Youth Justice

The purpose of this essay is to critically evaluate both the welfare principals and punitive principals that are paramount to the youth justice system, firstly by looking at what is meant by welfare approaches and how they have been used in adapting the Children’s Hearing System that is used in Scotland today when dealing with young offenders. Then looking at punitive approaches, how they are also used in dealing with young offenders and how they appear to be re-emerging back into the system in the form of the new youth courts which where piloted in Hamilton and Airdrie.

The large majority of young people who offend are boys who are between the ages of twelve and fifteen, girls just do not offend as much as boys. This is explained in the terms of how boys socialise their adolescent development processes, also there is differences in their peer group relationships and their leisure pursuits. These young people are disadvantaged living in homes which are dependent on state benefit with their parents predominately unemployed. This then leads them to suffer social adversity, living in poor economic and social situations. Family lives which are severely disrupted and children that suffer personal difficulties, Children in care, problems with alcohol, drugs and children suffering from mental health problems are all factors that could lead a young person to offend.

A large proportion of young offenders will also live in local authority accommodation, which will be subsidised by the state, housed in deprived neighbourhood with a very low sense of community and by parents that take a laid back approach to parenting and rarely supervise their children whereabouts. However, harsh discipline, parental conflict and parental rejection are also factors which are associated with youth offending. Other important predictors to youth offending are children experiencing broken homes and early separation, both permanent and temporary families which have also been involved with the criminal justice system.

Around a fifth of households are now headed by a lone parent in Scotland, the majority of these are women, with children having no male role model to look up to, one in eight children now grow up in a reconstituted family in Scotland with either a

Step father or step mother. There are more and more teen pregnancies, with children bringing up children. It has shown in recent research that children who still live with are less likely to offend, whereas those living with one parent or a step family are more likely to offend. Parenting style and parenting-child attachment appear to be more important than family when looking at reasons why young people offend.

Education is also an important factor when looking at youth criminality, links between disaffection at school and delinquency are well substantiated, whether it is due to young people hating school that cause them to offend or they offend because they hate school. Poor school performance, low intelligence and being seen as troublesome in school are major crime risk factors. Young people who have peer relationships with criminal others has also been identified as an independent predictor to future offending. The Welfare approach assumes that delinquency is a pathological condition which is beyond the control of the individual concerned and since they have no control over their actions they should not be held accountable, guilt or innocence are irrelevant and punishment inappropriate. The needs or underlying disorders, of which delinquency is symptomatic, are capable of identification and hence prevention, treatment and control are possible. The informality of the children’s hearing system is therefore necessary if the children’s needs are to be accurately determined and their best interests served.

Discretion is necessary in determining the best treatment need for the child, the child’s welfare is paramount and a system designed to meet the needs of the child will in turn protect the community and serve the best interests of society. Both children in trouble, offenders and non-offenders are basically the same and can be effectively dealt with through a single unified system designed to identify and meet the needs of the child. . This approach believes that; “Delinquent, dependent and neglected children are all products of an adverse environment which at its worst is characterised by multiple deprivation, including poor parental care, are all relevant considerations” (Muncie, 2004).

Youth justice was first introduced when social reformers in the eighteen hundreds campaigned to separate children from the adult justice system. However it was not until the introduction of the 1908 Children’s Act, where it banned under fourteen year olds from adult prisons that the changes were made. Almost forty years later legislation was introduced containing the very first sign of the welfarist principles, this was done through the Children Act of 1948 and the Criminal Justice Act of 1948.

This idea of Welfarism continued until the seventies, with the introduction of the Children’s Hearing System, which was initially introduced through the Social Work (Scotland) Act 1968 and this is now incorporated into the Children’s (Scotland) Act 1995. This system of dealing with children was adapted due to an overall concern of how children and young people who were at risk and danger where being treated within the criminal justice system. These concerns brought about the setting up of a committee by Lord Kilbrandon, in order to investigate solutions to this problem. This committee found that all young people and children that where finding themselves in front of criminal courts all had particular needs.

The kilbrandon Report in Scotland describes delinquency as a “Symptom of personal or environmental difficulties” (Muncie, 2004). They believed that youth offending was an indication of maladjustment, immaturity or damaged personality, all of which could be easily treated in the same way that illness is treated. The kilbrandon ethos was to deal with young offenders through a system of supervision, treatment and social welfare within their community rather than through punishment or custodial sanctions. They wanted the juvenile courts to be abolished and replaced by a welfarist tribunal. The aim of this new system that the Kilbrandon report advocates is to prevent juvenile delinquency, provide an assessment of the child and their family needs and to also promote non-custodial sanctions.

The proposals which formed much of the Children and Young Persons Act 1969 and the Social Work (Scotland) Act 1968 were explicitly based on the welfare approach to young offenders which have seen place for a number of years but are been strongly acted on in this new system being put forward by the Kilbrandon Report, rather than replacing them the new welfarist principles were grafted on them. These principles where generally used when dealing with a younger age group, as in low school achievers, wayward girls and truants from problem families designated as pre-delinquent. Now they cover a wider range of age groups and offenders.

However England and Wales did not implement parts of the Act that they felt where to welfare minded and permissive. It also attracted a lot of criticism, the new Conservative Government at the time essentially objected to the state intervention in criminal matters through a welfare rather than a judicial body. Magistrate and police also responded to the undermining of their key positions in the justice system by becoming more punitively minded and declining the opportunity to use community based services on a large scale.

It is widely assumed that all children under a certain age are doli incapax (incapable of evil)and they therefore cannot be held responsible for their actions, the current age of criminal responsibility in Scotland is eight years old, one of the youngest in Europe. The Children’s hearing system deals with children ages between eight and sixteen, after this they are dealt with in the criminal courts unless there supervision under the Children’s Hearing has been extended to eighteen.
When young people find themselves involved with the law they will initially receive, depending on the severity of the crime which they have committed, a verbal warning, than a written warning before they are referred to the Children’s Hearing System. The majority of cases put before the criminal courts will receive a fine despite the fact they the vast majority of them are on state benefits. Despite attempts by the Children’s Hearing System a great multiple of young offenders will be discharged without their offending issues being resolved and will most definitely re-offend. Although summary courts in Scotland have the power to refer most young people up to the age of seventeen years and six months back to the Children’s Hearing System, this power is seldom used and the age of transfer to adult criminal proceedings in Scotland seems to occur at a relatively young age by European standards.

The difficulty which is faced when trying to identify targets for intervention is that all types of social problems tend to be interrelated, making it difficult to predict casual links, pathways and how best to intervene to interrupt the development sequence from childhood to adult criminal behaviour. It is also difficult to know when is best to intervene because of limited knowledge about development sequences, in particular ages at which key factors most influence onset, persistent and desistence.
The Children’s Hearing System which was recommended by the Kilbrandon committee was first put in place on the 15th of April 1971, they took over from the courts the majority of responsibility for dealing with children and young people aged eight to sixteen and in some cases even up to the age of eighteen who where committing offences or who where in need of care and protection. This system is unique to Scotland and no other country in the world uses this system in dealing with young offenders.

In the 1968 Social Work (Scotland) Act it represented a new look at the role of the social work, giving local authorities the duty of promoting social welfare for children in need of care and protection and it established this unique system emphasising that they are not a criminal court but a welfare tribunal which are serviced by lay people from the local community.

Children can be referred to the reporter (it is the reporters duty to go through all referrals and decide what future action to take), “sixty percent of which are considered unworthy of future action. Some ten percent are referred to the Social Work Department” (Muncie, 2004) of the Children’s Hearing System by a number of agencies including, Education authorities, social work department, the police and the prosecutor fiscal. The grounds for referring a child or young person to the Children’s Hearing System are set down in Section (2) of the Children’s (Scotland) Act 1995 and include that the child is:
• Beyond the control of parents and cares.
• At risk of moral danger.
• Is or has been the victim of an offence including physical injury or sexual abuse.
• Is likely to suffer serious harm to health or development through lack of care.
• Is misusing drugs, alcohol or solvents.
• Has committed an offence.
• Is not attending School regularly without a reasonable excuse.
• Is subject to an antisocial behaviour order and the sheriff requires the case to be referred to a children’s Hearing. (www.children’s-hearings.co.uk)

When the Children’s Hearing System was first started a lot of the initial case where all for offences committed by young people, but as the nineties non- offence case where making up to about a third of the referrals to the Children’s Hearings. The most common reason for referral now being non-attendance at school (Scottish Consortium, 2000, Muncie, 2004).

When an individual case reaches the hearing it is deliberated upon by three lay members of a panel the parents or the Childs guardian, social work representatives and the child itself. Safeguards can also be appointed but are rarely used. The hearing does not determine guilt or innocence it is sole concerned with deciding on future courses of action, it cannot imprison or impose community penalties its powers are limited to only three decisions. These are: Discharge, Supervision order or Residential Supervision order, the most frequent being the social work supervision requirement. In 2003 new plans were introduced to give the Children’s Hearing System new powers to electronically tag under sixteen year olds and to also force the child’s parents to take more responsibility for their child’s offending

In Scotland there are no penal options available to children under the age of sixteen, there still remains a continuing presence of custodial institutions for older children whose regimes are far removed from the promotion of welfarism, so when a child reaches this bench mark is it totally forgotten that they face the same problems that they faced when they were below sixteen and can simply a birthday determine such a change. In 1985 the only custodial centre for young people, at Glenochil, Alloa, came under criticism following a sequence of suicides unparalled in the custody of young people.

In the 1990’s there was a shift from notions of a child’s best interest approach to that of public protection. This then brought to the re-establishing youth courts, An a pilot was launched in Hamilton and Airdrie. “The youth court got off to less than an auspicious start when on its first day only three cases were due to be heard, one accused failed to turn up and the court session was terminated after 10 minutes”(The Herald,2003).