Committee on children and young persons (1964) Children and Young
Persons, Scotland: Report by the Committee appointed by the Secretary
of State for Scotland [Chairman: Lord Kilbrandon] Cmnd 2306 Edinburgh: Her Majesty’s Stationery Office
In 1960, as the Ingleby Committee (Committee on Children and Persons,
1960) in England was bringing its work to a close but before its report
had been published, the Kilbrandon Committee was announced to review
similar issues in Scotland. Their report created such a stir when it was
published that it was reprinted twice and it was reissued again in 1995
Levels of juvenile delinquency broadly follow the size of the juvenile population.
Very few children come before the courts.
Parents need to be engaged in the social education of their
children as part of a holistic approach to dealing with juvenile
Neither the ‘crime-responsibility-punishment’ nor the ‘care or
protection’ models are able to prevent delinquency within a framework of
Since only 5% of cases brought before the courts involve a dispute
about the facts, only those cases should be heard initially by a court
to determine the facts.
The disposal of all cases should be handled by a panel in consultation with the child’s parents.
Decisions of the panel should be implemented by an executive agency.
A reporter should act as clerk to the panel and be the point of contact in dealings with the panel.
Panels should deal with all cases involving children under 16 and
be able to make non-residential and residential treatment orders.
The police should be able to continue the practice of informal and formal warnings.
There should be neither fines for children nor punishment for parents, other than for neglect or contempt of court.
The different types of residential treatment should be brought together into a single comprehensive system.
There should be rights of appeal against orders and annually against their continuation.
Detention and assessment in a residential facility should be the exception rather than the norm.
Remand homes should become part of a wider residential assessment service available to those not brought before the courts.
The executive agency, or ‘social education department’ within the
education department, should be the focus of coordination within and
outside the local authority, facilitating the assessment and diagnosis
of children’s needs, whoever ultimately becomes responsible for meeting
In the Introduction they say that they were appointed in
1961 (though the Committee had been announced in 1960) and note that a
number of their recommendations have already been implemented in the
Criminal Justice (Scotland) Act 1963 and the Children and Young Persons
Act 1963. They had invited people to make representations, visited a
variety of institutions and facilities and met for 29 days.
In Chapter I The basic problem: its scope and the practical issues arising,
they consider the situation relating to juvenile offenders, children in
need of care or protection, refractory children and persistent truants.
The note that criminal statistics can be misleading because detection
rates and decisions to prosecute rather than give an informal warning
can affect the number of children who appear before the courts.
However, though there was a decline in juvenile offending in the
early 1950s followed by a rise in the late 1950s, when plotted against
the number of juveniles in the population, the offending rate was fairly
stable. They note that a very small proportion of juveniles are brought
before the courts, many of them for trivial, but anxiety-provoking,
offences. Fewer than 500 a year are brought before the courts as in need
of care and protection, among whom may be the small number of
refractory children or persistent truants.
They argue that the aim must be reduce juvenile delinquency by
meeting the needs of the child and say that most witnesses agreed that,
for all practical purposes, how one met the needs of offenders and
non-offenders was the same. They note that most witnesses saw the key
treatment measures as involving social education, first in the home.
However, they reject taking any measures against parents in relation to
their children’s offending, noting that the concept of fining parents
had slipped into Scottish law by way of the Children Act 1908 (which
applied to England, Scotland and Wales).
They also argue against the imposition of fines on school age
children or any requirement to make restitution, the latter on the
grounds of children’s varying levels of understanding. However, they do
not rule out restitution as a voluntary act.
They reject corporal punishment as a formal punishment because of
lack of evidence of its effectiveness. Instead they advocate engaging
parents in the social education of children within a holistic approach
to dealing with juvenile delinquency.
In Chapter II The juvenile courts – the existing arrangements,
they summarise the history of juvenile courts in Scotland from the
Children Act 1908, pointing out that, unlike in England and Wales, there
was no single framework but four different types of juvenile court with
only 16% of cases being dealt with in separately constituted juvenile
courts. Consequently, the same issues were being dealt with differently
in different areas of the country.
In Chapter III The underlying principles, they argue that a
criminal court is concerned primarily with establishing
guilt/responsibility and then with ensuring punishment that meets the
needs of the child under the welfare principle. However, if the court’s
aim were crime prevention, different considerations would prevail.
Among the limitations of the ‘crime-responsibility-punishment’ model
are the need to prove guilt in order to take preventive measures;
moreover, those measures can only apply to the individual child, not to
the environment in which the child lives, and they need to be
proportionate. So a court cannot order long-term treatment for a child
who has committed a minor offence even where the circumstances of the
offence indicate the need for long-term treatment. Finally, a punishment
is ‘once-for-all’ – it cannot be altered if the offender responds
In practice, the courts have accepted the need to take into account a
child’s age and understanding, their motivation and the cause of the
offence and to promote the child’s welfare but this has led to outcomes
which people regard as ‘unjust’ when, for example, one child is sent to
an approved school and another to a remand home for the same offence.
They note that care or protection proceedings, though relatively rarely
used in Scotland, do not create the same type of conflicts because their
aim is clearly preventive.
They note that simply knowing right from wrong may not be accompanied
by the emotional maturity to do the right and that the common law age
of responsibility was not set because it was assumed that children
suddenly became responsible but simply as a matter of public policy that
children under 7 would not be punished for anything. Moreover, none of
their witnesses had been prepared to say that there was a particular age
when a child became ‘responsible.’ In practice, the law simply says
what punishments can be applied at different ages.
They then cite the examples which one witness had produced of the
ages at which children can or must do things in Scotland, pointing out
that a girl can legally become a wife and mother while still subject to
the juvenile court and before she can purchase alcohol. In practice, the
civil law tends to regard children and young people as less responsible
than the criminal law does.
They reject the substitution of ‘care or protection’ proceedings for
criminal proceedings for children under a particular age because, among
other things, civil proceedings require a lower standard of proof which
could lead to children being found ‘guilty’ of things of which they
would have been acquitted in a criminal court. They note that in some
countries the criminal courts pass decisions on disposal to a separate
agency but that is not the case in the UK.
Noting that in only 5% of cases is there any dispute about the facts,
they suggest the setting up of a panel to decide on disposal. Where
there is a dispute about the facts, the case would be heard before a
Sheriff Court and remitted to the panel where there was a finding of
guilt. The panel, consisting of three lay but suitably qualified
persons, would be neither a court of law nor a welfare agency but an
independent public body with wide-ranging powers whose decisions could
nevertheless be subject to appeal to the Sheriff Court. But, as far as
possible, the decisions of the panel would be arrived at in consultation
with the parents.
The criterion for decisions would be the needs of the child, not
least because delinquency does not have a single cause and therefore
measures to prevent it need to be flexible and wide-ranging.
In Chapter IV A new machinery – the juvenile panels, they
first summarise the existing powers of juvenile courts, noting that many
offences are not symptoms of childhood disturbance or parental neglect
(unless those terms are extended absurdly) but where these are present,
they need to be dealt with by preventive measures that involve the whole
family. At present, not only is there little opportunity to adjust the
measures prescribed by the court in the light of a child’s needs but
there is often no continuity between the agencies that refer and make
the initial investigation and those that deal with the disposal.
In order to enable the panel’s decisions to be implemented, there
should be a single executive agency under a Director responsible for
carrying out the panel’s decisions.
In Chapter V The constitution and procedure of the juvenile panels,
they suggest that panels should be appointed by the Sheriff from
suitably qualified persons under the age of 65 to serve for a period of
three years and that the executive agency should be part of the
Since it might only become clear at the first panel hearing whether
there was any dispute about the facts, they recommend that an
independent legally qualified official termed a reporter handle all
cases prior to the first panel meeting, or Sheriff Court appearance,
rather than the police or a welfare agency, or indeed the British
Transport Commission which at the time had the power to initiate
proceedings in relation to railway offences. The reporter would also act
as clerk, or legal adviser, to the panel and could only be appointed or
dismissed by the sheriff.
The director of the executive agency would be responsible for
providing background reports to the panel and handling a child’s
The reporter would be responsible for notifying the director and the
child’s parents and for supporting the panel. Both parents would be
expected to attend and, where that was not immediately possible,
consideration should be given to adjourning the panel until they could.
Numbers attending the panel should be kept as low as possible and panels
should be free to use whatever procedures were most helpful in a
They argue that, in addition to deciding on the facts in disputed
cases, sheriffs should hear appeals from panel decisions, in which cases
both panel and sheriff will need to set out the reasons for their
decisions. In these cases parents should be entitled to legal aid and
also appeals to the Court of Session on points of law. Taking account of
the courts’ current workload, they argue that, even if there were an
increase in the number of appeals in the initial stages, the overall
workload of the courts would be considerably reduced by the introduction
of the panels.
In Chapter VI The limits of the juvenile panels’ jurisdiction,
they suggest that juvenile panels have jurisdiction over children up to
the age 16 and that children from 16 to 21 should be dealt with in
normal courts but with a requirement that, however trivial the offence, a
social background report should be produced. They recommend no change
to the disposals available to a court in relation to 16-21 year olds
other than allowing 16-year-olds to be sent to detention centre but they
recommend the abolition of care or protection proceedings involving
16-year-olds, who can legally marry and be parents!
Apart from a minor tidying up in relation to motoring offences by
under 16-year-olds, they recommend no changes to the current powers of
the lord advocate to deal with cases involving certain grave crimes.
Cases involving children outside their home area could be dealt with
in the area where the offence arose and then remitted to the home area
They then recommend a number of changes to existing law, including
abolishing the right of a parent to bring a child before a juvenile
court, before summarising their proposals.
In Chapter VII The powers of the juvenile panels – non-residential measures of supervision within the community,
they note that their proposals will end probation supervision of
juveniles which will normally be carried out by the executive agency or
by another agency under their supervision but that will normally mean
that the same agency is involved both in the preparation of background
reports and in treatment.
They recommend no change in the ability of the police to administer
informal or formal warnings, noting that in 90% of cases the young
person does not come to the attention of the police again. Similarly,
they dismiss the arguments against Juvenile Liaison Schemes as
unnecessary and inappropriate extensions of police powers and recommend
They recommend that panels be able to:
- make supervision orders with or without residence conditions,
- issue findings of caution against parents,
- give formal warnings, or
- decide to take no action.
They do not recommend adoption of the English attendance centre model other than as a provision by the executive agency.
In Chapter VIII Residential measures and the juvenile panel’s powers to order residential treatment,
they note the evidence that there is insufficient residential care of
the right type to meet children’s needs and that children may end up in
the ‘wrong’ type of care because of a lack of places to meet their
needs. This is complicated by the fact that most children in care under
the Children Act 1948 are in voluntary care, there are no accepted
standards governing the admission of children with mental health or a
learning disability to residential care and there is an apparent
shortage of provision for maladjusted children. These difficulties could
be best addressed by entrusting all residential provision to a single
They note that, although theoretically part of the criminal justice
system, approved schools deal with a significant number of children in
need of ‘care or protection’ and that the schools in Scotland suffer
from being too few in number to offer significant specialisation. But
they argue that it is better for children to remain in the same school
than to move at a particular age and recommend that the name be changed
to residential school. Managers would lose their supervisory
responsibilities which would be the responsibility of panels but they
would recommend release jointly with the director of the executive
agency. There would be no formal after-care, as the young person would
continue to be the responsibility of the panel and under whatever
supervision by the executive agency that the panel directed.
They go on to argue for an integrated system of residential schools
expanded by increased local authority provision as a result of which
there would be no need for junior detention centres in Scotland and the
use of remand homes as punishment would cease. They recommend no change
to the existing arrangements for children suffering from a mental
disorder who would be referred by the reporter to the Sheriff Court
In Chapter IX Duration of orders by the panels, rights of appeal and enforcement,
they recommend that, in addition to the right of appeal against an
existing order, there should be a right of appeal against any later
order which increases the level of restriction and a right to appeal
annually against continuation of the order.
They also recommend that, though orders would normally terminate at
the child’s sixteenth birthday, the panel could extend an existing order
until a child’s eighteenth birthday, subject to the normal rights of
They recommend that failure to comply with a panel’s decisions should
be dealt with by the Sheriff Court, for example, as a matter of
contempt. They do not recommend punishing parents in general as,
ultimately, parents will suffer prosecution for neglect or have their
children taken away as a result of their failure to co-operate with the
panel. However, they hope these eventualities will be avoided by skilled
casework. To cover repeated failures to co-operate after warnings by
the panel, they recommend a new offence be created to be dealt with by
the Sheriff Court.
Finally, they recommend clarification of the law to ensure that
children taken into detention be brought before the panel on the first
lawful day after their detention.
In Chapter X Facilities for assessment, they stress the
importance of facilities for assessment in the community being available
and cite the critical report of the Scottish Education Department
(1961) on remand homes. They recommend that such homes should become
part of the facilities offered by the executive agency, providing, for
example, assessments of children not referred to the panel or reporting
centres for children under supervision. They envisage the continuation
of a small number of regional secure assessment centres for children who
cannot be accommodated in open provision. They envisage that admission
to former approved schools would be determined between the assessment
centre and the school rather than through the Scottish Education
They recommend that detention in custody should be the exception unless the child:
- is accused of a grave crime;
- needs to be separated from associating with a criminal or prostitute;
- is likely to evade justice if liberated;
and recommend procedures for dealing with such cases. In practice,
they found that these guidelines were already largely followed by the
In Chapter XI Consequential matters, among other things,
they recommend that, even where a child is brought before a criminal
court, (for example, when jointly charged), the case should be remitted
to the panel for disposal. They envisage that, while most panel members
would be volunteers, in some areas it might be necessary to appoint
full-time chairmen. They argue that hearings should be held in informal
surroundings away from any buildings associated with the criminal courts
but disagree with the idea that, when the police have to appear at an
appeal, they should not appear in uniform.
In Chapter XII The matching field organisation, they argue
that this organisation should be the focus for co-operation between
different local authority departments, between the local authority and
other services, such as the police and the NHS, and between the local
authority and voluntary organisations working with children. This should
enable coordinated assessment and diagnosis of a child’s needs leading
to co-operation among the different agencies in meeting a child’s needs.
In order to facilitate coordination within the local authority, they
recommend the creation of a ‘social education department’ to take
responsibility for all the various services and facilities provided by
the local authority for children. They reject the expansion of the
existing children’s departments on the grounds that the social education
department will be taking on wider responsibilities within the
education sector and they reject the argument that a social education
department within an education department would be overlooked. They
reject the idea of a ‘family service’ because they are not seeking to
offer services to all families but to a small proportion of children
with particular needs. They envisage that at least some probation
officers would be interested in transferring to the new department.
They conclude that their proposals will be more effective in reducing
delinquency not least because they are coordinated rather than
The report concludes with a summary of their conclusions and
recommendations and a number of appendices illustrating issues they have
addressed in the report.
Reading the Kilbrandon Report alongside those produced in England
around the same time, it is not surprising that the Scots are proud of
it. It towers over them all in the depth of its thinking and its
sensitivity to issues of individual liberty and justice.
Unlike Crime – a challenge to us all (Labour Party Study
Group, 1964), it does not get carried away with grandiose ideas about a
family service, pointing out that very few children come before the
courts and that the important thing is to ensure that those few have
their needs met in ways which reduce or prevent delinquency. The key to
that is to do things in consultation with parents and certainly not to
punish them, except in very specific cases of neglect or contempt of
It recommends treating children with respect by allowing their
disputes to be heard in an adult court and allowing them to appeal
decisions. It does not try to pretend that things are not as they are,
criticising the idea, for example, that a police officer should not
appear in uniform in an adult court where a child is an appellant.
It draws freely on the history of Scottish law, on other reports and
on research, along with the evidence submitted to it by witnesses, both
to build up its own arguments and to debunk arguments which some of its
witnesses have presented.
It has no problem retaining those parts of the existing system which
are working while recommending, in effect, the streamlining of those
that are not.
Perhaps the only comment which with hindsight might have been
rephrased was their lukewarm approach to the idea of restitution,
something which Lennhoff (1960) had shown was a practical way of helping
delinquents to address their behaviour and something which is now
regularly accepted as part of restorative approaches such as that
adopted in Northern Ireland (Jacobson and Gibbs, 2009)
In the end, its recommendations were overtaken by the decision to set
up social work departments in Scotland and the idea of a social
education department never got off the ground. It was also perhaps
over-optimistic about the willingness of professionals to choose
non-residential assessment and placement. In the aftermath of the
Children and Young Persons Act 1969, there was a dramatic increase in
the use of fostering and residential care in England and Wales rather
than the reduction that had been anticipated as a result of the similar
emphasis on involving parents.
However, the system of panels and reporters did get set up and
appears to have contributed to the less punitive attitudes to juveniles
in Scotland compared with those in England, even though Scotland has not
been immune to the problems of misuse of secure accommodation which
have also plagued England (Barclay and Hunter, 2008). And the Scottish
Institute for Residential Child Care has recently completed an
evaluation of the introduction of social pedagogy – the German derived
term for ‘social education’ (Milligan, 2009). So perhaps there is still a
chance for Kilbrandon’s vision to be implemented in full.
Asquith, S (Ed.) (1995) The Kilbrandon Report: Children and Young Persons Scotland Children in Society Edinburgh: Her Majesty’s Stationery Office
Barclay, A. and Hunter, L (2008) Blurring the boundaries: the
relationship between secure accommodation and ‘alternatives’ in Scotland
In A. Kendrick (Ed.) Residential child care: prospects and challenges, Research Highlights in Social Work 47, Chapter 12, pp. 166–180 London: Jessica Kingsley
Committee on Children and Young Persons (1960) Report of the Committee on Children and Young Persons (Chairman Viscount Ingleby) Cmnd 1191 London: Her Majesty’s Stationery Office See also Children Webmag March 2011.
Jacobson, J. and Gibbs, P (2009) Making amends: restorative youth justice in Northern Ireland London: Prison Reform Trust
Labour Party Study Group (1964) Crime — a challenge to us all: report of the Labour Party Study Group (Chairman: Lord Longford) London: Labour Party
Lennhoff, F G (1960) Exceptional children: residential treatment of
emotionally disturbed boys at Shotton Hall London: George Allen &
Unwin See also Children Webmag August 2010.
Milligan, I. (2009) Introducing social pedagogy into Scottish
residential child care: an evaluation of the Sycamore Services social
pedagogy training programme Glasgow: Scottish Institute for Residential Child Care
Scottish Education Department (1961) Remand homes: a report of a
special committee of the Scottish Advisory Council on Child Care
[Chairman, R. W. B. Ellis] Cmnd 1588 Edinburgh: Her Majesty’s Stationery