Children - raising the age of referral: consultation analysis

Summary and Conclusions

The consultation attracted a strong response with a good mix in the backgrounds, experience and interests of those who took part. The feedback from individuals and organisations was largely similar, and the young people who took part also echoed many of the sentiments raised by justice partners and service providers.

Support in Principle

There was widespread support for the principle of raising the age of referral to the Children’s Reporter and this was evidenced among both individuals and professionals representing a broad range of interests.

Respondents to both the main and Easy Read consultations, as well as young people who took part, agreed that the proposal would:

• simplify and clarify the procedure for dealing with children and young people under the age of 18 who are charged with a criminal offence;
• remove perceived inconsistencies in the use and application of CSOs to ensure that support can be provided to more young people when they need it most;
• be a significant development and lend itself to securing better and more meaningful outcomes for many young people, especially the most vulnerable;
• provide the opportunity for young people to change their behaviour and to stop them entering the criminal justice system/ avoid criminalisation and potential custodial sentences;
• protect young people who are often victims as well as perpetrators; and
• make legislation more consistent with the UNCRC.

Overall, the proposal was seen as being better aligned with other Scottish legislation designed to protect young people up to the age of 18 (and older) and was also seen as being congruent with the general direction of travel that Scotland has taken in recent years, including the raising of the age of criminal responsibility.

Existing and Additional Grounds

The majority of respondents viewed the existing grounds as sufficient, although it was seen as necessary to amend certain grounds for referral to recognise the evolving capacities and autonomy of children and young people aged 16+.

The addition of specific grounds linked to sexual and criminal exploitation was prominent among responses, as well as ensuring that trauma histories can be factored into referral mechanisms. A number of nuanced challenges for making existing grounds relevant to those aged 16+ were also highlighted as well as challenges around compulsion for this age group.

There was evidence of some perceived inconsistent use of existing referral grounds between agencies and some differences in interpretation of their meaning. Consequently, dedicating time to a wider review of existing grounds was encouraged to add clarity. Ensuring that children, young people and their families understand grounds for referral was seen as essential as well as ensuring that Reporters and panel members (current and future) have a clear understanding and awareness of applicability and relevance for older young people living complex lifestyles.

Main Concerns About the Proposal

There was a minority view across the consultation that 16 and 17 year olds should not be treated as children but rather as adults, and that they should be encouraged and expected to take responsibility for their own actions. These views, however, were mainly expressed by individuals rather than organisations and perhaps a more support-oriented view (shared by a small number of organisations and individuals) was that more thought should be given to how to respond to young people who do not want to be identified as children. Steps such as renaming the children’s hearings system to include ‘young people’ and/or having flexibility in the system that affords some people the right to be treated as adults could be considered, it was suggested, in order to maximise engagement (and improve outcomes) for as many young people as possible.

The main dissenters again stressed that the proposal may be seen as a ‘soft option’, may be too lenient (especially for those who commit serious offences) and thus be unfair to victims. Others again stressed that the proposals may over-protect some young people who are otherwise enjoying living independent adult lives. For this group, some degree of flexibility and discretion needed to be retained in the system to allow cases to be handled differently based on their own merits.

Cross-Cutting Themes

A number of cross-cutting themes also emerged across the various consultation methods and from responses given to different questions.

A key theme to emerge was support for children and young people to be heard, i.e. to have the opportunity to express their views freely in all matters affecting them and to have their views taken into account. Clear and transparent communications with children and young people and consistency in the provision of independent advocacy were seen as crucial in ensuring the success of the proposal.

Central to many responses was support for a justice system that ensures all decisions are made in the best interest of the child whilst also being transparent and fair to victims (including young victims). The proposal was generally seen as adopting and promoting the principles of care and protection rather than punishment, and this was welcomed. Several suggested, however, that more work was needed to educate and raise awareness among the general public of the benefits of restorative rather than punitive approaches. To a lesser (but still present) degree, a cultural shift in thinking among some professional justice stakeholders was seen as necessary. What the consultation did indicate is that the success of raising the age of referral, if implemented, will be dependent on the change being accompanied by clear, evidence based, public and agency-based endorsement of the principles and the approach of the children’s hearing system.

Also featuring in several responses was the need for smoother transitions between youth and adult services as a whole, not only in justice. For many, raising the age of referral would go some way to addressing this. Mental health support as well as practical support around housing/accommodation were perhaps the two most commonly cited areas where there was a perceived lack of continuity and planning at present.

Finally, recognising and responding to diversity featured as a cross-cutting theme in responses, and this included embracing the broad range of different histories and experiences of young people referred as well as the potential of harnessing the expertise of those with lived experience of the care and justice systems, either through direct involvement in the system (e.g. as panel members) or to inform system change.

Implications

It was evident from responses that the challenges anticipated with implementing the proposal were numerous and should not be underestimated, with particular concerns around the impact on criminal and youth justice partner workloads and public and third sector support services capacity. The need for significant financial support to assist implementation was predicted.

Upskilling of existing Reporters and panel members and robust, ongoing training for SCRA and CHS staff were seen as key to ensuring that both quality and consistency in decision making is achieved. There was notable support for professionalising the role of panel members and/or developing specialist skills within the workforce to allow them to meet the challenges that may come with a change in the volume and complexity of cases referred.

Although many respondents recognised that there would be significant financial and other resource challenges as a result of the proposed change, all saw this outlay as necessary and preventative spending, with the long-term benefits for young people and society far outweighing the costs. Many agreed with the sentiment that adjustments to legislation should be made in the best interests of the child, rather than viewed from a resource base.

There was some split in opinion around whether amendments would be required to ensure sufficient access to information and support for victims harmed by children and young people. Some felt that the young person’s right to privacy should always take precedence over the needs of victims, while others felt that victims of youth crime deserved to be treated the same as those perpetrated against by adults. Both those who supported and were less persuaded by the need for more information and support being made available to victims acknowledged that the impact of crime can be huge for victims and that there was a need for continuous learning among justice partners to better understand and respond to these needs.

Restorative justice was a popular mechanism discussed by both groups of respondents and was encouraged more widely for the youth justice system, moving forwards. Both groups also asserted that clear communication and transparency is required regarding the process change and associated implications (targeted at both victims and the general public) as well as what support would be available within the new system, to ensure confidence in the change.

Conclusions and Next Steps

The findings presented above will be used, alongside a range of other available information and evidence, to inform the ongoing decision-making process around potential legislative change. If the change is made, the challenge of implementation was recognised by many, in particular balancing the risk, needs and vulnerability of some of the hardest to reach young people alongside ensuring support, guidance and protection for victims, young and old. While the consultation forms just one part of this wider decision-making and implementation process, it has nonetheless been important in highlighting a clear majority support for the proposal which would be embraced by most, it seems, in ensuring that children and young people get the right support at the right time to enhance wellbeing and maximise opportunities for better life outcomes.