Children - raising the age of referral: consultation analysis
Independent analysis of responses to the public consultation on raising the age at which children can be referred to the Children's Reporter.
Feedback from Children and Young People
Feedback from children and young people was separately analysed and is presented below.
Roughly 45 young people contributed via texts, emails, phone calls and online workshops, all of whom had experience of the care and justice systems in Scotland. The young people ranged in age from 14 to 28 with an even mix of males and females.
For the HMP & YOI focus groups, a total of 52 young people took part including remand, convicted, male and female prisoners. Most (41) were over 18 and the remaining 11 were under 18. Of the 41, seven were young females.
The nature of the data collected from young people via direct engagement activities varied widely depending on source, with some individuals providing just a single line of feedback and others providing more detailed narrative. Some of the questions asked of different groups also varied to a certain degree and so data were analysed thematically, rather than by question, with findings assigned to the appropriate subheadings below.
The main findings from the engagement activities largely mirrored those reported in the online consultation, with general support for the principle of all 16 and 17 year olds being referred to the Reporter.
Insights offered by young people included that referral to the Reporter may:
- give young people an opportunity to be heard and engage in support to make positive changes;
- provide equality of opportunity for those who are referred on offence grounds or welfare grounds and better meet the needs of those referred on both (e.g., “splitting children into ‘welfare’ or ‘justice’ is judgemental”);
- provide an opportunity to better understand and explore current life challenges and address personal histories (including previous offending, trauma, etc.);
- help young people to better understand the seriousness of their actions;
- assist young people in avoiding criminal records that may affect them and their life prospects long term;
- provide support for young people who do not have the support of family members and need someone to step in and provide that support;
- protect the young person to make sure that their rights are being upheld and protect the individual from their rights not being met;
- prevent young people being overlooked/falling through the gaps; and
- help young people to more easily access the services that they need.
Again, young people consulted in this way echoed the thoughts of online respondents insofar as young people aged 16 and 17 were still developing and may not be sufficiently mature to be managed in the adult system:
“We need to get rid of the assumption that everyone by age 18 is able to make good decisions about their life. Some people don’t have that capacity due to past trauma or drugs or alcohol or things.”
Several of the comments made by young people also mirrored the main consultation findings that each individual deserves to be treated fairly and based on their own personal circumstances:
“My older sister is 21 and is supposed to be taking care of herself, but because she was in the system for so long, she is now institutionalised. If the age of referral was older, she might have had more support. At 18 everyone is at different stages of life and maturity and still need support. I was ready to live, myself at 18 but my sister wasn’t. Everyone is different and needs different support.”
Understanding individual’s backgrounds and the possible reasons for their offending or other behaviour was seen as key.
The Polmont focus group participants provided slightly different feedback with mixed views - some thought that young people should be treated fairly and based on their individual circumstances and so this inevitably can mean that they get treated differently. While some felt that all 16 and 17 year olds should be referred, some did not (the exception being those with learning disabilities, for whom the children’s hearings system was seen to be more appropriate).
A key issue for this group was that there should be consistency across treatment, sentences/punishment for co-accused involved in the same crime even if they are of different ages with no-one being treated more or less harshly based on their age. Everyone should be given “a fair chance”.
There was also less evidence of perceived positive impacts of referral to the children’s hearings system among this group, with some suggesting that young people may not like how people on the panel can read about their case and make judgements prior to meeting the individual involved. This may impact their case negatively, it was felt.
Another potentially negative consequence of referring 16 and 17 year olds to the children’s hearings system was that they may be placed in secure accommodation rather than prison, and that this may make secure units less safe for younger children, i.e. it would not be appropriate to have younger children in a secure unit for their own safety with offenders.
This was countered by others in the Polmont group who expressed that the children’s hearings system would be more beneficial to young offenders than the adult system as it would make them feel safer and be more appropriate to their level of cognitive development/emotional maturity:
“I was put in prison at 16, it was far too young. It’s affected my mental health, it’s not the right place for under 18[s]. You’re just not mature enough to cope with this place [prison].”
“I was protected and treated as a child when I was on a supervision order but as soon as I was taken off, I wasn’t protected…I realise I was far too young to be left with no one looking after me.”
“Under 18s need protected...Being put into the cells was scary. I actually cried the full night and no one came to see me. I had only turned 16 a few weeks before. That just wasn’t right.”
Panel members were also perceived to care more about children’s rights and to consider an individual’s entire circumstances rather than just the offence (with people punished more harshly in court). The opportunity to be heard and to have punishments/sanctions explained more clearly was also seen as a benefit of referral to the children’s hearings system compared to the adult system:
“I went to court at the age of 14. It was never explained to me why this was the case I feel that if I went to Children’s Hearing instead then I would have been given support instead of a custodial sentence.”
“In the Children’s Hearing, professionals are more supportive and fought my case. I felt like my point of view was considered more in the children’s hearing than in the courts.”
“Children are treated more fairly but, in a court, the judge doesn’t care.”
Again, it should be noted that these views were not unanimous among the Polmont group, with some disregard for panel members also expressed i.e. perceptions that panels were made up of “posh old folk” who try to get young people to react or who provoke them.
As with some main consultation respondents, the Polmont focus group participants expressed that those committing the most serious crimes should remain in the adult system (although there was perceived inconsistency in the way that decisions are currently made about levels of seriousness). They also expressed that those who tried to manipulate the system should be referred back into the adult system and there was some suggestion that children’s hearings would be ineffective for some (i.e. perceived as “just a slap on the wrist” that does not teach young people anything).
Grounds for Referral
One group of young people expressed that, although negative, the current reasons for referral were appropriate but that others could be added. This included homelessness, mental health and drug and alcohol safety. Being referred because you might need ‘more support’ per se was also seen as appropriate and this same group suggested that a ground based on having been vulnerable before and/or having been on a supervision order in the past may allow young people to be able to request being referred back to the hearings system if they felt that they needed support at a later date (e.g. for moving into their first tenancy).
Another group provided a more comprehensive list of other grounds including:
- mental health/capacity;
- influences related to drugs, alcohol, addictions;
- past circumstances;
- safeguarding; and
- lack of services/engagement.
Another group reported that, if the change was made, new reasons for referral to the Reporter would be needed, but offered no further explanation.
In one session, it was reported that the language around grounds was not liked by young people (although no further detail was offered) and this same group (and one other) discussed how some young people may not understand the referral grounds fully. Young people need more information to understand what a Reporter does, it was suggested, including knowing that they can decide whether the referral makes it to a children’s hearing.
It was recommended that information and guidance is created so that young people better understand panels and referral implications. For example, one young person queried what impact being referred at age 16/17 would have on the rest of someone’s life.
Potential Impacts of the Changes
Again, responses largely mirrored those of the main consultation with perceived impacts of the changes including benefitting children and young people by giving them more hope and opportunities (including help staying at school) as well as making young people feel safe and that they have “a second chance”.
There was a perceived need for service capacity to be increased and to receive more funding, and perceptions that existing services may become overstretched (including local authority services) if the change was made. One group questioned if existing support services for children as well as secure centres would have capacity to manage additional referrals, both of which were considered to already be working at capacity/to have no space. A caution raised by one group of young people was the prospect of the system becoming overloaded if the changes resulted in too many referrals, which may have unintended negative consequences of creating shortfalls for other children in care.
Workload implications for Reporters and panel members, as well as potential for less patience (e.g. if they see a returning young person) were raised as other possible negative outcomes of the changes.
The need for more panel members to be recruited to respond to any increase in numbers of hearings required as well as more community-based services being readily available to help was also raised. Recruiting more panel members with youth justice service user experience themselves and/or from more diverse backgrounds was urged by one group with better recruitment to encourage people with lived experience to become panel members (with the secondary benefit that these individuals may act as role models to young people who are referred).
Panel members may find it more challenging to work with older young people, it was felt, and should be equipped to deal with this group and understand that they can still be vulnerable. Additional training for Reporters and panel members was also seen as necessary to enable them to listen and respond effectively to older young people. Other training/knowledge increase for Reporters and panel members mentioned by one group included topics such as drugs and alcohol misuse, homelessness, mental and physical health, sexual health, autism, education, employment, PTSD, disability, trauma and understanding about the law and serious offences. Ensuring that panel members and Reporters are non-judgemental was also raised in two separate sessions.
Another group suggested that it would be essential for services (police, local authorities and other service provider organisations) to ensure they were “singing from the same hymn sheet” with set guidelines about support, people’s roles, responsibilities, etc. to ensure consistency across services. Services should be held accountable for ensuring that young people are heard, it was suggested, and better communication between the adult and youth justice systems was also urged.
One group discussed the need to ensure some kind of continuity or handover of care for those turning 18 and still in need of support and another view was offered that there should be more community support for young people living on their own. Polmont focus group participants also discussed that there should be more community support available to young people.
It was recognised that some of the positive impacts may take time to be seen and, overall, there was consensus that more financial support (and support from the Scottish Government in general) would be needed if the changes came into existence.
Perceptions of Victims’ Needs
Three groups provided direct feedback on whether the changes would also require additional support and information to be developed for victims.
One group agreed that changes to information would be needed to help victims better understand outcomes for young offenders, to achieve closure and access the support that they themselves need. This group also suggested that restorative justice could be an option for victims to get closure.
The second group provided a more cautious response and suggested that changes to allow victims more information should be conditional and be decided on a case-by-case basis. Agreeing to more information being disclosed would depend on what information would be provided and why, and also if the provision of information may place the young person at risk (for example, of retribution):
“I don’t think we should put someone into danger by exposing their information. I think it’s putting them at risk. I understand a victim would want to know that justice has been served but it is just putting the offender more at risk.”
This same group included individuals who expressed that victims should be notified of action taken in relation to the young person, but not the details, i.e. brief information about what has happened as a consequence of the young persons’ actions.
The third group concurred that, while victims should receive information to let them know that they are safe, they would not wish to see victims given an opportunity to attend hearings (in the same way that victims can attend court) nor should victims receive personal information about a young person (especially in cases where victims and offenders live in the same community/close proximity and/or may be known to one another). This same group expressed that giving information about a child to victims may make it appear that the system is one of punishment rather than one that supports young people.
While one individual who took part in one of the sessions felt strongly that there should be a universal system so a victim receives the same information whether a case is referred to court or the children’s hearings system, most did not.
Ensuring that information for victims was delivered in a safe and supportive way was raised in two sessions, as well as information being available in young person friendly language (i.e. to make it accessible to both young victims as well as young offenders). One group discussed the possibility of a non-case specific letter or leaflet being made available to victims about what the children’s hearings system is and does, what powers they/the Reporter has and what potential outcomes may occur.
The only other comments received from engagement events were that the Scottish Government needed to be mindful that not everyone has the capacity to make good decisions or advocate for themselves by the age of 16 and that assessments should therefore be made before hearings to ensure that young people have capacity.
Similarly, the system should be more patient and understanding of teenagers in general, it was expressed, as well as ensuring that young people are involved in decision making wherever appropriate and are given a chance to speak and be heard. This includes giving young people more of a say in the outcomes, recommendations and orders, including what needs to happen and what sort of support they receive:
“Most of the time we don’t have a choice or say in the decisions that are made regarding their care plan/placements. We should see our social workers more and be involved/have an opinion on any decisions made regarding our care.”
One young person felt that 16 and 17 year olds who choose not to engage with services at the time of referral should be allowed to change their mind and re-engage later. Another group commented that it should not be a systemic approach, but that it should be a relationship-based approach.
Overall, some groups expressed sentiments that raising the age to 18 was not enough and involvement in the children’s hearings system should be based on a number of variables, rather than age alone (including circumstances, lifestyle, wellbeing, mentality and maturity).
One respondent suggested that the age should be raised higher to 21 or 26 for care experienced young people, one group suggested 25 and another simply noted that under 18s should not be in prison and referrals to the Reporter should be extended beyond 18:
“CHS needs to extend beyond 18. Not solving the problem if it stops there - I just got a bundle of paperwork when I was 18 and no support, no phone call. The letter made me feel vulnerable and there was also no support for my family. I lost all my services too. There are a lot of dangers when you get to 18 drugs, alcohol, homelessness, violence but you are still vulnerable.”
Finally, one group suggested that the legislation surrounding young people in the justice system should be consistent across all countries of the United Kingdom as existing rules were “confusing”.
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