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Kilbrandon again?

How well does Scotland support children and young people in trouble?

Though we believe the Children’s Hearings System is superior to a criminal justice approach to children, we believe that there are major inconsistences and deficiencies in law and policy which prevent what are known as the Kilbrandon principles being implemented in practice.

There has been a significant fall in the numbers of children referred to Hearings on offence grounds and a similar fall in numbers of young people in adult courts since our 2004 Enquiry. We welcome the reduction in offending and the less punitive approach to children and young people who do transgress.

We also acknowledge that it is often children who need help the most who are most likely to be failed by the current systems. They are also the most likely to become involved with the adult criminal justice system at an early age.

This concern was tragically illustrated by the suicide on 7 October 2018 in Polmont YOI of a 16-year-old boy, William Lindsay, who was well-known to the care system, in which he had spent much of his life. When he presented himself in an extreme state of distress at a police station with a knife, he was treated as an adult within the adult system.

The complexity and contradictory nature of the structures that were supposed to respond to his needs, allied to the lack of secure accommodation which we discuss later in this report, resulted in the worst possible disposition of his case, leading directly to his suicide in Polmont YOI 48 hours after being remanded there. It is a dramatic example of the dangerous incoherencies in the systems we have created to respond to the complex needs of Scotland’s most neglected children.

More widely we found:

• A glaring inconsistency is the age of criminal responsibility. At the moment in Scotland the age of criminal responsibility is ludicrously low at 8. The Scottish Government is intent on only raising it to 12. We strongly believe it should be raised to 16, not only to conform to international standards but to align it with the founding principles of the Kilbrandon approach to the needs of offending children.

• Another anomaly is the system of criminal records which can follow offending children for decades, placing insurmountable obstacles in their path towards employment and a fulfilling life.

• A further anomaly in the operation of the Hearings is the lack of any requirement within the system to record either the presence of the children involved or their views on the process that had compelled their attendance.

• A startling change from 2004 is that offending children are now in the minority amongst panel referrals and an even smaller minority of those brought to Hearings.

• By far the greatest number are referred as in need of care and protection. The smaller numbers are mirrored in the drop in young people over 16 appearing in court, and an equally significant fall in the numbers in Polmont YOI.

• While we were impressed by the commitment and dedication of the panel members we met, we also noticed how unrepresentative they were of the communities from which most of the children they dealt with came.

• And we were concerned by the number of appeals against panel decisions that were subsequently upheld, revealing unacknowledged strains in the system.

• This drop is a consequence of changes of internal policy in Scotland, particularly the ‘whole system’ approach that has reduced the numbers being processed through courts and Hearings. It is also a consequence of the steep drop in crime across Europe and other parts of the world.

• While we welcome the reduction in offending, it is children from the most deprived backgrounds, suffering from the greatest adversities in life, who are least likely to be helped and the most likely to be failed by the current systems. They are also the most likely to become involved with the adult criminal justice system at an early age.

• We believe that the provision of secure accommodation should be planned on the basis of need in Scotland and not be left to the market

• We recommend taking 16-18-year olds out of the adult courts and that consideration should be given to a youth justice system for 16 to 21-year olds

• In 2004 in our Kilbrandon Now Enquiry we pointed to the lack of inbuilt mechanisms for review and to the lack of knowledge about the circumstances of the children or about the outcomes of the life changing decisions that have been made about them over the many years of the Hearings’ existence.

• We are disappointed to see that the Hearings system still does not collect data about the children who are referred, and those who are brought before them and about what happens to the children as a consequence. This failure to collect and analyse demographic information on the children who come before the panel means that there isn’t a body of knowledge for panels to use as a resource to inform their life changing decisions about children.

• More broadly there are no common data sets across education health welfare and justice systems which would provide important information and intelligence for policy makers.

• But our most fundamental concern is that we have not learned to think beyond the system we adopted fifty years ago to respond to children and young people in trouble. It is hardly the fault of the system itself, but it has been entirely reactive in its work, responding to the consequences of poverty and deprivation on Scotland’s troubled young people rather than on what causes the trouble in the first place.

• Fifty years on from the Social Work Scotland Act, the message is that we haven’t got there yet, and our systems require a major overhaul. The will is clearly there. All we have to do now is will the means.