DISPOSAL OF CASE BY CHILDREN'S HEARING OTHER THAN BY DISCHARGE OF REFUSAL

HC Deb 17 July 1968 vol 768 cc1528-36

Amendment made: No. 27, in page 28, line 37, at end insert: ',and the place may be a place in England or Wales where arrangements have been made in that behalf.—[Mr. Ross.]

Mr. Dewar

I beg to move Amendment No, 26, in page 28, line 37, at end insert: () Subject to the provisions of this part of this Act a children's hearing where, after consideration of his case they decide that such action is appropriate, may impose on a child or his parents—

1. (a) a fine which shall not exceed £50 sterling,
2. (b) any order for repayment by way of restitution for damage done to any other person,
3. (c) an obligation to find caution as to his future good behaviour.

The Amendment refers to the sanctions which will be available to the newly constituted children's panels. This is a matter of substance because it is necessary to ensure that we have the right selection methods for the panels and that the members are properly trained. Their discretion is fundamental to the sanctions imposed in Part III.

If we are to give them a wide discretion it should be matched with wide powers. In Committee I said that the powers were at present limited, but the Minister said that they were not. In that they are extremely serious for the individual in terms of committal to residential accommodation or supervision there if. a wide discretion open to the children's panels, but they are limited in the sense that they are narrow. The Amendment gives them powers to impose fines and various other penalties where appropriate.

The matter of fines was argued at length on pages 16 and 17 of the Kilbrandon Report. The Under-Secretary agrees that it would be wrong to impose upon a parent a fine because of the misdemeanour of a child, but as the Minister will accept, for some period—at least until 1972, people between the ages of 15 and 16 will be appearing before children's panels, and will be working and perhaps earning substantial pay packets.

The present plan envisages the school leaving age being raised in 1972, and this will largely eliminate this circumstance arising, but it is possible that Government priorities will change, as they have in the past. Even Governments can change. It may be considerably later than 1972 before substantial wage earners cease to appear at children's hearings. In paragraph 27 the Kilbrandon Report said: While such research studies as have been made of the effectiveness of different methods of treatment are necessarily subject to qualification, there is reason to think … that lining is on the whole not an effective method of treatment in relation to wage-earners. On the time scale that we are working on, this alone justifies having second thoughts about methods of fining.

There are many occasions when it is appropriate to impose a fine upon a parent. In Committee the Minister said that a fine on a parent had really very little to do with the function of the children's hearing which is concerned with the treatment of the child."—[OFFICIAL REPORT, Scottish Standing Committee, 26th June, 1968, c. 500.] It may be that in general there is validity in this argument, but I am sure that the Minister will accept that it would be wrong to look upon a child as a unit outwith its family background and context.

In Committee, when talking about the contributions made by a parent towards the cost of maintaining a child in an approved school the Under Secretary said We want always to maintain the parental responsibility and the parental interest in the child, and it is undeniable to allow a parent to get the idea that when a child is taken into care he is no longer responsible in any way. This is not the only way of bringing his responsibilities home to him but it could be a part of that and it is important that we maintain it in the Bill."—[OFFICIAL REPORT, Scottish Standing Committee, 27th June, 1968, c. 564.] I accept that the context is very different, but the point is well made. There may be circumstances when the children's panel thinks that parental responsibility would be brought home if a fine were imposed.

There is the question of a gap which appears to have emerged in the range of penalties which can be imposed and the circumstances in which a juvenile can be arrainned before a panel or court— what the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) called in Committee an apparent lacuna.

It is quite true and fair to say that under Clause 31 the Lord Advocate may recommend that prosecutions should be instituted for specific offences, but that can be done only in the High Court or the sheriffs court, which would be inappropriate for comparatively minor offences.

There might well be occasions when offences are committed when there is no question of the proper answer being a continuing period either of residential accommodation or of supervision but in which the procurator fiscal or the authorities, for their own reasons, having tried rebukes, police conciliation methods, and so on, feel that a sharp reminder of the law should be administered. If that is so, they cannot go to the juvenile court because they will no longer exist. It would be ridiculous to go the Sheriffs' court, because that would be making a mountain out of a molehill. They could not go to the children's hearings because they could not recommend a suitable penalty.

The National Association of Probation Officers has drawn my attention to a fact which I did not know, namely, that in the recent White Paper for England and Wales entitled "Children in Trouble", Cmnd. 3601, the Government proposed the retention of court procedures for certain offenders over the age of 14. It was suggested that criminal proceedings would be possible when: the young person appears not to be in need of sustained support or treatment, for the nature of the offence and his home circumstances suggest that a court appearance and a simple deterrent, e.g., a fine, would be appropriate". If the White Paper finds that case to be proven, it is worth considering it when we are dealing with the Scottish situation.

The proposal to find caution for future good behaviour is recommended in paragraph 159 of the Kilbrandon Report. In Committee, my hon. Friend the Member for Glasgow, Scotstoun (Mr. Small) said that in his experience it was often useful for the parent to have his or her hand strengthened in the domestic scene by some such device of this nature. It would rarely be used, but it might be useful to have this power in reserve. If we trust the discretion of the children's panels, we should put the widest possible variety of weapons at their disposal.

Finally I have suggested restitution. There is a tremendous case for saying that mehtods of dealing with people who appear before the children's panel should allow for a great deal of imagination and flexibility. Some cases in which damage may have been done may fall into the general category of vandalism and it may be right that the panel should be in a position to say that it would take a very different view of the circumstances if it were able to ensure that some sort of restitution, some effort to undo the damage done, would be made by those who appeared before it.

In short, I am anxious that the public should see the new children's hearings machinery which is being erected as being flexible and able to deal with the cases which come before the hearings. We have all been worried by the attitude which has often manifested itself in general debates about juvenile delinquency in Scotland in the last month or two. Prominent spokesmen, particularly those representing local authorities, sadly, seem to think that we can deal with violence by violence—almost an Old Testament attitude towards the juvenile delinquent and his treatment. The Government are trying, rightly, to shift the emphasis to proper treatment, but if they are to win, and if they are to convince the public that the machinery will be effective, they must allow imagination and flexibility in the approach of the juvenile panels. I hope that the Government will be prepared to think about this matter.

Mr. Millan

The Amendment raises a number of very important and interesting points. It is technically faulty. I should not normally make very much of that, but it is difficult to see, even if we accepted its principle, how we could insert it in the Bill at this late stage. As I said in Committee, it is a pity that we did not have a debate there on this specific Amendment, because it would have been useful to go over and elaborate the various considerations involved and the ideas which my hon. Friend the Member for Aberdeen, South (Mr. Dewar) has put forward.

The question of fines was dealt with at some length by the Kilbrandon Committee, which came to the conclusion that it would not be appropriate to give the children's hearings the power of imposing a fine. It did that for a number of reasons, but particularly because it felt that a fine was specifically a punishment whereas the children's hearings were not concerned with sanctions which can be looked upon as punishments.

My hon. Friend mentioned the question of a short, sharp sanction. But the purpose of the hearings is not, at least in the normal circumstance, concerned with short, sharp sanctions. They will be concerned with cases in which there is a continuing need for supervision and treatment of the children who come before them. That is absolutely basic to the principle on which the hearings operate.

One of the dangers of giving the hearings the opportunity to impose a fine is that this could be looked upon by the hearings as a convenient way of imposing a sanction without considering basically the problems of the child appearing before them. That would be a very great pity. I do not think that a parallel with what my right hon. Friend the Home Secretary may be proposing for England and Wales stands up, because that is in the context of an entirely different concept, involving different age groups and procedures. It is unlikely that we shall get from the English White Paper any guide to what we should do in Scotland.

It is true that in the case of wage earners there is an effectiveness about lining in many cases which is indisputable. But the quotation which my hon. Friend made, which came from a Report of the Scottish Advisory Council on the Treatment of Offenders, was not specifically directed to young people; it was directed to offenders as a whole. I doubt very much whether even with young wage earners that proposition is as true and widespread as it might be among older offenders. The wage earner whom my hon. Friend has in mind—the 15 to 16 year old—is a temporary phenomenon, because after the school-leaving age has been raised that category of young person coming before the children's hearings will no longer exist.

My hon. Friend proposes that we should put into the Bill something which would go well beyond 1972 and also well beyond the child who happened to be a wage-earner, which would impinge on the child who is not a wage-earner and would, therefore, take the form of imposing a fine not on the child but, in the vast majority of cases, a fine on his parents.

We have been careful in the Bill not to give the children's hearings any kind of power over parents in the sense of punishment. The treatment procedures available to the children's hearings are exclusively for children and young persons. They have nothing to do with imposing sanctions on the parent. It would be wrong to impose sanctions on parents in this rather indirect way by allowing a panel to impose a fine on the child.

Restitution was also considered by the Kilbrandon Committee, which came to the conclusion that it should not have statutory sanction. It will, of course, be open to the children's hearings—and I hope that in appropriate cases they will use this facility—in their treatment of the case before them to make arrangements for voluntary restitution. There may be many cases in which that is a sensible and adequate method of dealing with the case.

8.30 p.m.

Caution was recommended by the Kilbrandon Committee, but, as I said in Committee, I regarded that as an illogical recommendation. I did not necessarily agree with the Kilbrandon Committee about every detail, but in each case, except that of caution, I considered that the arguments were well rehearsed and the conclusions extremely well argued.

I find great difficulty in understanding why the Kilbrandon Committee came to this conclusion in view of what it said earlier about fines on children and on their parents. Caution is the threat of compulsory financial sanction and it seemed to me to be completely incompatible with the view of the Kilbrandon Committee, which I share, with regard to fines.

My hon. Friend the Member for Aberdeen, South makes the point that if a particular sanction is left out of consideration, the feeling could arise that the children's hearing does not have available to it what it might regard as the most effective sanction in a case. For the reasons I gave in Committee, I do not believe that this will happen in many instances, although I could not completely exclude that a children's hearing would never feel that it would be an appropriate sanction.

I said in Committee that if the children's hearing considered that what was required in a certain case was a sharp reminder to a child who appeared before the hearing about the course that his behaviour was taking and the possible consequences of persisting in that behaviour, an admonition, a rebuke or the very appearance before the children's hearing would probably be as effective in that case as a fine, which for most children is a fairly artificial concept when they are not wage-earners.

If, on the other hand, an appearance before the children's hearing and the fact that the child is given a rebuke have little effect on the child, or if there has been more than one appearance and there has still been no real improvement in the child's behaviour, I doubt very much whether, in those circumstances, a short sharp sanction is appropriate. There would probably be underlying causes of difficulty which would make a supervision requirement—not necessarily by any means a residential supervision requirement—the appropriate sanction for the children's hearing to impose. In all the circumstances, therefore, the cases in which a hearing might find it a pity that it did not have the sanction of the fine would be very few.

As I made clear in Committee, however, there is not a cast-iron argument one way or the other. It is very much a balance of argument although, in my view, the balance comes down quite heavily on the view taken by the Kilbrandon Committee. At this late stage, however, we are not able to consider all the interesting implications of my hon. Friend's proposal and, therefore, while I appreciate very much the way he moved his Amendment and the thought he has given to it, I must ask the House not to accept it.

Mr. Dewar

I mentioned, in passing, the argument, with which my hon. Friend is familiar, that a large number of offences which at present are commonly prosecuted—which people feel to be of value—will disappear. My hon. Friend said in Committee: In practical terms, in most cases such offences will disappear because they will not be among the kind of offences which the procurator fiscal, under instructions from the Lord Advocate, will be prosecuting."— [OFFICIAL REPORT, Scottish Standing Committee, 20th June, 1968; c. 385.] Will my hon. Friend say a word or two about this?

Mr. Millan

My hon. Friend raised the question of Clause 31. I do not think that he interpreted the Clause completely accurately, because he was looking at it in the sense of what happens in a particular case with the procurator scratching his head and wondering whether he should not recommend to the Lord Advocate that there should be a prosecution and the reporter wondering whether he should take the child before a hearing because an appropriate penalty would not be available. I think that this is not an accurate way of describing what will happen.

In the vast majority of the cases my hon. Friend has in mind there will be, of course, no question of prosecution. It will not be a question of the procurator feeling that there is no appropriate penalty available to the court if he prosecutes, because the whole question of prosecution will simply not arise. Of course, in many of these cases which are trivial, the question whether the child should be brought before a children's hearing will in the first instance be a matter for the reporter himself.

There will be many of these cases in which the reporter, for good reason, will feel that it is not necessary to have a children's hearing, that the matter can be dealt with by taking no action at all, or, in certain circumstances, that it can be dealt with by the reporter passing the case over to the local authority for informal supervision, but there will be cases where, either because of the number of the offences committed, or the kind of offences committed, or because, in the particular circumstances of the background of the child, it seems appropriate, the offences will be brought before the children's hearing. When they are brought before the children's hearings for reasons I have already given there will be a very few cases indeed, I think, in which the hearing would feel their sanctions to be inappropriate and would feel it appropriate that there should be a fine.

I am sure that the other sanctions, which are very important and far-reaching sanctions, which they have under Clause 44, will cover the vast majority of cases which go before a children's hearing. It is for these reasons that I think it would be a pity to introduce these other sanctions, which are rather against the principle of what we are trying to do with the children's hearings, and which I think can have dangerous implications for the way in which the children's hearings operate.

Amendment negatived.