Information

Children's Care and Justice Bill - policy proposals: consultation

This consultation covers potential legislative reforms to promote and advance the rights of children in the care and justice systems and people who have been harmed. 


Footnotes

1. A Fairer, Greener Scotland: Programme for Government 2021-22 - gov.scot (www.gov.scot)

2. As detailed further in the forthcoming Scottish Government Promise Implementation Plan

3. For example, through the Independent Care Review – The root and branch review of Scotland's care system.

4. The-Promise.pdf (carereview.scot)

5. Change Programme ONE - The Promise

6. Getting it right for every child (GIRFEC) - gov.scot (www.gov.scot)

7. The United Nations Convention on the Rights of the Child

8. For example, Children and Young People (Scotland) Act 2014 (legislation.gov.uk) and Sentencing of young people guideline (scottishsentencingcouncil.org.uk)

9. Including The-Promise.pdf (carereview.scot), Bail and release from custody arrangements in Scotland - Scottish Government - Citizen Space (consult.gov.scot) and Sentencing of young people guideline (scottishsentencingcouncil.org.uk)

10. National Performance Framework

11. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill passed its final stage in the Scottish Parliament in 16 March 2021. However, the UK Government law officers referred the UNCRC (Incorporation) (Scotland) Bill to the Supreme Court on the basis that some aspects exceeded the legislative powers of the Scottish Parliament The Supreme Court ruled that some provisions in the bill did exceed the legislative competence of the Scottish Parliament. The Scottish Government is currently considering the implications of this.

12. For further information see national-guidance-child-protection-scotland-2021 (4).pdf

13. Key messages from the Centre for Youth & Criminal Justice and Scotland's approach to children in conflict with the law (cycj.org.uk)

14. Although there is a growing body of evidence that even for the same behaviours some children are more likely to receive a formal system response. For example poorer children, children with an autism spectrum disorder, a learning difficulty and/or children who experience the care system see rights-respecting-approach-justice-children-young-people-scotlands-vision-priorities (4).pdf and Independent Care Review – The root and branch review of Scotland's care system.

15. Youth justice: Whole system approach to young offending - gov.scot (www.gov.scot)

16. rights-respecting-approach-justice-children-young-people-scotlands-vision-priorities (4).pdf

17. Youth justice: Whole system approach to young offending - gov.scot (www.gov.scot)

18. Working with children in conflict with the law 2021: standards - gov.scot (www.gov.scot)

19. rights-respecting-approach-justice-children-young-people-scotlands-vision-priorities (4).pdf

20. Youth crime and justice

21. Youth justice - early and effective intervention: core elements - framework - gov.scot (www.gov.scot)

22. Diversion-from-Prosecution-Guidance-Version-4.0-FINAL-VERSION-April-2020.pdf (communityjustice.scot)

23. The KILBRANDON Report - gov.scot (www.gov.scot)

24. Children - raising the age of referral: consultation analysis - gov.scot (www.gov.scot)

25. JOINT GUIDANCE IN RELATION TO THE CASES OF CHILDREN JOINTLY REPORTED TO THE PROCURATOR FISCAL AND CHILDREN'S REPORTER (copfs.gov.uk) and Lord Advocates Guidelines to the Chief Constable on the reporting to Procurators Fiscal of Offences alleged to have been committed by children.pdf (copfs.gov.uk)

26. A Guide to Youth Justice in Scotland: policy, practice and legislation (cycj.org.uk)

27. See for example Practitioner Case Studies - Children's and Young People's Centre for Justice (cycj.org.uk)

27. Framework for Risk Assessment Management and Evaluation (FRAME) with children aged 12-17

28. Management of Offenders etc. (Scotland) Act 2005 (legislation.gov.uk)

29. Secure care and prison places for children and young people in Scotland (azureedge.net)

30. Justice in Scotland: vision and priorities - gov.scot (www.gov.scot)

31. The development of cognitive and emotional maturity in adolescents and its relevance in judicial contexts (scottishsentencingcouncil.org.uk)

32. Justice in Scotland: vision and priorities - gov.scot (www.gov.scot)

33. Scotland's approach to children in conflict with the law (cycj.org.uk)

34. Restorative Justice Action Plan

35. For example under the Age of Criminal Responsibility (Scotland) Act 2019 (legislation.gov.uk); Children and Young People (Scotland) Act 2014 (legislation.gov.uk); Sentencing of young people guideline (scottishsentencingcouncil.org.uk)

36. The development of cognitive and emotional maturity in adolescents and its relevance in judicial contexts (scottishsentencingcouncil.org.uk)

37. Plan 21-24 - The Promise and as detailed in change-programme-one-pdf.pdf (thepromise.scot)

38. Under the Children's Hearings (Scotland) Act 2011 (legislation.gov.uk) criteria for referral to the Reporter are: a) The child is in need of protection, guidance, treatment or control; and b) It might be necessary for a CSO to be made in relation to the child.

39. Under Section 66 of the Children's Hearings (Scotland) Act 2011 (legislation.gov.uk), the test to be applied by the Reporter is (a) the Reporter considers that a section 67 ground applies in relation to the child, and (b) it is necessary for a compulsory supervision order to be made in respect of the child

40. Under Section 67(2) of the Children's Hearings (Scotland) Act 2011 (legislation.gov.uk)

41. Raising the age of referral: consultation - gov.scot (www.gov.scot)

42. Children - raising the age of referral: consultation analysis - gov.scot (www.gov.scot)

43. Lord Advocate's Guidelines

44. Decision making in cases of children jointly reported to the Procurator Fiscal and Children's Reporter

45. Sections 25 to 29 of the Children's Hearings (Scotland) Act 2011 (legislation.gov.uk)

46. Section 26 of the Children's Hearings (Scotland) Act 2011 (legislation.gov.uk)

47. Children referred to the Reporter (scra.gov.uk)

48. NB the 9,142 alleged offences is an slight undercount due to recording issues around offences in the early days of SCRA's new system

49. The focus of this groups work thus far has been on children in conflict with the law. Further work is required to understand the needs of children who are vulnerable and may be referred to the children's hearings system with the increased age of referral on other grounds.

50. Secure Care in Scotland: Young People's Voices (cycj.org.uk)

51. See Scotland's approach to children in conflict with the law (cycj.org.uk) for further information

52. Children's Hearings Improvement Partnership | (chip-partnership.co.uk)

53. Themes from 'Victims Voices' feedback pre.sented at the Victims Taskforce

54. Bairns' Hoose - Scottish Barnahus: vision, values and approach - gov.scot (www.gov.scot)

55. Victims' Code for Scotland (mygov.scot)

56. Improving-the-management-of-Sexual-Offence-Cases.pdf (scotcourts.gov.uk)

57. COPFS Prosection Code - August 2021.pdf

58. Under Section 178-180 of the Children's Hearings (Scotland) Act 2011 (legislation.gov.uk) as amended by section 27 Age of Criminal Responsibility (Scotland) Act 2019 (legislation.gov.uk)

59. Victims and Witnesses (Scotland) Act 2014 (legislation.gov.uk)

60. Improving-the-management-of-Sexual-Offence-Cases.pdf (scotcourts.gov.uk)

61. Section 83 of the Children's Hearings (Scotland) Act 2011 (legislation.gov.uk)

62. Section 26 of the Children's Hearings (Scotland) Act 2011 (legislation.gov.uk)

63. Section 83(6) of the Children's Hearings (Scotland) Act 2011 (legislation.gov.uk)

64. ICSOs only last for a short period and a children's hearing to consider a further ICSO could be made aware of the lack of compliance.

65. Section 27 of the Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk)

66. As per section 26 of the Children's Hearings (Scotland) Act 2011 (legislation.gov.uk)

67. As per Section 83(6) of the Children's Hearings (Scotland) Act 2011 (legislation.gov.uk) these conditions are—

68. (a)that the child has previously absconded and is likely to abscond again and, if the child were to abscond, it is likely that the child's physical, mental or moral welfare would be at risk,

69. (b)that the child is likely to engage in self-harming conduct,

70. (c)that the child is likely to cause injury to another person.

71. This is definition of serious harm is enshrined under section 26 Children's Hearings (Scotland) Act 2011 (legislation.gov.uk)

72. Section 49 of the Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk)

73. Decision making in cases of children jointly reported to the Procurator Fiscal and Children's Reporter

74. Section 138(6), (7) of the Children's Hearings (Scotland) Act 2011 (legislation.gov.uk)

75. Section 17(6) of the Children (Scotland) Act 1995 (legislation.gov.uk) defines the term "looked after child"

76. Part 10 of the Children and Young People (Scotland) Act 2014 (legislation.gov.uk)

77. See for example Use and impact of bail and remand with children in Scotland (cycj.org.uk) and "Just a wee boy not cut out for prison" : Policy and reality in children and young people's journeys through justice in Scotland - Strathprints

78. Section 49 Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk)

79. sentencing-young-people-guideline-for-publication.pdf (scottishsentencingcouncil.org.uk)

80. Children referred to the Reporter (scra.gov.uk)

81. Criminal Proceedings in Scotland, 2019-20 - gov.scot (www.gov.scot) additional table for youth convictions.

82. Use and impact of bail and remand in Scotland with children - Children's and Young People's Centre for Justice (cycj.org.uk)

83. The Council of Europe: Guidelines on Child-Friendly Justice | CRIN apply to all circumstances where children (under 18) are likely to be in contact with criminal, civil or administrative justice systems. The guidelines are underpinned by 5 fundamental principles – participation, best interests of the child, dignity, protection from discrimination and rule of law.

84. See Scotland's approach to children in conflict with the law (cycj.org.uk) for summary

85. For more detail see problem-solving-courts-an-evidence-review.pdf (justiceinnovation.org)

86. For UK criticism see the Committee on the Rights of the ChildConcluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland

87. General Comment No. 24 (201x), replacing General Comment No. 10 (2007) Children's rights in juvenile justice

88. COPFS Prosection Code - August 2021.pdf

89. Evaluation of the Airdrie and Hamilton Youth Court Pilots (sccjr.ac.uk)

90. Evaluation of South Lanarkshire structured deferred sentencing for young people

91. Time-to-get-it-right-Enhancing-problem-solving-practice-in-the-Youth-Court-Main-Report.pdf (nuffieldfoundation.org)

92. Section 142 of the Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk)

93. Sections 271 to 271M of the Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk),

94. The development of cognitive and emotional maturity in adolescents and its relevance in judicial contexts (scottishsentencingcouncil.org.uk)

95. Use and impact of bail and remand with children in Scotland (cycj.org.uk)

96. Justice for children and young people - a rights-respecting approach: vision and priorities - action plan - gov.scot (www.gov.scot)

97. Evaluation of the Airdrie and Hamilton Youth Court Pilots (sccjr.ac.uk)

98. Judiciary and Courts (Scotland) Act 2008 (legislation.gov.uk)

99. Noting that in some areas of the country, specialist Domestic Abuse Courts have been established by local Sheriffs Principal. In relation to the prosecution and management of serious sexual offences. Lady Dorrian's multi justice sector Review Group, reported in 2021 and recommended that a national specialist sexual offence court be established, with bespoke jurisdiction and sentencing powers. The Scottish Government has established a Governance Group to further consider the recommendations and will consult later in 2022 on recommendations which require legislation to be implemented.

100. See for example Use and impact of bail and remand with children in Scotland (cycj.org.uk) and Microsoft Word - Older children in conflict with the law (cypcs.org.uk)

101. Section 142 and section 92(3) Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk) Current provisions relating to who can be present in court vary dependent on whether the procedures are summary or solemn and the child's age and legal status

102. Including under Council of Europe: Guidelines on Child-Friendly Justice | CRIN and The United Nations Convention on the Rights of the Child

103. Section 23 and 24 Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk)

104. Use and impact of bail and remand in Scotland with children - Children's and Young People's Centre for Justice (cycj.org.uk)

105. Use and impact of bail and remand with children in Scotland (cycj.org.uk)

106. Scottish prison population: statistics 2019 to 2020 - gov.scot (www.gov.scot)

107. Children and young people on remand in Scotland - Children's and Young People's Centre for Justice (cycj.org.uk)

108. Microsoft Word - Older children in conflict with the law (cypcs.org.uk)

109. Report on Expert Review of Provision of Mental Health Services at HMP YOI Polmont | HMIPS (prisonsinspectoratescotland.gov.uk); Rights Respecting? Scotland's approach to children in conflict with the law - Children's and Young People's Centre for Justice (cycj.org.uk); UN GLOBAL STUDY ON CHILDREN DEPRIVED OF LIBERTY (2019) · Omnibook

110. The-Promise.pdf (carereview.scot)

111. Including The United Nations Convention on the Rights of the Child and General Comment No. 24 (201x), replacing General Comment No. 10 (2007) Children's rights in juvenile justice

112. Secure Care in Scotland: Young People's Voices

113. For example End Child Imprisonment – Article 39

114. Report on Full Inspection of HMP YOI Polmont - 29 October to 2 November 2018 | HMIPS (prisonsinspectoratescotland.gov.uk)

115. See Rights Respecting? Scotland's approach to children in conflict with the law - Children's and Young People's Centre for Justice (cycj.org.uk) for further details

116. independent-cria.pdf (cypcs.org.uk)

117. HMIPS - Year of Childhood Pre-inspection Survey 2021 | HMIPS (prisonsinspectoratescotland.gov.uk)

118. Report on Full Inspection of HMP YOI Polmont - 29 October to 2 November 2018 | HMIPS (prisonsinspectoratescotland.gov.uk)

119. Report on Expert Review of Provision of Mental Health Services at HMP YOI Polmont | HMIPS (prisonsinspectoratescotland.gov.uk)

120. Secure care and prison places for children and young people in Scotland (azureedge.net)

121. Article 16 and Article 40(2)(b)(vii) of the UN Convention on the Rights of the Child (UNCRC) - UNICEF UK and Rule 8(1) United Nations Standard Minimum Rules for the Administration of Juvenile Justice

122. Section 47 Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk)

123. Section 81 of the Children's Hearings (Scotland) Act 2011 (legislation.gov.uk)

124. Review of the youth justice system - GOV.UK (www.gov.uk)

125. Review of the youth justice system - GOV.UK (www.gov.uk) and Report-of-the-UK-CCs-UNCRC-Examination-of-the-Fifth-Periodic-Report.pdf (childcomwales.org.uk)

126. Microsoft Word - Older children in conflict with the law (cypcs.org.uk)

127. This is consistent with the existing measures for example the statutory definition for a children's hearing or a court to override the primary consideration of the welfare of the child under section 26 Children's Hearings (Scotland) Act 2011 (legislation.gov.uk) and in respect of decisions about bail under the proposal that any decision to refuse bail must be justified on public safety grounds in Bail and release from custody arrangements: consultation - gov.scot (www.gov.scot)

128. General Comment No. 24 (201x), replacing General Comment No. 10 (2007) Children's rights in juvenile justice

129. See paragraph 6 of schedule 12 of the Public Services Reform (Scotland) Act 2010 (legislation.gov.uk). A "secure accommodation service" is a service which - (a) provides accommodation for the purpose of restricting the liberty of children in residential premises where care services are provided; and

130. (b) is approved by the Scottish Ministers for that purpose.

131. Secure Care in Scotland: Looking Ahead - Children's and Young People's Centre for Justice (cycj.org.uk) and The-Promise.pdf (carereview.scot)

132. Including under Article 5 of the European Convention on Human Rights (coe.int) which was incorporated into UK law through the Human Rights Act 1998 (legislation.gov.uk) and Article 37 of the UN Convention on the Rights of the Child (UNCRC) - UNICEF UK

133. The-Promise.pdf (carereview.scot)

134. Children's Social Work Statistics Scotland, 2019-20; Protocol and procedures for secure accommodation services on the use of registered emergency beds.pdf (careinspectorate.com)

135. For more detail on legislation, roles and responsibilities see Info-Sheet-85-Sept-21.pdf (cycj.org.uk)

136. Sections 83(5) and (6), 87(3) and (4) or 88(2) and (3) of the Children's Hearings (Scotland) Act 2011 respectively provide the conditions that require to be met before a secure accommodation authorisation can be imposed in a CSO, ICSO, medical examination order or warrant to secure attendance

137. Section 25 of the Children (Scotland) Act 1995

138. See The Secure Accommodation (Scotland) Regulations 2013 (legislation.gov.uk)

139. Section 22 of the Criminal Justice (Scotland) Act 2016

140. Regulation 12 of The Secure Accommodation (Scotland) Regulations 2013 (legislation.gov.uk) if the chief social work officer of the relevant local authority is satisfied that the requirements under regulation 11(3)(a) and (b) are met.

141. Section 51 Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk)

142. See regulation 12 of The Secure Accommodation (Scotland) Regulations 2013 (legislation.gov.uk)

143. See section 44 of the Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk) and regulation 11 of The Secure Accommodation (Scotland) Regulations 2013 (legislation.gov.uk)

144. Section 208 of the Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk)

145. Section 205(2) of the Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk)

146. Section 2017 of the Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk)

147. Children's Social Work Statistics Scotland, 2019-20

148. Children referred to the Reporter (scra.gov.uk)

149. Section 143 Children's Hearings (Scotland) Act 2011 (legislation.gov.uk)

150. Additional tables Children's social work statistics: 2019 to 2020 - gov.scot (www.gov.scot)

151. item-4-police-scotland-custody-update.pdf (spa.police.uk)

152. Additional tables Children's social work statistics: 2019 to 2020 - gov.scot (www.gov.scot)

153. See paragraph 6 of schedule 12 of the Public Services Reform (Scotland) Act 2010 (legislation.gov.uk).

154. Secure Care in Scotland: Looking Ahead - Children's and Young People's Centre for Justice (cycj.org.uk)

155. Secure care: pathway and standards - gov.scot (www.gov.scot)

156. Secure+Care+Strategic+Board+-+Report+to+Ministers+-+February+2019.pdf (www.gov.scot)

157. Chief Social Work Officers and secure care

158. Secure care and prison places for children and young people in Scotland (azureedge.net)

159. Chief Social Work Officers and secure care

160. Chief Social Work Officers and secure care

161. Chief Social Work Officers and secure care

162. The-Promise.pdf (carereview.scot)

163. Secure-Investigation.pdf (cypcs.org.uk)

164. Including that the Scottish Government work with partners to consider whether existing laws are compatible with the UNCRC; to make any amendments necessary to strengthen legal protections for children's human rights; and to address any scrutiny gap in relation to compliance with these legal duties.

165. Section 151(3) of the Children's Hearings (Scotland) Act 2011

166. The Secure Accommodation (Scotland) Regulations 2013 (legislation.gov.uk)

167. Admissions Guidance for Residential Services_Oct 2019.pdf (careinspectorate.com)

168. The Secure Accommodation (Scotland) Regulations 2013 (legislation.gov.uk)

169. Referrals (securechildrenshomes.org.uk)

170. Microsoft Word - review-of-regional-facilities-for-children-young-people (health-ni.gov.uk); Deprivation of liberty in Northern Ireland - Children's and Young People's Centre for Justice (cycj.org.uk)

171. Section 208 of the Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk)

172. Section 205 of the Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk)

173. standards-those-working-children-conflict-law-2021.pdf; Secure care: pathway and standards - gov.scot (www.gov.scot)

174. Secure Care Group - gov.scot (www.gov.scot)

175. For example, a person detained under the Criminal Procedure (Scotland) Act 1995 (legislation.gov.uk) is treated as being in legal custody (section 295 of the Act) and transport should not be less secure than the accommodation

176. As defined under section 202 to be read with section 199 Children's Hearings (Scotland) Act 2011 (legislation.gov.uk) and highlighted by Secure care and prison places for children and young people in Scotland (azureedge.net)

177. under section 208 Criminal Procedure (Scotland) Act 1995

178. Section 7(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993

179. General Comment No. 24 (201x), replacing General Comment No. 10 (2007) Children's rights in juvenile justice

180. Sentencing of young people guideline (scottishsentencingcouncil.org.uk)

181. Section 17(6) of the Children (Scotland) Act 1995 (legislation.gov.uk) defines the term "looked after child"

182. Part 10 of the Children and Young People (Scotland) Act 2014 (legislation.gov.uk)

183. Section 67 of the Children and Young People (Scotland) Act 2014 (legislation.gov.uk)amended Section 26A of the Children (Scotland) Act 1995 (legislation.gov.uk)

184. See section 67(5)(a) of the Children and Young People (Scotland) Act 2014 (legislation.gov.uk)

185. Staying Put Scotland - Providing Care Leavers With Connectedness and Belonging (www.gov.scot)

186. Under The United Nations Convention on the Rights of the Child

187. Children Act 1989 (legislation.gov.uk)

188. Home - Secure Care Pathway and Standards Scotland (securecarestandards.com)

189. Cross-border placements of children and young people into residential care in Scotland: policy position paper - gov.scot (www.gov.scot)

190. The Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011 (legislation.gov.uk)

191. Holding Safely CD-ROM.indd (celcis.org)

192. Human Rights Act 1998 (legislation.gov.uk)

193. The Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 (legislation.gov.uk), regulation 19(3). A care provider must keep a record of any occasion on which restraint or control has been applied to a user, with details of the form of restraint or control, the reason why it was necessary and the name of the person authorising it.

194. Training Standards 2019 - Restraint Reduction Network

195. Age of Criminal Responsibility (Scotland) Act 2019 (legislation.gov.uk)

Contact

Email: CC&JBill@gov.scot

Back to top