6th World Congress on Family Law and Children’s Rights
17 – 20 March 2013, Australia
Children’s Cases: An Investigation of the Change from Justice to Welfare
Paper by Karen Brady, Children’s Convenor, Bailiwick of Guernsey, Channel Islands, UK
Abstract:
On 4th January 2010 two major pieces of legislation came into force in the Bailiwick of
Guernsey resulting in far reaching changes in the fields of juvenile justice, child protection,
children’s rights and private family law. The most significant change introduced was the
introduction of the Child, Youth and Community Tribunal, a new legal forum to deal with the
majority of children’s cases where compulsory state intervention is required. Based on
Scotland’s unique Children’s Hearing System, the Child, Youth and Community Tribunal
adopts a welfare based approach to decision making.
This paper sets out the basis for this change and details the unique elements of the new
system. It provides some observations on implementation and concludes that a transition
from justice to welfare is possible in the modern era.
Introduction
On 4th January 2010 two major pieces of legislation1 came into force in the Bailiwick of
Guernsey resulting in far reaching changes in the fields of juvenile justice, child protection,
children’s rights and private family law. The most significant change introduced by the
Children (Guernsey & Alderney) Law 2008 (“the Law”) was the introduction of the Child,
Youth and Community Tribunal (“the CYCT”), a new legal forum to deal with the majority
of children’s cases where some compulsory state intervention may be required.
Based on the Kilbrandon philosophy established in Scotland, the principles underpinning the
CYCT are
 The local community is in the best position to decide what should happen to children
 Children who offend almost always have the same needs and backgrounds as children
in need of care and protection
 Children’s needs and deeds must be tackled together if they are to be dealt with
effectively
 Children and their families should be active participants in finding the solutions to
their problems.
This paper explores the move from what was a justice orientated court based model of
intervention to a welfare based model. It concludes that this can be successfully achieved.
However, the principles that underpin any system do not stand alone. They require a
supportive culture and sound framework of law, social policy and professional practice to
make the theory a reality.
This paper begins with an overview of the context and background.
1
The Children (Guernsey and Alderney) Law, 2008
The Criminal Justice (Children and Juvenile Reform) (Bailiwick of Guernsey) Law, 2008
1
Context
The Bailiwick of Guernsey lies in the English Channel, roughly 30 miles from the coast of
France and 70 miles from the south coast of England. The Bailiwick includes a number of
islands in addition to Guernsey - Alderney, Sark, Herm, Jethou, Brecqhou and Lihou and
although geographically closer to the French coast than the south coast of England, it is a
dependency of the British Crown.
The Bailiwick is not represented in the UK Parliament and UK Laws do not generally apply
however the UK Government is responsible for its international representation. Although the
UN Convention on the Rights of the Child (“the UNCRC”) was ratified by the UK in 1991, it
has not yet been extended to the Channel Islands. The European Convention on Human
Rights (“the ECHR”), ratified by the UK in 1951, was extended to the Bailiwick in 1953.
Guernsey has passed a Human Rights Law2 which makes the ECHR part of Guernsey Law.
Guernsey is the largest island in the Bailiwick with an area of approximately 24 square miles.
The latest reported figures indicate that the population is 62,915, with 13,168 under 20 years
of age and 8831 children in primary or secondary education3. Employment levels are high
with unemployment reported to be around 1.3%. The main sector of employment within the
island is financial services however the employment sector relies heavily on imported labour.
The cost of living is high in comparison to the UK. The average house price in 2011 was
£439,837.
The pace of life in Guernsey is considered to be slower than in the UK with values and
attitudes generally more traditional. It is a relatively safe place to live with few reported
crimes (2094 in 2011)4.
Prior to 2010 children’s cases were dealt with by the Courts along broadly similar lines to the
systems and processes in England. Youth offending was dealt with by the Juvenile Court
based on a justice model of punishment and sanctioning of behaviour. Cases where state
intervention was required for care and protection reasons were based on welfare principles,
but followed an adversarial court based model.
Background
Why did Guernsey adopt a different approach to responding to issues concerning young
people?
Prior to the new laws being introduced in 2010, the law relating to children and families was
considered to be outdated and out of touch with modern society and family life. As a group
of island communities relying on a globally flexible workforce it had become increasingly
more important to comply with internationally agreed standards, such as those set out in the
ECHR and the UNCRC. Whilst many jurisdictions had updated their laws in the late 80s
and 90s, Guernsey was still operating under older laws some of which dated from 1967.
When updating or making new law Guernsey generally follows English law and adopts a
simplified or abridged version of their Acts of Parliament. On this occasion the government
2
The Human Rights Law (Bailiwick of Guernsey) Law 2000
Guernsey Facts and Figures 2012
4
Guernsey Facts and Figures 2012
3
2
department responsible for reviewing and updating the law decided that they did not want to
merely adopt a simplified version of the English Children Act 1989. They recognized that, in
this particular area, a law that works well in one country can give rise to difficulties if
transplanted wholesale into a different culture. The review therefore took the opportunity to
look at a variety of legal systems around the world with a view to creating a law that was
tailored to the particular circumstances of the Bailiwick of Guernsey. One system that stood
out as a possible solution for public law cases and cases involving juvenile crime was the
Children’s Hearings system (“the CHS”) in Scotland.
History of the Children’s Hearings System in Scotland
The CHS was established in Scotland as a result of the report of the Kilbrandon Committee,
published in 19645. The Kilbradon Committee was set up in Scotland in 1961 as a result of
concerns in the late 1950s and early 1960s that change was needed in the way society dealt
with children and young people in trouble or at risk. This included those children with
delinquent behaviour, those in need of care or protection, those beyond parental control, and
those who persistently truant.
Children at this time were being dealt with inconsistently in different types of courts. A
Committee was formed under Lord Kilbrandon, a senior Scottish Judge, to investigate
possible solutions. The remit was "to consider the provisions of the law of Scotland relating
to the treatment of juvenile delinquents and juveniles in need of care or protection or beyond
parental control and, in particular, the constitution, powers and procedure of the courts
dealing with such juveniles, and to report."6
The Committee found that there was a basic similarity in the underlying situation of children
and young people appearing before courts, whether they had committed offences or were in
need of care and protection. This similarity was their common need for special measures of
education and training as the normal upbringing processes had failed or fallen short for some
reason. They considered that the most powerful and direct influences lay within the family
and the home and that any measures used to ‘treat’ children and therefore change their
behaviour had to involve where possible working closely with parents. A form of social
education was required which sought to strengthen, support and build on the existing family
resources by working persuasively and cooperatively with children and parents helping them
towards a fuller understanding of their situation. The committee were of the view that most
parents had their children’s best interests at heart and by bringing home to them their
responsibilities their natural instincts to act for the good of the child would be strengthened,
even where these were temporarily dormant or had become overwhelmed by other factors.
The Committee considered that the existing juvenile courts were not suitable for dealing with
these wider problems because to do so effectively meant combining the characteristics of a
criminal court with an agency making decisions on welfare. They believed that there was an
underlying conflict between the principle and process of establishing guilt or innocence and
introducing future preventative measures. They considered that these required quite different
skills and qualities. They also recognised that there was no general provision whereby an
order or legal measure, once made, could be reviewed, even where it may be clear at an early
stage that the measures adopted were not achieving the result hoped for. They concluded
5
6
The Kilbrandon Report 1995, Edinburgh: HMSO
The Kilbrandon Report, para. 1
3
that the overriding and paramount principle was that the needs of an individual child had to
be assessed so that appropriate treatment could be applied, reviewed and changed if
necessary. This could only be achieved by objective examination of all surrounding facts and
circumstances. They concluded that it was inappropriate to expect a single agency to decide
upon disputed facts and then establish an individual child's needs in the light of the fullest
information about the child's personal and family circumstances. Separation of these
functions was therefore recommended.
Despite the fact that the Committee found that the existing care and protection proceedings in
operation in Scotland at the time represented a position that was closer to their ideal of a
preventative approach, they concluded that an entirely new arrangement was necessary to
deal with all children in need and that a new decision making forum was required. This new
forum was to be neither a court of law nor a Government committee. The establishment of
factual matters relating to the concern for the child (where they were disputed) would remain
with the courts, but decisions on what action was needed in the welfare interests of the child
would be the responsibility of a new and unique kind of hearing which proceeded on a
preventive and educational principle. Following this principle the offence, while the essential
basis of any action taken, would have significance only as a pointer to the need for some form
of intervention.
The features of the proposed new forum were as follows:
Constitution
It would not be a court of law but a public agency and would comprise a panel
of lay persons who by knowledge or experience were considered to be
specially qualified to consider children’s problems and have different skills
from those involved in adjudicating on legal issues. The panel's decisions
would be arrived at after extensive consideration and full, free and unhurried
discussion with the parents.
Jurisdiction
It would be able to exercise a continuing jurisdiction over all children subject
to an upper age limit. It would have the widest discretion to review and
therefore alter, vary or bring to an end the measures initially applied depending
on the child’s progress and response. It would have the ability to use more
intensive and sustained measures to address concerns.
Compulsory Intervention
Whenever possible, informal or voluntary measures of supervision or
assistance within the local community would be tried. Only where this was not
possible would compulsory measures be needed. This compulsory intervention
could where necessary include the power to remove a child from home.
The Right to Appeal
As these proposed powers could potentially result in a significant intervention
in the lives of children and families, a right of appeal to an appropriate court
would be available.
The right to Prosecute
An ability to prosecute in serious cases would be retained.
4
Referrals
A new independent public official role would be created to act as gatekeeper to
the new forum. They would be responsible for deciding which children should
be referred to the panel, the general administration of the panel’s business and
act as clerks to the panel.
Social Education Services
The new forum would be provided with an executive agency responsible for
the provision of social background reports, for making recommendations as to
the appropriate measures to be applied, and for exercising continuous oversight
of all children who would be subject to the panel's order. The chief officer of
this agency would have complete discretion to report back to the panel at any
time, where it appeared that the measures already in place were not working
well, and to make further recommendations accordingly.
The committee’s findings have profoundly affected the way in which children in difficulty
are dealt with in Scotland. Despite the controversial nature of the proposals the Kilbrandon
Committee’s recommendations were accepted in principle and much of the detail found its
way into the legislation in Scotland. On 15 April 1971 children’s hearings took over from the
courts most of the responsibility for dealing with children and young people under 16 who
commit offences or who are in need of care and protection.
There is no doubt that children and families in the UK today are facing significantly different
challenges and circumstances from when the CHS was created over 40 years ago. During this
time there have been changing attitudes to parental rights and responsibilities, an increasing
awareness and understanding of the abuse and exploitation of children and more emphasis on
rights based obligations.
At its inception in 1971, the CHS was dealing predominately with young people who had
committed a criminal offence. The number of care and protection cases dealt with by the
courts at that time did not exceed 500 cases annually7. The picture is a very different one in
Scotland today. During 2011/2012, 31,593 children were referred to the Children’s Reporter
(the gatekeeper in the CHS)8. This represents 3.5% of the population aged less than 16 years.
5,123 children were referred to a children’s hearing; 4,574 for care and protection reasons
and 740 for commission of an offence9.
While the principles and basic operations of the CHS have been maintained unchanged since
its inception, during more recent years the system has undergone significant changes in
detail. This to some extent has been influenced by some convergence of social policies
within the UK (e.g. in the areas of youth justice and anti-social behaviour) and has led to a
greater degree of formalisation of the hearing procedure. Some commentators argue that this
could potentially water down the informal, open and participative ethos of the original
Kilbrandon philosophy.
7
The Kilbrandon Report, para. 112
SCRA Annual Report 2011/12
9
SCRA Annual Report 2011/12
8
5
Why the CYCT was seen as the right approach for the Bailiwick of Guernsey
From a review of child laws around the world and reflecting on a number of child-related
international conventions the Guernsey review team identified a number of key principles
that were considered to be essential in whatever approach was finally settled on. These were:





The welfare of the child must be the paramount consideration;
Children are best brought up by their parents or failing that within their own families
and within their own community;
No order should be made or legal intervention take place unless this is necessary;
Delay is generally detrimental to a child’s welfare;
The voice of the child must be sought and heard in reaching decisions10.
One of the aims of the review was to extend the range of measures available to deal with
young people involved in criminal activity. Guernsey does not suffer the rates of youth crime
that are experienced in parts of the UK. However, the response to youth crime at the time
was based on a justice model of punishment and sanctioning of behaviour. As a result
children as young as 14 were often sent to prison.
The reviewers identified a number of problems with justice based systems: they are often too
slow; often not enough is done to address offending behavior; agency involvement is often
uncoordinated; and often little is done to prevent offending11.
The review team was impressed by the fact that the CHS had been able to withstand the test
of time with its foundation principles remaining intact. It had been in operation in Scotland
for over 30 years (now 40) and had been able to adapt to changing social and political
climates during this time. They were also struck by the passionate support for the underlying
philosophy of the CHS still very much in evidence in Scotland today. They concluded that
community involvement was an important factor in decision making as local people are
uniquely well placed to understand the causes and effects of crime in their own communities.
They noted that the CHS works equally well in the small island communities of Scotland as it
does in the large urban cities. They also considered that involving children and families more
effectively in the decision making process was essential to bring about genuine change that
families had some ownership of. Other factors included reducing the burden on the Courts
both in terms of time and costs and the ability to more effectively target the causes of crime12.
Guernsey’s Children’s Tribunal System
As well as having the benefit of the Kilbrandon report, those reviewing the law in Guernsey
were also able to reflect on how the Scottish system has evolved and adapted over the years.
Although much of the Guernsey law relating to the CYCT will look familiar to those with
knowledge of the Children (Scotland) Act 1995, there are some substantial and fundamental
differences. Many other aspects of the law will also look familiar to those with knowledge of
the English Children Act 1989. The guide to the Law13 however cautions against making
10
Children Law: Basic Principles: States of Guernsey Children Board Legislative Review: October 2003
Youth Justice in the Bailiwick of Guernsey; States of Guernsey Children Board Legislative Review Team:
February 2003
12
Children’s Hearings: A way forward for Bailiwick children and young people; States of Guernsey Children
Board Legislative Review Team: October 2003
13
The short guide to the Law
11
6
assumptions on the basis of what happens in Scotland and England and in many instances it is
not possible to draw direct parallels.
The fundamental principles of the CYCT system are however based on the Kilbrandon
philosophy:




The local community is in the best position to decide what should happen to children;
Children who offend almost always have the same needs and backgrounds as children
in need of care and protection;
Children’s needs and deeds must be tackled together if they are to be dealt with
effectively;
Children and their families should be active participants in finding the solutions to
their problems.
Key features of the CYCT system are set out in Appendix 1.
Key differences from the Scottish CHS
The most noteworthy of the key differences from the Scottish CHS are;








The Law creates a number of explicit child welfare principles (consolidated from UK and
international legislation and case law) that must be taken into consideration when the Law
is applied14.
The upper age limit of referral to the Tribunal is 18. In Scotland this is 16.
The question of whether children and their parents accept or deny the reasons for referral
to the CYCT is considered at an administrative meeting conducted by the Children’s
Convenor (Children’s Convenor meeting) held in advance of the first hearing of the
Tribunal. State funded legal representation is available for this part of the process. In
Scotland this takes places at the children’s hearing conducted by the lay tribunal
members.
Where disputed facts are dealt with by the Court the standard of proof on all reasons for
referral (including commission of an offence) is the balance of probabilities. In Scotland
the criminal standard of proof applies where the reason for referral is the commission of
an offence.
The age of criminal responsibility is 12. In Scotland it is 8 (although the minimum age of
prosecution is now 1215).
The commission of a criminal offence does not carry additional consequences. In
Scotland the Rehabilitation of Offenders Act 1974 applies16.
The decision to detain a child or young person in secure accommodation is reserved to the
Court. In Scotland a children’s hearing can authorise the placement of a child in secure
accommodation.
Where longer term or permanent compulsory intervention in relation to a child is required
an order can be obtained from the Court.
It is submitted that some of these differences extend and improve on the welfare principles of
the Scottish system and support the informal, open and participative ethos of the Kilbrandon
philosophy. They enable the CYCT to focus on targeted interventions over shorter periods of
14Children (Guernsey and Alderney) Law, 2008, s3
15
Criminal Procedure (Scotland) Act 1995, s41A
16
Section 3 of the Rehabilitation of Offenders Act 1974
7
time, with more intrusive and longer term decision-making being retained by the Court. It
could be suggested that the CYCT system in Guernsey is closer in theory to the Kilbrandon
vision. Some further comment and observations on this are noted below.
Experience and Observations to date
The CYCT system became operational on 4th January 2010 and has now been in operation for
three years. Table 1 below provides some details of the numbers of referrals received by the
Convenor, the number of hearings of the CYCT that have taken place and the number of care
requirements that have been made during this period.
Children Referred to Children's Convenor
Offence
320
Non Offence
276
221
75
65
2010
71
2011
2012
Number of Hearings of the CYCT
Hearings
Individual children
222
154
71
64
46
32
2010
2011
2012
Number of care requirements
Made
In force
35
32
15
15
2010
19
15
2011
8
2012
Table 1
The Children’s Convenor Meeting
The Convenor’s meeting held in advance of the first hearing of the Tribunal has, it is
submitted, proved to be a key development. As well as serving its intended purpose of
removing from the lay tribunal the often complex process of determining whether the facts in
support of the reasons for referral are accepted or not, it has proved to be equally useful in
supporting effective engagement. It provides an opportunity for the young person and their
parents to visit the Tribunal premises in advance of the hearing, to have legal representation
when responding to the concerns and to ask any questions that they might have. This appears
to have enabled families to feel less anxious and more informed about the process and better
able to engage directly and effectively with the Tribunal members on the day of the hearing.
This development is therefore highly consistent with the one of the original Kilbrandon goals
of enlightening the family of the aims and operation of the system and helping them towards
a fuller understanding of their situation.
Young People who commit Offences
Two fundamental adaptations from the Scottish system have been made in this area. Firstly
behaviour that amounts to a criminal offence is effectively decriminalised when the offence is
dealt with in the CYCT system rather than in the Juvenile court. Secondly the upper age limit
of 18 means that there is greater opportunity to retain young people within the Tribunal
system until they reach the recognised age of adulthood. It is of some interest that attempts
within Scotland to increase the upper age for entry to the CHS have not been successful. It
has also been suggested more recently that the key Kilbrandon principles have been watered
down within Scotland during the last decade as a result of the politicisation of youth crime
from above and the working practices of key agencies within juvenile justice from below17.
McAra & McVie (2010) suggest 4 key ‘facts’ about youth crime that any juvenile justice
system should fit. These facts derive from the Edinburgh study of youth transitions and
crime, a longitudinal research programme looking at the pathways into and out of offending
for a cohort of around 4,300 young people who started secondary school in the City of
Edinburgh in Scotland in 199818. These facts are:
1. Persistent serious offending is associated with victimisation and social adversity
(Those involved in violent crime were the most vulnerable and victimised young
people in the cohort).
2. Early identification of ‘at risk’ children is not an exact science. It can pose the risk of
labelling and stigmatisation (This was evidenced by the poor outcomes for many of
those young people in the cohort who had early agency contact).
3. Critical moments in the early teenage years are key to pathways out of offending.
(The critical moments for young people in terms of criminal conviction trajectory
appear to be linked to truancy and school exclusion in the early years following the
transition from primary to secondary education).
4. Diversionary strategies facilitate the desistance process. (Although quasi –
experimental in nature, analysis in this area showed that the deeper young people who
were identified as the “usual suspects” penetrated the youth justice system the more
likely it was that their pattern of desistence from involvement in serious offending
was inhibited) (McAra & McVie, 2010)
17
McAra, L. and McVie, S. (2010) Youth crime and justice: Key messages from the Edinburgh Study of Youth
Transitions and Crime. Criminology and Criminal Justice, 10(2), pp 211-230
18
McAra, L. and McVie, S. (2010) Youth crime and justice: Key messages from the Edinburgh Study of Youth
Transitions and Crime. Criminology and Criminal Justice, 10(2), pp 211-230
9
McAra & McVie suggest that taken together the 4 key facts are strongly supportive of the
original Kilbrandon philosophy of holistic, minimal intervention based on an educative model
of care that is as destigmatising as possible.
Within Guernsey all young people under the age of 18 who are alleged to have committed a
criminal offence are referred to the Convenor. Some within this group are also reported to
Her Majesty’s Procureur19 in line with the original policy objective of retaining the ability to
prosecute serious and persistent crime when this is in the public interest. In general the
police have some discretion in deciding which cases are reported to the Procureur, however
all traffic offences must be reported20. (Young people in Guernsey can legally ride a motor
cycle from the age of 14).
A multi agency meeting to inform the Convenor’s decision on what, if any, action is required
takes place weekly to discuss the cases of those young people referred. There is
representation from the following statutory and voluntary agencies at this meeting: police,
social work service, probation service, school nursing service, education welfare service,
child and adolescent mental health service and Action for Children21. The young person’s
name and details of the nature of the offence are circulated in advance of the meeting. Those
individuals attending the meeting on behalf of the represented agencies decide what
information is relevant and proportionate to share relating to the young person, their family
and their social background and circumstances. For some children this discussion results in
further assessment and information gathering.
The picture to date shows that the number of young people referred to the Convenor for the
commission of an offence has reduced each year since the introduction of the Law. It is
however perhaps too early to draw any conclusions from this as the numbers of detected
crimes within the Bailiwick reduced by 9% between 2010 and 201122. (Data for 2012 is not
yet available).
Children Referred on Offence Grounds
Referrals
320
222
2010
Individual Children
276
204
2011
19
221
175
2012
HM Procureur is head of the prosecuting authority in the Bailiwick
The Criminal Justice (Children and Juvenile Court Reform) (Bailiwick of Guernsey) Law, 2008
21
UK charitable organisation that has representation in Guernsey
22
Guernsey Police Annual Report 2011
20
10
During 2012, 111 referrals (50%) were also reported to the Procureur. 77 of these were
retained by the Procureur for prosecution or caution. Table 2 below presents the figures for
2011 and 2010.
Number of offence referrals
received by the Convenor
Number of joint reports to the
Convenor and the Procureur
Number retained by HM Procureur
for prosecution or caution
Number dealt with by the Convenor
2012
221
2011
276
2010
320
111 (50%)
139 (50%)
181 (57%)
77 (69%)
(35%) of total
144 (65%)
102 (73%)
(37%) of total
174 (63%)
113 (62%)
(35%) of total
207 (65%)
10(6)
16(7)
Number of offence referrals dealt 3(3)
with by CYCT (number of children)
Table 2
The majority of the young people who are jointly referred to the Convenor and reported to the
Procureur are aged 16 or over (63% in 2012 and 75% in 2011). The most common type of
jointly reported offence is traffic offences. 60% (66) of the 111 cases jointly reported in
2011 were traffic offences. These range from very minor traffic infringements to more
serious offences. 54 of the 66 were retained by the Procureur for prosecution. 47 of the 66
were young people aged 16 and over.
The picture to date would suggest that the number of young people who commit offences
identified as in need of compulsory intervention is low with few being referred to a hearing of
the Tribunal. Non-formal, voluntary or diversionary outcomes are used in the majority of
cases. This can include appropriate action being taken by parents, involvement in a
restorative conference or interview, or referral to traffic or substance misuse awareness
sessions. The weekly multi-agency discussion has enabled a holistic identification and
assessment of risks and needs and has led to early proportionate interventions when required
enabling additional supports for the young person to be in place before concerns and
difficulties become more entrenched.
An additional finding from the work of McAra & McVie (2010) is that welfare based
approaches to youth justice can be fragile and are often subject to both political pressure from
above and from the exercise of practitioner discretion from below. They suggest that the
success of welfarist approaches can only be assessed over the long term with most of the
interventions required being slow burn and requiring the development of services and support
in respect of education, health and economic opportunity.
Whilst the new legislative provisions in Guernsey provide a context that is in keeping with
the Kilbrandon ethos and have delivered the original policy objectives in respect of youth
justice it is suggested that caution will be required to ensure that the welfare based approach
is robust and is not watered down by the working cultures of professionals.
11
In order to give full effect to the two fundamental adaptations mentioned above onging
review and monitoring will be required in two key areas:
1. Retention of 16 and 17 year olds within the CYCT system
2. Transitions between the CYCT system and the adult criminal justice system to ensure
that behaviour dealt with in the CYCT system is not considered in the same way as a
criminal conviction.
Speed of Decision Making
One of the original policy objectives was to ensure the avoidance of delay in children’s cases
as it is widely accepted that delay is generally detrimental to a child’s welfare. This principle
has been reflected within the Law in the child welfare principles23.
During 2012, 273 decisions were made by the Convenor on individual referrals. The average
time from referral to decision by the Convenor was 36 working days (49 calendar days).
Within the CHS in Scotland, Time Interval Standards were published in 2001. One of these
standards (TI4) is that decisions will be made by the Children’s Reporter (the gatekeeper in
Scotland) within 50 working days with a nationally agreed standard of 60%. Applying this
standard to decision making by the Convenor during 2012, in 84% of cases the decision was
made within 50 working days.
Decision made in 2012
(Working Days/ Calendar Days)
All referrals (273)
Care and protection referrals* only
All referral with the exception of care
and protection referrals
Offence referrals only
Average
WD
CD
Median
WD
CD
Mode
WD
CD
36
49
13
17
11
14
99
137
71
98
134
187
26
35
12
15
11
14
20
26
11
14
11
14
*Those referrals made under section 35(2)(a) and 35(2)(b) of the Law
The average working days from receipt of referral to final decision of the Tribunal for those
cases referred to the Tribunal and concluded in 2012 was 123 days. This relates to 26
referrals (24 children) (8 referrals have still to be concluded by the CYCT).
Decisions made by the CYCT in 2012
(Working Days/ Calendar Days)
All cases concluded at 01.02.13
Cases where referral accepted
Cases where referral not accepted
and subsequently established by the
court (3 cases)
23
Average
WD
CD
Median
WD
CD
Mode
WD
CD
123
171
124
172
136
189
113
157
120
172
136
189
196
274
179
250
179
250
Section 3: The Children (Guernsey and Alderney) Law, 2008
12
Culture, systems and practice
There are major cultural and structural differences between the scheme of juvenile care and
justice in operation today compared to the legislative provisions and arrangements that
existed previously. They have very different histories and were derived and developed from
very different ideologies and traditions. Whilst components of welfare were evident in the
schemes previously in operation, decision making was undertaken within an adversarial
justice orientated system. Inevitably the change has led to some tensions and confusion given
the differing concepts and professional languages used by both.
It was recognised from the outset that the success of the CYCT system would be dependent
on the support of a number of other agencies who are vital in the implementation and
operation of the Law. Whilst the legal change introduced has been radical the framework for
delivery of services to children and families has primarily remained the same. One of the
recommendations of the Kilbrandon report was to bring together the various specialist
services to provide an effective all encompassing system of integrated social education. It
recommended that this newly organised service would provide the supporting services for the
necessary work of the children’s hearings. Within Guernsey the key services tasked with
providing social education are located with different government departments and there
remains the potential for tension between departments about the provision of appropriate
resources to children who are considered to be in need of compulsory intervention. There is
therefore an increased need for joint assessment, planning and service delivery if the policy
aim of early holistic intervention is to be achieved.
To date very few children have been referred to the Convenor for care and protection reasons
(46 in 2012 and 38 in 2011). Most of the cases referred have been complex involving
entrenched social difficulties. In some respects this number appears low given that 887
welfare concern referrals were made by the police to social services in 2011 24.
One
explanation may be that the threshold for legal intervention under the old system was high
with compulsory intervention being reserved in the main for cases where children required to
be removed from their primary carers. It will inevitably take some time for professional
processes and practices to adapt to a model of earlier invention designed to assist and further
parental responsibility and understanding within the family context.
The amalgamation of what were considered to be the best features of the English and Scottish
legal systems in this field of law has also added another dimension. Within Scotland, the
children’s hearing is considered to be the primary forum for decision making in children’s
cases. The balance between the Tribunal and the Court has been more finely drawn in the
Guernsey context. The role of the Court is not just restricted to decisions on disputed matters
of fact, short term child protection measures and appeals against hearings decisions. The
Court retains the decision making role in decisions to place a child in secure
accommodation25 and longer term decisions about removal of children from their families26.
This arguably enables the CYCT to focus on targeted interventions over shorter periods of
time and minimises the need for over legalistic processes and legal representation as what is
at stake for families should be more restricted than within the Scottish context. In practice
this has resulted in some duplication and tensions around the interface and interplay between
24
Guernsey Police Annual Report 2011
Section 48 Children (Guernsey & Alderney) Law, 2008
26
Section 69 Children (Guernsey & Alderney) Law, 2008
25
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proceedings in the Tribunal and the Court. This has partly been as a result of the threshold
issue identified above and the fact that some cases have transitioned to the Court before the
conclusion of Tribunal proceedings as the need to consider more permanent measures of
intervention have become apparent. It has however thrown into sharp focus the different
derivations, cultures and languages of both systems. The language of the CYCT is unlikely to
reflect or mirror the terminology and thought processes of social work, legal or other
professional language – it is not intended to. It is aimed at a common language with children
and parents that supports understanding and enables them to take an active part in the process
while at the same time recognising the importance of protecting the basic rights of parents
and children. It will take time to develop a workable interface, however this will be essential
to deliver in practice what is arguably a key strength in the Guernsey system.
Conclusion
Implementing a law that introduces a radically different approach requires a process of
transformational change which includes changes in culture, systems and practice. Change of
this nature can often be challenging and takes time to achieve. Whilst there has been almost
unanimous support for the theory and principles embodied within the Law making these a
reality in practice has presented some challenges and inevitably exposed some inherent
tensions. The principles that underpin the system do not stand alone. They require a
supportive culture and sound framework of law, social policy and professional practice.
Although the principles are fairly straight forward the application of these can often be in
complex situations where there are tensions between the needs, interests and rights of parents
and children and between short and long term needs and goals.
So has the transition to a welfare based model been achieved? The experience in Guernsey
indicates that the transition from a Court based, justice orientated system for responding to
the majority of concerns about children to a welfare based, integrated model can be
successfully achieved. However like all welfare based approaches the true success in terms
of outcomes for children, families and the community will only be possible of assessment in
the long term. A degree of persistence and patience and a commitment to the values,
principles and core components of the system will be required if the anticipated benefits and
outcomes are to be achieved. What we can learn from the CHS is that the system is likely to
be robust, flexible and enduring.
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Appendix 1
Key Features of the Child, Youth and Community Tribunal (CYCT) System
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Children can be referred from birth up to their eighteenth birthday.
Those children who are considered to be in need of care and protection or whose
behaviour is causing concern can be referred to the Children’s Convenor (the public
officer who is responsible for deciding which children are referred to the CYCT). They
are dealt with in the same system irrespective of the presenting concern.
Children who commit very serious offences can still be prosecuted and dealt with by the
court.
Following investigation by the Children’s Convenor (“the Convenor”) the child will be
referred to a hearing of the CYCT if there is evidence to support the concerns and it is
assessed that there may be a need for compulsory intervention.
Children and their parents have the right to accept or deny the reasons for referral to the
CYCT and disputed facts are dealt with by the court.
CYCT members are a cross-section of volunteers from the local community who have
received specific training for the role. A hearing of the CYCT is comprised of three
Tribunal members.
Decision making is focused on whether the child or young person is in need of
compulsory intervention to ensure they receive adequate care, protection, guidance and
control. The welfare of the child is the paramount consideration in decision making.
The style and setting of hearings of the CYCT are relatively informal to encourage full
and frank discussion whilst still observing legal procedures and principles of fairness. It
is centred on discussion with both the child and family and is aimed at getting to the root
of the child’s problems and finding ways to address them within the family where
possible.
Hearings are held in private. Reports are prepared covering the child’s education, health
and social background. A range of professionals can attend a hearing of the Tribunal.
A legal order (care requirement) can only be made where the Tribunal is satisfied that
voluntary measures have not been sufficient or are unlikely to be sufficient to bring about
the necessary change.
Reasons for referral to the Tribunal include the following
o The child has suffered or is likely to suffer significant impairment to health or
development
o The child has suffered or is likely to suffer sexual or physical abuse
o The child has misused drugs or alcohol or inhaled a volatile substance
o The child is exposed or is likely to be exposed to moral danger
o The child has displayed violent or destructive behaviour and is likely to become a
danger to himself or is otherwise beyond parental control
o The child is 12 or over and has committed a criminal offence
o The child is failing to attend school without good reason.
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