In front of the panel
It is 9.30am and Janine is sitting scrunched low in her seat, her garishly coloured eyes cast down and her glossed lower lip protruding.
Dressed in her school uniform and still wearing her rucksack, she obviously resents every minute spent in the small, unremarkable room.
Without raising her heavily mascara-ed lashes, the 12-year-old gives monosyllabic answers when forced and the rest of the time merely grunts. At one point she manages an almost spirited "Not bothered."
Janine is at a children's hearing because of reports of alcohol abuse, truancy and being beyond the control of her parents. She is sitting opposite the panel of three trained volunteers (two women and a man), dressed casually; the chairperson is in a T-shirt with an Elle logo. Also sitting around the ordinary office tables are the Children's Reporter, Janine's social worker, a teacher from her school and her mother. Her father works nights.
This is not the first time Janine has faced a children's panel and, according to good practice, one of the members on this panel sat on her hearing two years ago, when the issue was also alcohol and being beyond the control of her parents. She was just 10 then. Now looking older, despite the childishly applied make-up, Janine is much less forthcoming and less contrite than she was at the first hearing.
"I'm very concerned," says the panel member who met Janine last time. He recognises in her reluctance, a knowingness and cynicism absent two years ago. Her attitude does not bode well.
The grounds for the hearing are read out to her and Janine must respond with a yes or no. They read like every parent's nightmare: missing overnight; found by police, drunk; accusations of heavy-handedness by her father leading to placement in protective care; violent behaviour while in care placement; accusations of abuse, later rescinded with an admission that they were made to get back at her father; truanting; unacceptable behaviour.
Her teacher speaks up, agreeing that some of her behaviour at school has been unacceptable, but her truancy has been less this term. "We feel she isn't fulfilling her potential," the teacher adds. "She's a bright girl."
The chairperson frequently asks Janine if the claims are correct. "Do you agree you are beyond the control of your parents?" she asks, trying to make eye contact.
Finally Janine, eyes cast down, snarls "No". Her mother, up to this point concurring with all the grounds, proves reluctant to admit she has lost control. The panel decides to take more drastic steps and refers her case to the Sheriff for proof. Janine is allowed to leave but knows in a few weeks' time she will appear in court and will need legal representation.
Most young offenders, especially first-time offenders, never see a Sheriff or go inside a courtroom. "Anyone under the age of 16 will go through the children's hearing system," explains Alison Wright, the West Lothian reporter. "Only those who have committed serious crimes, such as murder, rape and some driving offences, will go through the judicial system. Even persistent offenders come through this system."
But in some circumstances, cases may be referred to the Sheriff to establish that the grounds are true. Only one or two each week in Janine's area are sent on to the Sheriff and then only to establish proof, not to face charges. They then return to be dealt with by the children's panel. It is a system unique to Scotland.
Set up in 1971, these hearings were a response to concerns about the way society dealt with children and young people in trouble. They removed young offenders from the judicial system and placed them alongside those in need of care or protection, within the welfare department of the local authority.
"The system is not modelled on a court. There is no guilt or innocence to be established at a hearing and we don't use language like evidence," says George Anderson, chair of the Children's Panel chairmen's group.
"Our aim is to identify causes for the behaviour or to establish potential harm and then to create a supervision order that will help that child. The most we can do is secure accommodation, but more often, we will set up a supervision order that will be customised to suit that child's situation."
But after 30 years and growing alarm over young offenders, the Scottish Executive has decided the system needs to be overhauled, and many of those that work within the system agree.
"Next year, we will legislate to modernise and improve our children's hearings system," said Jack McConnell, last week in parliament.
In the past year, despite a challenge from the Executive to cut by 10 per cent persistent offending - those aged up to 16 who commit five or more offences within a six-month period - more than half the local authorities have reported increases. Nationally the figures are up by more than 5 per cent from 1,201 to 1,260 offenders.
But while the system may have some shortcomings, what has been clear during the review is that the children's hearings system is the right way to deal with these difficult or vulnerable children.
"I've been around long enough to remember the old juvenile courts," says Bill McGregor, the general secretary of the Headteachers' Association of Scotland.
"I know we don't want to go back to that. It didn't work. I believe the children's panel system is very sound, very fair and it should be an effective system but it needs to be properly resourced."
Tam Baillie, assistant director for policy at Barnardo's Scotland, which has numerous services that dovetail with the panel system, says: "Phase one of the review strongly endorsed the hearing system, and we are approaching phase two with that perspective. We want the system to be made stronger and more robust for all young people."
So, apparently, does the Scottish Executive.
"We will reduce paperwork and streamline activity," says Mr McConnell.
"We will require that agencies work together and parents face up to their responsibilities and by challenging offending behaviour and addressing the needs of each young person, we will help them help themselves.
"But, for the small core of prolific and persistent youngsters who undermine themselves and their communities, we will meet persistence with persistence."
The review is timely: the system is under siege. Too many children are being referred to the Reporter, a clerk to the panel who often has either a legal or social work background; some have even been teachers.
It is up to the Reporter to decide if a referral warrants a hearing. But it is easy to lose sight of who is attending these hearings. In 2003-04, 45,000 children were referred to the Children's Reporter, of whom more than 33,000 were on care and welfare grounds.
However, the Scottish Children's Reporter Administration (SCRA) says only 11 per cent of those referred needed to attend a hearing; most were dealt with by agencies. The pressure isn't just to stop offenders, but also to protect highly vulnerable children.
"It is often the only way to get support for these children, because resources are so stretched. The local authority has a duty to implement the hearing's decision."
The Executive is coming to the end of its consultation on phase two of the review and has already identified areas the new Bill will address: l A new legal framework will be set up to co-ordinate assessment, planning and action.
lLead professionals will be identified for any child where multi-agency work is necessary; for the first time they could be teachers.
* The agencies will be held to account and the grounds for referral to a hearing are to be amended and clarified.
"The grounds need to be reiterated," says Alison Wright, West Lothian's Reporter.
"Children should only be referred when there is significant need or compulsory measures may be the result."
The review has also hinted that scheduling of hearings may change to out-of-school hours, ostensibly to avoid a child missing any more schooling than is necessary; but it could also boost recruitment of panel volunteers, who would not have to rely on the good will of their employers to attend hearings.
"The Scottish Executive is going to have to look at the contractual differences attending panel hearings out of school hours places on schools," says Mr McGregor.
"Teachers are ready to support the system; and with the growth of the integrated community school system, they are more involved. But the current system relies on the good will of the agencies. One of the obstacles to its success is its woeful under-resourcing.
"Too often teachers are spending time and effort to make things happen but then nothing comes out of the hearings or the local authorities fail to implement the decisions because they are so strapped for resources. It is frustrating for our members."
Yet schools may not have been doing enough. A parliamentary justice committee found recently that education was a weakness in the system. While it recognised that education had a critical role to play in the delivery of effective youth justice services, it voiced concerns that the evidence suggested education services themselves were not always sufficiently aware of the importance of their contribution, nor were they effective in delivering it. The committee has urged the justice and education ministers to develop clear and explicit guidance about the role of education. The profession is still waiting.
The view from the SCRA is that many schools are supportive; that often teachers willingly attend hearings and that they are considerate of their role in a child's life. But with the changing nature of schools beyond mere educators, that commitment may need to be stated more strongly.
Meanwhile Janine's school is keen to support her case. Just before the chair closes her hearing, the teacher makes one final contribution, suggesting that perhaps Janine can attend drug and alcohol abuse counselling at the school. The chair welcomes the suggestion, but Janine doesn't look too impressed. Her eyes flicker up briefly towards the teacher and, before she glances down again, her contempt is obvious.
STEP BY STEP: A case for concern
1 An incident occurs - a child offends, his welfare may be at risk or he may have suffered abuse or neglect.
Any person or agency that has concerns about a child can "refer" that child to their local Reporter.
2 The Reporter investigates the child's case by requesting information from different sources - social work, police, school, health, voluntary organisations.
The Reporter evaluates the information and decides whether there is a need for intervention and if intervention needs to be compulsory. If it does, the child is referred to a children's hearing.
3 If the grounds for referral are accepted by the young person and his or her parents, a hearing takes place with three volunteer panel members, the child and familycarers and other agency representatives.
If the grounds are rejected by the young person and family, the case is referred to the Sheriff for proof. Once proof is established in court, the case is returned to the hearing.
Decisions are made openly as part of the hearing.
4 The most common outcome from a hearing is a supervision requirement, ranging from home supervision to secure accommodation.
Temporaryemergency measures will sometimes be necessary, such as child protection orders. Local authorities have a statutory obligation to implement hearing decisions.
Hearings may also decide that formal supervision measures are not required and discharge the case.
REASONS FOR REFERRAL
Reasons for referral 2003-04 Children % of total
Beyond the control of any relevant person 4,183 6.9%
Falling into bad associations or moral danger 2,590 4.3%
Lack of parental care 16,266 26.9%
The victim of a Schedule 1 offence 12,929 21.4%
A member of the same household as the victim of a Schedule 1 offence 1,788 3.0%
A member of the same household as a Schedule 1 offender 1,022 1.7%
A member of the same household as an incest victim or perpetrator 23 0.0%
Not attending school 3,407 5.6%
Committed an alleged offence 16,470 27.3%
Misused alcohol or drugs 1,611 2.7%
Misused solvents 44 0.1%
In the care of a local authority 77 0.1%
Total number of children referred 45,793* 100%
* This figure counts every child referred to the Reporter once for the year. A child may be referred to the Reporter more than once in the year on different grounds. This is reflected in the breakdown of children for each ground, which does not aggregate to the total number when counting each child once.