8. Particular Considerations
An understanding of the impact offending behaviour has on victims and the wider community should be taken into account in managing a Community Payback Order (CPO). Work should be undertaken with the individual to identify and explore attitudes towards the victim(s) of their offending, both immediate and in the wider perspective. It should involve targeted work with the individual subject to the CPO to identify and explore attitudes and understanding of the impact of their actions on the victim(s), and to explore ways of making changes to avoid future offending. This can be undertaken as part of an offender supervision requirement or can also be addressed through the "other activity" component of an unpaid work or other activity requirement. Payback to victims and society should always be a prominent focus within a CPO regardless of the nature of the requirements imposed.
Domestic abuse offences
The responsible officer (appointed under section 227C of the 1995 Act) would not normally contact victims direct except in domestic abuse offences, when considerable care must be taken in planning this contact. Particular care must also be taken in making decisions related to how information gained during such contact is used. Where possible this should involve close contact with services providing support to the victim and the primary focus must be on maintaining the safety of victims, children and any other vulnerable people within the household. Where Caledonian System staff are already working with the victim, the responsible officer should not make direct contact with the victim, but should contact the relevant Caledonian System worker.
During any contact with victims of domestic abuse, the responsible officer should adopt a trauma informed approach to ensure that victims experience the appointment as safe, and do not feel re-victimised during the interview process. Information on appropriate local support services should always be offered to victims who are not currently receiving such support.
Home visits may serve to monitor obvious changes in the behaviour of the individual (and the victim where possible), to help assess ongoing risks. However, responsible officers should have an awareness of the dynamics of coercive control and should understand which behaviours constitute abuse. Where victim support services are involved, responsible officers should be in contact with the agency providing support to help inform risk assessment and monitoring. Responsible officers should fully explore concerns in professional supervision and refer to local multi-agency forums as appropriate.
Responsible officers should recognise that abuse may continue despite the victim not being resident with the individual. Separation does not guarantee safety and the period following separation may be a time of increased risk.
Information gained through contact with victims must always be treated sensitively and must not be used with the individual if this may place the provider of such information, or other vulnerable people within the household at increased risk. Information provided by the victim should not be shared without consent.
Examples of measures that can be taken throughout the duration of a CPO to protect victims' safety are provided below. This is not intended to be an exhaustive list. The responsible officer may:
- provide advice to the victim on safety planning, who should be contacted, and the action they should take if the individual does not adhere to requirement/condition which is intended to prevent victim access;
- help the victim to secure assistance in improving household security (such as asking the landlord to fit more robust external locks, and fit internal door locks);
- flag the address with the police so that it can be patrolled and maintain regular contact with domestic abuse liaison officers;
- maintain contact with housing services/associations and community wardens to increase the monitoring of the situation;
- undertake home visits to the victim when the individual subject to the CPO is attending unpaid work or a programme, and request that other professionals (women's worker, police domestic abuse officer) do so;
- offer to meet the victim outside the home in a place where they feel safe and comfortable having a discussion;
- undertake victim safety planning and keep their safety under regular review;
- refer the case to multi-agency decision making bodies such as the Multi-Agency Risk Assessment Conference (MARAC) and/or the Multi-Agency Tasking and Coordination group (MATAC) when multi-agency actions are required in relation to the safety, health and wellbeing of the victim (and their children); and
- invoke Multi-Agency Public Protection Arrangements (MAPPA) if appropriate.
Service Generated Risks
Justice Social Work Services (JSW) play a significant role in reducing service generated risks to victims of domestic abuse by responding to, and addressing the individual's abusive behaviour in a way which does not increase the risk to the victim. For example, while it is important that court reports are informed by partner information, this should be provided in such a way that it does not jeopardise the safety of the victim or others by identifying the source. This includes information received via other sources such as support workers from other organisations/agencies.
Unsafe case recording can also generate risks to the victim. Sensitive information pertaining to risk may be received direct from the victim, their children or family members, or indirectly via their contact with other agencies. This should only be included in the case record of the individual (subject to local authorities' procedures and protocols under the EU General Data Protection Regulation (GDPR)) where this is clearly identified as information which must not be disclosed. Such information must be redacted in versions of documents such as court reports or risk assessments to which the individual may gain access.
Further information on domestic abuse will be provided in the Justice Social Work Outcomes, Objectives and Principles (JSWOOP).
8.2 Child Protection
It is the responsibility of individual Child Protection Committees to develop local procedures which take account of JSW as a potential source of information in cases where there are child protection concerns. In such cases justice workers will share information with children and family social work teams. All staff who are working in JSW should be aware of their role in child protection, what kinds of circumstances constitute grounds for concern about the safety of a child, and the local protocols for referring to child protection colleagues. Responsible officers should ensure that practitioners possess both sufficient awareness of child protection issues and access to appropriate training to enable them to correctly interpret what is potentially important information. Responsible officers and unpaid work case managers have a duty to provide information, either in person, and/or by report, to any departmental meetings to address the needs of, and risks to, the child.
Where a drug and/or alcohol treatment requirement is imposed, an offender supervision requirement will also be in place. A qualified social worker will therefore always have ultimate accountability for ensuring protocols that refer to child protection issues are followed. This social worker will also ensure that responsibilities for children affected by parental substance misuse (CAPSM) in the context of Getting It Right For Every Child are taken into account, even if elements of the CPO are carried out by non-social work qualified staff. For further information, refer to the National Guidance for Child Protection in Scotland.
8.3 Adults In Need Of Support And Protection
The Adult Support and Protection (Scotland) Act 2007 sets out duties and powers to identify vulnerable adults at risk of harm, provides the means to protect them from harm, and enables the provision of support when it is needed. Crucially, it places a duty on local authorities to make inquiries about a person's wellbeing, property or financial affairs if the local authority knows or believes that the person is an adult at risk and that intervention is necessary in order to protect the person's wellbeing, property or financial affairs.
It is the responsibility of individual local authority Adult Support and Protection Committees to develop local procedures which take account of JSW staff as a potential source of information in cases where there are adult support and protection concerns. In such cases JSW staff must share information with adult support and protection (or relevant community care) social work colleagues.
All JSW staff should be aware of their role and responsibilities in relation to adult support and protection, what kinds of circumstances constitute grounds for concern about the safety of a vulnerable adult, and the local protocols for referring to adult support and protection (or relevant community care) colleagues.
JSW managers should ensure that JSW staff possess both sufficient awareness of adult support and protection issues and access to appropriate training to enable them to correctly interpret what is potentially important information. Responsible officers and unpaid work case managers have a duty to provide information, either in person, and/or by report, to any departmental meetings to address the needs of, and risks to, adults in need of support and protection.
The following sources provide further information:
8.4 16 and 17 year olds
As part of the Whole System Approach to working with children and young people, alternative approaches can be adopted such as early and effective intervention, diversion from prosecution and referral to the children's hearings system. These alternative approaches may help to keep children out of the criminal justice system while addressing their needs and any harmful behaviours. JSW staff working with this group should be familiar with the principles of Getting It Right For Every Child and the Whole System Approach, and reflect this in their practice.
Where an offence is alleged to have been committed by a young person aged 16 or 17, JSW staff should be aware of the definition of children under section 199 of the Children's Hearings (Scotland) Act 2011. The Lord Advocate's Guidelines to the Chief Constable on the Reporting to Procurators Fiscal of offences alleged to have been committed by children make clear the types of offences which require to be jointly reported and therefore may result in prosecution.
Young people appearing before the court may also be subject to a Compulsory Supervision Order (CSO) through the children's hearings system, or they could be assessed as requiring further support on care and protection grounds. Such individuals should be appropriately referred to address both the risk and the needs they present. Professionals should work in partnership on these occasions with the most appropriate worker taking the lead. The imposition of a CPO does not require a CSO to be terminated and recommendations on whether a child continues to require compulsory measures should be assessed on a case by case basis.
Provision continues to be available to the court for those under 18 to be remitted to the children's hearings system for advice. However, a CPO cannot be imposed by the children's hearing.
CPOs should take consideration of the child's age, developmental capacities and likely limited knowledge and experience of measures of this nature, whilst also considering potential fears and a sense of hopelessness about successfully completing orders. Consideration should be given to how barriers to successful compliance can be reduced and what support may be required, not just to the individual child but to the systems around that child such as family, education community and peers, for example. Full explanations should be given to the child of the conditions which must be met in relation to each requirement, who they must report to and engage with, as well as the consequences of non-compliance.
Where a CPO is imposed on a young person aged 16/17 under section 227G(2)(a) of the 1995 Act, the court must also make an offender supervision requirement. Such supervision may present particular challenges for responsible officers due to the requirement for additional resources to be invested and consideration being given to a wide range of interventions to meet the specific needs of the individual effectively. However, given the well-established consequences for children and young people of non-compliance, the provision of such support is imperative.
Where an offender supervision requirement is imposed with a level 1 unpaid work or other activity requirement, the supervision requirement is likely to be of short duration with the aim largely consisting of supporting the young person to complete their period of unpaid work. However, other identified needs should be addressed as part of the CPO as necessary. In managing such a requirement, whilst the responsible officer would retain overall responsibility, the unpaid work case manager may undertake some of this work (for example, via pro-social modelling and addressing attitudes supportive of offending, where these are identified during regular contact, in the course of unpaid work). In order to provide a consistent approach, unpaid work managers should therefore be familiar with the sections of the JSWOOP on working with young people.
Where the child has a support worker from another department/agency, frequent liaison and joint working should take place to address areas of need such as education, training and employment, family work, benefits, accommodation, health and any difficulties with substance misuse. The support worker should also be included in any departmental reviews. Where necessary, additional input from other agencies should commence during the CPO so that if the child continues to require support upon completion of a CPO, this can be provided to help promote their reintegration. Any referrals/signposting to relevant organisations identified should be made by the responsible officer supervising the CPO prior to its completion to facilitate ongoing support.
In supervising a young person on a CPO, an outcome focussed case management plan that meets their needs should be devised. In addition, where a CJSWR is requested, consideration should be given to this report being prepared by a member of staff with the appropriate skills and experience in working with this specific age group. The Framework for Risk Assessment, Management and Evaluation (FRAME) for children and young people under 18 years is a helpful guide when addressing moderate to serious offending behaviour. The selection of appropriate risk instruments is the responsibility of the practitioner and the agency and guided by the Risk Management Authority (RMA) Risk Assessment Tools Evaluation Directory (RATED). Risk assessment tools should be appropriate for the age and development level of the young person being assessed.
The impact of transitioning from childcare to adult services should also be given careful consideration. Further information on working with young people and the impact of adverse childhood experiences will be provided in the JSWOOP.