Charlie Taylor’s long-awaited Youth Justice Review, published this week, has proposed Children’s Panels to address offending and monitor rehabilitation among young people in England and Wales. Earlier this year, we visited Scotland to observe their Children’s Hearings System, which investigates the causes of children’s offending with the understanding that young people who offend are very often the same young people who require care and protection.
In England and Wales, as in much of the Western world, the youth justice system has become dramatically smaller in recent years. While this trend is positive, it poses a challenge to current and future youth court practice: there are fewer young people coming to court, but the cases that remain seem to involve young people with a greater concentration of vulnerabilities and complex needs.
The drop in volume offers an opportunity to re-think how youth proceedings in England and Wales might adjust to respond more effectively to the changing needs of system-involved young people. The soon-to-report review of the English and Welsh youth justice system led by Charlie Taylor is expected to include recommended changes to youth proceedings in response to this challenge.
Children and young people who offend are often the same children and young people who require care and protection. The response to children who are offending should seek to tackle the needs contributing to that offending. The Kilbrandon Report (about which we heard a lot!) has firmly embedded this simple observation in Scotland. To learn more about how the Children’s Hearings System that resulted from the report might inform change in England and Wales, the Centre for Justice Innovation enthusiastically took up an invitation from CYCJ to visit. We observed hearings and met with leadership at many of the involved statutory agencies and voluntary sector partners. It was a fascinating and eye-opening few days.
It’s clear to us that there is much to be learned both from how the system operates and from the ethos that makes it possible. While the manner in which the system operates is fundamentally different from youth court in England and Wales — non-adversarial, welfare-based, and driven by the child’s need for support — we believe that there are several aspects that could inform practice in England and Wales. A few of our reflections are outlined below.
Engagement. From what we saw and heard, the hearings system does a laudable job ensuring that the young people involved have their voice included and understand proceedings (including through pre-hearing meetings specifically to discuss how to ensure the child is heard, and through specially designed paperwork for advance submission where it is felt that this may assist). While engagement is a key tenet of youth court in England and Wales, we believe it could benefit from enhanced engagement in practice.
Participation, not just presence.Panels clearly move beyond simply requiring attendance to actively involve participants in the process. We saw this in practice in the hearings we observed: the chair carefully introduced everyone present and explained their role; the hearings discussed the child’s circumstances fully, with the child, parents/guardians, social worker, and others; decisions were reached in open session, with panel members explaining their reasoning. Participants were individually asked for their views throughout the session. It was clear that hearings are explicitly intended to be a process of two-way communication.
Language.The hearings system takes great care with the language it uses – ensuring that it is both intelligible, and not legalistic. This use of language underpins the system’s ethos: system-specific terminology is deliberately set apart from court language. Careful use of language contributes to a supportive atmosphere that encourages contributions from children and families.
Environment. Engagement is also facilitated by the environment in which hearings take place. The layout of the room is generally informal, with participants sitting around a table at the same level. The configuration is meant to remove barriers to participation, particularly for children and young people. The new pilot hearings room we saw in Glasgow was especially impressive – designed in response to feedback from hearings-experienced children and young people who were asked how the setting might improve their participation and engagement.
Inquisitorial approach. While several people we spoke with voiced concerns that hearings are becoming more adversarial, litigious, or otherwise court-like, the hearings we saw were conducted markedly differently from our observations of youth court in England and Wales. The system allows for a full inquiry into the circumstances of young people that youth court simply does not. It is clear to us that a better understanding of children and young peoples’ circumstances is more likely to lead to their needs being met.
All of the elements above can be viewed through the lens of procedural fairness – the idea that the process by which decisions are made needs to feel fair to participants, and that these perceptions have a significant effect on future behaviour. We believe that procedural fairness is an important contributor to the success of justice system processes. Our visit made it clear to us that the children’s hearings system is significantly ahead of youth court practice in England and Wales on a number of these dimensions. At the same time, enhancing many of these elements seems possible within our current legal framework. Significantly more challenging is developing the supportive ethos, a half-century in the making post-Kilbrandon, that has allowed the hearings system to flourish in Scotland.