The Kilbrandon ethos in practice : the antinomy of care and conduct in the children's hearings system : an investigation into the characteristically unitary nature of the Scottish system of children's hearings

• Main Author: Donnelly, Michelle
• Published: University of Strathclyde 2017
• Subjects: 345
• Online Access: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.714724

This thesis investigates the characteristically unitary nature of the children’s hearings system (“CHS”) by reference to legal process and decision-making practice. It argues that it is possible to distil from the system’s constitutional document, the Kilbrandon Report, a general philosophy (herein termed the “Kilbrandon ethos”) which should, in principle, underlie the current practice of the CHS. Broadly, this ethos rests on the unitary nature of the system, which involves dealing with all children “in trouble” alike, procedurally and philosophically, whether it is their own actions or those of others that bring them to the attention of the system’s gatekeepers. The thesis argues that it follows from the Kilbrandon ethos that all children referred to children’s reporters (“reporters”), and by reporters to children’s hearings, ought to be dealt with in a similar manner, irrespective of the reason for which they are referred, and thereby explores whether differences in process and decision-making practice apply to different “types” of referral. Bringing together juvenile justice theory, original archival research, doctrinal analysis, classification theory, and the findings of an empirical study on reporter decision-making, the thesis contends that, while the Kilbrandon ethos has proved remarkably resilient, there are, nevertheless, indications that grounds of referral are not entirely interchangeable as access points to the CHS. In particular, it finds that referrals based on the offence ground and, more broadly, referrals based on grounds relating to the child’s conduct, are dealt with differently from referrals based on care and protection grounds. The thesis considers the implications of such differences in approach and explores possible responses to bolster the Kilbrandon ethos in practice.