The Separation of Court and Hearing: the Childs Welfare - Research Paper Example

Introduction Scotland has pioneered a juvenile court system that takes a child-centred approach, and so draws on the skills and competencies of a variety of people within the community to collaborate on decisions that see to the care and welfare of youth (Children's Hearing System, 2005-2006; North Lanarkshire Council, 2002). During 2003/2004 referrals of children for Children's Hearings increased by 12.6% from the previous year, making a staggering 45, 793 children who have taken part in the referral process (Scottish Children's Reporter Administration, 2004-2004). These trends indicate the critical need for extended understanding of child welfare needs within the court systems of Scotland. Notably, the Children's Hearing system is ultimately responsible for determining if decisions are in the best interest of the child. With such large numbers of children passing through the system it is necessary that Scotland consider the long-term implications of their experiences, and the psycho-social impact on children and the community at large. The following paper aims to critically review the most distinctive feature of the Children's Hearings system: That it differentiates between a criminal court and a welfare hearing for children whether their need is for compulsory supervision or guardianship. Firstly, definitions of justice and welfare will be determined. Secondly, a critique of the Scottish approach that has been in use for three decades will be provided, that is the separation of Welfare and Justice systems. Finally, a conclusion will synthesise the main points and provide recommendations for future research, as well as provide support for the current ideology that governs the Children's Hearings system. Defining Welfare & Justice Justice and welfare are recognised as distinct theoretical constructs, although it is also clear that in practice they overlap along a continuum. Similar for each is the multiplicity of meanings, reflecting parts of a larger umbrella term (Bottooms & Dingam, 2004). Decision-making entities involved in child welfare, their care and protection, and/or youth justice are descriptive labels for activities involved in juvenile services of justice and welfare. In April 1971 the Children's Hearing system commenced activities, thus establishing a two-prong juvenile service approach: A Welfare hearing and a court Justice system that aimed to meet the needs of all children within the court system, regardless of their referral issue (Waterhouse & McGhee, 2002). Until this time, juvenile services did not differentiate between Welfare and Justice. During the 1950s and 1960s, Scottish educators, governments and social and health care workers promoted discourse into the poor methods society was using to interact and guide at risk youth (Children's Hearings Scotland, 2005-2006). The children's courts at this time were inadequate to investigate intervene and monitor juvenile needs as the criminal system and welfare agency were one entity. The Committee chose to split the responsibilities across two separate organizations, and issues that required the action on behalf of the child's welfare took place at a hearing separate to that of the criminal court. The System was incorporated into the Children's (Scotland) Act, 1995. The Welfare Approach judges the needs of care and social protection of a child, taking into account the context of the child's life at that time. The key criterion for this model is the child-centred orientation, and it is their well being and interests which are predominantly taken into account (Petch, 2006). The Welfare model is dynamic and in flux, developing with socio-educational changes as alternatives to punishment. Thus, the Welfare model endorses interest, investigation and reflection on the processes that explain the causes or needs those potentate anti-social behaviours. In contrast, a Justice Approach focuses on due process and deciding whether an offense has been committed, and if so, the proportional response. Hence, the priority with a Justice model is to seek social justice, and to aim for fairness in a broader, community sense (Petch, 2006). Youth, from the age of eight in Scotland, are represented in the Justice model as being accountable to law, and responsible for their actions. Culpability occurs along a continuum, and punishment is allotted according to degree of seriousness of an offense. The approach taken by the Justice model necessitates the documentation of a child's rights to guarantee the predictability and standardisation of state powers. Characteristic and developmental differences between each child are taken into account with regard to maturity, and capacity of criminal intent. The Separation of Welfare and Justice in the Scottish System Established in 1971, the Hearings system has three principal components: the reporter, the children's panel and the Social Work Department. The System was developed for children who were deemed in need of supervision due to anti-social acts or because they were in need of care and protection. To determine the welfare of the child, and the appropriateness of compulsory measures of supervision, the hearing takes into account the social background of the child provided by a local authority or social worker, and sometimes school and medical records (Children's Hearings Scotland, 2005-2006). This in itself suggests a forward thinking and post-modern constructivist approach to social care, protection and justice. The White Paper of 1965 was progressive in that it highlighted the rights of children as identified by the United Nations Convention on the Rights of the Child (Hallett, 2000). In this sense, the separation of Welfare and Justice acknowledges the impossibility to separate the two completely, but also the necessity to address separate issues in different ways, to ensure the overriding goal of the rights of the individual, in this case the dignity, respect and safety of a child. The Hearings system gives children the opportunity to express their right to an opinion on any issue that affects them; supports their right to a positive sense of identity; and ensures that each child is treated as an individual. However, it has been suggested, that the overall principles of children's' rights are not explicitly included in the Act itself (cf: Tisdall, 1996). Further, questions have been raised as to how to enforce the principles. Although, it is generally acknowledged that including provisions for children's rights is essential to communicating ethical/moral standards, and may be of some legal use (Marshall, 1997 as cited in (Waterhous & McGhee, 2002). Another criticism of the current Scottish system is that although the courts, children's hearings and local authorities are expected to uphold the care and protection of a child, the overriding concern in justice literature appears to be their duty to the public, and the wider community ' (Children [Scotland] Act 1995). As such, the children's panel and other authorities involved are biased in their decision making toward the ultimate goal of community harmony. It is suggested here that a much more ecological approach needs to be used for the system as a whole. In that the individual child must be seen as a unit within, interdependent and interlinked with other units comprising the ecological system of life as it is understood at this moment (whish in itself is impossible). An attempt to achieve this would incorporate more research into the critical roles that justice and welfare play within the life of an individual child, and how this relationship is mediated by culture. At present, there exists a conflict of principles as to 'who' has priority. Separating the individual form their environment is recognised as ill informed in 21st century knowledge systems. An ecological approach focuses and then broadens its view, to incorporate the living system that is human life and its institutions. Since its inception, the Children's Hearing system has provided an innovative and comprehensive process for juvenile justice and the social protection and care of youth (Scottish Executive, 2000). For example, the system; has a unified welfare-based infrastructure for youth that is inclusive of those who offend and those in need of care and protection; diversion form courts with cases referred to local officials, or the Reporter refers to the children's panel, to decide if sufficient support exits for a referral and if compulsory measures of supervision are required; the establishment of a lay tribunal; a focus on family inclusiveness in decision making, and an informal approach to proceedings; and the separation of adjudication from disposal. In May 2003 there was an agreement for a Partnership for a Better Scotland that provided principles to assist Scottish Ministers to develop their partnerships, and to initiate policies within Scotland that would focus on, and enhance the social care and protection of children, by way of reviewing the children's hearing system (Scottish Children's Reporter Administration, 2003-2004). The formal review will look to how the outcomes for youth can be improved upon, while at the same time ensuring rapid, appropriate and flexible responses to each child's needs, regardless of their reason for being within the system. The review will also inform future up-dating and strengthening of the Children's Hearings system. And, from a broader perspective, the review will contribute to how children's services can be modified to construct a system that can guarantee positive outcomes for each child. A formal review is critical to monitor and evaluate ongoing performance and services of all those who are stakeholders in the Children's Hearings systems. Empirical evaluation can aid in better prioritisation of issues, and can aid in determining the best course of action that supports the welfare and care of the child. Accountability is essential for those who are responsible for the overseeing of children's' services. Decisions and actions must be the responsibility of some person/committee to ensure a standardization of approach to children's hearings, to guide decision making processes, to ensure that the rights of the child and other stakeholders are upheld, and to provide a benchmark of behaviours (code of ethics) expected from those in whom the welfare of children is put. In 2004, the formal document Getting it Right for Every Child provided a consultation pack that reviewed the Children's Hearing System (Scottish Executive, 2001). The pack is well constructed in that it is multi-lingual and colour coded to provide information and case studies about; the hearing system; issues and questions; "Your Responses"; and background material. The document has exemplary aims, in that it wants to provide the reader with insight into the hearing's ability to balance the needs of the child, their families and the wider community. It also asks for feedback as to the role that the hearing system can play in Scotland so that future goals can be determined. Further, the scope of the pack appears to be inclusive of lay community members, as well as officials and health and social care workers, in the decision making processes that will determine how to guide decisions made for the welfare of the child within the Scottish community. A provoking aspect of the document is the is that it poses the question: What if the child were your child (Scottish Executive, 2001). This question immediately engages a person with the document, and perhaps motivates them to consider their community membership, responsibilities and contributions. Again, the question posed in the pack as to how the hearings system may better partnership with the community at large activates community concern, and raises public awareness and critical appreciation of public services for youth. It is a clear display of the modernization of the infrastructure and approach strategies of the hearing review that the consideration of involving other young people in the support of the process, and in contributing to decision making of hearing processes. Studies show that peer support is critical in child criminal courts (Hallett, 2000), and so it is logical that such an approach be extended to the hearing system. It appears that the separation of Welfare and Justice has provided an innovative and progressive juvenile social care system. Although it has its limitations, overall the two-prong approach provides a channel for explicit for on the well being and social protection of the child. Concerns though, do exist for the demonstration of children's' rights across the systems, due to the conflict of principles (i.e., Welfare = child-focus, and Justice = community-focus). This is reflected in comments by parents who report finding the ideology of the Hearing system as inconsistent and incoherent. In turn, it appears that assuming parent are responding to the system through a sense of justice are gravely mistaken (Petch, 2006). The results of the community input for Getting it Right for Every Child, 2003-2004, showed that most respondents agreed with; the principles of the Hearing system; the need for a child-centred system that saw the needs of the child as an overriding objective (Scottish Executive, 2001). As such, most community members said that the Hearing system should maintain a focus on the needs of the child (i.e., a Welfare approach) whilst balancing the needs of the community (Justice). In this way, the current division of Welfare and Justice in the Scottish system is supported with empirical data, at least form a community perspective (Pethc, 2006). However, Waterhous & McGhee, 2002 points out that The Children (Scotland) Act, 1995 has initiated changes that can have long-term negative consequences for principles upheld by the Children's Hearings system (i.e., early intervention, partnership and child welfare). Waterhous & McGhee, 2002 argues that the move to a Justice model for making decisions about a child's welfare is in direct opposition to child-care policy, which is oriented toward prevention, family support and partnership. Other concerns include the separation of children an older youth in need of guardianship from 'young offenders'; and diversion, restructuring and neo-conservative crime control tactics (Hallet, 2000). Studies show that systems that do not work in other countries to reduce offending are those that consider punishment and deterrence solely, without a Welfare element. It is the inclusion of a Welfare model that is advantageous to the Scottish system, in that the humane approach looks to intervene in psycho-social issues of the young person with the aim of achieving positive outcomes in Welfare and Justice (global). To isolate offensive behaviour without consideration of Welfare issues would be to take a step backwards in Western court processes. Research shows that sanctions alone are associated with increased offending. Conclusion In conclusion, the Scottish Children's Hearing system provides an innovative, modern and socially orientated approach to juvenile services. The separation of court and hearing provides services focused on the child's welfare to be treated as a separate and distinct function of court proceedings, although essential to the deliverance of social justice for the child and the community at large. The overriding concern of the hearing is the welfare of the child. And this is exemplified in the various reviews that have taken place to assess the hearings, and in the sincere efforts of authorities to include community participation and awareness of the needs of children with Scottish public services. Future research could extend understanding of children and other stakeholder experiences within the hearing system to determine if outcomes align with set goals. It is also recommended that an evaluation of community participation, such as that expected with the Getting it Right with Every Child document, be undertaken to determine the best ways to engage with lay members of the public and to encourage their essential contribution. References .. ( ). Children's Hearings System. Where: Publisher. Buist, M. & White, B. (2004). International evidence to Scotland's Children's Hearings Review: Decision making and services relating to children and young people involved in offending. Retrieved October 13, 2006 http://www.scotland.gov.uk/Publications/2004/11/20241/46538 Bottoms, A. & Dignan, J. (2004). Youth justice in Great Britain. Crime & Justice, 31. Children's Hearing System (2005-2006). Children's hearings. Retrieved October 13, 2006 from http://www.childrenshearingsscotland.gov.uk/ Hallett, C. (2000). Ahead of the game or behind the times The Scottish Children's Hearings System in international context. International Journal of Law, Policy and the Family, 14(1), 31-44. North Lanarkshire Council (2002). Children's Hearings System. Retrieved October 13, 2006 from http://www.northlan.gov.uk/caring+for+you/children+and+families/childrens+panel+and+hearings/childrens+hearing+system.html Petch, A. (2006). Answering back: Parental perspectives on the Children's Hearings System. British Journal of Social Work, 18(1), 1-24. Scottish Executive (2001). Getting it Right for Every Child. Retrieved October 13, 2006 from http://www.scotland.gov.uk/consultations/education/chhp-01.pdf Scottish Executive (2000). The International context: Trends in juvenile and child welfare. Retrieved October 13, 2006 from http://www.scotland.gov.uk/cru/documents/ech4-02.asp Scottish Children's Reporter Administration (2003-2004). Annual Report, 2003-2004. Retrieved October 13, 2006 from http://www.scra.gov.uk/documents/scra0304.pdf Stevenson, R., & Brotchie, R. (2004). Getting it Right for Every Child: A Report on the Responses to the consultation of the review of the Children's Hearing System. Retrieved October 13, 2006. Waterhouse, L. & McGhee, J. (2002). Children's hearings in Scotland: compulsion and disadvantage. The Journal of Social Welfare & Family Law, 24(3), 279-296. Read More