Testing time for juvenile justice
How often was Scotland's children's hearing system "the best juvenile justice system in the world" in the years before a string of crises in the early 1990s turned a critical spotlight on its structures?
The children's hearing system, set up in 1971, is rooted in a network of professional reporters and lay panels of ordinary men and women who sit in informal settings as judges with the interests of the children - whether victims or offenders - at heart.
The system remains the envy of many countries, and to a large extent deserves that respect. But it has had to adjust to repeated scrutiny following a series of inquiries and reports. Not only has it been centralised under the Scottish Children's Reporter Administration, it has been affected by legal reforms under the Children Act 1995 and involved in wide-ranging and ambitious children's services plans by local authorities, which it fears may never materialise because of insufficient Government funding.
It's too early to give a final verdict on these changes, though some benefits of the "nationalisation" seem clear already. The hearings system was always low-key: the public knew little of it apart from those regular adverts for panel volunteers. Now the principal reporter, Alan Miller, has become a visible focus for children's issues.
There's an advice line at headquarters for staff and panel members, a national training framework and practice guidance. The aim is more consistent decisions across all parts of Scotland.
But there are several problems with children's hearings that must be addressed, say leading experts in the field. The ever-increasing numbers of abused children coming before hearings in need of care and protection have, they believe, led offenders to be ignored.
The system needs to deal more effectively with persistent young offenders, argue the experts - without resorting to the harsh approaches being planned for them and their parents by Home Secretary Jack Straw in England.
"The preoccupation with the complexity of child abuse cases has detracted from addressing problems of youngsters who offend," says former Lothian regional reporter Alan Finlayson. "I worry that there isn't either the expertise and ability to deal with them that there was in the l970s or the support for parents whose kids get into trouble for the first time."
"The system has had to prioritise in favour of child protection," says Sally Kuenssberg, chair of the Scottish Children's Reporter Administration. "But it's not good enough for us to say we only look at welfare - we have to be more effective and rigorous in dealing with young offending. To hold the line against the punitive moves in England we have to resource and replicate projects like Freagarrach, which aim to help young offenders (see above). We can demonstrate they're effective in reducing offending."
Children's interests and the intentions of the 1995 Children Act have also been seriously undermined, they say, by a recent European Court of Human Rights judgment that all parents are entitled to a copy of all documents before hearings, including written and oral information.
In cases where parents are themselves a danger to their children, this destroys the children's right to confidentiality and can put them at risk. "The European Convention is seriously deficient for those who aren't in a position to take action to secure their own rights," says Alan Miller, and his view is strongly backed by Sally Kuenssberg: "The hearings system is based on the principle that children's views should be sought. Now all papers have to be sent to 'relevant persons', including parents, before the hearing. Yet there is no mechanism to extend that right to children. This seems to me nonsensical.
"More seriously, children are precluded from giving confidential information to panel members, which could have very serious - even dangerous - consequences for them.
"Children's hearings are now legally obliged to seek their views under the Act, yet are being undermined by one of their own rules. They have to be changed - sometimes the rights of parents and children are clearly irreconcilable." As well as calling for a reversal of those decisions which have threatened young people's rights, they would press for a Scottish post of children's rights commissioner or ombudsman, which has proved extremely influential in countries like Norway.
The Children Act has also led to new demands being made on education departments, points out Kathleen Marshall, one of Scotland's foremost advocates for children's rights.
"The implication of corporate responsibility in the Act is that supervision from a hearing can command access to education resources," she says. "Until now, hearings didn't have access as of right to education resources, and the social work culture often developed antagonistically to education departments.
"But the Children Act 1995, reinforced by Scottish Office guidance, does say that responding to children in need and carrying out supervision is the responsibility of the whole authority - including housing and education - through the new children's services plans. I'm in no doubt the Act clearly aims to make education fully accessible to children's hearings. We have to ensure this point doesn't get lost."
Professor Marshall is not concerned that this will create a financial burden for education: "If you can get local authority departments to work together co-operatively, instead of spending time arguing, you might get much more efficient use of resources."
But there could be some interesting dilemmas, she warns, especially about how the Children Act will interface with policies like school exclusion: "What if you had a supervision requirement from a hearing to attend school when the school has excluded a child? What if there is a conflict? Exclusion procedures don't allow the child a voice, but children's panels do."
Scottish Children's Reporter Administration, tel: 01786 459500