The Howard Journal Vol 26 No 1. Fcb 87 ISSN 02655527

Review Article

The Chocolate Factory or the Best Interests of the Child

MARGARET SHAW Principal Research Officer, Home Office Research and Planning Unit

Taking Juvenile Justice Seriously R. M. Adler. Edinburgh: Scottish Academic Press (1985) 172pp. €16.00 hb. The American Juvenile Justice System G. F. Vito a n d D. G. Wilson. London: Sage (1985) 132pp. E17.75 hb , E8.75 pb. Behind the Black Robes: Juvenile Court Judges and the Court H. T. Rubin. London: Sage (1985) 245pp. E27.50 hb, E13.75 pb. Child Welfare and Social Defence T. S. Dahl . Oslo: Norwegian University Press (1985) 185pp. 190 Norwegian Kroner hb .

In Roald Dahl’s story Charlie and the Chocolate Factory life is a lottery which all children rush to enter. The winners of the sought-after five gold wrappers enter the mysterious and fabled factory in which Mr Wonka designs and perfects his wonderful sweets: everlasting gob-stoppers, endless chewing gum, ice cream that never melts. . . The winning children, with their parents, enter the factory to discover temptation, wonder and danger. Those who watch too much television or eat too many sweets, or boast or ignore the feelings of others, meet their just desserts. Charlie, a child of poverty, close family ties, respect for others, limited expectations and ambitions receives only the rewards of goodness and charity, and inherits the chocolate factory. The moral? Well, good always triumphs over less good and family background and circumstances will be taken into account in deciding the best interests ofeach child. The analogy? Well, juvenile justice can be a bit like the chocolate factory too: mysterious to those uninitiated, awesome, full of promise or danger, a place where you get your come-uppance, and where you are judged on your parents as much as on your own actions, a place where other people make decisions about your future on the basis of what you have or have not done so far.

There the analogy ends. There is no Mr Wonka with complete control over juvenile justice. The problem is that no one is in agreement about what kinds of decisions ought to be made, in what kind of setting, and on the ba3is of what factors. In many senses juvenile justice has been in this state since it became a

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reality at the end o f the last century. The constant tug between the interest of the child and the interests of society, between a view of children as depraved or deprived, a demand for punishment or for treatnient or for justice rather than welfare, has been present throughout. At certain times, as in Norway at the turn of the century, or in England in the twenties and thirties, there seems to have been a general consensus about how a juvenile justice system should be run. But the past 15 years or so have been less assured. The confidence of those who supported a welfare philosophy has been shaken by the barbs of both those arguing for justice or for individual responsibility for actions, and those who thought they had discovered that after all treatment is a sham because i t does not ‘work’.

There has been no lack of advice or suggestions, hut no real evidence that some more assured and positive solutions were being developed. Over the past four or five years, particularly in this country, there seems evidence of more definite shifts in thinking, with constructive discussion about the future of the juvenile court, or the possibilities for establishing a family court taking on responsibility for matrimonial, conciliation, and child-care issues, with or without jurisdiction over offenders. There are suggestions that the juvenile court’s life might be limited for lack ofcases with the increasing use ofcautioning forjuveniles, and a decline in the population of young people, or because, as has been argued by some American observers, there is little now to distinguish the juvenile court from its adult counterpart in terms of sentencing principles and disposals, yet the latter may provide more procedural safeguards.

The four books reviewed here all reflect aspects of these developments. None deals with England and Wales hut all have something to say to those who consider the future for that system ofjuvenile justice.

Ruth Adler’s book Taking Juuenile Justice Seriously does precisely that. As a member of a Scottish Children’s Panel her book explores the basis of a welfare system and its philosophy. Spurred on by attacks from the ‘justice’ lobby and her own experience of the difficulties of balancing a child’s needs with their rights, she takes apart the concepts ofjustice, of rights, interests and needs, both in general terms and then in relation to children. In her discussion of children’s rights she opts for a form of ‘modified protectionism’ in preference to paternalistic or child- libertarian approaches. She makes use of the distinction between legal justice (punishment of wrongdoing through the law) and social justice (the distribution of benefits and burdens throughout society) \ t o argue that this lies a t the root of any attempt to pit ‘welfare’ against ‘justice’. The second part of her book examines the reasoning processes involved in actual cases and leads her to conclude that individual disposals and subjective assessments made on the basis of the interests of the child are not inconsistent with the principles ofjustice. She is also at pains to separate out the issue of reaching agreement on what interests and needs ought to be secured, from how these can be met, and what,interests of a particular child are.

As a ‘qualified defence’ of welfarism the surprisingly practical outcome is a detailed series of recommendations for modifying the Scottish System, principally by checks on discretion, but also by separating the offenders from the rest. Thus they include the exclusion of offence referrals and the establishment of separate proceedings where such cases would be dealt with on the grounds of punishment or deterrence; the separation of measures for care and punishment; the production of written reasons for all decisions; parental access to all reports; a clear statement of the aims and content of supervision; representation for children, and uniform application of all procedural regulations. There are clearly problems with this list, and a tougher consideration of some of the paradoxical empirical findings touched on in the book might have helped to highlight them. For example, the study of

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children reaching List D schools in the late 1970s via Panels and courts found them indistinguishable in family and offending backgrounds, yet the latter had spent longer on remand and received longer sentences.

It is difficult to know at whom the book is aimed since i t is not easy going, and its origins as a thesis show too clearly. If only some 6% of Panel members think procedural safeguards important, i t is difficult to envisage them reading this book. Yet her concluding chapters should be essential reading for Panel members or juvenile court magistrates. It is to be hoped that she will now write - as she originally intended - a book which her co-members will read.

Two books about American juvenile justice bring about an apparent change of gear. Vito and Wilson’s book reads less like a thesis than a set oflecture notes. It is part o f a series of text books aimed at American students, but taken out of context and without its companion volumes i t seems a poor introduction for an outsider. It provides an account of the major components of the system and selects what the writers judge to be the ‘critical issues’. These not surprisingly turn out to be familiar: diversion, discretion, due process, over-intervention, the tendency for police diversion units to extend, rather than limit, authority over juveniles. The increasing transfer ofjuveniles to the adult criminal court, on grounds of danger to the public or non-amenability to treatment, becomes an issue. In practice many juveniles receive neither custodial sentences nor meet the criterion of seriousness. Discussion of the place of status offenders - truants, runaways, those beyond control - in the juvenile court leads to the suggestion that they should be decriminalised, appearing rather in a family court. There are, however, some timely warnings that interest in the dangerous offender has reached the juvenile court, with attacks on approaches to juvenile justice which emphasise decarcera- tion and diversion. while research based, this is a patchy and at times annoying book which would have benefitted from some comparative data and diagrams to illustrate its points.

Ted Rubin’s book Behind the Black Robes is one to relax with, Here is a review of all those critical issues and conflicting proposals for the handling ofjuveniles who upset society, in an easily digestible form: a series of biographical sketches of five juvenile judges. An unusual departure for an academic and more akin to the ‘insight’ variety of journalism. The introductory ‘Day in a juvenile court’ gets across a swath of information about the American system, and its three major types of client, the delinquent, the status offender and the abused or neglected child. The five portraits then follow a set format, a mixture of quotation and description of judge, court room, their style, their views on their role and on children, their family and educational background. There is ample space for exploring the philosophy adopted by each, and their views on the future of the juvenile court. A final, imaginary, section allows the five to compare notes and philosophies. The journalistic format gets the better of Rubin a t times as we are introduced to daily routines, spouse, children and pets. The effect after a while is irritating. They are all so upright and assured, their families so exemplary. One longs to meet a few judges who have lost faith or whose achievements and lifestyle tit the ideal-American-family image less neatly. Yet the contrast with a lay magistracy system is instructive. The five have strong views and a n apparent degree of control and influence over not just their courtrooms, but their stress on due process or treatment or accountability, and the size, capacity and quality of sentencing institutions or alternatives within their jurisdiction. In good hands this is inspiring - one judge demands daily figures on the local detention centre capacity, another routinely expects court staff or lawyers to provide detailed statistics on trends in cases, another gets the children to write essays (!), another sits late into the evening to ensure that every child understands all that is going on.

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Under a judge with less balanced views, nevertheless, there must be cause for concern.

Behind Rubin’s sketches lies a more serious purpose, to allow five good judges to put their differing cases for juvenile ,justice, rather than produce a verdict. I n the current climate of change that approach is to be welcomed.

Tove Stang Dahl’s book has been left to last because it encompasses so many of the arguments touched on in the other three. This slim book, translated from the Norwegian, deserves to be widely read. As an account of the development of the Child Welfare System in Norway towards the end of the nineteenth century i t may seem more remote than those which deal with current practice and critique. Many of the themes the book covers have been touched on by others, but because its exposition of the philosophical, scientific, social and political pressures which helped to create that system in Norway is so precise and clear it provides considerable perspective on current problems. Professor Dahl’s story centres on the penal law reform movement in late nineteenth century Europe which brought together criminologists ‘with their highly optimistic beliefs in the possibilities for altering human conduct’, the child-saving movement and lawyers principally in the figure of Bernhard Getz, a Professor of Law. It was Getz who drafted and pushed through the legislation of 1897 which gave the state in the person of the local welfare boards virtually complete discretion to determine the best interests of the child. Its emphasis was on treatment and rehabilitation, on the possibilities for confining juveniles for past or future behaviour, or as in need of care or protection. What is particularly instructive is the political context in which the legislation was passed. Both conservatives and liberals felt able to endorse it enthusiastically, the former as social control and a defence against risingjuvenile crime in the cities, the latter as a way of removing troublesome children from schools, thus enabling a broad education system to be established. I t is ironic too to find that Getz pushed forward his welfare-based reforms on the basis of the ‘burning issue’ of rising crime. Thus the increase in crime in urbanised areas was seen as proof that the existing system needed reform. His positive beliefs too sound familiar if over- optimistic, predicting a 10% recidivism rate among those given treatment against an 80% rate for the less fortunate.

One is left with a strong sense that late nineteenth century Europe and America were involved in intense debate about the best ways to view and deal with troublesome and neglected children, and that cross-cultural debate was better developed that it is today. The welfare movement which swept across Europe and America stressed specialisation and the separation of children from adults on the grounds of their perceived needs and best interests. Today we are moving back, perhaps, to integrated social care, or punishment and accountability, and the removal of many of the features which differentiated adult from juvenile justice systems, most notably procedural safeguards and indeterminacy. The issues d o not change, only the political and social contexts, and there is far less consensus.

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