Theory and Practice: ‘Kilbrandon', legal rights and the children’s hearings system
Our latest blog is presented by Dr Alyson Evans, incoming Lecturer in Scots Private Law at the University of Strathclyde.
The real benefit of our affirmed commitment to legal rights in the context of the children’s hearings system is the opportunity to give renewed focus to the practice needed to ensure that protection and promotion of legal rights are a lived reality for ALL children.
The likes of UNCRC incorporation and the Independent Review of Care should not create more complex law, but represent an opportunity for the next steps in the continued evolution of the ‘Kilbrandon ethos’.
Lord Kilbrandon’s name has become synonymous with the children’s hearings system: if you ask anyone involved with the system, ‘the Kilbrandon ethos’ or ‘Kilbrandon legacy’ are often used to describe the origins and underpinning principles of the system. Indeed, many of us look forward to the annual ‘Kilbrandon lecture’ established to commemorate his contribution to Scotland. Rightly or wrongly (a subject for another day), in the modern-day children’s hearings system we often refer to the system’s origins, especially in the context of change. In its report the Independent Review of Care simply talked about ‘Kilbrandon’ and a shared commitment to the retention of the principles that have characterised the system from the beginning. However, the Review was also clear about the need to ensure that the children’s hearings system today is one that is able to uphold the legal rights of the child and their family since it heard from children and families directly that this had not always been the case, something that should concern us all deeply. In the spirit of considering the origins of the system, and especially as Scotland moves towards incorporation of the UNCRC, how does this desire to ensure the system upholds legal rights compare with ‘Kilbrandon’? The answer to this question depends on the extent to which legal rights themselves are part of the ‘Kilbrandon legacy’.
I recently completed my PhD examining the extent to which legal rights have been part of law and practice throughout the history of the children’s hearings system. By looking at the papers retained from the Kilbrandon Committee and early legislation and case law, we can see that legal rights are not something new to the system; some legal rights of parents and carers as well as children accused of an offence have always been part of the children’s hearings system. That is, in theory. As Scotland and Scots law has evolved since that time so too has our understanding of what legal rights are, who holds those rights and significantly the practice needed to ensure that legal rights are experienced by children in reality: moving from not only the protection of someone’s legal rights but to the active promotion of those rights.
Throughout the history of the children’s hearings system including legal rights within law or guidance has only been the starting point: whether rights were experienced owed much to how they were implemented in practice by decision makers and others with a role in making the children’s hearings system work for children. The real benefit of our affirmed commitment to legal rights in the context of the children’s hearings system is the opportunity to give renewed focus to the practice needed to ensure that protection and promotion of legal rights are a lived reality for ALL children. The likes of UNCRC incorporation and the Independent Review of Care should not create more complex law, but represent an opportunity for the next steps in the continued evolution of the ‘Kilbrandon ethos’.
The 20th Kilbrandon Lecture takes place on Thursday, December 8th, 2022, where Professor Ann Skelton will trace Kilbrandon's legacy in the South African Child Justice Act's 'preliminary inquiry' and consider the realisation of children’s rights in post-constitution South Africa. Registration is now closed, but will be video recorded and published in the Scottish Journal of Residential Child Care.