Retaining young offenders in the Children’s Hearing System

Debbie Nolan reports back from the SASO lecture, which asked why the Children’s Hearing System is not supporting more young people post-16.

The Scottish Association for the Study of Offending (SASO) Glasgow Branch lecture on December 4, 2014 explored the pertinent issue of retaining young offenders in the Children’s Hearings System post-16. Having delivered training which included this issue just the previous day, this was a particularly timely event for me to attend!

The guest speakers Professor Bill Whyte (University of Edinburgh) and Malcolm Schaffer (Head of Policy and Practice SCRA) raised a number of thought-provoking insights on why, when Scotland is in a unique position of having the Children’s Hearings System (CHS) that was specifically introduced to deal with young people involved in offending, are we not using the CHS more readily and appropriately for those aged 16-17 years?

Legislatively, the powers to utilise the Children’s Hearings System (CHS) for young people post 16 are specified in the Children’s Hearings (Scotland) Act 2011 and s.49(3) of the Criminal Procedure (Scotland) Act 1995. Professor Whyte also drew attention to the UNCRC, range of European Guidelines, and test cases in England and Wales which have identified that under 18s must be regarded as children who are in a unique position as a result of this, should not be dealt with in the adult court or by adult services, and should by definition of their involvement in the criminal justice system be recognised as “children in need” potentially of Compulsory Measures of Supervision and Child Protection Procedures. Yet we continue to see the number of referrals made to the CHS and young people subject to Compulsory Supervision Orders (CSO) in this age group plummeting, with the current respective figures for 17 year olds at 353 and 237 across Scotland. It is very clear this is not a reflection of the “reduced” needs of these young people and during both the presentations and subsequent discussion a number of commonly identified (and at times misguided) explanations were provided, including:

– A young person’s view and desire to have their CSO terminated (while these should always be taken into consideration, in our role as responsible corporate parents in making any assessment and recommendation, should we not be considering if this is in the young person’s best interests and the potential negative consequences of their non-compliance in the “adult system”?);

– Procedural issues,  such as the term “Children’s Hearing”, rules including on relevant persons, and the timings and scheduling of Children’s Hearings, which impact on how we think about this system and the appropriateness for young people;

– Social workers’ premature termination of CSOs and failure to utilise the powers available to them, are potentially due to lack of knowledge and feeling unskilled in supporting these young people.  Uncertainty about accessing services, either that services could be available through the criminal justice system and not CHS or that CSO could constrain access to services, may be a further factor (see Young People aged between 15 and 17 in the Children’s Hearings System A Position Statement by ADSW);

– Panel members facing issues similar to social workers and in addition having a lack of information about proposed work should a CSO be continued or the case remitted to the CHS for disposal (which should be included in the Child’s Plan and as per CJSWR Guidance, 2010) or attitudes that young people should be dealt with by the adult system to “make them face up to their behaviour”;

– Lack of confidence between Panel Members and social workers and in these agencies from COPFS and Sherriff/Judges to appropriately deal with young people involved in serious offending behaviour;

– Values and symbolism of what different parts of the systems mean; for example courts being for “public shaming”.

In addressing these issues, a variety of suggestions were put forward, some of which could be implemented with relative ease and others requiring more significant guidance and legislative change:

– Maximise the use of existing powers under the current legislation and available guidance to avoid the premature termination of CSOs and maximise the use remittal to the CHS for advice and disposal;

– Developing a national picture of practice in respect of 16 to 17 year olds in the CHS, where is there evidence of good practice and what is underpinning this, as well as developing research on decisions in remittal cases;

– Make decriminalisation of young people the norm with it acknowledged changes under s.187 and s.188 ofthe Children’s Hearings (Scotland) Act 2011 are planned but in addition by revising the arrangements for “joint reporting” of young people aged 16 and 17 (as discussed in Lightowler, Orr and Vaswani, 2014);

– Reserving criminalisation for those critical few young people who commit the most serious of crimes, improving connections between the CHS and Criminal Justice System in such cases, and establishing a young person’s protocol based on Kilbrandon principles about how cases dealt with in court can be more youth focused (but without a return to youth courts);

– Considering the necessity of Child Protection measures for all young people subject to detention;

– Ensure consistency of available services if disposals are made by the CHS or Criminal Justice System;

– Increasing confidence between agencies at a national and local level for example through partnership working, joint training, and sharing of good practice examples and outcomes where cases have been dealt with by the CHS etc;

– Increase the age of criminal responsibility to at least 12 (as also discussed in Lightowler, Orr and Vaswani, 2014).

Ultimately, if we are committed to ‘Getting it Right for Every Child’ the above issues need to go beyond periodic discussion to action. One of the reflections posed by Professor Whyte was that our failure to challenge the current situation may in part be a reflection of concern that to do so could result in the removal of the Children’s Hearings System. I think the above illustrates the pivotal role the CHS continues to have in dealing with complex young people involved in offending behaviour. We collectively have a duty to support translating this role into a reality for more of these young people.

About our blogger

Debbie Nolan’s background is in working with vulnerable and marginalised children and young people across sectors and in various roles. Read more.