1969 Act : Historic Changes in Management of Child Delinquents
The Children and Young Persons Act 1969 emerged following lengthy deliberations. The new Act was very wide-ranging in its scope, addressing many aspects of the state’s involvement in children’s services. It consisted of 73 sections and seven schedules.
Part I was concerned with jurisdiction and procedures by the Juvenile Courts in relation to children and young persons who found themselves in trouble with the law. It was also concerned with the various forms of treatment that should be available to them.
Part II dealt with regional planning provision and the management of establishments to be called in future ‘Community Homes’ under the aegis of local authority Children’s Departments, together with the duties of those authorities in regard to foster parents.
Part III was concerned with miscellaneous and financial matters. Although the Act received the Royal Assent on 22 October 1969, the changes were to be brought into effect only gradually over a number of years. As was explained in the Preamble to the Act, at the time of its enactment there were insufficient trained staff and other resources to permit all the changes to occur at once and there was also a change in administration.
A further important factor was that the General Election in 1970 brought about a change of Government from Labour to Conservative. The policies of the new Government influenced the way in which the Act was implemented and a number of what some saw as “key Clauses” (Packman, 1981) were not implemented.
The Act was unpopular with magistrates, many of whom believed that they were being deprived of substantive powers to deal with juvenile delinquents. The police also thought the Act too liberal. The Police Federation called for the restoration of full powers to the magistrates to send children direct to all custodial establishments and were against the raising of the age of criminal responsibility.
The 1969 Act replaced the Fit Person Order, applicable to needy and deprived children, and the Approved School Order, used mainly for young offenders, with the Care Order. Both groups would now be placed “n the care of the local authority”.
The Act introduced the term Community Home for all children’s homes and Approved Schools. Responsibility, directly or indirectly, for overseeing all Community Homes was transferred to the local authorities. All local authorities were required to participate, with neighbouring authorities in a given area, in specific planning of the provision of children’s resources. This cooperation between authorities was to be undertaken through newly formed Regional Planning Committees.
More care and management of young offenders in the community was encouraged and powers for placing additional requirements on a Supervision Order were introduced. These powers were to enable the idea of ‘intermediate treatment’ as it had been called in the White Paper Children in Trouble to be introduced, although the actual term was not used in the Act
New Role of Juvenile Court
As a result of the Act the Juvenile Courts had two overall functions in regard to offenders, one as a tribunal of proof, the other as an assessor of provision for treatment of those in trouble who come to its notice. The Courts would have basically two types of case to hear: care proceedings under Section I of the Act; and criminal proceedings under Section II of the Act
The Courts had to be convinced of the guilt of the offender and also be satisfied that the child would be unlikely to receive the necessary care and control without such an Order being made. Ford (1975) referred to this process as “double proof”. In his experience as a magistrate some Courts failed to observe the second part of the proceedings required before making a Care Order and continued to act solely on the basis of the guilt of the of the offender in making their decisions about disposal. This was one of the reasons why, in the early years of the Act, the number of offenders coming into the Community Home Schools increased and why, once the second part of the procedure began to be more rigorously implemented, admissions began to drop dramatically.
In order to fulfil the requirement for Regional Planning groups of local authorities were required to come together to formulate plans for their regions in respect of child care provision. There were to be twelve such bodies across England and Wales, and they were to be known as Children’s Regional Planning Committees; they were to be directly accountable to the Secretary of State, to whom Regional Plans had to be submitted for approval.
The initial task of the Regional Planning Committees was to prepare and submit comprehensive development plans for a system of Community Homes in their areas. These were to be based on an analysis of the needs of children and young persons in care and would specify the proposed further functions of existing children’s homes and Approved Schools, both local authority and voluntary. The Committees were also to prepare schemes of intermediate treatment. Additionally, it was hoped that they would become forums for inter-disciplinary child care co-operation and communications on matters such as training and research.
The membership of the Regional Planning Committees was drawn from the constituent local authorities, usually the chairmen of the relevant committees, i.e. Children’s (later Social Services) Committees, and the Chief or Senior Officer of the department. In the early years all the Committees appointed an additional officer, a Regional Planning Officer, to service them, sometimes with support staff. Most Committees also had some representatives of other bodies serving on them. Region One, for example, invited a representative of the voluntary child care agencies. Region Two had representation from the voluntary child care sector, the Magistrates Association and the Department of Education. The Committees usually met in full session on a quarterly basis. A number of sub-committees were appointed to deal with the issues of identifying and submitting for approval intermediate treatment schemes, regional child care policies on observation and assessment, secure places and difficult-to-place children.
Plans in respect of Community Homes with Education (CHEs) and the financial arrangements for them tended to dominate the agendas of the main Committee. Most regions developed cost-pooling agreements in order to assist in the financial management of the CHEs. These often took the form of projecting the cost per place per year on the basis of an 85% occupancy. This exercise was done for each CHE in the region. Where, at the end of a financial year, there had been a deficit in a particular CHE the user authorities were required to make up the shortfall, and where there was surplus this was refunded to the region for redistribution to the member authorities.
The rationale behind this practice of pooling was well described in the publication Management of Community Homes with Education on the Premises (Department of Health and Social Security, 1977). It observed that a distinctive characteristic of the CHE system would be that an authority wishing to place a child need not allow consideration of relative costs to influence choice of placement. Similarly, owning or controlling authorities could be confident that the service they provided to the region would not place an additional burden on their rate-payers.
One of the main weaknesses of this system was also noted in the DHSS study but not, at that time, given much attention. This was that the pooling system disguised the relationship between cost and occupancy levels. This weakness was not so apparent in the early years of the operation of the new Act, when occupancy levels were generally high. In later years, however, it became a highly significant factor in the withdrawal of many authorities and voluntary agencies from Regional Planning and the Community Home Schools system.
All Community Homes Now
In one of the periodic reports on children’s services that was required to be laid before Parliament (the successor to the Children’s Department reports from Home Office days), Social Services for Children in England and Wales 1973-75 published in 1976, a clear account is given of the importance placed by Government on Regional Planning. This report recorded that plans for each Regional Planning Area (RPA) had come into operation on 1 April 1973. On that date some 2,236 former Approved Schools, Remand Homes, Reception Homes, Children’s Homes and Nurseries, became Community Homes. Because of the complex negotiations with some voluntary bodies it had not been possible to complete all the regional plans. By April 1975 the number of institutions which had become Community Homes and had been incorporated into Regional Plans had increased to 2,430.
The 1976 Social Services Report to Parliament also observed that Local Authorities now not only ‘think regionally’ but recognise the need for inter-regional co-operation. To strengthen this trend, discussions at national level between the Department (DHSS) and RPA chairmen had taken place. This commitment to a regional approach was to crumble rapidly in the 1980s in a manner which suggests some fundamental weakness in the arrangement from the onset. The introduction of regional planning was however, to prove to be far less controversial than the implementation of the legislation concerning the activities of the Juvenile Courts.
Difficulties in Court
One of the early difficulties of the working of the Children and Young Persons Act 1969 was that some magistrates had convinced themselves (although it was certainly not in the Act) that, when they made a Care Order, the local authorities would accept this as a direction to remove the child from home and make provision for him or her in some form of institution. When in certain instances, this did not happen there was some consternation and anger from these magistrates. Their concern was further fuelled when some of those children were subsequently returned to Court with more charges of criminal behaviour.
The Act, however, had specifically removed from magistrates the right to decide precisely how to deal with a child they had placed in the care of a local authority. Local authorities were vulnerable to criticism on this issue because they were not always able to provide either the intensive support that some children subject to Care Orders needed or sufficient residential places.
Another important development included in the Act was the requirement for the police to consult with the local authority before bringing a child to Court. This was designed to ensure that all other means were explored before deciding on a Court appearance. Similarly the Act laid down that a young person (14-17 years of age) should not be brought before a Court for care proceedings unless it was clear that:
…it would not be adequate for the case to be dealt with by a parent, teacher or other person or by means of a caution from a constable or through the exercise of the powers of the local authority or other body not involving court proceedings (Part 1 Sec.5(2)).
The Act, in giving formal recognition to the power of the police to caution offenders, opened the way for a major strategy for dealing with young offenders as an alternative to the Juvenile Court. Although it was already within the power of the police to exercise their discretion in regard to prosecution of offenders, the 1969 Act gave this an added status and impetus.
Some police forces, for example in Liverpool and the Metropolitan Police areas, had already begun to develop schemes aimed at dealing with petty juvenile offenders in a less formal way. In 1969 the Metropolitan Police, and subsequently other police forces, introduced Juvenile Bureau Schemes. Procedures were developed for advising education, probation and social services departments that a juvenile had been apprehended committing an offence. These departments were asked to advise the police of any information that would assist in deciding how best to deal with the young offender.
In cases in which the offender admitted the offence, and the parent or guardian of the child and the injured party agreed, a senior police officer could issue a formal caution. During the period 1971-77 cautioning of young offenders by police increased by 54% in the case of offenders under 14 years of age and 63% for those over 14 years. Cautioning was to become one of the major strategies for dealing with young offenders.
During the progress of the Children and Young Persons Act 1969 through Parliament the Conservative Party had been opposed to many of the proposed changes. When the Conservative Party came to power in 1970 they phased in various parts of the Act and postponed some of it indefinitely. For example the age of criminal responsibility was not increased to 14 years of age as the Act had specified.
A Climate of Change and some Confusion
Meanwhile, other developments were to have an added impact on the way in which young offenders were managed. The passing of the Local Authorities Social Services Act 1970, (which was implemented in April 1971) meant that the Children’s Departments were absorbed into much larger bodies, the Social Services Departments, with responsibility for all client groups. Added to this was the introduction of new and wider local government boundaries on 1 April 1974 under the terms of the Local Government Act 1972. This affected 35 of the 45 County Councils. All Borough Councils within the boundaries of County Councils were merged into the new into the new County Councils. In six of the large industrial and urban areas new council structures, i.e. Metropolitan Councils, and new boundaries were also introduced.
These reorganisations caused considerable management difficulties for the newly created Community Homes with changes of the responsible authority occurring in many instances. It would have been far more constructive for the social services and
local government legislation to have been introduced before Children and Young Persons Act 1969, so avoiding the disruptions in the early days of the implementation of the latter. Before these new Children’s Departments had come terms with the changes in the new Act, many were again affected by the change of boundaries.
These changes, in particular, weakened the new Regional Planning Committees (RPCs) which had been operating for only four years (and three of these years had been spent preparing for the Committees to begin work). Brian Latham, professional adviser to Region One 1976-1978, stated that the boundary changes made regional planning superfluous in some areas. Kent, for example, became almost self-sufficient in child care resources. Ford (1975) predicted that, with more local authorities being able to be self-sufficient, the time of the large community home would be over, although some would continue in use for an interim period. He urged that each local authority should try to have its treatment facilities within its own boundaries so that children would not be separated from their family, school and neighbourhood. The larger local authorities were able to do this with the implementation of the Local Government Act 1972.
Throughout the 1970s the Children and Young Persons Act 1969 was criticised by those who saw it as leading to an upsurge in juvenile delinquency. Its supporters attributed the limited impact of the Act in this area to the fact that it had only been partially implemented.
Early View of the Effect of the 1969 Act
A survey of the working of the 1969 Act was carried out by MIND (National Association for Mental Health) (MIND, 1975). The study, undertaken in eleven local authorities, found that there had been a 25% rise in juvenile crime in four years. Section 4 of the Act, requiring consultation between the police and social services before prosecution of a young offender, had not been implemented. Some police areas had no Juvenile Bureau. There had been greater use of prison for young people, with 4,654 being remanded to prison awaiting trials in 1974. This was partly due to the increased use, by magistrates, of Certificates of Unruliness. It was also found that 95% of Care Orders had resulted in residential placements. The former Approved Schools were being used as frequently as they had prior to the Act. Supervision Orders, the successor to the Probation Order for young offenders, were used much less often. Intermediate treatment had not been developed to any significant degree.
The survey concluded that the 1969 Act had proved disappointing in practice. It was suggested that this was because the Act was based on the mistaken belief that ‘care’ and ‘control’ were compatible and that delinquent children should be made subject to ‘treatment’. The logic of these arguments was that some children had to be kept in secure conditions but that it was an illusion to talk of ‘treating’ them. It also urged that there should be increased communication between the police, education departments, health authorities and social services departments. The lack of any systematic monitoring of the working of the 1969 Act was described as deplorable. Finally, concern was expressed at so much local authority expenditure being used to set up new residential child care provision.
These criticisms were valid in many respects, although some of the general conclusions of the MIND Report about the working of the Act were premature, given the short time it had been in force. It was clear that supporters and opponents of the Act continued to be concerned about its impact.
In 1977 a number of social work agencies, which included representatives from the advisers to Children’s Regional Planning Committees, directors of social services, community home schools, probation officers, residential care workers and representatives from the voluntary child care organisations, came together and appointed a steering group which a year later produced an evaluation of the Act (Community Home Schools Gazette, May 1978).
The group noted the contentious nature of the Act, and the general dissatisfaction of both supporters and opponents with the outcomes following its implementation. They considered the Act, particularly in its truncated form, had made only limited changes to the way young offenders were dealt with. Those changes were mainly procedural and administrative in nature. As a symbol of a battle between competing ideologies, however, where its very existence was perceived as victory by one and as defeat by another, the Act remained very powerful.
The Group accepted that despite its intentions, in some respects the Act had not been effective in dealing with juvenile delinquency. In support of this view they quoted Thorpe et al.(1976), who had suggested that sentences received in Juvenile Courts between 1969 and 1975 had become more severe, whilst at the same time social work activity and contact had been reduced. The social services Group identified the need for more response from the social services to police referrals requesting information about juvenile offenders. It was acknowledged that there was too great a gap between an offence and the official response, commenting that “At the moment young people can sometimes be forgiven for believing that society does not take their misdemeanours seriously”.
The Short Report
The House of Commons, in response to concerns about the working of the Children and Young Persons Act 1969, appointed an Expenditure Committee under the Chairmanship of Renee Short, to enquire into its operation. This Committee reported in 1975 (the Eleventh Report; Short, 1975). As was to be expected, a variety of often conflicting views were submitted to the Committee, together with a range of advice about the manner in which the 1969 Act should be implemented or amended.
The British Association of Social Workers observed that juvenile crime was more closely related to material and social factors than to emotional and family disturbances. The Royal College of Psychiatrists stated that the vast majority of delinquents showed no evidence of psychiatric disorders. The magistrates’ and clerks’ representatives claimed that one defect of the Act was that it failed to recognise that some children committed wrongful acts in full knowledge of their nature and it did not allow for the need to have the consequences sharply brought home to them.
The Justices Clerks Society was the most scathing in its criticism of the Act. The Clerks deplored the parts of the Act which allowed out of Court action because the precise nature of this was not prescribed and therefore often resulted in no action at all. It was said that there was a lack of resources, of personnel and accommodation available to implement the Act. It was suggested that the Act had deliberately confused the distinction between the functions of the Court, the police and the local authority and that there was no acceptance of the very real distinction between a child in need of care and a juvenile offender. The Act had also failed because it deprived society of an important part of the Courts’ criminal jurisdiction, namely to protect the public. Overall they considered that the Act operated against the interests of juveniles.
The Expenditure Committee (Short, 1975) seemed to take for granted the continuing need for Community Homes with Education, as indeed did the Directors of Social Services. The Directors, through their Association, complained of the constraints central government were placing on their building programmes. It was urged that heads of CHEs desist from being selective about admissions.
The Short Report (as the Committee’s findings came to be known) called for more development of intermediate treatment schemes and urged that urgent attention should be given to non-residential forms of care. It proposed that a juvenile already the subject of a Care Order who appeared before a Court for a further offence should be made the subject of a Secure Care Order. It was also recommended that, when a Care Order was made, the social worker should subsequently inform the magistrate of what action had been taken.
It was concluded that the major failing of the 1969 Act was that it was not wholly effective in differentiating between children who need care, welfare, better education and more support from society and the small minority who need strict control and an element of punishment. The Short Report strongly recommended that, within the framework of the Act, there should be a major shift of emphasis away from custodial and punitive techniques towards intermediate treatment,
supervision and a much greater use of non-residential care, especially fostering.
The findings of the Report were, however, somewhat contradictory. Of the total of 40 recommendations made, fifteen were concerned with improving and expanding custodial facilities, ten with the development of non-custodial facilities, eight with strengthening the powers of Juvenile Courts and seven with broadening the possibilities for discussion between the police, social workers and local communities in order to prevent the need for prosecution and to encourage the development of local crime-prevention programmes. On the one hand the Report argued for more powers for magistrates and more use of custodial measures, while on the other it urged a greater development of and reliance on community based facilities such as fostering and intermediate treatment (Thorpe et al.1980).
The Government responded to the Report in a White Paper (Observations on the Eleventh Report from the Expenditure Committee, 1976) by trying to reconcile these conflicting recommendations. It undertook to make money available for construction of secure facilities in Community Homes with Education so as to stop the remanding of juveniles to adult prisons. There was decisive opposition to the use of resources for a massive programme of residential provision and an acceptance of the Expenditure Committee’s view that there should be a major shift of emphasis to non-residential care.
Confusion amid a Cauldron of Issues
Despite the Government’s response, discontent with the 1969 Act remained. David Thorpe, an arch proponent of the progressive approach, summed up the situation well, observing that it had been anticipated that the implementation of the Act would lead to the end of a penal/custodial system for juveniles and its replacement by a system of care and treatment (Thorpe et al., 1980). It had been expected that there would be a higher age limit of criminal responsibility and that borstal would be phased out and replaced by intermediate treatment. In the same vein, Approved Schools were to be assimilated into a Community Homes system. Thorpe suggested that a new system had come in but that the old one did not go out. One unfortunate, but apparently inevitable, consequence of this arrangement was that children now tended to come under the jurisdiction of the system at a younger age.
As a result pressure was exerted on the ‘upper reaches’ of the system and delinquents progressed to the later stages of their careers more swiftly. According to Thorpe, this was indicated by the falling average age of borstal intake and the fact that the detention centres and borstals had increased their intake as the result of the demise of the Approved Schools.
A process which had begun in the early 1960s, with a concern to improve the system and methods for dealing with juvenile delinquency, including the Approved Schools, was seen by many in the late 1970s to be in some disarray. Major changes had certainly occurred but deeply held conflicting views about justice and welfare, treatment and punishment, containment in the community and custody, the offender and society, spending and saving public money, the structure for local government, the role of central government, and about the role of the social work and other professions, had emerged. One of the many results of this cauldron of issues was the confusion and uncertainty about a system originally designed to keep children out of penal establishments, the former Approved Schools, now the Community Homes with Education
Based on material from “Yesterday’s Answers (1993) by Jim Hyland