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On getting a good hearing: reform and justice for children
Maggie Mellon responds to the proposed changes to the Children's Hearings by suggesting that although the Scottish Government appears to be listening to criticism of the draft Children's Hearings Bill, there is a risk that reforms will be fudged and an opportunity to right wrongs and for 'joined up thinking' on children and young people in trouble, missed.
Maggie Mellon is chair of the Scottish Child Law Centre, a member of the Scottish Consortium on Crime and Criminal Justice and is a former Director of Children and Family Services with Children 1st.
While the government south of the border is sacking its advisors and dismissing any disagreeable research findings, it has been good to experience a different response to criticism directed at the Scottish Government. Adam Ingram, Minister for Children and Early Years and his officials at the November Holyrood magazine conference on Children’s Hearings very disarmingly accepted many of the criticisms of the draft Children’s Hearing Bill.The message was clear. The government has listened and wants to work with its critics. They admitted to muddle but not to malice, declared their good intentions, and invited the cooperation of all parties.What happened in response to this would prove a good lesson for Westminster ministers and their officials. Peace broke out. The audience relaxed. The delegates were ready to listen to the government case for change – and to explore amongst themselves the weaknesses in some of the arguments against change that had been made. By ducking a battle the government won an important victory and has done much to guarantee smooth and consensual change in the hearing system.How different to the last attempted reform of the system by the introduction of antisocial behaviour legislation. Then governments north and south of the border dismissed any criticism and ploughed ahead. They got their legislation, but won nothing useful on the ground and in the process they lost the confidence of many who should have been their allies.But this is only a partial success story. Here we are in December, and a new Bill is needed for ‘early in the new year’ if it is hoped to get through this session of parliament. Looking at the draft Bill, one can’t help thinking that we should not ideally start from here – and we should give ourselves longer to get there. The draft Bill is not clear about its purpose. It also suffers from poor legal drafting. The government has a lot of work to get it ready for a January introduction to Parliament.The danger will be that any legislation will be partial and unsatisfactory and that further secondary legislation will be needed. This would be a shame.More importantly though is the loss of an opportunity. This will be the first legislation to comprehensively tackle the Children’s Hearing system for over 40 years. It could and should be as ambitious and as long-lasting as the original Social Work Scotland Act of 1968. The motivation for the reform proposals is that they are needed to make the system compliant with human rights legislation. It is puzzling that some basic wrongs are not being dealt with.The first of these is the age of criminal responsibility which is set at 8 years old in Scotland – probably the lowest age in the world. While the existence of the Children’s Hearing system means that children are not processed through courts of law, they still are regarded as legally competent and as guilty as an adult who has committed the same offence. This is it at odds with the welfare basis of the system. As Morag Driscoll of the Child Law Centre explained, if two children commit an offence together, only one of them may end up at a hearing. It is the child’s needs that motivate a hearing being called but the deed that is on the record. Why should an already unfortunate child end up with a criminal record in order for the state to address his or her needs?Secondly, we have no juvenile court. So if that unfortunate child continues to offend (and unfortunately there is evidence that for many this is the case) that child may , and usually will, be sent to the adult courts at the age of 16. They will mix with adult offenders and be judged as adults. If they fail to attend or to pay the fine they will be arrested on a warrant and off into jail they will go. As Lesley McAra, the new Professor of Penology at Edinburgh reported in her inaugural lecture on 15 December, according to evidence from the Edinburgh Study of Youth Transitions and Crime there is then an 80% certainty of further offending and imprisonment.We need proper tribunals for 16/17 year olds that recognise their youth and immaturity and have sound resources at their disposal. With a Criminal Justice Bill currently at report stage that seeks to end short sentences and also to move the age of prosecution to 12, would it not be possible to have a bit of joined-up government? We could have legislation to raise the age of criminal responsibility and create a better way of dealing with 16/17 year olds than the adult courts. Not only are these expensive way to deal with minor offending, they are very ineffective. Could a youth hearing with proper disposals and access to court orders if necessary really do any worse than the adult courts? Or be more expensive financially and socially?Yet instead of addressing the age of criminal responsibility, the draft Bill proposed adding yet more grounds for referral based on a child’s actions and not on their needs. We don’t need to itemise all the ways in which a child or young person can evidence that they are in need of adult intervention. A simple ground would be that the child has committed an act that would be an offence if they were adult.Another wrong to be righted is that hearings often don’t ‘hear’ the children - or maybe they don’t listen. Everyone including children and young people have a right to a fair hearing (ECHR) and a right to form and express a view (UNCRC). Why do we not insist on having a clear and mandatory report of the child’s views at a hearing –whether or not the child is able to speak out for themselves?Action for Children conducted a survey this October of young people who had come before the hearings. What rankled most was not the hearing’s decisions, but that they were not effective. Most felt that what they said if anything had little effect. What worried many was the threat of being removed into care or into ‘secure’. What cheered them most was having a parent (mostly mum) or failing that a social worker who knew and supported them at the hearing and ‘on their side’.However we can get too hot and bothered about our systems for processing the needs and deeds of the troubled or troublesome. For children and young people in need in Scotland, what matters most is that proper action is taken to address their needs and to give them the same rights and life chances as the majority of their more fortunate peers.As Netta Maciver, CEO of SCRA told the conference ‘It is not just about ‘finding’ children but about helping them’.At the final session of the conference we heard this story. A young woman described being taken to a hearing when 5 years old and taken into care, separated from her siblings, then returned to mum who could not cope and then all back into care again. The thing that she liked about going to .hearings.was that she saw her mum. The thing she did not like was that the hearings were also where they took her away from her mum. At the age of 16 she found herself in an adult court and then in Cornton Vale prison. She was pregnant. Out of jail, when her child was born he was removed from her at birth as there were no mother and baby resources to keep them together. There were concerns - but no evidence - that she could not parent without supervision (could any 16 year old?). She could. She won him back. Now she goes to hearings about him. Her mother supports her.What pride can we have in a care system that separates mothers and children because of a lack of resources – but has apparently got bottomless pockets for prisons, secure care, and other destinations.marked ‘failure’?
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