Age of Criminal Responsibility Advisory Group minutes: November 2024

Attendees and apologies

• Chair, Natalie Don-Innes, Minister for Children, Young People and The Promise 
• Alistair Hogg, Scottish Children’s Reporter Administration 
• Carron McKellar, Police Scotland
• Fiona Dyer, Children and Young People’s Centre for Justice 
• Fiona Steel, Action for Children
• Jennifer Nisbet-Thomson, Crown Office and Procurator Fiscal Service 
• Jillian Ingram, COSLA
• Kenzy Thomson, Children’s Hearings Advocacy and Age of Criminal Responsibility Review Team, Scottish Government
• Kirsty Nelson, Children’s Hearings Scotland 
• Lesley Swanson, Bairn’s Hoose Unit, Scottish Government
• Louise Piaskowski, Children’s Hearings Advocacy and Age of Criminal Responsibility Review Team, Scottish Government
• Marie-Louise Fox, Scottish Legal Aid Board 
• Martin Dorchester, Includem
• Megan Farr, Children and Young People’s Commissioner Scotland
• Neill Mitchell, Scottish Children’s Reporter Administration 
• Pam Semple, Children’s Hearings Advocacy and Age of Criminal Responsibility Review Team, Scottish Government
• Rachel Grant, Scottish Courts and Tribunal Service 
• Ryan McQuigg, Action for Children
• Sharon Glasgow, Social Work Scotland
• Tom McNamara, Youth Justice and Children’s Hearings, Scottish Government

Apologies 

• Cheryl Clark, Crown Office and Procurator Fiscal Service 
• Katy Nisbet, Clan Child Law
• Lorna Aitken, Education Scotland
• Gerard Hart, Disclosure Scotland 
• Brian Taylor, Children’s Rights, Protection and Justice, Scottish Government 
• Melissa Parkinson, Children’s Hearings Advocacy and Age of Criminal Responsibility Review Team, Scottish Government
   

Items and actions

Welcome and introductions 

The chair welcomed members to the meeting which was followed by a round of introductions.

Minutes and actions of the previous meeting 

The minutes of the previous meeting on 24 September 2024 were agreed and will be published on the Scottish government advisory group webpage. One small amendment was requested to correct the organisation name to the Children and Young People’s Commissioner Scotland. 

An update was provided on the actions from the previous meeting. All actions have  now been completed and closed. 

Post 18 Risk management

At the last meeting there was discussion about how to manage the risks  some young people turning 18 may still present on attaining adulthood, should the age of criminal responsibility be increased past 12. The Minister for Children, Young People and The Promise noted this as a key priority.  

A short life working group was set up to look at what current legislation or risk management strategies exists, for a child who has been referred to the children's hearing Scotland due to being under the age of criminal responsibility but still presents a significant risk upon turning 18 or whether additional legislation would be required.

The chair invited Fiona Dyer, who chaired the short life working group to provide an overview of the group’s findings and key points within the report which were issued with the meeting papers.

Fiona explained the group had held two meetings to look at the matter of how we could manage risk for the children aged 14 and 16 if they were still thought to present a risk at age 17-18, at the point they would be ‘aging out of’ the children’s hearings system.  The group explored two options. Option 1 to take an approach like some countries do where some of the most serious offences are excluded e.g. murder.  For example, in Sweden, the prosecutor can still review cases without sentencing, so in Scotland this could be like a proof hearing. Or option 2 to explore another approach to manage risk. For this option it was considered the young people who may be most risky and nearing 18, would likely been in secure care with supports and risk management plans already in place. Risk management evaluation should be followed. A range of approaches were considered including care and risk management (CARM) multi-agency framework, Multi-Agency public protection arrangements (MAPPA), other child/or criminal orders applied, and risk management activities where civil orders have been used. CARM data has not been collected previously but is now part of the Child Protection data collection which may bring some reassurances. Thinking about when a young person reaches age 18 a full assessment of presenting risk, might it be possible to consider a type of civil order being applied for with conditions and/or restrictions attached made with multi-agency oversight and time limited to manage any presenting risk. If breached this would go back to the court to review.

Crown office and procurator fiscal service provided data and this highlighted over a 10 year period the number of children and young people with whom this may affect. The numbers considered were small.

Conclusions reached by the group were that option 1 was not favoured as UNCRC general comments recommend not to exclude certain offences, although it was noted this could be easier to manage. Option 2 was considered by the group to be the better way forward looking at how civil orders, with further principles to be considered to make sure this would be the right way to go, including  how this would impact in terms of implementation.  

The chair asked for clarity on information available on how  the effectiveness of the civil orders, and whether they would need to list serious behaviours. The chair invited comments from the group on the following matters:

• Civil orders can be effective but cautioned that this is reliant on robust management processes being in place. This needs to be multi-agency, with suitable high levels of resource, training and guidance etc. The are inconsistencies across Scotland so a “mixed picture” makes consistency of application challenging.
• CARM and MAPPA provide robust risk assessment and management processes already in place.
• We must develop a clear vision of who this works in practice to hold community confidence.
• Clarified option 2, it would not be a list of offences, rather particular types of serious harmful behaviours concepts already in legislation combined with likeliness of continuing to pose a risk.
• From a social work perspective in terms of structural differences between children and young people’s social work teams and justice social work would need work to see what the processes and implications would look like.
• Cautioned whilst the numbers may be low, not to underestimate the people and resources required to appropriately risk manage individual’s complex circumstances. 
• For the idea of using civil orders, there was an interest in knowing more about approaches in other countries regarding restriction of liberty and what safeguards would be needed. Noting there must be justification for a continued intervention and its severity if restriction of movement or liberty was to be imposed. For grounds to be established for harmful behaviour under any new age of criminal responsibility,  there would a balance of probabilities test not a criminal test.  
• Clarified for UNCRC there is a hard cut off at age 18. For post 18 ECHR compatibility would need to be considered with regards to points on deprivation of liberty and risk versus rights decisions for individuals. General comment 24 on children’s rights in the child justice system is about avoiding criminalising children and the disadvantages that brings at an early age. 
• Acknowledged this initial work has opened more questions, but  a good start had been made on  exploring further and developing and presenting a rationale.
• The journey for all involved is important for community confidence to present clearly that something is happening and the process through to the end is clear.
• Reminded this is an issue we will be handling now for under 12’s, although it was recognised that the gap to reaching age 18 is currently wider, so narrowing that gap would make responding to these challenges more pressing.

Minister thanked everyone for their contributions, indicating that it would be better for  any further details to go into the report, particularly the point about what we are dealing with now as children currently under age of criminal responsibility reach 18 and/or are no longer within the remit of the children’s hearings system.

• Action, group members to consider any further detail necessary to reflect with this report. 

Age of criminal responsibility Review Report 

As we approach the end of the review period, we are now needing to finalise the report which will be submitted to Scottish Ministers in December 2024. There has been extensive work carried out by the subgroups and members of the advisory group to gather the critical data, evidence and research required to inform any decision on any future raise of age of criminal responsibility.  The chair invited Pam Semple to provide an overview.

Pam Semple took the group through each section and invited comments.  Requests for edits were made including:

• Point of reframing, offending has been low for many years so started from a place of small numbers and it is not that the age of criminal responsibility legislation has brought about this reduction. Reframe negative deficit language, we require to carry out more public enquiry to understand some issue. 
• Page 10, amend reference on restorative justice approach. Children’s Hearings System takes a welfare-based approach.
• Page 6, last para missing word/s.
• Page 10, discussed and noted that the conclusions drawn will be a collective view and may not be in line with individual organisations positions however they have been active participants in the process of the review
• Operation implications section, severity of capacity, recruitment and retention issues needs to be more robustly emphasised
• Section 8 list of legislation and policy examples with  regard to range of age-driven limits, capacities, entitlements and restrictions is not helpful. Reframing article 5, capacity of child is a key part. There will always be a range of ages and changes to these things over time so reframing around risk and protection from harmful effects would be better.
• Wider work is required to educate public on reasoning and distinction age groups.  for age of criminal responsibility awareness is limited too people in this sphere. It will take everyone to make an effort  to reinforce the messaging.
• Chapter 8, reference to Children (Care and Justice) (Scotland) Act 2024 needs to be clearer where provisions are included, but have not yet been commenced.
• Page 55, agreement that the case study is a helpful tool in illustrating what actually happens, but it does not currently achieve the full purpose and picture of interventions and outcomes. Further work is required, and group members contributed thoughts and support to work on developing this.
• Next steps section, opportunity to highlight resource, capacity, learning matters required for professional confidence. Recognise greater work needed to put in place for management of risk. Considerations were also made by members of the group around a desirable age of criminal responsibility. Members of the group had a collective view of the age being at least 14 years old whilst recognising the need for emphasising significant investment up front to get to the desired place. It was also discussed that a possible incremental approach could be an option when considering any increase of age of criminal responsibility. 
• Timescales and legislative process for changing the age were questioned.

The chair summed up the wider system capacity issues are for Scottish Government to consider fully, with attention to the areas of concern identified in the group’s work and presented in the report. The questions and challenge for government will be about delivering change in a way that commands respect and confidence, while  safe for children and young people and  the wider public. 

• Action, Scottish Government to come back to the group with more clarity on the legislative process. Group members to provide any further comments on the report to the secretariat by 6 December 2024. 

Learning Event 

The chair set out that it was agreed an additional learning event would be beneficial to reflect on the findings and lessons learned during the review, and to engage stakeholders on what the future of age of criminal responsibility could look like. The insights from this event will be crucial in informing the Ministerial decisions,  as they consider the way forwards and prepare to report to Parliament by the end of 2025. A questionnaire was issued to group members to gather feedback on the programme and thanks was given to those who responded. The chair invited Kenzy Thomson to provide a quick run-though of the elements of the programme.

Kenzy confirmed the event will be held on 5 February 2025, at the COSLA Conference Centre in Edinburgh from 11am to 4pm. The programme is still being firmed up, and approaches are being made to keynote speakers. Kenzy provided an overview of the programme. There was general agreement with the programme, and one area that raised discussion was a slot has been allocated for social work and police to do scene setting. It is understood the low number of incidents means it brings a challenge to speak about practice in a safe, anonymised and useful way. Kenzy invited the group to offer comment on the content and asked for suggestions on what else could be considered. Ideas shared and what will be considered included:

• What does age of criminal responsibility look like for the everyday, with focus on the culture shift, where a difference has been made e.g. language change. The whole scheme should bring a preventative mindset and these are the real big lessons for practice. It's not just about enforcing the legislative mechanisms.
• Police will think about possibilities for input
• Look at the Interagency Referral Discussion (IRD) process and route through child protection or age of criminal responsibility to follow through.  Noted drilling down to the detail could be hard within the timeframe
• Care and Risk Management approach to managing behaviour and risk, children and young people's centre could support this possibly with an area like Glasgow where it is embedded well in processes could assist.

Next steps

The chair noted that the advisory group’s report will be considered over 2025 for Ministers to make a decision. It is a priority to review the findings closely and ensure that any decisions made are based on a solid understanding of the evidence and are in the best interest of children that will have a lasting positive impact.  The next stages will involve cabinet-level discussions and decisions. 

In order to manage expectations for those asking for age of criminal responsibility to be included in the forthcoming Promise Bill the chair advised the group that The Promise Bill provisions are already being instructed ahead of introduction to parliament. The Promise Bill will bring forward many positive things to help children and young people. Cabinet will need time to reach a decision, and considerable further public consultation would also be required on new legislation. Ministers will take a view whether that can be done sensibly within 2025. The chair committed to provide an update on next steps in early 2025 once cabinet has received and considered the report.

The chair offered a heartfelt thanks to members for their commitment and passion they have brought to the group. It would be hoped the groups expertise could be called on as Ministers work through the response to the review and looked forward to seeing members at the learning event in the new year. The chair closed the meeting.