Justice for children and young people - a rights-respecting approach: vision and priorities

1. Introduction

In Scotland we have an ambition 'to be the best place in the world to grow up'. We want all of our children and young people to feel safe, protected, loved and supported at every point in their life. Preventing children and young people from going down a path where they are in conflict with the law and supporting them appropriately, constructively and effectively when they do, has been integral to our agenda for over a decade. This follows Getting it Right for Every Child (GIRFEC) and a multi-agency Whole System Approach (WSA) assisting not only the child but anyone affected, along with their family and wider community.

Delivery of our approach to youth justice in Scotland has been rooted in addressing the needs of children and young people, using lay but specially trained panel members, emphasising the role of the family, and adopting preventative and educational approaches as per Lord Kilbrandon's report in 1964. Wherever possible and appropriate, Scotland seeks to ensure that children are diverted away from formal measures with alternative interventions/services available, such as the use of early and effective measures. Alongside this approach it should be the case that victims are better supported and that awareness of all alternative routes, and the rationale for them, is raised and well profiled.

Over the last 12 years, this move to a more preventative approach has delivered a remarkable 75% reduction in children referred to the Children's Reporter on offence grounds, an 85% reduction in the number of children and young people prosecuted in Scotland's courts and a 93% reduction in 16- and 17-year-olds being sentenced to custody. These positive reductions, with their benefits for children and their communities, are the results of a sustained collective commitment by local authorities and key partners across a range of sectors, professions and disciplines.

The Promise published in February 2020 states that a fundamental shift is required in how decisions are made with children and families. The Promise goes on to observe that despite good intentions, far too many children and families within the care system have experienced a fractured system that operates only when they are facing crisis.

A new approach to youth justice in Scotland is required, which continues to align with UNCRC, proceeds from a rights-respecting approach, supports all children under the age of 18 and young people up to age 26 to participate in decisions about them, directs positive support to families, and offers that support through safe and caring relationships.

The Promise's key findings and calls to action for youth justice are centred on avoiding and stopping the criminalisation of care-experienced children. Whilst working to prevent criminalisation of all children, Scotland must develop a more progressive, rights-based youth justice approach which builds on the Kilbrandon principles and makes them a reality for all. Meeting the imperatives of the Promise requires a fundamental shift in focus, time, commitment, resourcing and underlying structures.

There is a recognition that Scotland should work to move away from 'cliff edges' determined by chronological age, whereby children and young people must transfer from one system to another when they reach a certain age. More needs to be done to ensure cross-over of services, interventions, supports and systems and more gradual transitions between these services and systems ensuring that supports and interventions are based on developmental ability and capacity rather than age. Improved collaboration with youth justice and adult services has been a key priority for a number of years. This is reflected in Justice in Scotland: Vision and Priorities, published in 2017. This continued collaborative working, to provide smooth transitions and assist delivery of services beyond the age of 18 is, therefore, required.

The continuation of early intervention and prevention is important, with wrap-around support for families and children and young people provided at the earliest opportunity, including increased provision around education and mental health and consideration of planning and decision making through family networks such as family group decision making.

Rights Respecting? Scotland approach to children in conflict with the law concludes that Scotland would benefit from thinking about children in conflict with the law from the perspective of rights. All children are rights holders and these rights must be upheld in line with the United Nations Convention of the Rights of the Child (UNCRC). The UNCRC sets out the fundamental rights of children, which must be adhered to. The Scottish Government is committed to incorporating UNCRC into domestic law in Scotland. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill passed its final stage in the Scottish Parliament on 16 March 2021. The Bill will commence six months after Royal Assent. This is about recognising and upholding a child's rights alongside presenting needs.

The definition of a child and the complexity of landscape for those under the age of 18 who are in conflict with the law, require attention, but to arrive at comprehensive rights-respecting solutions the focus of the vision defines children as under age 18 and young people up to age 26.

The needs of victims, particularly child victims, must also be addressed. It is important to acknowledge that many of these children are often the same, that victimisation itself contributes to further offending, and research, including that by the Howard League from 2016, shows that those who cause harm are often victims themselves first.

The COVID-19 pandemic has affected all, including children and young people. Services and systems have had to adapt to a 'new norm' with the long-term effects of the pandemic currently unknown, but it is clear that services and systems have adapted and changed during the pandemic and will continue to do so.

National Performance Framework

Scotland's National Performance Framework aims to create a more successful country, give opportunities to all people living in Scotland, increase wellbeing, create sustainable and inclusive growth, reduce inequalities and give equal importance to economic, environmental and social progress. This is underpinned by core values - to treat all our people with kindness, dignity and compassion, respect the rule of the law and act in an open and transparent way. The framework sets out national outcomes with progress being measured against 81 national indicators. The outcomes which are specifically relevant to this agenda are:

• we grow up loved, safe and respected so that we realise our full potential;
• we live in communities that are inclusive, empowered, resilient and safe;
• we are well educated, skilled and able to contribute to society;
• we are healthy and active;
• we respect, protect and fulfil human rights and live free from discrimination.

Youth Justice Strategy 2015-2020

In June 2015 the Scottish Government published the Youth Justice Strategy 'Preventing Offending: Getting it right for children and young people' (the strategy). The aims of the strategy were to support the overarching vision, via commitments under three key priority themes: advancing the whole system approach; improving life chances; developing capacity and improvement.

The strategy was broad in scope but at its heart was a child-centred, preventative approach which emphasised multi-agency partnership working aimed at:

• helping communities to feel safe from crime and disorder;
• improving life chances for children and young people involved in or at risk of offending;
• enabling all children and young people to be confident individuals, effective contributors, successful learners and responsible citizens.

Progress made under the five-year strategy is outlined in the Youth Justice Strategy Preventing Offending: Getting it right for children and young people 2015-2020 Delivery of the priorities. The report highlights work still to be addressed around advancing WSA, collation of data, a need to address mental health issues, speech, language and communication needs, and child criminal exploitation in Scotland.