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. 

3. Introduction

The Scottish Government wants all of Scotland's children and young people to feel safe, protected, loved and supported at every point in their life so that they can realise their full potential[10]. This requires that children are treated respectfully, have their voices heard and their rights respected. Central to achieving this aim is GIRFEC which articulates the national policy and practice model for improved outcomes for children. GIRFEC supports families by making sure children and young people can receive the right help, at the right time, from the right people. This requires a continuum of preventative and protective work, alongside effective interdisciplinary working. GIRFEC is a practical expression of Scotland's commitment to implementation of the United Nations Convention on Rights of the Child (UNCRC). Work is currently ongoing to incorporate UNCRC into domestic legislation[11].

All children in Scotland have the right to be protected from abuse or neglect. The Scottish approach to child protection is based on respect for children's rights and sits within the wider context of GIRFEC. Legislation, guidance, procedures and assessment frameworks exist to support and inform child protection processes and practices[12]. Child protection is particularly crucial where children come into conflict with the law. People harmed by children's offending are often other children. There is extensive evidence demonstrating that children involved in a pattern of offending, or who are involved in more serious offences, are usually Scotland's most vulnerable, victimised and traumatised children[13].

Low level offending behaviour is a common feature of childhood as children grow and test boundaries. It is usually responded to appropriately by families and communities, largely with the incidence of such behaviours reducing as children mature[14]. For a small percentage of children, the frequency and severity of their harmful or offending behaviour causes more significant concern, and brings more serious consequences. The Scottish Government and partner agencies across sectors and professions have worked hard to prevent children coming into conflict with the law, and to promote effective policies encouraging prevention and diversion since the introduction of the Whole System Approach (WSA)[15]. Over the last 12 years, there has been a 75% reduction in children referred to the Principal Reporter on offence grounds, an 85% reduction in the number of children and young people prosecuted in Scotland's courts and a 93% reduction in 16 and 17-year-olds being sentenced to custody[16].

The WSA is the Scottish Government's approach for addressing the needs of children in, or on the cusp of coming into, conflict with the law. Based on the principles of GIRFEC, the WSA seeks to deliver better outcomes for children, young people, people who have been harmed and communities. Many of the core components of the WSA are not enshrined in legislation to allow much needed flexibility of delivery across the country to fit with local need. Instead, the core elements are outlined in, and practice informed by, guidance[17], Standards for those working with children in conflict with the law[18] and the Rights-Respecting Approach to Justice for Children and Young People: Scotland's Vision and Priorities[19]. Part of this Vision is to extend the WSA to those beyond the age of 18 providing access to support up to age 26 where possible and appropriate. Care leavers are given particular focus within this extension in some areas of Scotland, in recognition of care leavers overrepresentation in the criminal justice system. The WSA is not set out in legislation The delivery of WSA needs to be more comprehensive and consistent across Scotland. However, committed efforts mean that positive results are still being seen. The Scottish Government continues to explore how to support and implement the essential elements of the WSA, in order to preserve Scotland-wide integrity in its implementation.

The findings from the Edinburgh Study of Youth Transitions and Crime[20] have been influential in shaping the WSA. The study highlighted the need to ensure that responses to children in conflict with the law are holistic, developmentally appropriate and proportionate, and based on identified need. Early adverse contact with justice agencies is in itself a factor likely to heighten the risk of further offending behaviour. Tiered approaches that divert children from formal systems at every stage are cornerstones of the WSA, including Early and Effective Intervention and diversion from prosecution[21].

Limiting the imposition of statutory intervention and compulsion only to those children where this is required remains a fundamental principle of Scotland's children's hearings system. The system's creation dates back to the landmark Kilbrandon Report[22] of 1964, furthering Scotland's welfare-based approach to children's care and youth justice. This 'social education' approach proceeds from an acceptance that the care, protection and support needs of children – and any risks these children may face or parts of their behaviour may present – must be addressed in the context of the child's whole life circumstances, whether those children themselves offend, or are offended against.

Currently, there are limited routes to ensuring all children – including 16 and 17-year-olds who are not already subject to a Compulsory Supervision Order (CSO) or an open referral to the Principal Reporter – who require support through the children's hearings system can access this[23]. This can leave children unable to benefit from the support and protection of that system because of their statutory status rather than an individualised assessment of their needs and circumstances.

In light of this concern, the 2019 Programme for Government gave a commitment to consult on enabling joint reporting to the Crown Office and Procurator Fiscal Service (COPFS) and the Principal Reporter of all 16 and 17 year olds in offence cases. Ministers subsequently agreed to widen the consultation to seek views on increasing the age at which children can be referred to the Principal Reporter for care and protection grounds as well as offence grounds. This is covered in detail in Section 4.

In Scotland, children from the age of 12 can be dealt with through the criminal justice system. The circumstances in which children aged 12-17 can be prosecuted are specified in legislation and guidance[24], in practice resulting in joint reporting to the COPFS and the Principal Reporter in appropriate circumstances.

However, the current legislative framework only permits children aged 16 and 17, who are not subject to a CSO or to an open referral to the Principal Reporter, to be dealt with by the Procurator Fiscal (not the Principal Reporter). These cases are therefore not jointly reported. For these children there is a rebuttable presumption that an alternative to prosecution in court will be in the public interest, and in such cases where an identifiable need has contributed to the offending, active consideration should be given to referral for diversion. However, where these children's cases cannot be effectively managed through the available alternatives to prosecution and prosecutorial action is in the public interest, they are then prosecuted in the criminal courts. Domestic and international evidence highlights concerns about the appropriateness of children's position in the criminal justice system and traditional courts. This is detailed in Section 5.

Under the WSA and UNCRC, wherever possible and appropriate, most children in conflict with the law should be supported in their families and communities via appropriate community-based supports[25]. In practice, these interventions are often provided in partnership across a range of universal and targeted, statutory and voluntary sector services. The specific supports for each child should be holistic and trauma informed, taking account of that child's age and stage of development and the broader systems surrounding them (including their family and/or care placement, school, community and wider environment). Support planning and delivery should be based on multi-agency assessment of the child's strengths, needs, risks and vulnerabilities underpinned by holistic formulation. Supports must be rights respecting and are most effective when provided in the context of relationships and through non-stigmatising approaches, services and systems. Intervention should focus on those factors that are most clearly linked to offending and should be tailored to the needs of the individual, including in terms of intensity, while based on evidence and research. There are various examples of best practice, including for offence-specific interventions, across Scotland[26]. Work is underway locally and nationally to ensure that the full range of interventions and supports that may be required are available to Scotland's children in conflict with the law.

For the few children whose behaviour may present a risk of serious harm to others, it may be appropriate to address identified needs and risks under child protection procedures. In addition, established risk management measures exist across Scotland underpinned by the Framework for Risk Assessment Management and Evaluation with children aged 12 to 17-years-old[27]. Care and Risk Management is a best practice example of a formal risk management process. Risk management strategies of monitoring, supervision, intervention and victim-safety planning can be agreed and provided through such processes. In addition, in certain circumstances, depending on the nature of a child's offence and / or presenting risk of harm, children can be subject to Multi-Agency Public Protection Arrangements (MAPPA)[28].

There will be occasions where, due to the level of concern about the risks or significant harm that a child's behaviours pose to themselves or others, it will be necessary to deprive them of their liberty. Under the WSA, where this is owing to the child being in conflict with the law, the child should be placed in secure care as opposed to a Young Offenders' Institution (YOI). However, not all children can access secure care in these circumstances. For these children not subject to measures through the children's hearings system, YOI is the only available option at present, as detailed in Section 6. Relatedly, barriers to ensuring secure care for every child who requires it, including funding arrangements and capacity[29], are being explored with partners ahead of any legislative changes in the area of secure care.

The Scottish Government's Justice Vision[30] calls for justice services to transform to meet the needs of Scotland's people, including to ensure the delivery of person-centred services and embed trauma-informed practices across the system. Theoverarching aims for the criminal justice system in Scotland are to improve public safety by building safer communities; to protect and support people who have been harmed; ensure access to fair justice; and to reduce rates of victimisation by reducing crime and reoffending. Realising these aims will require the balancing of public protection with the provision of real, and repeated, opportunities to support and rehabilitate children who come into conflict with the law. Those rehabilitative concerns particularly apply to children, where the scope and time available to promote lasting positive changes in outlooks and behaviours are self-evident. Children's development can also result in significant changes over shorter time frames than adults as their brains are still developing[31]. All future reform in respect of Scottish justice is about ensuring smart, compassionate justice, encouraging a shift towards prevention and early intervention and away from custody for those who don't pose a risk of serious harm.

All people are rights holders - the rights of those children who have caused harm and the rights of others sometimes come into conflict.[32] This means striking a balance when upholding the rights of all involved. Support, care and compassion for all those involved, in an attempt to promote healing and to address underlying issues holds out the best prospect of preventing future harm and restoring relationships wherever this is possible[33].

Restorative justice seeks to ensure the needs of persons harmed and their voices are central, and supports a reduction in harmful behaviour across our communities. The Scottish Government published the Restorative Justice Action Plan[34] in 2019 which commits to having restorative justice services widely available across Scotland by 2023. This should increase access to those services. Involvement in restorative justice in Scotland should always be voluntary for the individual or community harmed or those who have caused harm.

In Scotland, we are moving towards a more nuanced approach to children and young people's age and stage of development. The current law means that a child's trajectory and which parts of the system they can be supported within are determined by their chronological age alone[35]. The proposed changes are rooted in ensuring approaches are consistent with our understanding of child and adolescent social, emotional, cognitive and psychological development and maturation[36]. Typical development and journeys to maturity can be impacted by vulnerabilities and experiences of adversity and trauma, as is frequently the experience of children in conflict with the law.

This evidence also highlights the distinct needs of young people aged 18 onwards, moving into early adulthood. Scotland should work to move away from 'cliff edges' of supports and systems determined only by chronological age. More needs to be done to ensure the development and availability of graduated, needs-led, transitions based more on developmental ability and capacity. While the reforms proposed in this consultation predominantly relate to under 18s, some of these extend to and have relevance for young people and young adults, especially those aged under 26.

3.1 The Promise

The proposals in this consultation aim to align with the findings of the Independent Care Review. Their implementation would support Scotland to Keep The Promise. Published in 2020, the Promise states that a fundamental shift is required in how decisions are made with children and families, with particular recommendations related to care and justice highlighted throughout this document. All political parties currently represented in the Scottish Parliament are committed to implementing these conclusions in their entirety by 2030. Meeting the imperatives of the Promise requires a fundamental shift in focus, time, commitment, resourcing and underlying structures. Significant work is already underway towards the requirements articulated in The Promise Scotland Plan 21‑24[37]. By working cohesively across Government, with The Promise Scotland and together with partners in local government, health boards, the third sector and the care community we aim to ensure that improvements are felt day to day in the lives of care experienced children and families. A number of the Promise findings are of particular relevance for this consultation:

  • The disproportionate criminalisation of care experienced children and young people will end.
  • 16 and 17-year-olds will no longer be placed in YOIs on remand or having been sentenced.
  • There will be sufficient community-based alternatives so that detention is a last resort.
  • Children who do need to have their liberty restricted will be cared for in small, secure, safe, trauma-informed environments that uphold their rights.


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