Is justice for the community, justice

by the community?
The Childrens Panel
Professor Stephen Phillips
West Dunbartonshire Childrens
Panel

Is justice for the community, justice by
the community?

The short answer should be yes for the
Childrens Panel if the aspirations of the
Kilbrandon committee have been realised.
The Panel is made up of trained volunteers from
the community, drawn from the whole of the
community, and administer justice on behalf of
the community.
The Childrens Hearing System has been going
since April 1971 largely unchanged which might
be a good indicator that it works.
Families view a common reality.

Community Justice What is Justice?
Fairness, rightness, just conduct, reward for virtue and punishment for
wrong doing, balancing the nature of wrong doing with the punishment
chosen.
Justice concerns the proper ordering of things and persons within a society.
Justice requires according individuals or groups what they actually deserve,
merit, or are entitled to.
What is right is what has the best consequences (usually measured by the
total or average welfare caused). So, the proper principles of justice are
those which tend to have the best consequences.
Justice is created by public, enforceable, authoritative, rules and injustice is
whatever those rules forbid.
Justice is derived from the mutual agreement of everyone
concernedincluding equality and absence of bias.
Justice is a form of fairness. What is the proper/fair distribution? Equal,
meritocratic, according to social status, according to need?
Justice demands equality of opportunity and for equality of outcome.
Juvenile justice system
The Panel frequently referred to as Scotlands Juvenile Justice System
(and Welfare System) justice for whom and what do we understand by
justice in this context?
Justice for the child and family?
Justice for the Community?
Justice for the victim in the event of a crime?
Accepting that Byres Road man/woman for the most part have never heard
of the Panel (a major concern) justice as in juvenile justice would mean
receiving just deserts and inevitably in the context of punishment for an
offence. (If by chance they have heard of the Panel then it is the soft
option).
Kilbrandon used the term children in trouble and Byres Road man would
again think of children who have broken the rules. If we asked Byres Road
man to consider a ship in trouble then his circle of reference widens and
thinks of ships which has lost direction, lost power, foundering etc. much
more a metaphor to describe the families and young people coming before
the Panel. And of course as we will see soon this latter category is the
largest.

Juvenile justice system continued
BUT an unfortunate truism is that children cannot choose
their parents and many young people come before the
Panel, where by any criterion, their parents can be
judged as failing them and are not doing them justice.
Justice for children is when they have equality of
opportunity to fulfil their potential in a safe and loving
environment.
My nightmare scenario.
From Scottish Childrens Reporter Administration (SCRA) the
steps in a young person coming to the Panel and the process.
A note on the procedure
The Panel has tremendous power and sometimes a frightening level
of responsibility e.g. a child can be taken out of the family home or
from a mother within hours of being borne.
But the family and the child (when old enough) are central in the
discussions leading to a decision.
The family can appeal the decision and ask for a review after 3
months.
Panels can appoint a Safeguarder as one of the communitys
guardian of the family and childs rights (and justice) to provide
advice and comment before a decision is taken.
Legal representation is mandatory under certain circumstances and
legal aid may be available for an appeal.
Although the Scottish public has little knowledge of the Panel there
is much useful explanatory information on the web, both at Scottish
Government level, SCRA, and some local authorities.
Some history
Some facts and figures from SCRA Annual
Report 2006/7 how many children are in
trouble?
Numbers of children referred to the Reporter over
10 years numbers continue to rise. In 2005/6
6% of all children referred.
Where do referrals come from?
West Dunbartonshire
Family situation of children referred where
do the children come from in the
community?.
Grounds of referral
Kilbrandon the beginning
Committee first met under Lord Kilbrandon in 1961, recommendations made
in 1964 and embodied in legislation in 1968. Childrens Hearing System
(The Panel) started on April 15
th
, 1971.
Radical proposal was to remove children under 16 years from adult criminal
procedures.
Primary concern was with children in trouble children with delinquent
behaviour, those in need of care and protection, those beyond parental
control, those who persistently truant.
All these children shared a common experience a failure in normal life
experiences of upbringing and parenting.
A paramount consideration in the proposed measures of care and
assessment was the welfare of the child, the concept of caring for the
whole child.
Where compulsory measures of care were thought necessary, children
to be brought before a lay panel of three members, the Childrens Hearing,
in an atmosphere conducive to the child and familys participation.
Kilbrandon principle was that most cases were a failure of upbringing
and of social education.
Treatment agency/authority would be Social Services.
Kilbrandon the beginning
continued
The Panel has no role in determining if the grounds of referral are
true. Only proceed if these are accepted or have been found true by
the sheriff.
The Panel would be recruited locally with a background and work
experience representative of the locality only partially achieved
(see later).
Fred Stone reminds us that big changes in Scottish Family Life since
1971 rising rate of divorce, many children borne to parents with no
formality of attachment, multiple relationships, change in sexual
mores such no stigma attached to illegitimacy and earlier sexual
experiences, single parent families more common, most frequently a
single mother, alcohol and drug abuse. Although child neglect, child
abuse, truancy, delinquency, family break up and difficulties of youth
employment found in all social groups poverty can be a common
underlying factor.



Kilbrandon proposed abolition of the Juvenile
Courts and establishment of a juvenile panel.
Who should serve on the Panel as
representative of the Community?
Kilbrandon persons who by knowledge or experience
were considered to be especially qualified to consider
childrens problems

Developed by Scottish Office that panel members should
be representative of the community and they should
have knowledge and experience in dealing with children
and families and should be drawn from a wide range of
neighbourhood, age group and income group, with
personal qualities including the ability to get through to
children and their parents (Lockyer 1992).
Is the community Scotland or the local neighbourhood?
Does representative equal mirror the community? In
West Dunbartonshire how many of my colleagues come
from disadvantaged areas of the community?
Who are the volunteer Panel Members,
selected by the local Childrens Panel
Advisory Committee ?
Kilbrandon wanted a panel
representative of the
community - the best we can
probably hope for is a cross-
section of the community with
a wide range of backgrounds.

Diversity in background,
culture and social groups
allows panel members to learn
from each other. Can we
better represent the
Community than be
representative?

Age of Panel members from 18
years now no upper limit on
age and no limit on how long
can serve on the Panel (?
Edinburgh)
Who are Panel Members continued?
People should be judged by their peers, not by their
social superiors, but does this require that recruitment
should only come from the ranks of those that come to
the Hearings?
At any Hearing the 3 panel members are very unlikely to
be representative or a reflection of the families coming
before them that day.
Does this prevent community justice being administered
or can years of experience on the Panel provide insight
and judgement into a section of the community outwith
normal experience?

Results of 1992 for Childrens Panel
Chairmans Group Survey
Early days of the system Panels made up of predominantly middle
aged, middle class professionals. In 1992 approximately equal
representation of professional and non-professional classes (from
2:1).
Tend to be better educated than the average citizen and therefore
have views on the value of education which might be different from
the families and children. (Equally might help in taking the detailed
training for panel members in their stride).
Average age around 43 years with 40% in the 30-50 years bracket.
Only 6% under 30 years.
Most are married but now more are divorced or separated. Most are
parents and ~80% in some form of paid employment.
In West Dunbartonshire the panel is 60% female, 40% male.
Lockyer makes the point that although the Panel may not mirror the
make up of the communities from which the children and families
come any one can apply to join.


Does it work philosophy of
the system against outcomes?
A personal view.
From the point of view of whom the families, the Panel
members, the Community, the professional agencies?
Stood the test of time with few changes - the Children
(Scotland) Act 1995
Research is sparse e.g. Lockyer and Wilkinson 1992,
Hallett 2000.

Perceived Strengths
Ethos of the system needs and deeds, the holistic approach, not
separating offenders from non-offenders (very high proportion of
persistent offenders first seen as care and protection cases).
Child-centred and focuses on welfare.
Informality of the hearing system encourages family participation.
Attributes of (some) panel members and capacity of the system to
involve and represent the community.
Keeps children and young people out of the criminal justice system.
Protects young people and children.
Families have right of appeal and system for reviews.
Makes good decisions.
Brings agencies together.
Deals well with Care and Protection cases.


Perceived weaknesses
Lack of resources to have the decision implemented.
Lack of social workers.
Reluctance sometimes for Panel to hold LA to account for failure to
implement decisions.
Families lack knowledge of the system.
Panel lack understanding of families them and us.
Families given too little opportunity to take part and to influence the
decision you have already made up your mind!
Formality of the proceedings can intimidate the young people and
family.
Some rotten and poorly trained Panel members.
Lack of accurate public awareness of the system.

Perceived weaknesses continued
Deals well with minor/first time offenders but not with
persistent offenders (a soft option) some persistent
offenders said to hold the system in utter contempt.
Fails with school related problems such as truancy and
school refusal.

Turn over in the Panel membership is too
high and benefit which accrues from
experience is lost approximately 14-15%
per year of the 2500 panel members.
Kilbrandon suggested that Chairman in LAs
might be paid an honorarium - would this
lose the Panel some moral authority.
Gaius Petronius Pontius Nigrinus, consul 37 AD
and governor of Aegyptus
We trained very hard, but it
seemed that every time we
were beginning to form into
teams, we would be
reorganised. I was to learn
later in life that we tend to
meet any new situation by
reorganising - and a wonderful
method it can be for creating
the illusion of progress while
producing confusion,
inefficiency and
demoralisation.
The future?
The End