The Child - A View
Across the Tweed

The Rt. Hon. LordMackay of Clashfern

he is beyond control of his parent; or
through lack of parental care he is falling into bad associations or is
exposed to moral danger; or
the lack of care as aforesaid, is likely to cause him unnecessary suffering
or seriously to impair his health or development; or
any of the offences mentioned in schedule 1 of the Children and Young
Persons (Scotland) Act, 1937 has been committed in respect of him or
in respect of a child who is a member of the same household; or
the child, being a female, is a member of the same household as a
female in respect of whom an offence which constitutes the crime of
incest has been committed by a member of that household; or
he has failed to attend school regularly without reasonable excuse; or
he has committed an offence; or
he is a child whose case has been referred to a Children's Hearing in
pursuance of Part V of this Act."

(e)

(c)

(d)

(f)
(g)
(h)

For any system of law there can be no more important duty than insuring that
.those who are least able to fend for themselves in the community are adequately
protected. The three main groups within this category are the sick, the old and the
young. On this occasion I wish to say a little about the law and its relationship to
children because I believe that this, and its many facets, is one of the most pressing
and persistent problems that we face.

It would be reckless for me to try to provide a comprehensive over-view of all
the law about children, whether in the context of crime, or of divorce, or of
neglect. Instead, I wish to look at the way in which Scots law and the Courts in
Scotland have attempted to grapple with these problems and how it is now
proposed to amend the law in England and Wales. There is, therefore, a certain
ambiguity lurking in the title of this paper, depending on the viewer's location.

The Social Work (Scotland) Act 1968, in section 32(2), sets out the conditions
on which a child may be made the subject of compulsory measures of care. They
are:-

"(a)
(b)

"The Lord High Chancellor of Great Britain. The Child & Co London Lecture 1988, printed by
kind permission of Lord Mackay of C1ashfcm and Child & Co ..

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Much of this will have a familiar ring to English lawyers. Implicit in our statute is
the idea of the child in trouble. A child may get into trouble in many different ways
and in practice the different grounds for compulsory measures of care are likely to
run into one another. Truancy may indicate that the parents have insufficient
control. It may lead to association with undesirable acquaintances and to the
commission of crimes by the child. Similarly, a child who grows up in a household
where he or she is the victim of crime and even, most horrifically of all, of sexual
abuse, is unlikely to develop the moral strength which we would all hope that all
parents would manage to instil into their children.

The major existing distinctions between the situations north and south of the
Tweed are the institutional arrangements for putting the substantive law into
effect.

I hope it may be useful if I describe very briefly what those arrangements are in
Scotland. There the decision about what should happen to a child who is,
arguably, in need of compulsory measures of care, is taken by what is called a
Children's Hearing. For these purposes the Secretary of State appoints what is
called a Children's Panel which is a large body of people who, rather like Juvenile
Court Justices in England and Wales, can be considered to have the right qualities,
not excluding, I hope, sound common sense, to make such decisions. Three such
people from the panel constitute a Children's Hearing and there must always be a
man and a woman from the panel at each hearing. The Children's Hearing is
always conducted in private and with the minimum of formality. This is possible
because a Children's Hearing does not hear any kind of dispute about whether the
grounds for considering compulsory measures of care are made out. Thus the
Children's Hearing can approach the issues it has to resolve in perhaps a more
constructive way than might well be possible if it had to decide contentious
questions of fact. If there is a dispute about whether the grounds are made out
then the matter is referred to the Sheriff for him to decide that issue. This appears
to me to be a valuable separation.

In connection with the hearing before the Sheriff the contentious issues of fact
can be investigated and decided in very much the same way as they would be in an
ordinary court. But when it comes to disposal the Children's Panel take over and,
as I said, the whole atmosphere is much less formal and it is possible to have a
round table discussion in which the Panel can hear at the same table the views of
the parents, the social worker, the views of the teacher from the school and,
possibly, foster parents if there are foster parents involved and perhaps other
people with an interest - so that there is not the same sort of insistence on people
being interested as parties before a Court as there would be at the earlier stage if
there is such an earlier stage,

The second institution which is an essential feature of the Children's Hearing
system, which I believe does not have a direct parallel south of the border, is the.
Reporter. The Reporter is an official appointed by a local authority whose function
it is to decide whether a child should be brought before a Children's Hearing. The

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Reporter's discretion is very wide. Under section 39 of the Social Work (Scotland)
Act 1968 he is given power to arrange a Children's Hearing, or to refer a case to
the local authority with a view to their making arrangements for advice, guidance
and assistance to the child and his family, and he is given (and I think this is quite
important) explicit power to take no further action on the case. So Parliament has
entrusted him with a very very wide discretion indeed, and I think it very unusual
to have a provision of that kind for a public official namely that he should have
power to take no further action at all on what has been referred to him.

This discretion is exercised actively and frequently. Of the 36,000 or so cases
referred to Reporters in 1986 no action was taken in about half of the cases. Now
when I say "no action" of course I am referring there to action which can be
identified. I think it highly likely that in many of those cases recorded as cases in
which no action was taken, the Reporter on hearing of the case has had some
contact for example with the child's parents and has been satisfied after talking
with them, that once they have known about the problem the problem is, perhaps,
not likely to be repeated. It is quite a striking compliment to that system that it
seems to have operated in about half of the referred cases.

The Reporter in many ways functions, in respect of the Children's Hearings, as
does the Procurator Fiscal in respect of the Criminal Courts. The Procurator
Fiscal in Scotland corresponds perhaps somewhat roughly to the Crown
Prosecutor recently established in this country although the Procurator Fiscal has
a somewhat longer history in Scotland than does the Crown Prosecutor in
England. Although Reporters are not necessarily legally qualified the parallel with
the Procurator Fiscal is made even more marked by the fact that three quarters of
the cases which are brought before the Children's Hearings allege that the child
has committed an offence. So although the offence heading is embedded in quite a
long list of grounds for referral in respect of numbers of cases it is the most
important one, in terms of numbers.

In one respect, however, the Reporter is more independent, even, than the
Procurator Fiscal in his decisions. The Procurator Fiscal is responsible to the
Scottish Law Officers, and ultimately through them to Parliament, whereas, as far
as I can tell the Reporter is responsible only to himself. It is remarkable, and a
great tribute to the integrity and ability of the men and women who are Reporters,
that in an age which distrusts discretion vested only in officials, they have been so
successful.

There has been one major change in the institutional arrangements since the
1968 Act. English lawyers will recognise it, although under a different name. The
Sheriff, and the Children's Hearing, have the right to appoint what is called a
"Safeguarder" where there may be some conflict of interest between the child and
the parents. In England and Wales, I think he or she would be called a "Guardian
ad litem". But in Scotland, as you know, we like to go for simpler expressions. The
function of the Safeguarder is broadly the same as that of the Guardian ad litem in
care proceedings in this country.

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But it is not just through the systems of juvenile justice through the Children's
Hearing in Scotland that a child may come into contact with the law. Large
numbers of children are, unhappily, the helpless victims of family breakdown and
their welfare has to be taken into account when the Court comes to deal with the
consequences. The Courts, in Scotland, now have wide powers to do what is best
for the children. Procedural and technical obstacles have been almost entirely
swept away. In Scotland now divorce is available through the Sheriff Court which
has made proceedings a great deal more accessible than they were. One
controversial question in recent years has been the application of section 8(1) of
the Matrimonial Proceedings (Children) Act 1958 which, again in wording which
will be familiar to English lawyers, restricts the power of the Court to grant a
decree unless it is satisfied that satisfactory arrangements have been made for the
care or upbringing of the children or that it is impracticable for the parties to make
such arrangements. The criticism has been that this places a duty on the Court
which, on the limited evidence available to it, it can perform only in the most
perfunctory way. However, more recent research on satisfaction hearings in
Scotland, I gather, suggests that some of the earlier fears were exaggerated and
that some of the solutions canvassed, such as many more independent reports to
the Court on the situation of the children, were unnecessary. A report by the
Scottish Office Central Research Unit, for instance, suggested that in 60 per cent
of cases there was adequate information for the Court and in the other 40 per cent
a suitable level of information could be obtained simply by improving the content
and format of the documents which the parties are required to lodge with the
Court, and by calling for reports in a very limited number of cases.

The question of the use of reports in children's cases leads to the broader
question of how far a court dealing with children's welfare should be inquisitorial
in style. I think it is fair to conclude that where the parents are parties to the case
there is very little by way of movement towards an inquisitorial system. In Scotland
the practice of the judge's interviewing the children concerned in a divorce case
has, I believe, not found a great deal of favour with the appellate courts. They
pointed out the dangers possibly involved in that. The Children's Hearing is
perhaps the closest to an inquisitorial proceeding we have, although the presence
of the Reporter and the absence of dispute over the grounds on which the
application is brought tend to lend themselves, as I said earlier, somewhat to this
approach. It may be of interest also to note, in this connection, that the Court of
Session has also taken the view that it can be justifiable for the Children's Hearing
to withhold certain documents it has from the parents. As they put it: "The
principles of natural justice must yield to the best interests of the child." This is
obviously a matter that was the subject of a good deal of contention, but it is a
reflection of the fact that the Children's Hearing is not, in the ordinary sense, a
court hearing with parties and is the sort of body which should be given a
considerable amount of flexibility in the rules which it applies.

On this occasion, I need not detail the existing law relating to children in

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England and Wales beyond saying that whilst it has some strong similarities to that
in Scotland, for example, in the grounds for care proceedings in section 1 of the
Children and Young Persons Act 1969, it will by now be apparent, if it was not
already, that there are clear divergences.

Looking to the future, the last 3 years have seen major reviews of child law. On
the public law front of child care the DHSS published a consultation document,
the Review of Child Care Law, in late 1985. It was followed in early 1987 by the
White Paper on Child Care and Family Services) which amongst other things set out
the Governmment's conclusions on the protection of children at risk and the role
of the courts in that task. At the same time the Law Commission, which had
provided its specialist services to the DHSS in its work, was reviewing on its own
behalf private child law in the areas of guardianship, custody and wardship. The
Law Commission has now finished consulting on their four Working Papers and
we eagerly look for their report as soon as it is ready.2 Finally, we are awaiting the
report from the Cleveland inquiry. This coincidence represents, in my view, an
historic opportunity to reform the English law in this area into a single rationalised
system as it applies to the care and upbringing of children.

On the public law side, we know from the White Paper that there is no present
proposal to follow the Scottish system. Indeed, in some ways, such as the grounds
for making care and supervision orders, the proposals will create new differences.
Thus in England and Wales the grounds in future, assuming the White Paper
proposals are put into legislation, will look directly to the reasons why state
intervention is required, thus moving away from the descriptive or symptomatic
approach in the existing Scottish and English legislation. Hence it is proposed that
before a care or supervision order can be made the court should be satisfied that
there is harm or likely harm to the child resulting from an absence of a reasonable
standard of parental care, or the child being beyond parental control and, in
respect of both, that the order proposed is the most effective means of
safeguarding and promoting the child's welfare. So that there will be first of all the
question whether some form of order is needed having regard to the apprehended
harm to the child, and then secondly, what form of order is appropriate in the
particular circumstances of the case. However, in a purely English context the
movement towards a single integrated law of children is apparent. I mean by that
that the mere fact that England in this is diverging from Scotland is not, in any
sense, to be regarded as other than a good development. It is important in my view,
that the Law of England and Wales should itselfbe an integrated system, and if it
turns out to be a good one - who knows, but in due course the Scottish law might
follow it. Thus it is proposed that where the court concludes that an order giving
custody to a private individual would be appropriate, that should be available to the

1. Cmnd. 62 (1987).
2. See Law Com. Working Papers, No. 96 (with Supplement), Review of Child Law: Custody (IYIl6);

No. 100, Care Supervision and interim orders in Custody proceedings (1987); No.101, Wards of Court
(1987).

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court as an alternative to care or supervision and that there should not be a
situation in which you get one type of proceedings and are not able to get that type
of order except in these proceedings and if you want a different type of order you
have to go in for different proceedings altogether. This is the suggestion of the
White Paper and I believe that the response to it generally is to think it a good
development. Or again, whilst not following the Scottish model of Children's
Hearings, the White Paper makes it clear that there are to be changes to procedure
in care cases to move care proceedings "away from the quasi-criminal model
towards a civil model thus bringing private and public child law closer together".
Yet a further example of the closer integration of public and private child law can
be found in the Government's intention to require the same grounds for care and
supervision to apply in family proceedings as in proceedings brought by local
authorities seeking such orders.

As regards private law, we are still, as I say, awaiting with interest what the Law
.Commission will propose. However, their close liaison with DHSS and much of
what they have said in their Working Papers suggests that they too hope that we
will seize this opportunity to bring public and private child law together into a
comprehensive, comprehensible and consistent code. In this work we must all wish
them well and hope that the results will come soon.

Finally, there is the Cleveland inquiry. I am not in a position even to guess what
recommendations for change may emerge from that inquiry. So far as the Law
Commission is concerned, as I said, there are some materials available from which
a good guess may be possible, but so far as the Cleveland inquiry is concerned, I
am not in that position. If such a word can be used of so unhappy a topic, its
findings will, I hope, prove opportune by becoming available at a time when they
will be dealt with in the broad context of child care and welfare in the law.

Having spoken of Children's Hearings in Scotland and the Reporter you may be
expecting some news from me on the proposals for a family court in England.
Well, it is difficult to give news about a topic which is so differently understood by
different people. Everyone who uses the phrase appears to understand it somewhat
differently. But I think it would be fair to say that the Government is continuing to
work on the subject but it would be premature to reach any very final conclusions
at this stage. At the heart of family law there is rightly the concern for children.
Until we have settled the substantive law in that respect, and by this I mean the
public law discussed in the White Paper, the private law to be discussed in the
Report from the Law Commission and the related matters to emerge from the
Cleveland enquiry, and have a clear view of questions and tasks which the courts
will have to undertake, it would be rash, in my opinion, to decide what changes
may be necessary to the constitution of the courts and their structure to ensure that
they can effectively apply the intended new, comprehensive code of child law. It
surely must be right to know first of all the nature of the questions that are likely to
arise from the substantive law as it applies to particular cases before you seek
finally to devise a structure to obtain the answer.

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From what I have said, you will see that a view across the Tweed, whether from
its northern or southern bank, presents the Scottish or English lawyer with a
mixture of recognisable landmarks and highways set in an unfamiliar landscape.
Given the opportunity of a guided tour I would hope that each might learn lessons
from the other whilst accepting that there are differences in the cultural, social and
historical geography which may lead to different solutions being found to different
problems on both sides of that great river.

It is surely very remarkable how the Scottish and the English systems have
continued as such distinct legal systems for the 280 years or so since the Union of
the Parliaments. This is a source of richness in the legal culture of the United
Kingdom which I greatly value as the opportunity it gives for improvement of each
system by competitive study is a great advantage which I believe will continue as far
as one can see into the future.

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