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Bail supervision: national guidance

This document provides revised guidance for the operation of bail supervision setting out standards and expectations to support the consistent delivery of the service across Scotland.

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Annex 1 Bail supervision for children and young adults

Whilst this is unlikely, children may be prosecuted in court from the age of 12 years in Scotland. Therefore, the provision of bail supervision must be available to all under-18s (usually via youth justice services or equivalent services working with children and young adults). In the rare instances whereby this is not provided by workers trained to work with children, additional input from children's services must be sought and provided where possible.

This annex seeks to outline the key context, principles, and approaches for working with children and young adults subject to bail supervision.

Context

The Whole System Approach (WSA) is the Scottish Government's overarching policy and framework in relation to children in conflict with the law. Getting it Right for Every Child (GIRFEC) and the United Nations Convention on the Rights of the Child (UNCRC) underpins this approach, which holds children's rights at the core and informs how the justice system needs to engage with them to be effective and rights-respecting.

WSA prioritises diverting children from formal systems such as the Children's Hearing System (CHS) and/or justice system and, where this has not been possible, directs the supports and manner of provision to facilitate children's participation and understanding of the justice system.

WSA is also relevant to young adults - particularly when considering corporate parenting responsibilities as outlined in the Children and Young People (Scotland) Act 2014, for care experienced children and young adults up to 26 years. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice ('The Beijing Rules') advocates the need to extend the principles in the Rules in terms of additional support for young adults.

Access to bail supervision must be irrespective of the child's legal status or involvement in the CHS, and the intervention must reflect the specific needs of children in terms of being developmentally, systemically, and trauma informed . Whilst this also reflects the core elements of the approach to working with adults, there are significant differences in the knowledge and skills required for effective implementation of bail supervision with children. As stated, this will also have relevance for the young adult population aged 18-26 years and reinforces the importance of an individualised, tailored approach.

Holistic assessment of needs

Provision of supervision and support must be informed by a holistic assessment of needs (as per the GIRFEC framework and wellbeing assessment), which includes not just the child themselves but the systems around the child including parents, carers, and other professionals. Key aspects of the assessment are:

  • Ensure the legal status of the child.
  • Clarify the reason for the assessment, purpose and potential outcomes.
  • Reflect the child's wider circumstances and context - individual, family, education/ employment, and social.
  • Engage with the child and their parents / guardians and those important to the child to gather and check information.
  • Establish the child's views and any difficulties they can identify with complying and engaging with bail supervision, as well as what they feel would be helpful.
  • Ensure there are realistic expectations in relation to the developmental capacity of the child and wider supports.
  • Liaise with existing professionals involved with the child to inform the assessment and management plan.
  • Identify vulnerabilities and strengths, and how these may prevent or support the child to engage and comply.
  • Clarify the potential consequences of not wishing to participate in an assessment for, or complying with, bail supervision should it be deemed suitable.
  • Use language and materials that the child understands and can follow.
  • The assessment of needs, and subsequent intervention, must be informed by an understanding of communication needs, development, and trauma for children and young adults. All engagement and communication with them must reflect their level of understanding as often speech, language and communication needs are undiagnosed.

Developmental considerations

Consideration must be given to the child's developmental capacity (as opposed to a focus on chronological age). It is essential that, from an early stage in the process, the child understands what being subject to bail supervision means and the conditions attached. Research indicates that many children breach bail through their lack of understanding (CYCJ, 2020). Explaining the process, conditions and what breaching these mean, in relatable language that they understand, is therefore essential at the assessment stage and should they go on to receive bail supervision. This must be rooted in an understanding of developmental capacity.

Brain development research highlights that the brain does not fully develop until the mid- to-late 20s, with the frontal lobe (particularly the frontal cortex) being the last to develop. The frontal lobe is where executive functioning (working memory, cognitive flexibility, reasoning, planning, problem solving and inhibitory control) takes place, which is why those functions are slowest to fully mature. This is central to understanding the time it takes for children and young adults to shift consistently away from emotive-driven responses to more rational and considered judgements, which usually characterise adult thinking. Abuse, trauma, neurodevelopmental difficulties, and brain injury are some factors which may interrupt and influence brain development, with some people subsequently never reaching full brain maturity.

A further consideration is the relevance of 'state dependent functioning ', where the person's physiological state determines how they respond to an event at any given time, and which neural networks in the brain are activated or de-activated. This has particular relevance for engagement and intervention with children, as activation of their stress response networks in reaction to perceived threat may trigger behavioural responses that have developed as survival strategies to cope within their life contexts. This can often result in the misperception of behaviour such as verbal aggression, violence, or disassociation and avoidance as poor behaviour rather than as a threat response, with the drivers for such behaviour overlooked. This highlights the importance of a developmental and trauma-informed understanding of a child or young adult and how their experiences may have impacted upon the behaviour and presentation which brought them into contact with the criminal justice system and bail supervision. A relational approach, which does not compound their difficulties but promotes engagement and behavioural change, is required.

Whilst not all children will have experienced one or any of these factors, which can interrupt their progress to full maturity, it is more likely that children in conflict with the law will have experienced adversity and potentially trauma. A developmental approach aids understanding and places expectation of a child within the context of their capacity and abilities, ensuring an individualised approach that is proportionate and appropriate to their level of need to manage and engage with the requirements of bail supervision.

Assessment and management

As part of WSA, all work with children in the justice system must be through a child care and protection lens, rights upholding, and - as stated above - be trauma, developmentally and systemically informed. It should adhere to the risk practice outlined within FRAME for children 12-17 years, which utilises Care and Risk Management (CARM) as an example of a formal risk management process. Whilst the FRAME and CARM guidance are for implementation with children, it may also be developmentally appropriate to use with young adults. Key considerations must be:

  • Clarity when identifying the concerns or behaviours that we wish to prevent from occurring or reoccurring.
  • Whether there are wellbeing concerns, or a child protection referral is required, for both the child being assessed for bail supervision at the point of assessment and once subject to bail supervision, and any child who could be - or has been - harmed.
  • Taking account of the child's developmental capacity and functioning in adhering to restrictions and conditions and the level of support required for them to do so.
  • Inclusion of child's views and parents / guardians.
  • Understanding the concerning behaviours in terms of what would be expected developmentally from a child at that age and the needs the behaviours are meeting.
  • Consideration of risk of harm to self as well as risk of harm to others, particularly in relation to the impact of the child's circumstances which may have brought them to bail supervision.
  • Creation of developmental opportunities where the child can practice new skills and abilities safely with support and supervision whilst still adhering to any specific bail supervision conditions. They could be attending school with specific conditions and supports required to facilitate this.
  • Involvement of multi-agency partners, with clear roles and responsibilities for all involved in the risk management plan. All environments and contexts must be considered.
  • Use of scenario planning with the child and their support system to identify any challenges and how to avoid or reduce the likelihood of these occurring.
  • Consider how the supports and environments where the child lives and spends time in may make it more likely they engage in harmful behaviour, or less likely.
  • Management on bail supervision must be proportionate to the potential likelihood and impact of harm, inclusive of the child and their support systems, and balance the rights of the child with protection from, and prevention of, harm to others that may be posed by aspects of the child's behaviour.
  • The indicators of any changes in context, situation and behaviour that may signal the risk of harm is reducing or increasing must be clear and inform the management strategies in place.
  • To ensure confidence in risk management, where assessment indicates the risk of harm cannot be managed at that time in the community, the reasons why must be detailed and explained fully to the child and their support systems.

Planning, management, and compliance

As highlighted, it is critical that assessment of suitability for bail supervision and creation of any management plan is informed by a holistic assessment and the key management considerations outlined above, with the child and parent/carer having a central role and consultation with the lead professional where one is in place.

Clarity of roles and expectations is required; not just for the child and their parents, but also with any lead professional or other services involved. The lead professional may act as a conduit between any other professionals or services as part of the team around the child and bail supervision staff, facilitating the flow of information-sharing and promoting good communication.

The individual roles and responsibilities regarding implementation of the bail supervision management plan, the supervision, monitoring, and compliance of the child with the conditions and plan, and when decisions relating to breach would be taken and by whom should also be clearly delineated.

Taking into account that children are more at risk of breaching bail, the likelihood of this can be mitigated by:

  • Agreeing with them the best day/time to meet.
  • Texting them to remind them of appointments, and in some circumstances providing a means of getting there or having appointments where they are more accessible and comfortable.
  • Exploring the reasons behind any missed appointments and taking this into account.
  • Ensuring the child knows the consequences of non-compliance in language that they understand.
  • Offering more support so that they are more able meet their bail conditions.
  • Referring them to any additional services to meet their needs.
  • Undertaking home visits to promote engagement with parents / guardians, build their capacity to implement parenting strategies, and encourage their child to participate in the intervention and comply with the conditions.
  • Ensuring the team around the child is aware of their conditions and perhaps able to offer additional support to them.
  • Ensuring conditions in place are realistic in their expectations and not setting the child up to fail.
  • Reviewing the child's compliance with bail supervision conditions and liaising with solicitors to seek a variance of conditions where appropriate. This has particular relevance for restrictions regarding contact with age appropriate peers, curfews, prohibiting access to areas where family reside or other supports are accessed. Children often struggle to comply over prolonged periods and this can create unrealistic expectations.

Where there is no lead professional or children's social work services involved, it would be best practice to seek the in ensuring strategies and interventions are child centred, and to potentially access supports that can aid in scaffolding the child's compliance and engagement with bail supervision. This could involve providing a range of supports to the child or perhaps the parent, which may include developing their ability to manage the child's behaviours and encourage positive change within the family dynamics . The level of scaffolding and support should always be proportionate to the child's evolving capacity, ability, and that of the support systems around them to meet the requirements of bail supervision.

Even with appropriate supports in place, a child may struggle to comply with bail supervision, particularly in the early stages. This may be due to a range of factors such as relationship breakdown, loss of accommodation, substance use, and peer relationships. The reasons for any missed appointments by the child must be fully investigated to understand why they have occurred, what could prevent this in the future, and whether their reasons are acceptable or not to ensure any decision to breach is fully informed.

The UNCRC Article 37 (b) states that "The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort". Thus, to maximise opportunities for children to remain in their community and avoid risk of remand bail supervision services and supporting agencies should incorporate contingency plans in the initial bail supervision management plan. This could include agreeing an alternative address and the circumstances in which this could be utilised, and when and how to communicate this. As such, where submitting a breach report is unavoidable, the potential consequences are fully outlined in a clear and transparent manner that the child understands.

Contact

Email: louise.ward@gov.scot

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