Item 2 on the agenda is an evidence-taking session on the Antisocial Behaviour (Scotland) Bill. We commence with Rosemarie McIlwhan, the director of the Scottish Human Rights Centre. We are very pleased to welcome you to the meeting this afternoon. I have scheduled a rough time scale: I suggest that we spend about 30 to 35 minutes on this, depending on how we get on. I ask members to indicate their desire to put questions to our witness. Mike Pringle is interested in antisocial behaviour orders for under-16s.
Thanks very much for coming, Rosemarie. I hope that your crutches are not with you for too long.
Thanks for those warm wishes. We suggest that ASBOs should not be used on children at all. If they are to be used, they should be granted through the children's hearings system. However, I emphasise that we think it inappropriate for ASBOs to be used against children. You must bear it in mind that we are talking about children, rather than about people who are fully responsible for their actions. On that basis, we should be able to treat them as children and treat the reasons why they engage in antisocial behaviour with that in mind.
I appreciate what you say about keeping children who have problems in the children's hearings system rather than introducing them into the court system—although ASBOs are a civil measure. If hearings had the power to grant ASBOs to under-16s, would you feel more relaxed about that? Is it the granting of the ASBO to an under-16 that you are more worried about or is it the fact that that is done by a court rather than through the hearings system?
We would certainly feel happier if ASBOs were granted through the children's hearings system, as hearings have a much more holistic approach and consider the circumstances around the behaviour, rather than simply put a penalty on it. I accept what you say about ASBOs being a civil measure, but it is a criminal offence to breach one. That is a serious blurring of the distinction between civil and criminal law, over which we have fundamental concerns.
I draw your attention to the part of the bill that gives the police the power to designate an area a problem area and, within that area, to disperse groups of two or more if their behaviour is deemed likely to cause or to be actually causing distress or alarm.
With regard to whether they are necessary, we take our steer from the police. I know that you have had lots of evidence from the police that the powers are not necessary, as the police already have sufficient powers. In terms of law, we agree with that.
I take it from that that you argue that there is too much subjectivity in the bill, because it focuses not on whether the behaviour of the group is legal or illegal, but on the effect that the behaviour has on other people, and different people will react in different ways to a group of young people hanging around the streets. Should the bill be more objective, and focus on the behaviour? If people are committing an offence, fair enough, but if they are simply hanging about talking to each other, that is something different.
That is our concern with the vast majority of the bill—it is very subjective. There is a lot of discretion in deciding whether an offence is being committed. That raises problems of certainty under article 6 of the ECHR and in terms of how the measures will work in practice, which opens up a lot of potential for discrimination. You mentioned people being concerned about young people being noisy on the street corner, but there are many other issues. For example, if some people were protesting outside Faslane, they had not provided notification under the Civic Government (Scotland) Act 1982—which is provided for in the bill—and someone complained, they would be moved on, despite the fact that they were peacefully exercising their ECHR right to protest.
Is your objection to the proposed dispersal power that an offence of itself is not being committed, and that the bill would create the new offence of being in a group of two or more people, or is it—as you have just suggested—that you do not like the mechanism in the bill to establish the areas where non-dispersal will be an offence?
Both points are right. We disagree that there is a need for the offence to be created, but if you persist and the offence is created, we have serious concerns about the procedures through which the offence will be designated.
I wish to press you on that. There are tremendous safeguards. Before a group can be moved on, there has to be serious and persistent antisocial behaviour. You may say that that is a subjective judgment, but the police know serious and persistent antisocial behaviour when they see it. It has to have been happening over a long period of time. You gave the example of a gathering on a corner of the Royal Mile after a cross-party group meeting being a wee bit noisy, and the police using the measures to move you on, but that could not happen, unless that corner of the Royal Mile had been designated and groups of people had been causing disturbances there on a regular basis. There are a lot more safeguards than you said.
Maureen, just to keep things clear, do you want Rosemarie to comment on the point that you have just made?
Okay, as long as I can come back and ask about ASBOs.
Your point was that you believe that the bill has sufficient safeguards.
I think so.
Rosemarie, will you comment on that?
The safeguards in the bill are quite strong, but I still dispute the need for the measure. The situation that I outlined as a joke could arise. The Royal Mile might not ever be designated—although it could, given the number of marches that go up and down it—but Faslane could quite easily be designated and that would cause real concern. The measure is unnecessary and should be excluded from the bill.
My next point is about ASBOs. You said that the imposition of an ASBO could give a child a criminal record. Is not the imposition of an ASBO a civil procedure? It would become a criminal offence only if the ASBO were broken; a bit like an interdict.
That is correct, but if someone breaches an ASBO, they will end up with a criminal record, so that potential exists.
I agree. I just wanted to clarify the point.
Reparation for antisocial behaviour has been widely acknowledged as a positive measure. What is your view of the proposals for community reparation orders?
We are generally in favour of community reparation orders. The focus on reparation is a positive step. However—as always—there is a "but". Sufficient support should be put in place to ensure that they happen. For example, community service orders are currently given out by the courts but we often hear that there is insufficient support, largely because of lack of resources in social work departments and elsewhere, to ensure that they are enforced. If community reparation orders are going to be introduced, there must be sufficient support mechanisms to deal with them.
As I understand it, CROs would be restricted to 12 to 21-year-olds. Some other organisations have said that there should be a degree of flexibility and no upper age limit. What is the centre's view on that?
We suggest that putting an age limit on CROs would discriminate against young people and that it should be reconsidered. There is no reason why someone over the age of 21 could not benefit from a CRO in the same way as anyone else. The implication is that only young people behave antisocially and that only they should be subject to CROs. We suggest that the age limit be removed.
There is some concern that there would be duplication of effort between that new kind of court order and the children's hearings system. Do you foresee any difficulties arising from that?
Similar to our suggestion about ASBOs, we suggest that it should be open to the children's hearings system rather than to the courts to use CROs. We have a strong feeling that courts are not the place for children and that anyone under the age of 18 should be dealt with through the children's hearings system in a holistic way, rather than put through an adult court.
The Law Society of Scotland has expressed two concerns about parenting orders. First, they might be counterproductive in the relationship between the parent and the youngster involved. Secondly, there might be other issues of ECHR enforcement. Do you share those concerns?
We share those concerns. Although the concept of providing support to parents to deal with children with whom they are having problems is good, a parenting order would not help in that situation. It might bring the parent and child into further conflict, which is not what we want to happen.
What about the broader issue of the fundamental right of families to operate as they desire and the enforceability of the parenting orders? Do you think that a parenting order would be easy to enforce if it had been breached?
In terms of parents' being able to deal with their family as they see fit, at certain points the law has to intervene. When the Criminal Justice (Scotland) Bill was passing through the Parliament, there was a real need for the Government to intervene and stop parents' being able to hit their children. That could also apply to giving parents support to deal with children if they are out of hand. My suggestion is—as it was when the Criminal Justice (Scotland) Bill was being passed—that support should be provided through parenting classes, not through the imposition of civil or criminal measures.
How do you feel that breach of a parenting order should be dealt with?
There is real concern that although a parenting order is a civil matter, breach of a parenting order is a criminal matter. That is a blurring of the difference between civil and criminal law.
Can I come in on that?
Sorry, but I want to clarify a point. The first thing you said was that you felt that the thrust of the approach should be education through parenting classes.
Absolutely. Yes.
That being the case, you would consider the provisions in the bill to be a mixture of the unnecessary and the undesirable.
Basically, yes. Including a measure that criminalises parents, whether in criminal law or by telling them that they are bad parents, would be counterproductive. Education and awareness raising would be a much better direction in which to go and would deal with the wider problems in society.
I want to pick up on what you said about the blurring of the distinction between civil and criminal law. We are talking about interdicts, which, surely, are well known. They are common in the courts, whether they be matrimonial interdicts or interdicts with powers of arrest under the Protection from Abuse (Scotland) Act 2001. Interdicts are a civil matter, but if they are broken it becomes a criminal matter. What the bill proposes is not something new in law.
It is not something new, but it is not desirable. Let us take your example of protection from abuse. In that case, the courts are trying to protect somebody from a criminal act taking place—somebody assaulting another person. In the context of the bill, we are talking about the civil matter of people dealing with their families. There is a real concern about the blurring of that distinction.
Surely a parenting order would be sought if parents were not looking after their children properly and, thereby, harming them. Therefore, it is a measure that is aimed at protecting a child.
There are other measures in place to deal with that.
I do not think that harm is mentioned in section 76. I make that point just for clarification. Harm is not a criterion—the circumstances are broader than that.
I do not mean physical harm. I mean that, if a parenting order is necessary, that is because the parent is not looking after the child properly and the child is lacking support from their family—after interventions, let us say. Therefore, I regard a parenting order as comparable to protection from abuse because it is something that is done for the good of the child.
It does not appear that way in the bill. It appears that a parent will be subject to a parenting order primarily because their child is committing antisocial behaviour. Welfare is mentioned only once and is far down the list. I would argue that education for parents in how to support and care for their children is a better way to deal with the problem than parenting orders.
The problem as I see it is that, in many instances, parents have not engaged. The parenting order is a method of trying to get them engaged. You suggest that we should introduce parenting classes, but the problem with that idea is that the parents would just not turn up to those classes. We could not make them turn up to the classes, but the parenting order would make them get involved. I accept what you say, but how could we get the parents to go to parenting classes without making them do so?
That is perhaps based on a bit of a rash presumption—if you pardon me saying that.
Would you say that what we might find is that the parents you have described—the ones you have spoken to who want help and feel that they do not get it—are likely to respond to the voluntary measures and that the parents who do not engage with voluntary support and find themselves in a situation in which court-enforced parenting orders are being contemplated are the parents who do not care? Is there an argument that at that stage going to court to force a parent who does not care to care is not what we should be doing? Instead, should we ask whether it is in the child's best interest to remain with that parent?
That is a very good point. That issue would need to be considered, because if the parent really did not care, that would effectively be neglect. Parents have rights and responsibilities under the Children (Scotland) Act 1995. We must consider whether they are fulfilling those responsibilities, which include responsibilities for the welfare and care of the child. We should, as you say, ask whether the child is best placed with that parent. That again comes back to the type of issue that the children's hearings system will look at; a children's hearing will make the decision that a child should be placed in care, either temporarily or permanently, if the parent is neglecting the child.
The bill proposes an extension of restriction of liberty orders so that they may be used for under-16s. It also proposes that children's hearings be able to introduce remote monitoring arrangements. What are your views on those matters? Do you see any problems with the proposals?
The SHRC is strongly against the use of restriction of liberty orders for children under 16. In America, tags have become a status symbol rather than an effective means of stopping children behaving as they have been behaving.
Not all children or young people who are the perpetrators of antisocial behaviour are being abused or neglected at home. Sometimes there is a misconception that young people who are the cause of the problem come from some of our more deprived communities, but that is not always the case.
I raised that only as an example. I take your point that not every young person involved in antisocial behaviour is in that situation, but I still think that imprisoning someone in their house only localises the problem—it does not deal with it.
Absolutely, but that is only one aspect of the bill. Do you accept that some of the issues that you have highlighted are also covered in the bill? Surely if issues such as education, the need to assist parents to be better parents and—at the heart of the bill—the need to protect communities are included, the bill is not quite as draconian or as dangerous as it may be perceived to be?
My apologies, but I beg to differ. There is nothing in the bill about education or about assisting parents, as parenting orders would not assist parents. The proposals would not create better communities; they would divide them. Young people and old people feel discriminated against. I have already heard people saying, "That consultation discriminated against me as an old person. It portrayed me as a little feart old woman, sitting in my house because I am scared by those young people." That is pretty much a verbatim quotation of someone we spoke to. Communities are divided over the bill. That will not make them better communities.
I was going to stay quiet during this set of questions, but I need to challenge some of the things you are saying. I do not think that either approach is mutually exclusive. It is possible to accompany restriction of liberty orders with some of the measures that will improve and address the causal factors behind the behaviour.
I would probably query whether tagging the person will stop them, but I guess that people will find out only if it is tried. Arson is a serious crime. The person could be put into a juvenile detention centre for that offence. I suggest that that would be the best place for that person to address their behaviour. It should not be done in the community as that would pose a threat to the community. Tagging people does not take away the threat.
I seek clarification on something you highlighted in your submission. You expressed concern that a breach of article 6 of the ECHR could result from the decision to allow children's panels to impose remote monitoring arrangements on young people. Your opinion is that children's panels exist to address behaviour and not to punish. Why did you reach that conclusion?
To be fair, the point was made in the submission from the Scottish Children's Reporter Administration. It would be helpful to have your opinion on the SCRA's concerns. Do you share that apprehension?
Article 6 of the ECHR covers the right to a fair hearing. Obviously, the SCRA is concerned about S v Miller—the case that, under article 6, challenged the fairness of the children's hearings system and its processes. There are potential concerns about the children's hearings system implementing restriction of liberty orders in that such orders require a fairly invasive determination of the child's civil and criminal rights. I share the SCRA's concerns.
I have a brief question for Rosemarie McIlwhan about electronic tagging. In a previous debate in Parliament, there was discussion about tagging being used as an alternative to imprisonment, during which the Minister for Justice made it clear that she believed that electronic tagging could be used as an alternative to custody. Do you see electronic tagging and remote monitoring arrangements in that light? Could they be used as alternatives to sending people to juvenile detention centres or prison?
As I said, we support the use of electronic tagging for adults, but we think that it would be a breach of children's rights—it would be potentially inhuman to tag a child. Situations need to be dealt with in different ways. We do not agree with restriction of liberty orders, tagging or electronic monitoring for children.
On that point, what is the difference between someone who is aged 15 and a half and someone who is over the age of 16? There seems to be little difference between the two. People might well have views on the rights and wrongs of restriction of liberty orders, but if there is a genuine belief that such an order could change a person's behaviour, would not it be easier to do that when the person is a child than when they are perhaps entrenched and set in their ways?
I accept that the younger a person is, the easier it probably is to change their behaviour.
I am still confused by your response to Jackie Baillie's example about somebody who goes around setting fires. When she asked whether such a case would merit an RLO, you said that the person would be a criminal and therefore should basically be locked up. You seem to have contradicted yourself in another answer because you said that children should never be treated as criminals and therefore, I presume, should never be locked up. I am not terribly sure where that line comes from. You would have children put into secure accommodation, but you think that they ought not to be subject to electronic tagging.
Let Rosemarie McIlwhan deal with that point first.
I did not say that such a person would be a criminal; I said that arson is a crime. There is a slight difference. The age of criminal responsibility in Scotland is eight. A children's hearing can decide how to deal with such issues and, where there is a threat to the child or the community, can impose detention. That is a balance that has to be struck. In the situation that Jackie Baillie outlined, in which there is a severe threat to the community, one could justify detention of the child if the child was found to be guilty of having committed arson.
My second point is that RLOs need not only restrict people to their houses, but can keep them away from places. For example, the tag could be to keep somebody away from a shopping centre rather than to keep them at home. Would not that be a useful tool in helping children address their behaviour?
The fundamental concern remains that to put a tag on a child is a breach of that child's right to privacy. I do not think that it would in any reasonable manner keep a child away from a shopping centre—the child might still go there and get punished for it—and I do not believe that it would stop antisocial behaviour. As I said, tags are status symbols in the United States. They have not stopped crime there in any way, shape or form, so what makes you think that they will work in Scotland?
Let us put to one side the example of the arsonist; on balance, I agree with you about that case. We will accept that, whatever disposal is used, intensive support to tackle the underlying causes of offending or antisocial behaviour is as important as, if not more important than, any punitive measure. Do you therefore see a role for tagging in cases in which it is clear that some restriction must be put on a young person to prevent certain behaviour? Do you envisage any circumstances in which tagging might be preferable to secure accommodation, in the sense that it is a less restrictive alternative that might enable us not to rip a young person out of the community, but to work with them in the community in a much more constructive way?
I see what you are getting at, but we do not believe that the use of tags on anyone under 16 can be justified. I know that that is a hard line to take, but we must accept that such people are children and should be treated as such. The paramount underlying principle in such cases must be the child's best interests; to make a child wear an invasive tag is not, and could never be said to be, in that child's best interests.
Would that be the case even if tagging could be seen to be less restrictive than locking the child up?
The short answer is yes.
As no committee members want to ask any further questions, I thank Rosemarie McIlwhan for being with us this afternoon and for being so robust in presenting her position. She has been very helpful.
A lot of the submissions that I have had—
I am sorry: I am having difficulty hearing you. I am actually deaf in one ear, so could you speak up a wee bit?
I must confess that I get that excuse a lot of times in the chamber.
I do. The Scottish Child Law Centre hears of many situations in which young people have been placed under social work supervision and either nothing happens or very little happens. Not only is the young person let down—because their offending behaviour is not tackled or because they feel that, although there was a big hoo-hah about their coming into the hearings system, nobody cares—but the parents, who might have been able to work with the social work department or might have been prepared to consider doing something to support the young person, find that there is nothing for them, either.
One of the things that struck me after reading your submission was this: if the Antisocial Behaviour etc (Scotland) Bill is passed, is there a danger that we might end up with problems being caused by the two systems running parallel to each other?
I hope that this does not sound as though I am avoiding your question but, although you are right to point out that there might be a cross-over—which might not always be a bad thing—I am more concerned about the fact that the principles behind the children's hearings system and the way in which we try to deal with children and young people are different from the principles that appear to underlie the bill. There is a real danger that we could end up excluding and stigmatising young people, as I said in my submission.
Just to be clear, you are contrasting two sets of principles. You suggest that the principles that underlie the children's hearings system are holistic in that they take all circumstances into consideration, whereas the principles that underlie the bill are more to do with punishment and stigmatisation.
That is correct.
The bill proposes that ASBOs will apply to people from the age of 12. At present, they apply only to people over the age of 16. Several people have said that the age of 12 is quite an arbitrary point and that ASBOs should apply to people over the age of criminal responsibility, which is eight. Do you have a view on that?
Again, I am sorry if it sounds as though I am not answering the question, but I do not think that discussing the age limit in relation to antisocial behaviour orders is helpful. I do not think that the purpose of antisocial behaviour orders is likely to be fulfilled. They are intended to make a statement to young people that what they are doing is wrong but, in the Scottish Child Law Centre's view, that is not the way to tackle antisocial behaviour.
So you would not be in favour of imposing an ASBO on over-16s, either. Am I right in thinking that you do not want antisocial behaviour orders to be imposed on anyone?
I do not think that they are helpful.
My impression of the bill is that antisocial behaviour orders will be used only as a last resort. I accept what you said about resources. Perhaps we would not have an out-of-control 15-year-old if more resources had been used in earlier years, but if all other methods had been tried, what would you use as a last resort, if not an antisocial behaviour order?
You may well have experience—I am sure that plenty of committee members have—of social workers who say that they have tried everything. I have heard that many times, and children's panel members might also tell the committee that they have heard that many times. What is clearly missing from the committee's information and the existing research is young people's experience of all the things that have been tried.
Is that a resource issue or is it connected with a lack of will among social work departments or others?
It is obvious that resources are an issue, but some very talented social workers want to work with young people. The youth crime review mentions projects of intensive work with young people. Special resources are provided for such projects, but I imagine that if the social workers who are trying to do that work do not have back-up, they are stuck. The committee should ask social workers about that.
The bill will allow the police to designate a problem area, which will give them the power to disperse groups of two or more people. Are those powers necessary because the police do not have those powers? Do you foresee any danger that the provisions will be used inappropriately? If so, why? Are those powers useful, or is your view similar to that of the Association of Chief Police Officers in Scotland, which says that the powers could be counterproductive in that they might alienate young people from the police?
We have statistics on callers to our centre and what they call about. Members should remember that the young people who call the Child Law Centre do not necessarily call it—as they would call ChildLine—about abuse issues. The young people call about legal issues, to the extent that they identify a matter as being legal. The most obvious legal issues for the young people who call us relate to the police, because it is simplest to link them with the law. Almost all of the young people who call to talk about the police give similar stories about being treated with utter disrespect and about facing aggression.
I want to ask you about parenting orders because, as you know, children's hearings have no powers to impose requirements on parents who come before them. A parenting order would be a court order for which the principal reporter of the children's hearings system or the relevant local authority could apply to the court, on grounds either of antisocial behaviour or offending. I believe that parenting orders are not a replacement for voluntary parenting classes or for support for parents who need it, but are a last resort. What are your views on that?
Our view is that the case for parenting orders has not yet been made. I refer members to our paper on the Executive's consultation. I will not bore members with the detail, but in that paper we refer specifically to a couple of pieces of research that talk about parenting skills and how social workers can help parents with those skills. That research shows that there are things that can be done. The first thing that we say is that a parenting order is just a piece of paper and that it is the work that is done with it is what matters.
Do you not think that a parenting order might focus a parent's mind on their responsibilities if, until that point, they have refused to engage with social work or whomever to improve the family situation as regards the behaviour of the child? I can think of cases in which the parents are not interested and they need something to focus their minds.
I understand that argument. In England, there was a well-publicised case of a parenting order in relation to a child who was not attending school. My argument would be that there will be parents who will finally accept their responsibilities, but that could just as well happen through the hearings system. It is for the committee to make a judgment on that argument. I have seen good hearings' work, the result of which has been that the parents have understood that they are being listened to. They go through the hearing and are allowed to make their case. At that point, they realise that someone is listening and are prepared to work with them.
I want to be clear about that: you are saying that parenting orders are likely to work only because the parent will eventually co-operate. You suggest that that might happen by another route, without the need for parenting orders.
That is exactly right.
I want to ask a supplementary question on parenting orders. One or two social workers have suggested to me that a benefit of the statutory parenting order would be much better focusing of resources in local authorities. Voluntary agreements do not attract the same level of resources to do exactly the kind of work that you are talking about.
That just underlines my point about resources. A supervision requirement is a legal order, but such orders have not brought in resources. We could be cynical and ask why voluntary agreements would bring in resources; or we could focus on the fact that people are saying that they cannot do the work that they want to do because of the lack of resources. We should focus on that. We should put money in for parenting skills or that type of work, rather than simply impose orders. We know, when a new order is introduced, that a lot of administrative and other costs go along with it. It might be better, therefore, simply to focus on helping people to do the work that they want to do.
The two ideas are not mutually exclusive.
I must accept that they are not.
I did not ask about what would happen if a parenting order was imposed, but breached. Does your organisation have a view on the breach provisions in the bill?
We simply do not think that they are helpful. When young people and their parents are involved in all sorts of legal situations, another would add chaos and confusion to the family. I understand the points about punitive measures when people breach court orders, but the effect of such measures is to take the focus away from the child. People worry about breaching of court orders, but do not focus on children's needs. Again, that view is based on anecdotal evidence.
I want to ask about community reparation orders. Reparation for acts of antisocial behaviour has been widely recognised as quite a positive measure. Does the Scottish Child Law Centre have a general view on community reparation orders?
We see a distinction between reparation itself and community reparation orders. The centre supports the idea of reparation. That view may not come across in our written submission because we were responding only to the questions on community reparation orders. I will explain our view; if it is not clear, please let me know.
I do not want to put words into your mouth, but surely a community reparation order, whose clear objective is to challenge behaviour by making people face up to their actions, would be acceptable to the Scottish Child Law Centre. The particular words that you take issue with are not contained in the bill.
The difficulty is that the bill does not mention the specific purposes of CROs or what would need to be taken into account. Despite the fact that the bill does not contain the words that I quoted, I still think that the purpose of CROs—to change behaviour—is lost and that they would be about punitive sanctions. I accept what you say in the context of the question, but I cannot accept it in the context of the bill.
I know that this is difficult for you, but can we accept that community reparation orders will happen, and move on to two specific areas? First, should CROs be restricted to 12 to 21-year-olds? Some people have suggested that there should be no upper age limit, and I wonder whether you have a view on that?
I do not have a view on that.
Secondly, in effect, CROs will be a new court order. Is that likely to lead to duplication or confusion between the courts and the children's hearings system?
The problem is not so much about duplication, but goes back to the point that I made to Colin Fox. Instead of focusing our attention on young people within a primarily welfare-based system, we are suddenly changing. My point is that courts do not change behaviour. They can provide punishment and can send people to places where their behaviour might be changed, but other places, such as children's hearings, could also do that. I think that to say that young people can be sent to court for doing things wrong is wrong.
Jackie Baillie raised an interesting point, and I am still a little unclear about the distinction that you draw. If I understand you correctly, you take exception to the concept that a community reparation order for a young person should be associated with punishment. Is that correct?
That is correct.
Do you take exception to the proposition that a young person should be called to account for what he or she has done?
No.
That is acceptable.
Yes. The question is about how they are called to account. My answer is based on the Scottish Child Law Centre's view that courts have consistently been shown not to be a useful or appropriate forum in which to work with young people. We accept reparation and we accept that young people should be called to account, but we do not accept all the negatives of courts and the criminal justice system, such as the difficulties that we saw in England before the Crime and Disorder Act 1998. Those negatives create too big a risk and they do not help young people. If we want to call young people to account, we should do so quite separately from the court system.
I see. So Jackie Baillie's question about whether there would be a way in which to manage the incorporation of the provision in question is probably difficult for you to envisage, as you are troubled by the essence of what a community reparation order is.
Yes. To be simplistic, I am troubled by the court-based procedure. Many members will have seen how a court system works—people keep their heads down and do not do anything. The only things that will help young people to deal with their problems are what they are sent to do or where they go. There is plenty of research that the committee can request that shows the negative effects on young people who are involved in court structures. If it is believed that reparation is good for young people, but that the courts have negative effects and go against what people are trying to achieve, we should ensure that there is a way of getting young people to do things that is not court based. That is my argument.
In your response to the Executive's consultation document, "Putting our communities first: A Strategy for tackling Anti-social Behaviour", you said that restriction of liberty orders should not be used for under-16s. Am I right in assuming that your position has not changed? Will you summarise why it is inappropriate to use restriction of liberty orders for under-16s?
Our position has not changed. Restriction of liberty orders should not be used for under-16s. I risk boring the committee by saying that they should not be used because they do not affect behaviour or take note of children's and young people's circumstances and because they are primarily punitive.
In your response to the Executive's consultation, you say that nothing is more stigmatising than giving a young person a tag. You believe that the Executive should concentrate on providing more secure accommodation. What kind of accommodation do you mean? What kind of accommodation do you consider to be secure? Is not it stigmatising to take a young person away from their home and community and lock them away in an alien environment? Would it not be more inclusive to keep young people at home in their communities and to support them, so that their offending behaviour can be addressed, rather than to take them away from the problem and the situation in which they find themselves?
You make a couple of points. I will take your last point first, if you do not mind. It is less stigmatising to keep a young person in their community and to deal with their offending behaviour there. My point is that electronic monitoring will not help. It will tell you where someone is, but it will not change their behaviour, affect how they feel about their situation or change their family circumstances. The tag would simply be there—it would not affect the young person's offending behaviour.
I appreciate your views on that, and would understand them if the bill proposed only to impose restriction of liberty orders and to do nothing else. However, we must accept that the bill is not the only measure that the Executive is attempting to take. We are proposing to do other things and to put resources into local authorities to provide activities for young people. It is also about improving attainment and standards in our schools. All those things work together to address some of the underlying causes of antisocial behaviour.
It is difficult to get out of the scenario that you have just drawn of a young person surrounded by young people who believe that the thing to do is to be involved in antisocial behaviour. If that young person is removed to residential or secure accommodation and given support, that might be the chance that they need to get out of their situation. I do not accept what you say.
Our next witnesses have not arrived. I think that our questions to Alison Cleland are drawing to a close, so if members are agreeable, and Colin Fox is brief, we will shortly have a 10-minute break.
If there is a promise of tea, I will definitely be brief. I want to follow up Karen Whitefield's line and press Alison Cleland on something that, on the face of it, seems to be hugely illogical.
That is a good point of clarification. That explains exactly why, although our argument might appear to be contradictory, it is not. In the case of S v Miller—the principal reporter may refer to that case—it was considered whether secure accommodation was a restriction of a child's liberty under article 5 of the ECHR and whether young people's right to liberty meant that they could not be restrained. The decision was that secure accommodation is a restriction under article 5 but that it is not a breach because the secure accommodation regulations have careful provisions about the education, support and rehabilitation of the child. Those things are crucial to the reason why secure accommodation is a restriction that is not a breach.
I want to pursue that issue a little bit. My understanding is that tagging could be considered as one of a number of tools in a much wider toolbox. The type of tool picked would be dependent on the individual child, the circumstances and what will work. Indeed, one might choose to use more than one tool, so a restriction of liberty order might work alongside specific education and support interventions. Do restriction of liberty orders not fit in the context of that kind of toolbox approach?
No, they do not fit because, as Colin Fox has pointed out, a young person's liberty can already be restricted. If there are concerns, as I imagine there are, about young people who pose a risk, there are limitations on the duty of local authorities towards such young people. Local authorities have duties to support the welfare of young people up to the age of 16, but there is a limitation on that duty where the young person poses a threat to society. Throughout the existing legislation, there is an acceptance that there will always be a point at which a young person's liberty might be restricted more than would ordinarily happen, so young people's liberty can be restricted anyway. Why do we need restriction of liberty orders? Why do we need to bring in the courts?
I would have thought that the answer is so that the child is not removed from the support that they might derive from their family.
There are a number of assumptions in there. All that I would say is that support can already be provided to young people while keeping them within the family.
Not necessarily.
It can be done. Perhaps you have a scenario in mind that I have not envisaged.
No, I am just keen to hear why you rule out restriction of liberty orders in all circumstances.
I think that they are unhelpful and unnecessary. We can do what we need to do with young people and support them without the orders.
In response to the situation that Karen Whitefield described, you said that that was the very situation in which a restriction of liberty order would be inappropriate, as the young person would possibly need to be physically removed from the environment to get away from that influence. Do you not accept that there is an argument that young people sometimes need to be protected from themselves? Is it not foreseeable that a young person from a relatively stable home who is just temporarily out of control might welcome the excuse of a restriction of liberty order, so that he or she could say to his or her pals, "I can't come with you because I will be found out and get into trouble"? Do you accept that there are situations in which a young person might want people to intervene to give them a bit of support?
I understand the question. I would love to know what young people would say about that, but I can tell you only what young people have said to us, which is that they get the impression that people do not care. I would be very surprised if, having been given a restriction of liberty order, their reaction was as you suggest rather than to feel that they have been stigmatised. However, that is my view rather than the view of young people. I suggest that you would need to find out what those who have been subjected to such orders in other jurisdictions have thought.
I keep coming back to the corollary to your answer to what Jackie Baillie said—
Given what the witness has said, we are unlikely to get her to change her opinion. Please keep your question pointed.
You say that putting someone into secure accommodation with a great deal of intervention is a good thing for a young person, whereas having a great deal of intervention plus a restriction of liberty order, which might restrict a child from entering one place, such as a town centre, but would allow him to go to a youth club and other places, would not be a good thing. I cannot see why a great stigma is attached to one of those disposals but not to the other. Surely as much stigma is attached to being sent away to a secure unit.
I do not mean to be rude, but the member has a view on how restriction of liberty orders will work. My evidence is that young people would not perceive them in that way. The committee needs to take other evidence on that point. I think that restriction of liberty orders would be seen as stigmatising. Either we can give young people support and concentrate on providing the resources that are needed to do that, or we can concentrate on punishment. I do not believe that it is realistic to do both. I understand the arguments that Maureen Macmillan is making, but I do not accept them.
We should not try to bludgeon you into taking a different view. I accept and agree with many of the concerns that you are expressing, but is there a slight danger that the debate about electronic tagging is becoming needlessly polarised? Some people see it as a panacea and the answer to every problem, whereas others do not accept it in any circumstances. In fact, as one solution among many in certain well-defined circumstances, it might have a role to play.
Yes. I accept what the member is saying. In principle, there could be a benefit for the young person if the other interventions were provided. Jackie Baillie was trying to make that point to me earlier, but I did not quite see that. I can understand that the situation might be as Nicola Sturgeon has described. If we stick to that example, there are two points. First, the committee should attempt to get reactions from young people in similar situations. If they believe that restriction of liberty orders would be helpful, that would be a strong argument for giving them a go. Secondly, such orders should never be issued except with a list of other support—we cannot say that support is something that we will add on, maybe. I now understand the arguments that several members have tried to put to me. I am sorry that I was a bit thick about those.
You should not apologise—I understand the points that you are trying to make and agree absolutely that those points need to be made forcibly. If not, there is a danger that electronic tagging will become a way of restricting someone and using the least resources and effort, without tackling the underlying causes of the problem. Your points are well made.
On behalf of the committee, I thank you for joining us this afternoon. Your evidence has been extremely helpful.
Meeting suspended.
On resuming—
I welcome members back to the meeting. On behalf of the committee, I welcome Alan Miller and Jackie Robeson from the Scottish Children's Reporter Administration. We were also going to hear from Douglas Bulloch, but I believe that he is unable to be with us this afternoon. We are very grateful to you for coming through to assist us with evidence in respect of the Antisocial Behaviour etc (Scotland) Bill. I invite Mike Pringle to start the questioning.
I welcome Alan and Jackie to the meeting. I would like to discuss one particular aspect of antisocial behaviour orders. Currently, they may be given to those aged 16 and over. The bill would extend their application to 12 to 16-year-olds. Some of the evidence that we have received suggests that 12 is a fairly arbitrary figure, and I am not sure that I disagree with that. Some people have suggested that they should start at the age of criminal responsibility. Does the administration have a view on whether the threshold for ASBOs should be eight or 12, or on whether they should be granted at all?
Good afternoon. Before answering, I present Douglas Bulloch's apologies. He would very much have wished to be here.
Do you have views on the bill's provision for giving the police dispersal powers? The view has been expressed, not least by the police, that dispersal powers are unnecessary because the police have similar powers already. Some people are also of the view that dispersal powers might be counterproductive, because they could alienate young people from the police.
We have questions rather than views. We do not have the expertise that the police have from being out on Friday and Saturday nights at street corners, dealing with incidents. I have confidence in the views the police express. We have a question about the possible impact of the proposed powers on the relationship between the police and young people, and between young people and the community generally. As with so many things, the proof would be in the eating. The issue would come down to how the dispersal powers were enforced.
On a broader front, the tenor of the bill is such that children will be brought before sheriff courts or into their jurisdiction. Will that confront the children's hearings system with any difficulties?
It will not confront us with a fundamental difficulty because we assume that the majority of children will still come before children's hearings. However, there is undoubtedly a small number of young people throughout the country whose behaviour is persistently troublesome. One view is that we can address such behaviour by improving resources and services. There is no doubt that some services now work on a 24/7 basis and are getting to grips with the extremely difficult behaviour and attitudes of some young people.
Should that work be given more time to unfold?
It is a question of having a range of available strategies. The one to which I referred is well under development. During the past four or five years, there has been almost a revolution in how we deal with youth offending in the children's hearings system. If we were not alive to youth offending as a real issue five years ago, we certainly are now. We are trying to deal with the issue holistically, to address the underlying needs.
On the broader question of resources, we have received evidence that suggests that more resources might solve some of the problems that the bill seeks to address. Do you agree with that view?
There is no doubt that the greatest single challenge that faces the children's hearings system is not about process or system, but about the delivery of services to children and young people at the prevention and support stage, which is before they come to us, and at the outcome stage, once a children's hearing has made a decision. It is hard to quantify, but we are confident that high-quality services such as those that exist in some parts of the country address the needs and behaviour of children and young people and would do so in other parts of the country too.
Do they address behaviour at the moment?
Yes, indeed.
A minute ago, you referred to the fact that, when a sheriff grants an ASBO, they will have the power to ask the children's panel to examine the case to determine what support might be necessary. Is there an argument for sheriffs' being obliged to do that in all cases in which an ASBO is made on somebody who is under 16, to ensure that an ASBO is never granted purely as a punitive measure or simply as a means of controlling behaviour, and that an attempt is always made to tackle the behaviour's underlying cause?
That would certainly be an option, and it would allow the children's hearing to consider what it could offer in the way of a supervision requirement. I expect that, in practice, sheriffs would want to use the power in most cases, so I am not sure that there is a huge distance between presenting it as an option and presenting it as an obligation. However, in the circumstances of an ASBO being made on an under-16-year-old, an obligation may be an acceptable alternative.
I will ask about parenting orders, which are one of the specific measures the bill proposes. I noticed that, in your submission, you said that you would like
It sits behind and before the bill's proposals. One of the key principles of the children's hearings system is that families, children and young people should have the opportunity to engage with services on a supportive and voluntary basis to address their difficulties and that we move to compulsory measures, such as a supervision requirement, only if compulsion is needed because voluntary support will not be enough. The same principle applies as equally to working with parents as it does to working with children and young people.
On the mechanics that are proposed for applying for and obtaining a parenting order, would you welcome the children's hearings system being given more powers to deal with the parents of young people with recurring difficulties?
Yes. We said in our response to the consultation that we could see a role for children's reporters applying for parenting orders after a children's hearing had considered a case, or as a parallel option.
Is there likely to be a gap between what a children's hearing might be trying to achieve—especially if it knows the young person and the home situation—and what a third party intervention by a court might be trying to achieve in granting a parenting order? I am not clear about how the holistic approach to which you referred earlier would be served by those arrangements.
We would hope that there would not be a gap. We have suggested to the bill team that they consider integrating the proposals on parenting orders into the Children (Scotland) Act 1995, so that applying for a parenting order would become one of the options that the reporter could consider during the investigation and decision-making phase. That could happen alongside referring the child to a hearing because of welfare concerns. The system could be quite integrated. Parenting orders could become one of a range of options available to us.
I have no idea whether what you suggest will happen but, were it to happen, the children's hearings system would be confronted with breach situations when parenting orders had not been complied with. Do you feel fairly relaxed about the children's hearings system being asked to expand its area of responsibility slightly?
I think that "fairly relaxed" is a good way of putting it. Clearly, questions have to be resolved. In many cases that hearings deal with, the issues are as much about the parent as about the child. Sometimes, through a decision made about a child, it is possible for the hearing to state clearly its expectations of the parent and to state what the consequences will be if those expectations are not fulfilled. However, there may well be cases where that does not provide as clear an answer as a parenting order would.
From that, I conclude that you think that the role envisaged for the principal reporter in the bill is useful.
We see it as potentially valuable. I am not sure that we would use it in a large number of cases. In most cases where issues arise to do with parental inadequacy or failure, issues will also arise to do with risk to children. Those issues would have to go to a children's hearing. However, in some cases, the issue is really parental intransigence, in a way that does not really raise that kind of risk for the child.
I want to ask about community reparation. Reparation—especially in response to antisocial behaviour—has been widely regarded as quite positive. In the context of the children's hearings system, do you think that community reparation orders, and reparation in general, are to be welcomed?
In general, our organisation welcomes the use of reparation measures. The hearings system is really about reparation anyway—trying to restore and repair. In the hearings system, there has been an increasing use of restorative and reparative measures. What may have been missing is the ability for hearings to apply those measures. Reparation is another option that could be open to the hearings system in its repertoire.
In its submission, the children's panel chairmen's group said:
Reporters have used reparation in their decisions before matters have reached the stage at which a children's hearing considers compulsory measures. That would be the perspective of the children's panels.
That is helpful to know.
To be honest, we do not have a view on that. Our interest basically terminates at the age of 18.
You do not need to have a view on everything.
Good.
Currently, the way in which community reparation orders are specified means that they are, in effect, court orders. Do you think that, as a consequence of that, there will be any duplication of effort between the courts and the children's hearings system? Do you think, as some other witnesses do, that community reparation orders might be a better tool for the children's hearings system to use, rather than the courts?
I do not think that it will raise any issue about duplication. The hearings system is waking up to the flexibility and scope of the one sentence that we have available to us, which is a supervision requirement. The current legislation leaves it open to children's hearings to add whatever conditions they think appropriate for a child. It is perhaps due to a combination of a lack of imagination and a lack of resources that we have not used that scope widely enough in recent years. However, in the three fast-track hearings pilots we are seeing much more creative use being made of the scope that is available under a supervision requirement to offer some quite intensive packages of intervention to some damaged and challenging young people and their families. The early evidence is that that is having a positive impact.
Can I press you on whether you think community reparation orders should be, in effect, court orders, or something for the children's hearings system?
I think that they should be used by both systems. There is scope for the children's hearings system to consider having reparative measures either as part of a supervision requirement or as part of a diversionary decision. If it works for the children's hearings system, I would not want to deny it to the courts.
I want to deal with the restriction of liberty orders and the remote monitoring arrangements. Do you believe that the proposals that are contained in the bill would make a positive contribution to the range of disposals that are open to children's panels?
The proposals in the bill have moved a long way from the options that were set out in the consultation paper. We are happy with the way in which they have moved, as that seems to reflect the comments that we made.
Are the hearings well enough equipped to use the additional powers or will training or additional resources be necessary to allow you to use them, where you feel that it would be appropriate to do so?
There will be a need for training. For example, neither children's panel members nor reporters are very familiar with how monitoring works and it would be helpful for them to have a greater appreciation of that. The question of resources is much wider; it is a big challenge for the system as a whole. That challenge is highly pertinent to the issue in question because, in any case in which a children's hearing was considering the use of monitoring, it is likely that it would also be considering a range of other interventions to address the behaviour and the needs of a young person whom we would have to assume was at the high-tariff end of the scale. Resources in the wider sense are always an issue and they may well be an issue in the kind of cases in which monitoring would come up as an option.
We have heard various points of view on the use of restriction of liberty orders. I think that the police, when they gave evidence to the Communities Committee last week, said that restriction of liberty orders could be seen as a badge of honour by young people. Earlier witnesses at today's meeting have said that we would be stigmatising the young person and that it would be preferable to send them to secure accommodation. Do you have a view on that? What do you think about the need for the use of restriction of liberty orders?
Some research evidence is available about young people who have been subject to monitoring. That research is mostly from the English and Welsh system, which obviously works in quite a different way to the hearings system, so we must treat it with a little caution. However, Scottish 15-year-olds are not so different from English 15-year-olds and the evidence seems to suggest that young people have a range of responses to monitoring. Certainly, some treat it as a badge of honour and a clear sign that they have arrived, but it seems that others use it much more constructively as a reason for disengaging from a group with which they were getting into trouble. That tells us that each young person's reactions are different and are very much down to their character, personality and setting; in turn, that reinforces the need for the legal framework for the option to be left quite open so that children's hearings can consider cases on a case-by-case basis.
From time to time in your evidence, you have mentioned lack of resources to progress children's supervision requirements, which children's hearings would like to see. From anecdotal evidence, we know that social work departments do not always manage to fulfil expectations in that respect. The bill imposes an obligation on local authorities to perform their statutory duties in relation to supervision requirements; indeed, local authorities can be taken to court. Is that draconian? If a director of social work thinks that he or she may be in court next Friday if they do not quickly come up with what you require, what will that do to your relationship with the social work department? Are there enough resources or will resources have to be made available to local authorities?
The issue of resources has a number of elements—it is not a straightforward and simple matter of more money being required. If the resource were doubled overnight, that would not produce any increase in the number of professional social work staff who would queue up to do children and families work. A number of issues to do with re-energising and remotivating the professional social work service, in children and families work in particular, are not simply about money.
But do you think that the backstop should be available and that what we have in place at the moment is not working? Do you believe that the present system could be improved through negotiation?
First, the bill makes more explicit what the local authority's duties are. The Children (Scotland) Act 1995 says simply that it is the local authority's duty to give effect to a supervision requirement, but that is not defined any more closely. The provisions in the bill focus on that and make that responsibility clear; they also provide that that responsibility might include engaging with other local authority services as part of the mix following a decision by a children's hearing. That is a useful starting point.
Is the local authority solely responsible? For example, a child might need to go to a secure supported place, but there might be no such place available in the local authority area or anywhere else. Such situations arise now and directors of social work might be worried that things that are outwith their control will be laid at their door, with the result that they have to appear in the sheriff court.
I cannot see that we would consider such an option in those circumstances. We would look to the local authority to come up with a credible alternative plan for that child or young person. Any child or young person who reaches the stage at which secure accommodation is a real possibility is a child or young person with considerable needs who might also put other people at risk. If the preferred option of secure accommodation were not available, it would be incumbent on the local authority to come back with something else that could be placed on the table for discussion and decision by the children's hearing.
You are saying that there could be negotiation.
Yes.
I am slightly troubled about one apparent dichotomy. I was looking at what the children's panel chairmen's group said about the broad question of local authority accountability:
I would put the bill in the context of several things that are happening within the children's hearings system and more broadly. For example, one of the resource issues that impacts on us is the difficulty of providing support and prevention help to children and families, which means that many children come to us later at a crisis point or with no attempt having been made to engage with the family to resolve matters. Children come to us when matters have become more difficult or when there is no history of prior support. Improvements in resources and staffing in that area could reduce the number of children who come into the children's hearings system in the first place.
Will you expand on that? How would that work?
As at present, children who come to us would have had an opportunity to work consensually and informally with either a social work service or a voluntary service to try to address any concerns. We must remember that the criterion for entry to the children's hearings system, particularly to a children's hearing, is a need for compulsory supervision measures. That implies, in the majority of cases, that some kind of voluntary supervision and support ought to have taken place beforehand. If such voluntary measures do not work, that makes the case for compulsory measures.
As there are no other questions from members, I thank Mr Miller and Jackie Robeson for coming before us this afternoon. Your evidence was extremely helpful.
Antisocial behaviour orders currently apply to anyone over the age of 16, but the bill proposes to extend that provision to children aged 12 and over. We were told in evidence last week that that figure is slightly arbitrary; I would agree. Why is the age not younger than that, considering that eight is the age of criminal responsibility? Should the age limit be extended down? If so, how far down should it go?
My view, which I have expressed in the chairmen's group, is that to go down as far as eight is just not on. Twelve, perhaps, could be considered, but we should not consider ASBOs for children under 12.
Does anyone else want to add to that?
I agree with that position.
We have been interested in the broad relationship that will exist among all the participants if the new legislation is enacted as drafted. One of the areas that we explored with the administration group was the relationship between the panel and other forums, such as local authorities, and possibly the sheriff court for applications. In the case of an ASBO, does that cause you concern? Do you feel that you will still have control over that holistic approach?
If we can get across any message today, it would be that we think that the children's hearings system should be at the heart of all decisions that are made in respect of children. The hearings system comprises the children's panel members who sit on hearings, the Scottish Children's Reporter Administration, and local authorities and so on. We welcome the proposals, but if they are to work it is imperative that the members of the children's hearings have their say and are seen as part of the overall process in considering making antisocial behaviour orders in respect of children and young people.
On the broader resources issue, we have heard the view that earlier intervention with more provision of resource might address some of the problems that have been envisaged. Do you share that view?
Yes. Early intervention is a subject that crops up often at our meetings, especially among those from a teaching background, who see children at an early age and can identify where problems are likely to occur. The old adage about prevention being better than cure applies in great part to children. If a problem is identified early and a suitable resource is applied to it, perhaps we will not have continuing problems as the child grows up. I would have no problem—I am sure that the same applies to my colleagues—with voluntary intervention, if at all possible, to address any problems at a very early stage.
If I understood Mr Miller correctly, he seemed to indicate that there might be an argument for more resource to be made available at the pre-children's panel stage, and that such early intervention could prevent, or certainly restrict, the activities of some young people that subsequently place them before the panel. Do you share that view?
Perhaps I misunderstood. By early intervention I thought that you meant really early intervention, before even the pre-referral to the reporter stage. However, if we are talking about children who have been referred to the reporter, and about who looks at the child's background and considers whether compulsory measures of supervision are necessary, voluntary interventions by one of the projects that various organisations run throughout the country would have a role to play. We are all agreed that a child should be subject to compulsory measures only if those measures are necessary.
I turn to the dispersal of groups. The bill would create a specific offence of two or more people congregating. Do you have a view on the power? Is it useful?
In all honesty, no. Perhaps my colleagues have their own views on it.
When we consulted on the consultation paper, the view was expressed that not all groups are necessarily bad. Some parents prefer their children to be part of a group to their being out in the street on their own. If groups are to be dispersed, the policing of that would have to be quite skilled in order to assess whether a group is behaving badly or antisocially. We are of the view that not all groups of children necessarily behave antisocially. It would be necessary to police and assess carefully the groups that were perceived to be behaving antisocially.
That seems to reflect all the witnesses' views. Is that correct? Nobody is demurring.
Children and young people will always congregate—it is a natural thing to do. If the same group congregates in the same spot at the same time every week and causes disruption, perhaps there is a case for saying to them, "Come on—move on and do something else," but there has to be something else for them to do. Perhaps, rather than sell off playing fields, local authorities and others should supply places for children to go to and to congregate socially. We adults congregate socially all the time; are we saying that children cannot do so at the corner of a street? I do not think so.
I am filling in for one or two members who have had to leave, so I will deal with parenting orders shortly. Would Jackie Baillie like to ask about community reparation orders?
I would be happy to do so to give you a rest, convener.
We would have difficulty with making reparation a condition of a supervision requirement, because the essence of reparation is that it is done voluntarily and requires the buy-in of the victim—the community. If reparation is a precursor and is done voluntarily at the early intervention stage, which has been referred to, then by all means give the young person a chance to make amends. However, there would be difficulty with reparation being part of a hearing's disposal and our saying, "You must, as part of your supervision requirement, do this, that and the other." Technical though it may be, if the other party did not buy into the reparation, the child would be in breach of the supervision requirement and would have to come to another hearing. As a disposal, a reparation order would be a bit difficult.
Given that there are different ways of framing reparation orders and that those logistical problems could be overcome, is there a benefit in the young person's facing up to the consequences of his or her actions, whether against an individual or the community? Is there a benefit, perhaps a learning experience, in reparation orders that goes beyond punishment and fits with what the children's hearings system is about?
I could not agree more that there is. Getting a child to face up to his or her actions and their consequences is best done in a children's hearing. If that same case were to go to court, the child would appear, an agent would speak for them, something would happen and the child would disappear. They would have no need to address their behaviour whereas, in a children's hearing, we could talk about their behaviour.
In essence, the reparation order is a new court order, not a disposal for the children's hearings system. Do you see any difficulty in that or do you take the view that the Scottish Children's Reporter Administration outlined to us, which was that children's hearings already do the sort of thing that the order allows?
Diane?
George is passing the question to me because I am part of the fast-track pilot. One of the things that we are learning about from that is the skill of the youth justice social workers who work with young people who are persistent offenders and those who offend less persistently. From experience, I can say that reparation is brought into discussions with the young people. Certainly, we discuss it at hearings and we would encourage it whole-heartedly.
Am I right in saying that you wrote an article for a recent panel newsletter?
Yes.
Do you think that, given that fast-track pilots have been run in a number of areas and a lot of attention and resource has been devoted to them, we can learn lessons from them and spread them across Scotland?
Yes.
What would stop us from doing that?
Lack of money and a lack of skilled social workers would stop us. However, from my point of view, the community reparation order is one of the best recent developments in the hearings system.
At the moment, community reparation orders are restricted to 12 to 21-year-olds, but some people have argued that there should be no upper age limit. Do you have a view on that?
From experience, I think that a community reparation order would benefit anyone who wanted to stay in a community to which they had done something that the community was not happy about, because they would have a chance to put that right. I do not think, therefore, that there should be an upper age limit.
Earlier, the opinion was expressed that community reparation orders were a punitive disposal and therefore rather sterile. Do you share that view?
I do not think that they are punitive—I think of them as being a positive experience. When we are dealing with a young person who has offended or who is behaving antisocially, the children's panel considers the child as a whole. We consider everything about the child's situation, from their life at home to their time at school. Certainly, the children's panel chairmen's group believes that education has a major role to play in this area, especially in relation to citizenship, which is now part of the curriculum and could be used to get messages across, including messages about reparation. That would help to make reparation a positive experience.
There has been much discussion of electronic monitoring of under-16s in the media and this afternoon. Do you believe that the proposals in the bill for remote monitoring arrangements and the use of tagging for under-16s will be positive additional tools for the children's hearings system?
They might be, although I am not sure about the circumstances in which we will use tagging. The proof of the pudding will be in the eating, and we will have to wait until we are in a situation in which we think that electronic tagging might help solve a particular problem or is in the child's interests.
Will there have to be appropriate training in the use of the new measures? Would you like a commitment to be given to ensure that training is provided for panel members?
Children's panel training is, I think, one of the best things going on in Scotland. It is superb—it is of a high standard and of great quality. As members will have read from our response to the consultation, we look on electronic tagging as an additional tool in the toolbox. There will be training because it is essential and every panel member in the land will be delighted to avail himself or herself of the training opportunities. Let us have the training and we will do the job.
The word "toolbox" has come up before. George Anderson's answer gave a sense of the mixed views and differences of opinion that exists even among yourselves. On electronic tagging, your submission says:
Tagging must be used with other measures. Just putting an electronic tag on a young person serves no purpose whatever—other than to say where they are. It does not address the root causes of why the tag was put on in the first place. The use of a tag must be seen as a trigger, perhaps, for other support measures to be put in place.
An idea that we are going to copy from elsewhere is parenting orders, which are used south of the border. I want to ask a couple of questions. First, is a new court order—an innovative intervention—the best way to deal with certain situations? Secondly, should children's hearings impose parenting orders?
I do not think that the hearings should impose the parenting order. However, we think that the hearings should be able to instruct a reporter to make an application to the sheriff. As the bill stands, the local authority or the reporter would make the application. We think that that is not quite right because the decision should be made by the hearing, especially if the child is under a supervision requirement. The proposals might be seen as giving far too much discretion to the local authority and the reporter. The hearing should be involved.
If the children's hearing is not the granter of the parenting order, should it be the sole referral point to the sheriff court for the ultimate granting of the order?
The children's hearing should be one of the routes, but we are happy for the other two routes to remain. The words "may require" in section 11(1) should be replaced with the word "requires", so that it reads: "Where the sheriff makes an antisocial behaviour order or an interim order in respect of a child, the sheriff requires the Principal Reporter to refer the child's case to a children's hearing."
At the moment, provision is made in the bill for cross-referencing, but all that it says is that, before an application is made by a local authority, the local authority
Yes, because it makes no specific reference to a children's hearing, it mentions only the principal reporter.
You would like that to be tied into the hearing recommendation.
It might be a cynical view, but if the local authority does not have the necessary resources to fulfil a parenting order, would it make the application in the first place? The children's hearing, however, can act totally impartially and can say that, having seen the parents, it takes the view that some compulsory work should be done with the parents. We have no provision to do that within the hearings system at the moment, but can refer that view through the reporter to the sheriff, who can make that parenting order.
The Scottish Children's Reporter Administration is supportive of greater involvement in trying to deal with bad parenting, but it was clearly anxious to try to pursue that on a voluntary basis. Is that your view as well? This goes back to the question of what to deal with first. Do you think that more could be done in relation to parenting problems before matters are even referred to the children's hearing?
I do not think that parenting orders will be suitable for every case in which parenting falls short for one reason or another. The cases in which an order will work will be quite few and far between. Some parents are, for whatever reason, incapable of parenting; no amount of compulsion will make them better parents. Because we deal with individuals, rather than take a blanket approach, the hearings would be better placed to recognise and pick out those who would benefit from an order than would a reporter or local authority.
Earlier in the afternoon, an interesting view was expressed by a witness. She said that, if a parenting order were to work, it would only be because the parent had co-operated. The witness felt that the parent could co-operate anyway, without the need for a parenting order. She felt that if good will did not exist, an order would not create it. How do you feel about that opinion?
I would tend to disagree with that. We regularly see parents who come along to hearings. Some parents may need to be told that they must do something. Simply telling them to do something may lead to the co-operation that may not have been coming voluntarily.
That is an interesting proposition, because one would hope that any new legislation would be intended to cover a situation where things are not working and can be properly addressed only by force of law. However, you are identifying a resource issue. You are identifying a situation in which a local authority is not providing the resources—whatever the reason behind that may be. From the children's panel angle, this provision is attractive as it is a big stick to compel the production of resources.
There may be an element of that. I would always advocate that if anything can be done on a voluntary basis, it should be done on a voluntary basis. We are long-serving panel members and we make supervision requirements only if that is necessary. We work on the principle of no intervention—we say, "Do not do it unless it is necessary."
Let us assume that a parenting order has been granted but that it has been breached. Where does that leave the youngster?
If the parenting order is granted and the parents refuse to comply, the situation for the youngster is probably no worse than it was before. That might seem a glib answer, but if something that did not exist previously is tried and fails, it still just does not exist. What happens next would be up to the court.
The parent could now face criminal sanctions for being in contempt of court.
The indications are that that would happen only at the very end of the line. If the hearings system is involved, the last thing that we want to do is see a family split up and parents jailed because they have not complied with a parenting order. We have to consider the effect that that would have on the family. The hearings system has to be at the heart of all decisions made in respect of children. We can consider all the issues impartially and arrive at a decision in the best interests of the children and, therefore, the whole family. Does that answer the question?
I hear your view, Mr Anderson. That is all that the committee is designed to do—to elicit individual views and opinions such as those held by you and your colleagues.
Do you mean the paragraph towards the end of the submission in which we say that the children's hearings system perhaps—
Yes. I am referring to page 7 of your group's written submission where, under the heading "Local authority accountability", you say that your group
The group holds that view because, although I could single out local authorities that have given effect to every supervision requirement, I could also mention authorities that have not done so. As a result, the press latch on to that and report that the children's hearings system is not working. The system consists of children's panel members, children's reporters and the local authority. If certain supervision requirements are not being implemented in certain areas, people say, "The hearings system's not working," and tar us all with the same brush. However, two out of the three partners in the system are working well; we are simply being let down by the third partner, which cannot get away with letting people down any more in certain areas. Under the bill, if that partner does not fulfil a supervision requirement, the hearing can instruct a reporter to inform it that an application is being made to the sheriff court. That will address that part of the problem.
And you welcome that.
Totally, and I think that I speak for my colleagues when I say that.
Indeed. We absolutely welcome that measure. It is important to underline what the convener said 20 or 25 minutes ago about the partnership that involves different sections of the children's hearings system. It is important to note that under section 70 of the Children (Scotland) Act 1995 the supervision requirement might require the child to do various things. It is about time that we ensure that local authorities are also required to do certain things. I—and colleagues in Edinburgh and other areas—sit on many panels where the child comes back to us after a year without even having seen a social worker. In such circumstances, how will that child get the chance to engage and to improve their situation? It is really not acceptable.
The 1995 act introduces the notion of corporate responsibility within local authorities. We should recognise—as many panel members do—that the social worker cannot always fix the problem. Local authorities have to open their eyes to the fact that the matter is a corporate responsibility and that some situations might be better handled by education specialists, psychological services and so on. After all, at no point does the 1995 act say that the supervision requirement is held by the social worker. Some new thinking on this issue might help to solve the problem of not putting supervision requirements into action.
In the witnesses' responses to the two previous questions, I am picking up a sense that there are great hopes that the bill will ensure that the resources that they desperately need from the social work department will be provided because of the powers of compulsion that might fall to the children's hearing reporter. Is it fair to say that one of the bill's big attractions for you is that it seeks to put greater pressure on local authorities to perform certain functions adequately?
I think that the bill puts greater pressure on the Executive. The Executive might expect something to happen when it launches an antisocial behaviour campaign, but it will all come to nothing if proper long-term—not short-term—resources are not available. Making an antisocial behaviour order on a child is worthless if it does not address the behaviour that caused the order to be made. If addressing that behaviour costs money for social workers, health officials and so on, that will be the cost of solving the antisocial behaviour problem.
That is a very clear message.
I have two brief questions for John Anderson, as I know that he is involved with Edinburgh. I was disappointed to hear that a child sometimes comes back to you after a year, as there is a lack of social workers. Perhaps George Anderson has already given part of the answer to my questions. How common is that? Is the answer simply to throw money at the problem?
It is quite common. As you know, the supervision requirement means that a case must come back to the panel within a year or it simply expires. I refer to what George Anderson said a few moments ago. If we are thinking about resources, it is also important to think about what Diane Watt said about imaginative use of resources. We think about the whole child, so we should think about the whole team, including education and so on. It is not only the social work department that should be involved. We should use imagination, backed by resources.
On behalf of the committee, I thank George Anderson, John Anderson, Edith Blake and Diane Watt for attending. Your evidence has been helpful and we appreciate your making yourselves available.
Meeting continued in private until 17:10.
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