the child’s welfare to concentrating on the offence, use of punishment measures and treating youths more like adults. By comparison the Children’s Hearings System is seen as ‘a relatively rare surviving example of a full-fledged, welfare-oriented system, and an assessment of its contemporary functioning is of great theoretical interest’ (Bottoms 2002, p.454).

Current political interest to reform the Hearings

Scotland has not been immune to the doubts found elsewhere about a welfare approach. Recent concerns in Scotland are twofold. First, it is feared that undue leniency is exercised by the Children’s Hearings System towards young people who offend. Second, politicians have expressed alarm at the harm caused to local communities by the system’s apparent failure to prevent reoffending. Their continuing vulnerability is not in question (Wallace and Henderson 2004; Waterhouse et al. 2000).

The reintroduction to Scotland of the pilot youth court in Hamilton not only represents a significant shift back towards a court-based system, but also highlights that policy decisions about continuity or change are not based on good evidence. Significant changes in the philosophy and architecture of the Hearings System are being considered, yet there has been patchy and intermittent evaluation for most of its existence.

A national voluntary agency instigated a public inquiry (National Children’s Homes (NCH) Scotland 2004) into dealing with offending by young persons. The purpose was to gather evidence that might inform political and professional debate on the fitness and relevance of the Children’s Hearings System in twenty-first century Scotland. The inquiry could be seen as a counterpoint to formal mechanisms of policy development. The report (published in 2004) identified the need to develop a view about the future of the Children’s Hearings System based on evidence rather than apparent public anxiety and shifting attitudes of public opinion about social disorder.

The nature of evidence on the Children’s Hearings System

The distinctiveness of the Children’s Hearing as a non-court-based system remains just as important now as when the idea first took root. The continuing difference of the Scottish system (at least as it currently stands) offers a natural experiment for carrying out comparative evaluation in the UK and internationally. This is important when account is taken of the fact that some of the most vulnerable children, their families and their communities will bear whatever the social and personal consequences are of policy differences and changes. With these potential costs at stake it might be expected that any policy changes would be predicated on evidence of two kinds: first, what is likely to do the most good and, second, to cause the least harm?

But what does this association mean when the majority of children referred to the Children’s Hearings System (like many children referred to discretionary welfare-orientated systems (Bebbington and Miles 1989; Farrington 1996, 1995b; Fergusson, Harwood and Nagin 2000; Packman and Hall 1998)) come from families facing multiple adversities? Virtually all children and young people who come to the attention of the authorities for welfare or offending reasons have a background of disadvantage, but those who are then processed and considered to be in need of compulsory measures of care and protection tend to have an even higher amount of disadvantage.

First, the distinction is between disadvantaged and somewhat less disadvantaged children and not between advantaged and disadvantaged children. Second, it is possible that an association between disadvantage and compulsory interference reflects higher levels of surveillance and regulation of children growing up in the more distressed areas. Third, it could be that children may be in need of compulsory measures of supervision in part at least because they come from the more distressed environments.

The key point is that evidence on so profound a system will not easily be interpreted without painstaking and sustained study. The Children’s Hearings System is dependent on other agencies to provide services to children and their families who come before a Hearing and are made subject to compulsory (or voluntary) supervision. The efficacy of decision-making affecting children and young people dealt with has to be disentangled from what happens following decisions reached.

The research base on the Children’s Hearings System is not extensive. The main studies have been conducted at very different times. There is no systematic evidence of how the public view the Children’s Hearings System. The majority of studies focus on children offending rather than offended against. In effect these two groups of children, normally treated separately in different systems, are also mainly researched separately according to different academic disciplines.

Two analyses of the occupational backgrounds of the lay people making decisions at Hearings revealed that a great majority had professional or managerial backgrounds, even though they were meant to represent the whole community (Mapstone 1973; Moody 1976). Bruce and Spencer (1976) identified considerable uncertainty in the early operation of the System among these tribunal members as to the extent of their powers. It is interesting to note that, writing in 1976, Bruce and Spencer saw the latent capacity of the Hearing to use its powers to have a child make voluntary restitution.

Asquith (1983) completed the only empirical study to compare aspects of English and Scottish juvenile justice systems. He found greater consensus among Scottish tribunal members than English magistrates on the importance of welfare factors in decision-making.

Lockyer (1988) examined the relationship between social work recommendations to Hearings and the decisions taken, finding widely different policies and practices between different regional localities throughout Scotland.

There have also been some studies of the views of children and families involved with the System (Petch 1988; Willock 1972, 1973). Erickson (1981) reported on interviews with 105 young people aged between 12 and 15 referred to a Hearing on offence grounds. Many young people considered that the process was fair and that the aim of the hearing was to assist them. Adverse reactions from parents was rare (Bruce and Spencer 1976). This has remained a consistent finding in later studies (Hallett et al. 1998; Waterhouse et al. 2000).

Kilbrandon’s propositions in the twenty-first century

Although empirical evidence about the functioning of the Hearings has been sparse, the intervening years have yielded considerable amounts of data relevant to the underpinning principles of the Hearings System, derived from the Kilbrandon Report. The first three have stood the test of time, the fourth has not.

The first proposition was that most offending by young people is transitory. This has, in the main, been supported by subsequent research (Hagell and Newburn 1994). Second, youth offending was believed to be rooted in family and community circumstances. Research evidence consistently points to social disadvantage as a risk factor in child delinquency. Prospective longitudinal surveys seeking to identify the developmental origins of juvenile offending suggest a complex interaction of factors. Farrington (1990), in the Cambridge Study in Delinquent Development, concluded that low family income and poor housing were predictive of official and self-reported offending, juvenile and adult. Fergusson et al. (2000), in their study of a New Zealand birth cohort, divided the children into four predictive groups based on their probability of offending from low to high when age was taken into account. They concluded that between-group differences were influenced by the extent to which the individual child was exposed to adverse social, family and individual factors.

A third proposition concerned the irrelevance of legal categorisation for the children according to offence and non-offence referrals, because young people who offended usually also evoked concern about their care or safety (Kilbrandon 1964, para. 13, p.12). This appears to be largely upheld for the majority of children but not all. Analysis of changes in the legal categories of the referral records of 482 children (Waterhouse and McGhee 2004) found two-thirds of them were referred on both offence and non-offence grounds at different times in their contact with the System.

Fourth, it was expected that the relatively small numbers of care and protection cases in the 1960s would continue. In fact there has been a huge rise in non-offence referrals to the Children’s Hearings. Over a ten-year period (1989–99) the number of non-offence referrals far more than doubled (167% increase), whereas offence referrals rose by a quarter (26.5%), (Scottish Children’s Reporter Administration (SCRA) 2001, Statistical Bulletin no. 24, p.4). A partial explanation for the proportionately significant increase in non-offence referrals may lie in the rudiments of child care policies and practices.

In the last 30 years, child care policy in Scotland, as elsewhere in the UK, has been firmly concentrated on the social problem of child abuse and developing systems for the identification and management of children at risk of physical, sexual or emotional harm. The Department of Health (1995) identified in England and Wales that many of the children who are referred to social services where there are child protection concerns are children in need, only some of whom require formal protective measures. Fiscal restraint since the early 1980s is probably leading to a greater targeting of services to children seen as at risk of abuse. Tunstill (1996) argues that ‘children in need’ has become the modern filter through which the flow of demand for family support services must pass. She also suggests that this concept will be vulnerable to professional priorities, fiscal constraint and political will (p.156). Identifying child protection concerns was found to be ‘the key to unlocking services’ (Department of Health 2001, para. 3.39). Similarly in Scotland, the NCH Report (NCH 2004) makes the point that the Hearings have become almost the only route of access to services for children in need of care and protection although, this was not the original intention for the System.

Evaluating success: outputs and outcomes

Doob and Tonry (2004) argue that no agreement has been reached among relatively similar western societies on how best to respond to youth crime. Even when, as in England, policy has a single clear aim to prevent offending by children and young people, it has been difficult to show clearly which overall approaches have been successful. This is even more complex for a system such as the Children’s Hearings, which has multiple objectives. The importance of considering the harm and the good done by public policies (intentional or not) is compellingly drawn by Tonry (1995).

The basis for compulsory intervention under the Children’s Hearings System is to improve the child’s welfare, not only through tackling the immediate reason for referral but by considering the ‘underlying unsatisfactory situation’ (Asquith and Docherty 1999, p.30). As Asquith (1998b) has argued, an initial test for any discretionary welfare system is what measures of help have been provided, voluntarily or compulsorily. This is the first element on which to evaluate a system. Next must be considered whether the children have benefited as intended. Further assessment must be made of any collateral damage resulting to the children and their families in relation to the protection afforded others. This should include consideration of the potential for net-widening leading to high levels of intervention on welfare grounds, and issues of not harming individual children and young people who are engaged with a system.

Marshalling evidence on providing efficient help and limiting collateral damage to children and their families sets the compass.

Audit Scotland (2002) found in a review of 612 case files of children on a supervision requirement that in around 20 per cent of cases children were seen more than twice a month by social workers. Half, however, were seen less than once a month. Shortages of social workers qualified to supervise children was one explanation given for this low frequency of contact. If some children are not seen, some seen rarely and some frequently then the service provided is something of a lottery (Audit Scotland 2002). Evaluation becomes difficult unless these differences are controlled for. Like needs to be compared with like. Differences in outcomes may be an artefact of the amount of contact between child and social worker. Furthermore the information available in the case files was very patchy, limiting the evidence available for making any kind of judgement about progress.

The findings above, taken together, suggest that raising standards in practice and in the resources and professional time available to children and young people on supervision is important for two reasons. First and foremost these would improve services to them and their families. Second, the conditions would be better for gathering meaningful evidence about help provided under the rubric of the Children’s Hearings System. The Children’s Hearings System itself cannot be evaluated in isolation from the social work, police and other specialist services on which it depends to meet the requirements of supervision.

There are three reasons for paying attention to the harm side of the equation, limiting collateral damage. First, we would never knowingly accept for any child medical intervention that was known to cause more harm than good. This would be a breach of trust and contrary to the principles of all UK child care legislation. Second, if it can be known that the Children’s Hearings System is causing no harm then, on a rational basis, those in a hurry for change can legitimately slow down before the System is irreversibly altered. Third, if on the other hand real harms are being caused, reforms should be speeded up.

Diversion from formal processing continues to be a major component of the System. Over a period of a decade there was a sharp increase in the number of ‘no action’ decisions, from 50 per cent in 1989 to 66 per cent of referrals in 1999/2000 (SCRA 2001, Statistical Bulletin No. 24, Table 9, p.11). Waterhouse and McGhee (2002) similarly found three-fifths of all referrals attracted a ‘no action’ outcome. They also found that no action probably means just that. Only a small proportion of the children given a ‘no action’ decision were receiving educational and social work services (6% had learning support, 5% educational psychology and 6% social work).

Offending children were less likely than their non-offending counter-parts to have supervision imposed (53% of non-offenders compared to 45% of offenders, p.6) (Waterhouse and McGhee 2002). National data also show that offence referrals were as likely to result in ‘no action’ decisions as were non-offence referrals (SCRA 2001, Statistical Bulletin No. 24, Table 9, p.11).

The number of children under 16 years and prosecuted in the criminal court has steadily fallen since 1994 from 246 to 105 in 1999 (Scottish Law Commission 2002, p.20). However, rates of formal processing for 12–15-year-olds who offend have reduced in England and increased in Scotland, especially in the 1990s (Bottoms 2002, p.482). This is the opposite to crime rates, which have increased in England and declined in Scotland. Between 1981 and 1995 recorded crime and survey crime rates in England had risen by over 80 per cent compared with less than 40 per cent in Scotland (see Bottoms 2002, pp.481–484). Bottoms is careful to argue that causal links between these differences and the existence of Children’s Hearings cannot be drawn. The trends point to various hypotheses for testing, which include the possibility that a higher rate of processing in Scotland may have a deterrent effect on potential offenders.

These different sources provide evidence both for and against the Children’s Hearings System limiting collateral damage to children, their families and their communities. Of particular importance is the evidence on declining criminal court prosecutions. This factor could be compared with other jurisdictions, taking into account wherever possible different categorisations and processes that may exist. Delays in seeing children may fail to optimise the potential capacity of the System to ward off further harm being done to the child or young person or their causing harm to others. Overly interventionist the System clearly is not. Harm seems most likely to arise in the Children’s Hearings System by limited rather than excessive intervention and the consequences of not doing something rather than doing too much.

Observations

It is hardly surprising that the Children’s Hearings System is highly complex to evaluate, bridging two separate policy domains dealing with offences of a criminal nature by children and young people and welfare concerns, including offences of a criminal nature against them. Like other youth justice and child welfare systems the Children’s Hearings System is also concerned with two types of justice affecting children dealt with by the system: legal justice and social justice. A system predicated on acting in the child’s best interests can ignore neither of these concepts in its processes and outcomes.

The Children’s Hearings System crosses this policy divide. This makes sense when so many children come from significantly disadvantaged backgrounds and when no clear-cut divide exists in reality between children who commit offences and who have offences committed against them. A division comes about because institutional systems in most western jurisdictions separate responses for these two groups of children. The Crime and Disorder Act 1998 in England and Wales established youth offending teams that are accountable to the Youth Justice Board (YJB) for England and Wales and through it to the Home Office. Since these legislative changes, youth justice has been conceptually and institutionally set apart from local government social services departments and child care provision (Goldson 2004).

The Children’s Hearings System came about in an era when welfare-orientated systems were more favoured in criminal justice policies. As poverty widens, it is conceivable that youth justice policies and child care policies are both seeking new ways of responding to changing expectations. In child care the threshold for defining need can be raised while still retaining a disposition to a welfare orientation. Referrals to the Children’s Hearings System continue to rise but there is a limit to how often compulsory measures of supervision can legitimately be invoked. The Children’s Hearings System was never intended as a welfare system on its own despite a welfare-orientated philosophy. It is a welfare-orientated system dealing with children who offend and are offended against. The test is whether compulsory measures of supervision are necessary. The evaluation of its success is inextricably linked with the success of other welfare systems in dealing with the material and social circumstances of children referred.

In looking at evidence on outcomes a distinction can be made between service delivery on the one hand and impact on children and young people individually or collectively, on the other. It cannot be ruled out that children referred to the Children’s Hearings System are helped or hindered as a class of people as well as what happens to individual children caught up in the system. Asquith (1998a) makes the point that many of the approaches considered appropriate for children who offend are largely designed to deal with boys. It follows that the impacts on different groups of children, not only males and females but also, for example, children with learning difficulties and children from different ethnic groups need to be taken into account when assessing effectiveness.

Finally, the retention of national annual statistics providing information on broad trends in referral patterns and outcomes is of vital importance. There have been changes in the categories used and the classification of grounds over the years, limiting to some extent comparisons over time. Nevertheless they provide comparatively objective information on the patterns of children’s involvement over time, allowing a longitudinal perspective. The longer the system continues, the more important a source of information this thread provides.

More recently the management of statistical data on the Children’s Hearings System has undergone further changes, including changes in the categories used. The complexity of the statistical data that is based on referrals rather than on individual children may not have been sufficiently appreciated following the transfer of the database from the Scottish Executive to the Scottish Children’s Reporter Administration’s Referral Administration Database. There is no one-to-one correspondence between referrals, children and disposals, with offence and non-offence grounds always reported on separate returns. Some questions have arisen over the reliability of the data in recent correspondence between the Scottish Executive and the Reporter Administration. The reliability of the data is critical for evaluating the effectiveness of the System over time, for determining valid trends in referral patterns and disposals, and for evaluating current pilot projects, an example of which was given at the outset of this chapter.

Conclusions

Since its inception much of the relevant research and to some extent policy have been concerned with children and young people who commit offences, especially those who offend persistently. This chapter points to an urgent need to look more closely at children in need of care and protection in the Children’s Hearings System. This would reflect more accurately the significant shift in the pattern of referrals towards non-offence-based referrals. It would also capture the distinctive nature of the System integrating decisionmaking for two groups of children: children who offend and children in need of care and protection.

The Children’s Hearings System operates in two publicly and politically contentious areas of policy that, in many other western jurisdictions, involve separate formal systems of youth justice and child care. This is why it is so important that institutional changes in the Children’s Hearings System are formulated on the basis of evidence. Changes in one sphere may have consequences for the other. In most other jurisdictions these connections may remain largely invisible. Evidence takes time to mature. Without it, however, there is a serious risk of bringing mischief to a system before there has been time for it to be sufficiently well understood. This is especially important when the Scottish Children’s Hearings System is rapidly becoming one of the few remaining welfare-orientated institutions dealing with children and young people in trouble in northern Europe. This serves to make comparison across systems essential for understanding what the Children’s Hearings System is trying to achieve. In so doing it is necessary, but not always easy, to stand back and see the System as clearly as evidence permits now and in the future. Time is of the essence.

References

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Further reading

Adler, R. (1985) Taking Juvenile Justice Seriously. Edinburgh: Scottish Academic Press.

Bottoms, A. and Dignan, J. (2004) ‘Youth Justice in Great Britain.’ In Crime and Justice, A Review of Research 31, 21–183.

Cowperthwaite, D.J. (1988) The Emergence of the Scottish Children’s Hearings System: An Administrative/Political Study of the Establishment of Novel Arrangements in Scotland for Dealing with Juvenile Offenders. Southampton: University of Southampton.

Curran, J.H. (1983) ‘The Relevance of Research to the Working of the Juvenile Justice System in Scotland.’ Paper presented at a Scottish Office Central Research Unit seminar, 24 March.

Dartington Social Research Unit (1995) Child Protection: Messages from Research. London: HMSO.

Farmer, E. and Owen, M. (1995) Child Protection Practice: Private Risks and Public Remedies – Decision-making, Intervention and Outcome. London: HMSO.

Feld, B.C. (1999) Bad Kids: Race and the Transformation of the Juvenile Court. New York: Oxford University Press.

Finlayson, A. (1992) Reporters to Children’s Panels. Their Role, Function and Accountability. Edinburgh: Social Work Services Group/Scottish Office/HMSO.

Fox, S. (1991) ‘Children’s Hearings and the International Community.’ The Kilbrandon Child Care Lecture. Edinburgh: HMSO.

Garland, D. (2001) The Culture of Control: Crime and Social Order in Contemporary Society. Oxford: Oxford University Press.

Graham, J. (1996) ‘The organisation and functioning of juvenile justice in England and Wales.’ In S. Asquith (ed) Children and Young People in Conflict with the Law. Research Highlights in Social Work 30. London: Jessica Kingsley Publishers.

Griffiths, A., Kandel, R.F. and Jay, J. (2000) ‘Hearing Children in Children’s Hearings.’ Child and Family Law Quarterly 12, 3.

Hallett, C. and Hazel, N. (1998) The Evaluation of Children’s Hearings in Scotland. Vol. 2. The International Context: Trends in Juvenile Justice and Child Welfare. Edinburgh: Scottish Office Central Research Unit.

Howarth, C., Kenway, P., Palmer, G. and Miorelli, R. (1999) Monitoring Poverty and Social Exclusion 1999. York: Joseph Rowntree Foundation.

Howells, L.A.L., Furnell, J.R.G., Puckering, C. and Harris, J. (1996) ‘Children’s Experiences of the Children’s Hearings System: A Preliminary Study of Anxiety.’ Legal and Criminological Psychology 1, 233–250.

Kearney, B. (2000) Children’s Hearings and the Sheriff Court. London: Butterworth.

Kennedy, R. and McIvor, G. (1993) Young Offenders in the Children’s Hearing and Criminal Justice Systems: A Comparative Analysis. Unpublished report for Tayside Regional Council.

Lockyer, A. and Stone, F.H. (1998) Juvenile Justice in Scotland. Twenty-five Years of the Welfare Approach. Edinburgh: T&T Clark.

Martin, F.M. (1983) ‘Regions Caesar Never Knew.’ The Hearing: Bulletin of the Panel Training Resource Centre 9.

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Scottish Office (1992a) The Report of the Inquiry into the Removal of Children from Orkney in February 1991. Edinburgh: HMSO.

Scottish Office (1992b) Inquiry into Child Care Policies in Fife. Edinburgh: HMSO.

Walgrave, L. (1996) ‘Restorative juvenile justice: a way to restore justice in western European systems.’ In S. Asquith (ed) Children and Young People in Conflict with the Law. Research Highlights in Social Work 30. London: Jessica Kingsley Publishers.

Waterhouse, L., McGhee, J., Whyte, W., Loucks, N., Kay, H. and Stewart, R. (2000) The Evaluation of Children’s Hearings in Scotland. Vol. 3 Children in Focus. Edinburgh: Scottish Executive Central Research Unit.