The Children's Hearing System in Scotland
The children's hearings system, Scotland's unique system of juvenile justice, commenced operating on 15 April 1971. It has proved to be capable of meeting changed circumstances and challenges. The history of the children's hearings system, and the principles on which it is based are outlined in this section.
The system is centred on the welfare of the child. A fundamental principle is that the needs of a child should be the key test and that children who offend and children who are in need of care and protection should be dealt with in the same system. Most cases of children who require compulsory measures of intervention are considered by an independent panel of trained lay people.
The rights of parents and children are protected by the legal framework which provides for decisions relating to the child's welfare to be decided by the panel of lay people while disputed facts and appeals are dealt with by courts.
One of the strengths of the hearings system is that it has been able to adapt to changing social and political climates. The fundamental principles on which it is based have been maintained while account has been taken of international conventions on rights. These include the specific rights for children contained in the United Nations Convention on the Rights of the Child and the general human rights contained in the European Convention on Human Rights.
2 HISTORICAL CONTEXT
Children and courts
The first legislation to recognise the need for juvenile offenders to be dealt with separately from adults was the Children Act 1908. In Scotland the minimum age of criminal responsibility was seven years and a child was classified as a juvenile up to the age of seventeen years.
Following the recommendations of a committee appointed in 1925 under the chairmanship of Sir George Morton KC to enquire into the treatment of young offenders and children requiring care or protection, the minimum age of criminal responsibility was raised to eight years in 1932. The Morton Committee also recommended the transfer of jurisdiction of cases of children and young offenders to specially constituted justice of the peace juvenile courts. It was intended that cases would be considered by justices who by knowledge and experience were specially qualified in such matters.
By 1961 when another review body was set up, children were being dealt with inconsistently in different types of courts. There were considered to be inherent difficulties in a model which tried to combine the processes of a criminal court with treatment of children who offended on a preventive and educational basis.
The Kilbrandon Committee: remit and report
In May 1961, a committee was set up by the Secretary of State for Scotland under the chairmanship of Lord Kilbrandon, a senior Scottish judge. Other members of the committee were four justices of the peace, four lawyers, a chief constable, a headmaster, a psychiatrist and a probation officer.
The remit of the committee was:
'to consider the provisions of the law of Scotland relating to the treatment of juvenile delinquents and juveniles in need of care or protection or beyond parental control and, in particular, the constitution, powers and procedure of the courts dealing with such juveniles, and to report'.
No-one could have envisaged the innovative and radical recommendations that the Kilbrandon Committee would produce and which led to the setting up of the children's hearings system.
The Committee's report was presented to Parliament by the Secretary of State for Scotland in April 1964. With comparatively minor adjustments, the proposals survived three changes of government during the period of consideration and initial implementation, as well as a major restructuring of local government arrangements which included a complete revision of the way in which personal social service provision was organised.
The Kilbrandon Committee: conclusions
At the time the Kilbrandon Committee was considering the way forward, juvenile delinquency was a much greater problem than cases in which children were the victims of cruelty or neglect.
The Kilbrandon Committee concluded that:
- despite distinguishing circumstances, there was a basic similarity in the underlying situation of children who appeared before the courts. This was their common need for special measures of education and training as 'the normal upbringing processes', for whatever reason, had failed or fallen short. The treatment measures operating at the time of their deliberations were based on an educational principle which recognised and aimed to strengthen and build on natural influences which through education and training would assist the child to develop into a mature and useful member of society
- the most powerful and direct of these influences lay within the home and any measures to treat children had to involve, as far as possible, working closely with parents. However, the Committee rejected any suggestions that parents should be subject to direct sanctions, such as supervision, restitution or fines, as it believed these measures were incompatible with the educational principle
- a process of social education was required which, on the basis of persuasion, sought to strengthen, support and build on natural family instincts by engaging the co-operation of parents. A special agency - a social education department - should be established as a division of the education authority to undertake this work
- the arrangements for dealing with children appeared to have developed in response to particular local situations, rather than on the basis of conscious principles. There was an underlying conflict and incompatibility between the principle of establishing guilt and innocence and appropriate punishment and introducing future preventative measures. The balance between these concepts was particularly acute in relation to juveniles. The common law recognised that the element of youth might be a mitigating factor. Statute law placed increasing emphasis on the need to have regard to the child's future welfare and to provide measures of education and training in the child's best interests
- if juvenile courts were expected to take into account circumstances outside of the actual offence, then treatment measures might appear to the child and parents to be out of proportion to the nature of the offence. This might affect the successful application of measures identified as necessary on an educational principle. The matter was complicated further by the fact that juvenile courts were also dealing with situations where children required care and protection and where a different standard of proof was required. The conviction of parents for criminal neglect or situations of serious moral danger (actual or potential) to the child, were commonly recognised as being possible precipitating factors towards future delinquent behaviour.
In taking all these factors into account, the Committee reached one of its most important and far-reaching conclusions:
- the overriding and paramount principle was that the needs of an individual child were required to be assessed so that appropriate treatment could be applied. This could only be achieved by objective examination of all surrounding facts and circumstances. It was inappropriate to expect a single agency to determine disputed facts and establish what an individual child's needs were in the light of the fullest information about the child's personal and family circumstances.
3 THE PROPOSALS FOR JUVENILE PANELS
The Kilbrandon Committee recommended that entirely new arrangements were required to deal with all children in need and that a special treatment agency or panel was necessary, which would be neither a court of law nor a local authority committee.
The panel would be essentially a lay body, comprising persons who either by knowledge or experience were considered to be specially qualified to consider children's problems. This was a model on which none of the then current systems of juvenile justice was based. The panel would have powers of compulsory action and the power to modify or vary measures appropriate to the individual child.
What distinguished panels from the juvenile courts then in existence was the manner in which their powers would be exercised. The criterion for action would be the child's need for special measures of education and training. The panel's jurisdiction would be founded on grounds where the basic facts were agreed or accepted, with disputed matters being referred to a sheriff for adjudication.
Panels would be empowered to exercise a continuing jurisdiction over all children referred to them subject only to a statutory age limit. Within that period, they would have the widest discretion to alter, vary or terminate measures initially applied in the light of the child's progress and response.
Rights of appeal
As the proposed powers represented a substantially greater measure of intervention in the lives of the families affected by them, a right of appeal to the appropriate judicial authority would be available.
Whenever possible, informal or voluntary measures of supervision or assistance within the local community should be used so that only in the most problematic cases would compulsory
measures be required. If they were, the juvenile panels would have the widest discretion to vary treatment measures, including the power to remove a child from home.
The Crown's right to prosecute
The Crown retained overriding discretion to prosecute in exceptionally serious matters. Otherwise, the prosecution of all children under the age of sixteen would be removed from the jurisdiction of the criminal courts. The Committee recommended the abolition of the minimum age of eight as the age from which a child might be held to be responsible for criminal actions.
Appointment of panels
It was recommended that panels in each education area should be appointed by the sheriff and panel members would receive appropriate instruction and training. This would include the opportunity to meet periodically at conferences at national level to provide both basic information and wider interchange of ideas and experience among members of the panels. In some of the largest urban areas, it was thought it might be appropriate to have full-time salaried chairmen of juvenile panels.
The premises used for sittings of the panels should be apart from, and entirely unconnected with, the criminal courts and police stations. Although it was appreciated that hours of sitting would be a matter for local arrangement, the Committee expressed the hope that, bearing in mind the desirability of securing both parents' attendance, there would be evening sittings and in some cases Saturday sittings.
Referrals to panels: the role of the reporter
Referrals to the panel would be at the instance of an independent official to be known as the reporter. As this official would act as gatekeeper to the system, it was thought that reporters should be competent to assess both the legal issues and also the wider question of public interest. A legal qualification, as well as a period of administrative experience relating to child welfare and educational service, were relevant requirements. In addition to handling referrals, reporters would have administrative responsibility for the general ordering of the panels' business, and would also act as clerks to the panels. ( See section on Roles, Responsibilities and Resources.)
4 IMPLEMENTING THE RECOMMENDATIONS: THE SOCIAL WORK (SCOTLAND) ACT 1968
There was intense and heated debate about the shift from courts towards a system based on 'social education'. Despite the controversy, the government accepted the recommendations in principle and in much of the detail.
A White Paper ' Social Work and the Community' produced in 1966 retained most of the core proposals of the Kilbrandon Committee and introduced the specific terms 'children's panels' and 'hearings' for the first time. The White Paper included a range of possible decisions (known as 'disposals') that would be available to hearings. These included discharge of the case and home or residential supervision.
Significantly, the White Paper also linked juvenile justice to developments taking place in the organisation of social work. The aim was to create a new kind of social work department, bringing together the various specialised social work services - probation, the children's departments and welfare departments of councils - in order to provide an effective all-encompassing system. The White Paper recommended that the newly organised social work departments should provide the supporting services necessary for the work of children's hearings. This meant, essentially, that one of the fundamental planks of the Kilbrandon model was never put in place - that is, an integrated social education department. This led to education departments within local authorities passing off responsibility to social work departments with resultant tensions between departments about provision of appropriate resources for children deemed to be in need of compulsory measures of care.
Statutory provision for the new system was made in the Social Work (Scotland) Act 1968. Parts I and II of this Act enabled the necessary changes in the organisation of social work services to be made and the new social work departments were set up in November 1969. Part III of the Act, which established the children's hearings system, was not implemented until April 1971. This allowed time for the changes brought about by the reorganisation of social work to become established prior to the departments taking on responsibility for duties imposed in the legislation to deal with children in need of compulsory measures of care.
5 FUNDAMENTAL PRINCIPLES OF THE CHILDREN'S HEARINGS SYSTEM
The children's hearings system was, from its start, underpinned by principles set out in the Kilbrandon Report. These brought together the law, expertise in providing child care and informed lay judgement in order to reach decisions on what care was needed in the best interests of individual children. The key principles are:
- children who offend and children against whom offences are committed should normally be dealt with in the same system - but children who commit very serious offences may be dealt with by the courts
- the system is based on a concern for the welfare of the child not punishment
- while the child's needs are normally the test for intervention this does not mean ignoring deeds
- the gatekeeper to the system, the reporter, gathers evidence to support specified reasons for referral and also applies the test of the need for compulsory intervention
- hearings are conducted in private but are open to prescribed public scrutiny
- decisions in hearings are made by trained lay people, representing a cross-section of the community
- children and parents have the right to accept or deny the grounds for referral and disputed facts are dealt with by a sheriff
- hearings consider the whole child - that is the child in the context of his or her life
- the style and setting of hearings is relatively informal to encourage full and frank discussion while legal procedures are observed
- hearings should attempt to engage the co-operation of families in resolving problems
- parents are usually the best people to bring up their own children and should be encouraged and enabled to do so whenever possible
- hearings must seek, listen to and take account of the views of children and their parents in reaching decisions
- compulsory measures should be beneficial with decisions taken by children's hearings being in the best interests of the individual child
- compulsory measures encompass protection, treatment, guidance and control
- children should remain in their own community wherever possible and service provision should be integrated
- other rights, such as the right to appeal and to review of compulsory measures, are built in to the system.
6 REVIEW AND REFORM
The first twenty-five years
In the early years there were many uncertainties. There were questions as to whether sufficient volunteer panel members would come forward. If they did, could lay people really be trusted to make such important decisions about the lives of children? Would 'supervision' be effective, or would it be a soft option? Once the first group of newly trained reporters and panel members began to put the pioneering legislation into practice throughout the country in 1971, the Kilbrandon vision of a welfare-based system of juvenile justice became a reality.
Children have been referred to reporters in ever-increasing numbers year by year and hearings take place across the length and breadth of Scotland. By 1996 when the twelve regional local authorities were reorganised into thirty-two single-tier authorities, there were approximately 2,000 panel members serving throughout Scotland and this number has continued to increase slowly.
The reporter service, which was placed within local authorities, became a separate agency, the Scottish Children's Reporter Administration, in early 1996.
The training of panel members, which has developed over the years, aims to encourage consistency of practice while allowing sufficient flexibility to take account of varying local needs.
Providing reports for hearings and giving effect to supervision requirements are a major part of the responsibilities of social work departments. A complex network of relationships has grown up among the different agencies involved in the children's hearings system.
Though not without its critics, the system gained in credibility and respect over its first twenty-five years. The principle that determination of disputed fact and decisions on the care of the child are separate was described by Lord President Hope in 1991 as 'the genius of this reform which has earned it so much praise'. The system has survived two radical reorganisations of local government in Scotland. A major ongoing concern is, however, the provision of adequate services for children and families in the light of growing demands on limited resources.
Initially children's hearings were concerned mainly with children who had committed offences, but in the late 1970s reported incidents of child abuse increased and in the 1980s child sexual abuse began to be acknowledged as a widespread problem. The number of care and protection referrals to hearings has grown steadily over the years. The system also had to adapt to social changes over this period which have put pressure on children and their families.
Review of the law
Recognising that change was needed, the Secretary of State for Scotland appointed a Review Group in February 1988 to consider options for improving child care law in Scotland. The Review Group's Report was published in October 1990 but action on the recommendations was delayed to await the results of two important inquiries - Lord Clyde's investigation of events surrounding the removal of a number of children from their homes in Orkney, and a report by Sheriff Brian Kearney, with Professor Elizabeth Mapstone, child care adviser, on child care policies in Fife. Both reports were published in October 1992.
The same year saw the publication of a review of residential child care by Angus Skinner, Chief Inspector of Social Work Services and a review of the functions and accountability of reporters to children's panels, by Alan Finlayson, a retired Regional Reporter.
In addition to these reports on aspects of child care, the Scottish Law Commission's Report on Family Law recommended that family law should give greater emphasis to the concept of parental responsibilities rather than parental rights and should stress that even if they cannot live together, both parents should normally have a role to play in their child's life. In addition, it was felt that the law should recognise and respect the views of children in matters affecting their upbringing. Adoption law and services for children and young people with disabilities were also reviewed.
7 THE CHILDREN (SCOTLAND) ACT 1995
In 1993 a White Paper 'Scotland's Children: Proposals for Child Care Policy and Law', was published. This emphasised the confidence of the government in the children's hearings system and its commitment to it while recommending some reforms, particularly in relation to emergency protection of children.
The Children (Scotland) Bill followed in November 1994. While emphasising children's rights and needs and the importance of working in partnership with families, the government also stressed the need to ensure that young people who commit offences were dealt with effectively. The provision of care services must not shy away from the need to set clear boundaries for young people and point out the consequences of failing to respect the rights of others.
During the progress of the Bill through Parliament there was a substantial amount of consultation and amendment. The Special Standing Committee met in Scotland for the first time in February 1995 and took evidence from, amongst others, families and organisations concerned with children's welfare and rights. Royal Assent was given on 19 July 1995.
The Children (Scotland) Act 1995, implemented on 1 April 1997, marked a significant stage in the development of legislation on the care of children and largely replaced those parts of the Social Work (Scotland) Act 1968 which relate to children. It is centred on the needs of children and their families and defines parental responsibilities and rights in relation to children.
It established in Part I, the private law section of the Act, that in order to retain rights in respect of their children, parents were required to fulfil their parental responsibilities. In certain circumstances, parents may be deprived of their parental rights.
In addition to the legislative framework for the children's hearings system, the Act also sets out the duties and powers available to public authorities to support children and their families and to intervene when the child's welfare requires it.
Principles and themes
The Act reaffirms that the positive development of child care should be based on clear principles. Thus, whilst retaining and building on the fundamental Kilbrandon philosophy and principles, it incorporates provisions which conform to commitments under the United Nations Convention on the Rights of the Child, which was ratified by the British Government in December 1991. ( See Appendix 1)
It also sought to take account of obligations under the European Convention on Human Rights. ( See Appendix 2).
The following key principles of the United Nations Convention on the Rights of the Child are implicit themes in the legislation or explicit requirements on decision-makers.
Every child has the right to be treated as an individual
Although some basic needs are universal, there can be a variety of ways of meeting them. Each child is unique. It is not in the interests of individual children to be treated as 'cases' or according to rigid rules. This has potential consequences for hearings and others, when a number of children in a particular family, are referred and their needs, as individuals, may differ.
Children have the right to express their views about any issues or decisions affecting or worrying them
The views and concerns of children should always be taken seriously and given due weight in reaching decisions. Child care policy should be based on listening to children.
Every effort should be made to preserve the child's family home and contacts
Children generally fare better in the long-term if they experience family life in the care of their birth parent(s). Authorities should make every effort to preserve the child's family home and contacts. A range of services should be available to sustain children safely in their family home through difficult periods. However, sometimes the risks to a child at home are so great that reception into public care is the best option. Removing a child from the care of his or her birth parent(s) is not an action which should be taken lightly. If a child is received into care, changes of placement should be minimised as they can be disruptive to the child's development.
Parents should normally be responsible for the upbringing and care of their children
Parents should be expected and supported to fulfil their responsibilities to their children. If a child cannot live at home either temporarily or permanently, parents should be encouraged to remain as closely involved as is consistent with the child's welfare. Responding to the needs of parents and working in partnership with them can be an effective and direct means of promoting the child's welfare. Contact with a child living away from home, or one of the parents, requires careful consideration and may raise complex issues when the parents' rights to maintain contact with a child are considered to be harmful for the child.
Children, whoever they are and wherever they live, have the right to be protected from all forms of abuse, neglect and exploitation
All reasonable steps should be taken by authorities to prevent children within their area suffering from any form of ill-treatment or neglect. The duty to provide any necessary protection must remain a top priority. Children in all settings may be at risk from trusted adults and some children, including those with disabilities, may be especially vulnerable.
Every child has the right to a positive sense of identity
The child's rights to a positive sense of identity can be encouraged through respect for the child's race, colour, sex, language, religion, disability and ethnic or social origins and the child being given appropriate information about his or her family background. Children should be treated without discrimination irrespective of their background. All children also have the right to expect that any personal information will be handled sensitively.
Any intervention in the life of a child or family should be on formally stated grounds, properly justified, in close consultation with all the relevant parties
Care should be taken to ensure that children and parents are fully aware of what is happening in any intervention by the State in their lives and that they are clearly informed of the time-scales involved in this process. The separation of children under sixteen from their parents against the wishes of any of them should take place only when a competent authority determines that such a step is necessary and where the action is subject to clear legal procedures and open to legal challenge. The welfare of the child should be the most important factor in all action taken in relation to children, whether it takes the form of compulsory or voluntary measures of intervention.
Any intervention in the life of a child, including the provision of supportive services, should be based on collaboration between all the relevant agencies
All children are entitled to expect good health care and education. Local authorities have a responsibility to provide services and assistance for children and families which will promote their general welfare. Children have the right to expect that professionals from social work, health, education, and other services will collaborate in a child-centred way by fulfilling their own roles while understanding and respecting the contributions of others. It is most important to ensure that the efforts of all those working for children benefit children.
The hearings system covers entry of children from birth to sixteen, although supervision may be continued up to age eighteen. The United Nations Convention on the Rights of the Child defines anyone below the age of eighteen as a child unless under national law majority is attained earlier.
Key principles underpinning decision-making
The Children (Scotland) Act 1995 requires courts and children's hearings to bear in mind the following central principles in reaching decisions:
- the welfare of the child is the paramount consideration in most decisions being made by courts and children's hearings (unless members of the public need to be protected from serious harm)
- no court should make an order relating to a child and no children's hearing should make a supervision requirement unless the court or hearing considers that to do so would be better for the child than making no order or supervision requirement at all
- children should be given an opportunity to express a view and, if they do so, consideration should be given to the child's views - children of twelve or over are presumed to be sufficiently mature to be able to form a view.
The principles that underpin the hearings system do not stand alone. They require a sound framework of law, social policies and professional skills. These processes need to be supported and enhanced by comprehensive training. The application of apparently straightforward principles may be complicated in individual cases where there may be tensions between the needs, interests and rights of parents and child, between short and long term needs and goals, between fact and suspicion and where there may be uncertainty about the true nature of problems.
8 EUROPEAN CONVENTION ON HUMAN RIGHTS
Protection of rights
The European Convention on Human Rights was drawn up in 1950 and ratified by the United Kingdom in 1951. Its historical context is the second world war and the lowering of the 'Iron Curtain' across Eastern Europe. Forty European countries are party to the Convention and required to give effect to the rights which it sets out.
From 1966 British citizens had the right to apply to the European Commission on Human Rights if they felt their rights under the Convention had been infringed by the state. The Commission - if they found applications fell within their scope and had merit - could refer the case to the European Court of Human Rights for judgement. This could be a very lengthy process. Although the Commission has been abolished, the right to apply to the Court remains in force.
The Scotland Act 1998
In terms of the Scotland Act 1998, rights conferred by the European Convention of Human Rights have been binding on the Scottish Parliament and the Scottish Executive since 20 May 1999 when the Scottish Parliament came into being. Scottish legislation must be compatible with Convention rights.
The Human Rights Act 1998
Since 2 October 2000, when the Human Rights Act came into force, all 'public authorities' (which includes hearings, local authorities and the Scottish Children's Reporter Administration) were required to ensure that their actions are compatible with Convention rights. The fundamental difference to the previous position is that cases relating to alleged breaches of Convention rights can now be taken to domestic courts or tribunals in the first instance, and can be enforced by them. This provides the opportunity for easier access to courts to enforce rights and to speedier resolution of disputes. ( See S v Principal Reporter and Lord Advocate below.)
Key articles affecting the hearings system
Unlike the United Nations Convention on the Rights of the Child, the European Convention on Human Rights was not drawn up with the rights of children as one of its explicit objectives. Not all the articles are relevant to the hearings system.
Key articles which are or may be relevant to the hearings system are:
Article 6: right to a fair trial
This Article deals with the concept of a hearing which is fair to all parties. Trials or hearings must take place within a reasonable time and be heard by an independent and impartial tribunal established by law. There is a presumption of innocence until proved guilty by law. Parties are entitled to be informed in a language they understand, where applicable to have the free assistance of an interpreter, and to have adequate time and facilities for the preparation of a defence. This process must include free legal assistance where the interests of justice so require.
In 1995 the European Court of Human Rights decided that the United Kingdom Government was in breach of Article 6 because the mother of a child subject to compulsory supervision in the hearings system was deprived of her right to participate in the decision-making process ( McMichael v UK). The reason for this was that, at that time, parents had no right to see papers which panel members considered in reaching decisions, although the chairman of the hearing had a duty to disclose the substance of the information contained in the reports.
The judges in the McMichael case also considered that this might adversely affect the parents' ability to seek advice in order to appeal hearings' decisions. This matter was rectified in October 1996 when parents were given the right to receive the same papers that went to panel members. At that time, the right of children to receive papers was not tested.
Article 8: right to respect for private and family life
This Article provides that everyone has the right to respect for his private and family life and that there should be no interference with this right except what is proportionate in accordance with the law and necessary. Grounds for intervention need to be clearly stated, with clear justification. The father in the McMichael case argued that his rights had been breached because, as an unmarried father, he was deprived of the automatic right to be consulted in the care proceedings relating to his child. Neither the European Court nor Commission supported this view, although they have done so in later cases not connected with the hearings system.
Other potentially relevant articles:
Article 3: prohibition of torture
No-one shall be subjected to torture or to inhuman or degrading treatment or punishment. There have been considerable variations in the past as to interpretations by courts as to what is or is not 'reasonable chastisement' of children and courts may be called upon for a clearer definition. In addition, the issue of physical punishment of children is subject to ongoing consideration in the Scottish Parliament.
Article 5: right to liberty and security and Article 7: no punishment without law
There are potential implications in a number of respects. It is possible for police officers to detain 'unruly' children in cells if no suitable alternative accommodation is available in local authority premises. This might be perceived to be a breach of the child's rights but it is a power used only in exceptional circumstances.
Where children have been brought before adult courts charged with serious offences, the courts are requiring that the time scales for bringing the case to trial should be as short as possible consistent with the interests of justice. Hearings may specify in a supervision requirement that a child 'shall be liable to be placed and kept in secure accommodation'. This specification is to last as long as the head of the establishment, in agreement with the chief social work officer of the local authority, considers necessary.
Article 14: prohibition of discrimination
This article states that the rights and freedoms set out in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. These prohibitions are similar to the principles and themes in the legislation which take account of provisions in the United Nations Convention on the Rights of the Child. For hearings, there may be issues about appropriate interpreters being available where a child or parents from a minority ethnic group appear at a hearing and English is not their first language. There are also considerations about placement of children in foster care or on adoption.
The First Protocol Article 2: right to education
This Article states that no person should be denied the right to education. There are potential implications for local authorities in relation to the exclusion of children from school, without alternative arrangements for ongoing education being provided. In addition, education and teaching should be provided which repects the parents' religious and philosophical convictions.
S v Principal Reporter and Lord Advocate
The first challenge to the hearings system in the domestic courts related to a case involving a fifteen year old boy charged with assault following an incident in which the boy's father was so seriously injured that he died some months later. The boy appeared before a children's hearing but did not accept the grounds for referral and a legal challenge was mounted on his behalf alleging that his human rights had been breached in a number of ways.
The issues in the case were considered in February 2001 by the highest civil court, the First Division of the Court of Session, headed by Scotland's senior judge, the Lord President. Crucial issues of principle were clarified by the Opinions of the three judges who concluded that:
- the children's hearings system falls within Article 6 of the ECHR (right to a fair trial)
- children's hearings are independent tribunals in terms of Article 6(1)
- when dealing with offence grounds for referral a hearing is not determining a criminal charge and, accordingly, it is not a criminal process to which Article 6(2) and (3) safeguards have to apply
- it is a process determining civil rights and, in so doing, some of the general protections of Article 6 have to be considered and implemented
- the availability of legal representation is desirable in certain circumstances where it is in the interests of justice - this might apply particularly with regard to the discussion of complex reports and where secure accommodation is being considered
- the Scottish Children's Reporter Administration's proposal to make papers available to children - outlined to the Court - was recognised as a significant development in line with Convention compliance but failure to implement such a scheme properly might lead to a breach of Article 6.
The children's hearings system arose out of a set of coherent and rational principles contained within the Kilbrandon Report. In the years since it was inaugurated it has been able to adapt to many different challenges and to continue to deal in a caring manner with all children deemed to be in need of compulsory measures. The move from the Social Work (Scotland) Act 1968 to the Children (Scotland) Act 1995 enabled principles in the United Nations Convention on the Rights of the Child to be incorporated into the system and some account was taken of the need to comply with articles in the European Convention on Human Rights.
Perhaps the most crucial decision of the Court of Session in S v Principal Reporter and Lord Advocateis that hearings are independent tribunals. The foundation of the system thus remains stable and healthy so that the process of adapting to changed conditions can continue without fundamental principles relating to the common needs of all children being discarded.
10 FURTHER READING
Kilbrandon Report: Children and Young Persons, Scotland
The document on which the children's hearings system is based. Remains a fundamental statement of its philosophy and principles. Reprinted in the Children in Society series ed. Asquith S, 1995, HMSO Edinburgh.
Scotland's Children: Proposals for Child Care Policy and Law
Cmnd 2286 Edinburgh
The White Paper which led to the Children (Scotland) Act 1995
Lockyer A & Stone F (1998)
Juvenile Justice in Scotland: Twenty-five years of the Welfare Approach
T&T Clark, Edinburgh
History and analysis of the development of the children's hearings system.
Martin FM &
The Scottish Juvenile Justice System
Edinburgh, Scottish Murray K (1982) Academic Press
A series of articles reflecting on the first ten years of the hearings system.