Children's hearings training resource manual: volume 2

10 Offending Behaviour

Delinquency: 'an offence or misdeed usually of a minor nature, especially one committed by a young person' Oxford Dictionary.

'The human infant has no sense of 'right' dress, safe driving speeds, moral sex or any of the norms of society, whether custom or law. Conformity, not deviation has to be learned.'

F Ivan Nye, 1958

' If ending offending or desistance is the intended outcome of intervention, approaches need to be embedded in empirical understanding of how young people desist. For instance, many adolescents engage in crime and other forms of rule testing, and most 'grow out' of such behaviours. Abnormalising them is not helpful. Asking why young people stop offending, rather than asking why they start in the first place may assist a positive and strengths-based approach to assessment and intervention.'

W. Whyte, 2012

The Kilbrandon Committee's main remit was to address the problems of what was then known as 'juvenile delinquency'. One of their pioneering conclusions was that children involved in offending behaviour and children who were victims of abuse or neglect should be treated within the same system according to their individual needs. In the early years the majority of children appeared at hearings on the grounds that they had committed offences. From the late 1980's onwards, however, the balance of referrals has changed and both the law and social services have become increasingly preoccupied with child protection issues.

However, the problem of offending by young people has not gone away. The news is full of reports of crimes committed by children, and what to do about juvenile offending remains high on the political agenda. Demands for severer punishments often seem to find favour with the public.

Implications for panel members

As people involved in the children's hearings system, panel members may be as angry, distressed or frightened as anyone else if they are the victim of a crime, and may well find their commitment to the welfare approach tested. They need to keep a cool head in this debate and try to look carefully at what the problem really is and what can be done about it.

However it is suggested that hearings have to be more imaginative in their dealings with young people who offend, considering both their needs AND deeds and have a better range of programmes and services at their disposal.

What is the problem?

It is first of all important to realise that, whatever the tabloid press may say, offending by young people in Scotland is not spiralling out of control. Before considering the issue of offending by young people the following helps put the problem into perspective:

• just over 4% of Scottish children come to the attention of the children's reporter and only around one in ten of this figure will be referred to a hearing
• only one in five of the children referred have committed an offence
• more boys are referred for a non offence ground than an offence ground.

Between 2008/9 and 2011/12, the numbers of offence referrals fell from 11,805 to 5,604

One problem is the difficulty of building up an accurate understanding of what is really going on. Since it is impossible to include unreported crimes in statistics we cannot be totally sure of the full picture. There is no denying that teenagers do get into trouble. Studies based on information given by young people themselves indicate that offending can be an accepted part of life for young people at a certain stage. It is often a group activity, and evidence suggests that many children commit offences during the hours when they should be at school.

The kind of offences they commit are usually non-violent and relatively minor - vandalism, shoplifting, thefts from vehicles - but still serious enough to have a high nuisance value within their communities. The peak age of offending amongst boys is eighteen and girls is fifteen, and the vast majority of them will grow out of this kind of behaviour within a few years, whatever action may or may not be taken by the authorities. There is a strong link between violent behaviour and under-age drinking and young people involved in drug misuse may commit offences to finance their habit.

There is a widespread view that a small number of 'persistent offenders' are responsible for a high proportion of the crime committed in certain communities.

However it is hard to pinpoint the young people who actually belong to this group, as the difference between offenders and persistent offenders seems to be one of degree.

The main characteristics of persistent offenders are:

• A lack of maturity.
• Low IQ.
• Low family income.
• Low school achievement, poor literacy and numeracy.
• A history of offending in the family, association with known offenders.
• Risk taking.

CAUSES

There is much public concern about lawlessness and violence in society but little agreement about the causes. The absence of moral and spiritual values, lack of discipline, break-up of families, influence of television and film, drugs, alcohol are all suggested. The Kilbrandon view was that it was not useful to categorise children on the basis of their offending alone, but to look behind the presenting problems to find the underlying causes in the life of the individual child.

In so far as it has been possible to identify them, research has demonstrated that the backgrounds and experiences of young people with a pattern of offending often have several factors in common:

• having poor childhood experiences
• personality and behaviour issues
• a lack of guidance and supervision from parents
• inappropriate (harsh, violent and/or inconsistent) discipline
• having been abused/neglected; coming from broken homes
• education interrupted by truancy, exclusion, low achievement, problems with peers /teachers
• living or mixing with family/friends who offend - the peer group can give a sense of identity
• periods spent in care - inconsistent care and frequent moves
• substance, drug, alcohol misuse
• problems that although identified early were not addressed.

WHAT DOES THE SYSTEM DO ABOUT IT?

The very small number of children who commit serious crimes may be prosecuted and sentenced by the courts.

The majority of children committing offences continue to come through the children's hearings system. The hearing's task is to identify if a compulsory supervision order can address the problem of offending and lead to a reduction in and hopefully stop future offending.

It is ironic that in Scotland, with its welfare-based juvenile justice system, the use of custody for offenders over sixteen is amongst the highest in Europe. There is no evidence to show that highly punitive systems, including imprisonment, are effective, except in as far as they remove offenders temporarily from society and thus limit their ability to commit further crimes.

Secure and Intensive support measures

A very small number of children will require the additional security of a secure placement or of an Intensive Support and Monitoring Service ( ISMS), with or without an additional Movement Restriction Condition. For most of these children, the prime reasons will centre on their offending behaviour, but not for all - some of them will require this support primarily for their own protection.

Where children have been referred to these services, the ability to work with them in a far more controlled and safe environment may well generate the changes in their behaviour that less intensive measures have thus far failed to achieve.

Before authorising a secure placement, panel members must demonstrate at the hearing and in their reasons that they have fully explored alternatives, and must be clear why it is better for the child to be placed in secure than not.

When dealing with secure placements, panel members should bear in mind that any measure that means the child has to be taken out of the secure placement - for appointments or treatment outwith the unit, for example - involves a considerable disruption to their lives, and may well entail a strip search on their return.

Please see "Legislation and Procedures" for further details of the legal requirements.

DOES ANYTHING WORK?

Despite the admitted difficulties, there has been evidence in Scotland e.g. Freagarrach Project, Aberlour Crannog Project, and elsewhere in recent years that some approaches can be effective in changing the behaviour of young people and significantly limit their offending. The key to this is a whole problem approach; structured programmes that focus on behavioural change, addressing offending behaviour, and skill development rather than loose models of counselling and support.

Effective intervention

The most effective interventions will include:

• models of intervention that are backed by research evidence to show they work
• a variety of approaches - work with individuals, groups and families
• focus on the nature and consequences of the offending behaviour, including the victim's perspective and the impact on communities
• emphasis on problem solving and the development of thinking and reasoning skills
• concentration on personal and social skills to build self esteem
• community based rather than residential supervision
• work with parents to involve them in the supervision process.

Restorative justice

Restorative justice models embrace the above key points and aim to repair the harm done - to victims, offenders and communities. The main elements of restorative justice are:

• responsibility - holding young people to account for their misbehaviour and to develop responsible behaviour
• restoration - exploring the possibility of making amends to victims and/or the community
• re-integration - providing the support, assistance, guidance to enable the young person to grow into a responsible adult.

This problem solving approach can include everyone affected by the behaviour of the young person. It can include the victims, offenders and their communities. It enables victims and offenders to communicate directly or indirectly and for the offender to volunteer to make reparation to the victim or the community. Communication and dialogue, and the empowerment of all parties, contribute to the prevention of further offending.

WHOLE SYSTEM APPROACH

The following is taken from the SCRA practice note, Young People aged between 15 and 17 in the Children's Hearings System

The Scottish Government is currently implementing the 'whole system approach' throughout Scotland. This approach involves putting in place a streamlined and consistent planning, assessment and decision making process for young people who offend to ensure they receive the right service at the right time. The ethos of this approach suggests that we should be seeking to avoid young people entering the criminal justice system unless absolutely necessary. Further information and a full range of guidance documents is available at: Whole System Approach

This approach was developed as it has been evidenced that by their very nature, young people can present many difficulties, through levels of maturity, self-awareness and identity. Between the ages of 15 - 17 is a time of significant transitions, where support is required to ensure that they achieve their potential and a successful transition is achieved. Recognition that this is a significant period in a young person's life is well documented. This practice note has been developed as it is recognised that the children's hearings system and panel members have in the past, and will continue to have, a vital role in ensuring that young people make that successful transition. The focus of this document has been developed with young people who offend in mind but the principles contained within apply to all young people. To achieve this ethos, we would like to encourage:

1. More young people being remitted from court to the children's hearings system for advice and disposal where their needs as children can be addressed. Work is being done through the Whole System Approach to ensure that remittal to the children's hearings system is included in young people's court reports as an option for the sheriff. Where a case is remitted to the children's hearing system for advice or disposal, there should be a clear plan provided as to what interventions can be undertaken. Work with local authorities and partner organisations is ongoing to help ensure that young people who present a risk of harm can be effectively managed in their communities and within children's services.

2. The continuing practice of ensuring that young people remain subject to compulsory supervision orders beyond aged 16 (and up to age 18) when this is appropriate and justified. It is recognised that in most cases it is right that compulsory supervision orders are terminated as the young person no longer requires compulsory supervision, and this is of course extremely positive. It is recommended that compulsory supervision orders are not terminated when the following criteria are provided as reasons:

• they have any outstanding offences. This will likely lead to them being fast tracked into the criminal justice system and often into the prison system

• they are not engaging with services or workers. In line with the Kilbrandon principles non-engagement can be a reason to ensure compulsory supervision is in place;
• the age of the young person (unless approaching 18); In line with current legislation and the United Nations Convention on the Rights of the Child ( UNCRC)

• they are in the adult court system or have been given a custodial sentence. If a young person subject to a compulsory supervision order is simultaneously prosecuted in court, remaining on a compulsory supervision order can provide them with the support they require, which is not dependent on their consent, when going through a complex adult system. It may also compel the court to seek the advice of a hearing prior to disposing of the case, allowing the option of remittal back to the children's hearings system for disposal.

3. Remaining on a compulsory supervision order allows for the young person's needs to continue to be met, family work to continue and could also result in any further offences (especially if committed whilst in secure care/custody) being dealt with through the children's hearings system. Maintaining the compulsory supervision order can provide a significant amount of statutory support during what is likely to be a difficult transition back into the community. Asking or expecting the young person to actively seek out support, as can happen with throughcare and aftercare is not always in their best interests.

4. Other important factors that will impact on improved outcomes:

• The continued consideration of alternative services to secure care like Intensive Support and Monitoring packages. The Children's Hearings (Scotland) Act 2011 (s.83) has introduced a new obligation to consider alternatives to secure before a secure care authorisation is made.
• To support the management of some young people who present a significant risk to themselves or others within the children's hearings system, when appropriate services can demonstrate by working together in partnership and following local risk management procedures, that the young person remaining in the community is safe for them and others.
• Work is undertaken with the young person, based on their needs and risks which are reflected in their single plans in order to achieve more positive outcomes.

Supporting Young People Leaving Care Guidance

The general principle is that young people should continue to be looked after until 18 if it is in their best interests. However, compulsory supervision orders are often terminated before that age. If a young person's compulsory supervision order ceases before their school leaving age, they may become ineligible to receive financial support, which those still in care at their school leaving age are able to access.

Local authorities have a duty to carry out an assessment of the needs of all young people over school age leaving their care, including those looked after at home. This assessment should determine what advice, assistance and support the authority should provide. The success of throughcare and aftercare depends on a shared sense of corporate parenthood across an authority.

Children and Families and Throughcare and Aftercare services should work together to support the young person leaving care. Children who have been looked after away from home may also be entitled to financial assistance from their local authority up to age 25. Where the compulsory supervision order is removed before the young person reaches school leaving age, this can have a detrimental effect on their ability to access that assistance. The financial support social services can provide is very important as care leavers can only claim DWP benefits at 16 or 17 if they are single parents and those unable to work because of disability or illness.

Compulsory Supervision Orders and their relationship to Through care

It has been highlighted that a perceived barrier to retaining young people on a compulsory supervision order at age 16 and 17 is the need for the young person to move on, for example, leaving the residence of family, or corporate parent. This often requires independent living arrangements and finances. A compulsory supervision order is often cited as preventing the young person acquiring their own accommodation and financial benefits. This should not be the case; as above the Corporate Parent should remain responsible for meeting all of a young person's needs in these circumstances. It may be that the young person cannot access some supported accommodation but there are other options available such as Local Authority housing (with appropriate support) or accommodation supported by third sector organisations. The Scottish Government is working with Local Authorities to support the development of such alternatives.

Where a young person is subject to a compulsory supervision order and preparing to leave care, the Local Authority may wish to consider whether, in addition to statutory support and protection required by the compulsory supervision order, additional support is necessary under through care arrangements either for accommodation or financial purposes.

It is recognised that it is integral to the children's hearings system that panel members listen to the child, their family and professionals in order to make a decision based on evidence. To help in this decision making process, the Scottish Government will also be writing to and supporting social work departments to ensure that reasons put to panel members are not of a negative nature and that appropriate resources to support single plans are in place. It will also highlight the need for their professional influence on decisions to be based on the GIRFEC principles, the needs of the child, accurate assessments, and not influenced by any other issues, such as resources.

The areas highlighted above will contribute to the success of the Whole System Approach, which ultimately aims to ensure that:

• Fewer under 18s are prosecuted (increased use of diversion from prosecution).
• More under 18s are being supported through children's hearings post 16, where appropriate.
• More under 18s are being remitted to hearings from the courts for advice or disposal, where appropriate.
• Fewer under 18s reoffend within 2 years.
• Fewer under 18s receive custodial sentences as adults.
• Fewer under 18s are remanded to custody (both prison and secure).
• More young people placed in residential and secure care go onto positive destinations (education, employment and training) (link up with information gathering systems through MCMC / LAC) .
• Better outcomes for victims and safer communities.

EARLY YEARS FRAMEWORK and CURRICULUM FOR EXCELLENCE

• Build parenting and family capacity.
• Create supportive communities.
• Deliver integrated services.
• Health is crucial service - dealing with both mental and physical health.
• Learning in and out of school.

GETTING IT RIGHT FOR EVERY CHILD

• Dealing with offending.
• Relates directly to needs and behaviour.
• Awareness of victims - reparation / restorative initiatives.
• Supporting parents.
• Appropriate; proportionate; timely and fair.

HIGH RISK OFFENDERS

• Effective interventions.
• Improve range, quality and effectiveness of residential care.
• Keep children out of prison.
• Develop evidence based interventions.

WHOLE SYSTEM AT HEARINGS

Panel members should not terminate compulsory supervision when the following criteria are provided as reasons:

• Outstanding offences (they will then be fast tracked into criminal justice system and perhaps prison).
• Not engaging (this can be a reason to ensure compulsory supervision).
• Being dealt with by the adult system (remaining on compulsory supervision will provide them with continued support; compel courts to ask for advice; allows needs to continue to be met; family work to continue).

PARENTING AND OFFENDING

Research findings consistently make links between parenting and crime. The influence of family and friends were the primary reasons for their offending behaviour given by young people who offend (Audit Commission ' Misspent Youth: Young People and Crime' HMSO 1996). If other family members within the household are involved in crime there is a high probability that the child/young person will offend.

A self report delinquency study ' Young People and Crime' by the Home Office (Graham and Bowling 1995) showed that:

• Young people who were offenders are less likely than non‑offenders to have close relationships with their families (either birth, adopted or extended).
• Parental supervision was strongly related to offending. Young offenders are less likely than others to receive effective supervision from their parents or carers.
• Offending behaviour is linked to harsh and erratic discipline at home.

There is little doubt that parenting behaviour does have an impact in either reducing or increasing the likelihood of criminal activity among young people. A significant number of young people in the criminal justice system have experienced public care and corporate parenting. Many of them are not only less likely than non‑offenders to have close relationships with their families they are less than likely to have close relationships with anyone. For many, the reasons for their being in public care are likely to be related to ineffective supervision and parenting, including harsh and erratic discipline by their parents or carers.

Parents and carers have a vital role to play in supporting their children and preventing offending. Research indicates that an 'authoritative' parenting style is appropriate for adolescents (Coleman J Key Data on Adolescence 1999).

Authoritative parents and carers:

• Offer positive role models.
• Set boundaries and structure.
• Offer examples of conflict resolution.

Provide warmth, concern and support.

• The key elements of authoritative parenting are:
• Firm control ‑ being seen to be in charge
• Consistency of discipline.
• Monitoring and supervision.
• Inductive style ‑ reasons for rules.
• Helping the young person to understand his or her parent's perspective.
• Negotiating rather than laying down the law.
• Open communication and a high degree of involvement between parents and children.

Key questions when considering how to meet the needs of a young person

• Is the young person generally within adult control?
• Is the young person being looked after by adults who can use authority consistently, offer suitable example etc.?
• Does the young person have a home base offering appropriate structure, routine and supervision?
• Is the young person attending school and making reasonable educational progress?
• Is leisure time suitably structured?
• Are there opportunities for reasoned discussion and responsible behaviour.