The Scottish way of dealing with serious child offenders

Scotland’s system which examines the perpetrator and the victim might be better for handling cases of pre-teen crime writes Douglas Balloch

The response to the conviction of two boys aged 10 and 11 on serious charges has once again provoked calls for reform of the arrangements for considering offences committed by young children. These calls go back beyond James Bulger, the two-year old killed by two 10-year olds, and Mary Bell who killed twice when she was 10 and 11. There is no shortage of calls for improvement in the process of managing such cases. What is in short supply, though, is any real change.

Much of the discussion revolves around the age of criminal responsibility. England and Wales have a relatively low threshold for this: 10 years old. One of the few points of comfort is that Scotland, with the age set at eight years, lies even lower in the international league table of civilised jurisdictions. Many in Scotland would agree with colleagues south of the border that the age of responsibility should be raised throughout Britain.

But, in Scotland, other factors modify the issue of age of responsibility. The general differences in the legal system make up one element, but the major significant variation is the existence of the Scottish children’s hearings system. For most children facing action for offences, referral is not to the prosecutor but to an independent specialist public official, a relatively recently established professional, the children’s reporter.

It is usually the children’s reporter who considers statements and reports to decide whether to proceed. If there is evidence to be tested, then that is done privately in court at a “proof” hearing. The decision on the correct response to the child, the “disposal”, is made by an independent lay tribunal which discusses this with the child, family and key professionals – social worker, teacher – and then reaches its decision, each member of the tribunal setting out their reasoning and their decision directly to the child at the conclusion of the hearing.

Perhaps the aspect of the Scottish system that is most unfamiliar to colleagues in England and Wales is the high regard in which the Scottish approach is held by participants, including the professionals involved.

Only for the more serious offences is there usually discussion between the prosecutor and the children’s reporter to determine the best process for that specific case. Even when the court deals with a child, there are options for advice to be sought from a children’s hearing or for the case to be remitted to a hearing for disposal.

The Scottish approach is based on a number of principles: not guilt or innocence but simply considering whether the facts, “the grounds”, are established; there is not a sentence for a specific offence but a disposal taking into account the complexity of that child’s life.

Most of all, everything must be done “in the best interests” of that child. These principles have their fullest application in the children’s hearings system that has now been in place for more than 40 years, but they are also present in a more general attitude to children that treats them differently from adults.

Another aspect of the Scottish approach, though, is perhaps the most valuable. It is an integrated system dealing both with offending and with care and protection. The Edlington brothers, aged 10 and 11, who tortured two younger children, are one obvious recent example of children who were committing offences and who also appeared to be in need of care and protection.

It is difficult to recall a recent case of serious offences perpetrated by a young child where there was not, concurrently, real basis for concern about the perpetrator’s care or parental guidance. This integrated approach offers flexibility. It enables the child, rather than the offence, to be the centre of consideration. Surely an approach based on establishing how best to promote the child becoming a well-adjusted adult is the right way forward?

Douglas Bulloch was chairman of the Scottish Children’s Reporter Administration 2002-2010. He was formerly a director of social services.