CYCJ’s attempts to raise the need for reform in the treatment of children and young people who come to the attention of the authorities of offence grounds are welcome.
However, it is disappointing that the CYCJ discussion paper makes only timid proposals rather than recommending and describing the real changes that are needed. The conservatism of the CYCJ proposals seems to rely on optimism about the probability of success of an incremental ‘softly softly’ approach to the age of criminal responsibility and other key UNCRC and ECHR rights. The Convention on the Rights of the Child was 25 years old this year. The actual evidence is therefore of our failure over these years since 1989 to inch even one year upwards from the age of eight for criminal responsibility, and an equivalent failure to keep children aged 16 to 18 years out of the adult justice system. Yes, there have been recent successful moves under the SNP government to keep young people out of the hearings and the courts. But these are policy moves that can be reversed. Earlier years of the Lab Lib government of the Scottish parliament saw a concerted and quite successful attempt to drag Scotland along the disastrous New Labour route taken in England and Wales.
Was Kilbrandon a gradualist? The evidence is against this. He was offered the opportunity to recommend major structural and legal changes. He and his committee took the opportunity with both hands. We might identify a source of regret that Kilbrandon was not fully implemented. But we are 50 years beyond Kilbrandon now, and we have moved on from the 1963 Report and the consequent Social Work Scotland Act of 1968 in our understanding of ‘delinquency and truancy’.
We now know about labelling, about ‘net widening’, and beyond that we know about the negative impacts of being brought into the ‘system’. Our post- Kilbrandon knowledge and understanding are captured very well in the Edinburgh Study of Youth Crime and Transitions. It is therefore another ground for disappointment that the CYCJ paper refers only to one finding of that ground-breaking study. The study has followed all Edinburgh children entering secondary school in 1998 into adulthood and it continues to yield crucial new findings about the longer term outcomes for those children, now adults, of decisions that were made about their needs and deeds at the age of 11 and beyond. The CYCJ report unaccountably fails to point to the ESYCT findings that point to system decisions, particularly exclusion from school, but also involvement in the hearings system and entry to residential care, as crucial in determining the chances of a young person entering the adult justice system.
Beyond the ESYCT study, we also know that it is social inequality, rather than a ‘failure of social education’ as Kilbrandon described it, that is the major driver for poor quality of life, poor education and social outcomes and for involvement in the criminal justice system. The Spirit Level by Wilkinson and Pickett provided compelling evidence that the more unequal a society, the worse the outcomes for each of 11 health and social problems, including imprisonment, violence, drug use.
We have become a much more unequal society than we were in 1963 or at any time up to the 1970s when the Kilbrandon report was implemented. Today the UK is the most unequal society in Europe, and across all ‘developed’ (i.e. rich) countries is only beaten on inequality by Mexico, Israel and the US. (Equality Trust)
So a modern Kilbrandon might have both much more knowledge and understanding to tap into, but would also be considering a starker and less enlightened social context.
In any case, we also have learned that system change is not driven by knowledge and enlightenment. Some of the most regressive policies and legislation have been proposed and implemented not because of a lack of evidence but in spite of such evidence.
We often praise ourselves for our enlightened hearing system. But I believe that there is much to worry about. The paradox is that ‘system harm’ of the hearings is in the main done to children who have ‘needs’ as well as having committed deeds. Deeds are often forgiven or rightly dismissed as trivial transgressions of youth if the child concerned is from a middle class background. But deeds alongside needs are an apparently irresistible combination for involving children in the hearings. This includes awarding them the equivalent of life long criminal records, and also exposing them to the hazards of decision making by lay panels which operate without evidence of outcomes of their decisions – up to and including removal from families, severance of contact, institutionalisation in residential schools or secure care. Neither do panels have the resources or the power to commission evidence on outcomes, or indeed to requisition practical resources to meet any needs that are identified. So they can order secure care at the cost of £500k per annum, but not a home or a pair of shoes for a child and family in need.
Lay panels are mostly composed of people who are neither the professional experts on children and families envisaged by Kilbrandon, but nor are they representative of the communities whose children and parents are brought before them. So who are our panel members and from where is their authority to make life-changing decisions derived? Mostly they are people who can afford to take on the role, who are given paid leave, often government or public sector employees, and those with comfortable pensions and incomes. At a recent recruitment meeting for panel members I was firmly told by the current panel members in attendance that they are not expected to be aware of existing evidence on outcomes of the decisions that they are asked to make, nor are they expected to be aware of the outcomes for individual children about whom they have made life-changing decisions.
Panel membership therefore seems to carry the cachet of goodness that is attributed to unpaid voluntary service without the weight of accountability. How different is this to the worth that was attached to the prejudices of lay magistrates or Poor Law panels of old that Kilbrandon should have put out of business?
I was disappointed that not only did the CYCJ report not reference the Edinburgh Study on Youth Crime and Transitions, there was also not a reference to the broader body of criminological work on the creation of offenders, and of offending by among others, Scotland’s own David Garland.
Referencing these works would have led to reflection on the creation of offences and offenders and the potential for harm in compulsory interventions.
The uncritical acceptance and use of terms such as youth offending, youth justice, and crime is therefore problematic. Youth crime and the number of ‘young offenders’ might be said to go up or down depending on a number of factors which are not in any way to do with actual levels of rule breaking or criminality. These include the creation of new crimes, whether the police are aggressively pursuing policies such as stop and search, and zero tolerance focus on trivial transgressions, and also whether reporters to the panel chose to frame referrals on offence rather than welfare grounds.
If we are to be UNCRC compliant, the term youth justice applied to eight to 16 year olds seems to me to be entirely wrong and to reflect an uncritical acceptance of ideas of capacity, responsibility, punishment or treatment. These are children.
So what recommendations should and could we be making ?
1. We need to stop blaming poor parents and communities and start taking responsibility for our unequal and fractured society. Prioritise ‘getting it right’ for those children for whom we are currently getting it so disastrously wrong. The focus on early removal of children and of spending after rather than at the point of need means that community based and community led family services that actually work and do no harm are the most likely to be sacrificed in the coming budget cuts
2. Stop exclusions from school. Start intensive inclusion at schools with the highest numbers of referrals to the hearings and of exclusion. We could open schools and libraries in these areas, 8am to 10pm, seven days a week, offering food and cookery, homework clubs, arts and music clubs and event. Put social work support into schools to go and fetch the absent child or young person, and make sure that their problems at home are tackled and worries about family reduced.
3. Redesign our care services. Start supporting families rather than supporting care services and interventions that do more harm than good. The harm done by a care system that is based on Victorian ideas of child rescue, and confirms the disadvantages of the children drawn into it, leaves them literally broke and their families broken. Let’s instead have community and family led design and resourcing of local care services. The main beneficiaries of the care system are those who ‘own’ them either as not for profits, or private enterprises, and those who work in them. As such, they become a lobby for themselves viz the recent successful campaign by charities and private sector providers to extend the age to which young people are supported to 21 but only IF they have been in care. That means support to the tune of hundreds of £ per week to a care provider, not to a care leaver. There will be no support for children in kinship care, or children of unemployed or low paid parents: no change for families on the breadline. This will in effect mean more resources being sucked up by service providers at the expense of the communities and families whose children are ‘reaped’ into the care system.
4. Enforce current legislation that social workers and children’s panels only make decisions that are both necessary to avoid significant harm to the child or others, and which themselves do no harm. Make panels informed of the results of and accountable for their decisions.
5. Raise the age of criminal responsibility to 18. Let’s say it loud and clear: decriminalising young people does not mean ignoring them or the impact of their behaviour. Let’s take young people’s deeds and needs seriously as an indication of the amount of positive help and attention that they need. We could create separate hearings for young people aged 16 to 18, which would specialise in ensuring that these young people did not enter the adult criminal justice system, but instead were supported out of crime and offending. That would mean offering them opportunities to reach their potential and to be rewarded for expressing themselves creatively and constructively and not through harm to themselves or to others.