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

The Children’s Care and Justice Bill consultation was published on 30 March 2022 seeking views and feedback on policy proposals to inform the development of the Bill. 106 responses were received from a broad range of stakeholders. This document provides full analysis of those responses.

3. Pillar One: Raising the Maximum Age of Referral to the Principal Reporter

Question 1

Where a person has been harmed by a child whose case is likely to proceed to the children's hearings system, should further information be made available to a person who has been harmed (and their parents if they are a child) beyond what is currently available?

Yes / No

If yes: what further information should be made available?

If yes: are there specific circumstances when further information should be provided and what would those circumstances be? Please give reasons for your answer

Statistical Overview

  • Of those who responded (herein, all statistics will be of those who responded), 74% agreed with this proposal and 26% disagreed
  • Organisations were more likely to support this proposal than individuals, at 83% compared to 57% respectively
  • Across 'purpose groupings', all Hybrid Organisations and Representative Groups supported this proposal, as did 79% of Delivery Organisations. Influencer Organisations were least likely to agree, at 60%.
  • Across all 'sector groupings' this proposal received a high percentage of support, with the exception of Secure Care Centres where only 33% of respondents agreed

Main themes

Many respondents believed that further information should be made available to a person who has been harmed. This was often caveated, however, with a view that the sharing of any further information should be balanced and proportionate - respecting both the need for a person harmed to receive further information, whilst also respecting the wellbeing of the child who has caused the harm (particularly as regards their right to privacy and data-protection). Relatedly, it was emphasised that any amendments made to current practices must continue to ensure that the rights of all those involved are safeguarded and upheld.

"Any changes to the existing system must be rights-based, with the aim of upholding the rights of both the child who is alleged to have engaged in harmful behaviour and the victim (who is often a child themselves)."

[Case 73, Together]

"It is our opinion that information sharing must remain proportionate and in accordance with existing legal protections in relation to how information on all children is used and shared. Any approach to the sharing of information needs to respect and respond to the rights of all children in equal measure and must continue to reflect the fundamental principles of the Children Hearings System (CHS) as child centred and concerned with the best interests of all children who come into contact with it."

[Case 74, Aberlour]

Regarding the type of information that should be shared, although there was no single view on what this should be, there did appear to be a broad split between respondents who felt the person harmed should only receive generalised information about the children's hearings system and processes, and those who felt more detailed, case-specific information should be shared. The latter was particularly stressed as important by organisations that support victims, but was reflected across most sector groupings and in individuals' responses. Several of these respondents proposed that information shared to victims should be equal to what is provided to victims within the criminal justice system, and could include: information regarding any measures which may directly impact upon a person harmed (e.g., as relating to a CSO/ICSO); that a person harmed (and their parents if they are a child) should be notified that a referral to the Reporter had taken place; along with information around outcomes (e.g., the outcome and the reasons behind arriving at the outcome). These responses emphasised that informing victims of how the harm has been addressed can be crucial to their recovery and sense of safety.

"There are risks associated with children and young people and information not being shared. We have supported survivors who attend the same school as the person who has harmed them, and the survivor is given no information re: what has happened, and part of our role is to look at risk and safety. We feel there should be more opportunities for child survivors to feel their voice has been heard and should be at the Centre of the decision-making process to avoid further trauma and risks."

[Case 87, Women's Rape and Sexual Abuse Centre Dundee and Angus]

Other respondents felt it would be more appropriate to only share general information, including how the children's hearings system operates, what support is available to them, the approach that Scotland takes to children who have harmed as well as explanation around the reasons for certain information being restricted. This was proposed by several Children's Rights organisations who felt this level of information would strike a balance between supporting the person who has been harmed to understand what is going to happen, whilst protecting the rights and safety of the child who has harmed.

In respect of the specific circumstances in which further information should be shared, respondents highlighted several key areas. These included instances where the person causing harm has a measure imposed upon them - such as a movement or no-contact - which has a direct impact on a person harmed. Additionally, other respondents highlighted the safety and protection of a person being harmed as a particular instance where further information should be shared. Attention was also drawn to further information being shared for the purpose of facilitating restorative justice (RJ), with appropriate information being supplied in order to facilitate this practice effectively.

"...on the substantive issue of the Bill proposals in allowing further information being made available to a person who has been harmed. Action for Children believe that stringent guidelines and accountability must be put in place if this were to happen. Any information should only be shared in those strict circumstances such as where there are protective measures directly involving the person."

[Case 103, Action for Children]

"The provision of additional information should be a risk-based decision and should be provided in circumstances where the decisions made by the panel are relevant to, and could have an impact on, the individual harmed (or their parents / family if it relates to another child). In particular, should the child pose a risk of serious harm to the individual then relevant information should be provided in order to mitigate that risk wherever possible. If panel members impose a condition whereby the child is restricted from going to a specific location or from making contact with a specific person, then the individuals concerned should be informed."

[Case 28, HM Inspectorate of Constabulary]

A number of respondents did also emphasise that any information shared needed to be considered on a case-by-case or individual basis, with others stating - reflecting a child's right to privacy - that any information shared should not contain personal details concerning the person who has caused harm (e.g., relating to their place of dwelling, family or social life, medical circumstances, etc.)

Young People

Eight young people or young people organisations (herein 'young people') agreed that more information should be available and two disagreed. Within these responses, young people highlighted that there was a need to balance the needs of those who had harmed and those who had been harmed, providing support for both groups and information to victims in a way that does not infringe on the privacy of the person who has harmed.

"There might not be as much support for the person who has been harmed. The person who's committed the crime will be getting support and the victim should too. In terms of information about the sentence passed, that depends on the crime. Some crimes are more serious than others. There's a person behind the crime and they should be protected."

[Case 93, Individual Young Person]

Furthermore, young people noted that more information should be available to people who had been harmed on the outcome of hearings. The reasoning for this was to ensure that the person who had been harmed is reassured that this won't happen again and that they are safe, with two responses from young people highlighting the negative impact to mental health not receiving this information could cause. Related to this, it was noted that people who had been harmed needed more information on what support was available to them.

Interestingly, three young people responses highlighted that people who have been harmed should be made aware if the person who has harmed them has any previous convictions. This was not a point that was raised by any adult respondents.

"If I was hurt by a child or teenager I would want to know if they've offended previously."

[Case 96, Individual Young Person]

Question 2

Where a person has been harmed by a child who has been referred to a children's hearing, should SCRA be empowered to share further information with a person who has been harmed (and their parents if they are a child) if the child is subject to measures that relate to that person?

Yes / No

Please give reasons for your answer

Statistical overview

  • Eighty-five percent of respondents felt that SCRA should be empowered to share further information to a person who has been harmed regarding measures that relate to them. 15% of respondents disagreed with this proposal.
  • Support for this was higher amongst organisations, at 90% compared to 74% of individuals
  • All Hybrid Organisations and Representative Groups supported this proposal, as did 88% of Delivery Organisations and 80% of Influencer Organisations
  • Most sector groupings agreed with this at 100%, including Children's Hearings Systems-related organisations. The only exceptions were Local Government/Social Work organisations (89% responded yes) and Secure Care Centres (50% responded yes).

Main themes

There was widespread agreement that SCRA should be empowered to share further information with a person who has been harmed (and their parents, if they are a child) if the child is subject to measures that relate to that person. Reasons for this largely reflected responses from question one, with respondents expressing that sharing further information in these instances can provide a person harmed with a sense of safety, reassuring them that the harm had been acknowledged and action was being taken to ensure it did not occur again. Victim organisations stressed that this was particularly important for high-level harms, including sexual and domestic abuse which are likely to be dealt with more frequently by the children's hearings system should the maximum age of referral to the Principal Reporter be increased.

It is the case however, that particular attention was also afforded to the importance of implementing a case-by-case approach to the sharing of any further information, as well as the need for robust safeguards to be applied relating to the scope and nature of any further information to be divulged - to ensure no infringement on the rights of the person causing harm. This was particularly stressed by Children's Rights organisations, Children's Hearings Systems-related organisations and some Local Government/Social Work respondents. The importance of further information being shared with the child (and their parents if they are a child) in an accessible and easily understood format was also highlighted within certain responses.

"It makes sense for someone harmed by a crime to be told that the person responsible for harming them has measures included in their compulsory supervision order which may include staying away from a certain area where a victim resides, or from approaching the person they harmed or other witnesses. The victim needs to understand this and to know where to report any issues of compliance. There must be a rationale for sharing limited information and this should aim to strike the correct balance between the welfare of child/young person and the interests of the victim."

[Case 85, Perth and Kinross Council, Education and Children's Services]

Young People

Nine young people agreed that further information should be shared where a measure is in place that relates to the person who has been harmed, and one disagreed. The reasons given for this reflect many of the adult responses, in emphasising that this should be in place for the protection of the person who has been harmed and allow them to report any cases of non-compliance to these measures. Respondents balanced this with an acknowledgement of privacy and confidentiality issues for the person who caused harm, and the need for any information to be shared carefully and avoid sharing information re. measures that relate to private or sensitive aspects of the child's life, i.e., their home circumstances, irrelevant background information, any substance misuse or mental health orders. One respondent also highlighted that any information shared should be in accessible language that the victim can understand.

Question 3

Where a person has been harmed by a child who has been referred to the Principal Reporter, should additional support be made available to the person who has been harmed?

Yes / No

If yes, what additional supports do you feel are necessary?

If yes, should this apply to all people who have been harmed or only in certain circumstances? (Please specify)

Statistical overview

  • This proposal received widespread support, with 93% agreeing that additional support be made available to the person who has been harmed
  • Only five respondents disagreed with this proposal, including two individuals and three organisations
  • All Influencer Organisations and Representative Groups supported this proposal, as did 93% of Delivery Organisations and 88% of Hybrid Organisations
  • In relation to sector groupings, disagreement came from one Children's Hearings Systems-related organisation, on Local Government/Social Work organisation and one organisation that had been classified as 'Other'.

Main themes

There was broad consensus amongst the respondents that support should be tailored to the specific needs of the person harmed - benefiting from a multi-agency approach - consisting of a mix of counselling, trauma recovery services, psychological, emotional wellbeing and physical health supports.

Responses from Delivery and Hybrid Organisations - including Victim organisations - stressed however that current support provision was not currently meeting needs. Specifically, Victim organisations said that support was felt to be disjointed, difficult to access, with two responses believing that there was too much emphasis placed on risk-based interventions, rather than holistic and therapeutic supports. Eligibility criteria creating barriers to individuals accessing support, stretched services and inconsistency in approach across Scotland were also acknowledged as key factors.

"Access to support through Child and Adolescent Mental Health Services (CAMHS) is inconsistent across Scotland, and across many areas children must demonstrate an extremely acute need to meet service thresholds to access services, and/or be placed on long waiting lists. These services were stretched before the COVID-19 pandemic, but the impact of the pandemic across health services, as well as a rise in need due to lack of preventative support and interventions, has resulted in further strains on service provision."

[Case 71, CELCIS]

Several respondents did acknowledge the potential role of Barnahus/Bairns' Hoose as an important therapeutically and child-centred informed setting, where appropriate forms of support can be accessed by children who have witnessed or been exposed to harm or are below the age of criminal responsibility and have caused significant harm. Although, as was also identified, this is a model that is yet to be fully implemented in Scotland, it was suggested that thinking around supports should be informed by the work already being undertaken in this area.

"The Scottish Government's intention is clear that "all children in Scotland who have been victims or witnesses of abuse or violence, as well as children under the minimum age of criminal responsibility whose behaviour has caused significant harm, will have access to a "Bairns' Hoose" by 2025." It is therefore important that these proposals are clearly aligned with the development of Bairns Hooses across Scotland so that all children who require support to recover from traumatic experiences can access it."

[Case 52, Children 1st]

Importance was also afforded by respondents to the role of RJ practice - where appropriate - in meeting the needs of persons who have been harmed. Several responses from Local Government/Social Work highlighted this as significant and emphasised that there was a need for RJ to be consistently available across Scotland. The need for those facilitating and delivering RJ to be sufficiently trained was also identified.

"NYJAG regard Restorative Justice as a key mechanism for meeting some of the needs of persons harmed. This is a significantly more inclusive means of intervention which should enable a person harmed to feel meaningfully involved in the process of rehabilitation and achieving a sense of resolution for the harm caused. It is essential that all services involved are adequately trained and trauma informed, so that the person harmed is properly supported and kept at the centre of the RJ process."

[Case 43, National Youth Justice Advisory Group]

One response highlighted that the 'skill set' of any supporting organisation involved should include neurodevelopmental, trauma, adverse childhood experience (ACE) awareness and understanding. Other respondents felt that supports should be offered akin to those afforded to victims engaged within the criminal justice system. In respect of the breadth of support to be offered, most respondents felt that supports should be offered to all people who have been harmed, however, concerns were raised regarding the resourcing and capacity required for this to be effective. This point came out particularly strongly in Delivery Organisations responses - including Local Government/Social Work, Third Sector and Police responses - who felt that more clarity was needed on who would provide this support, and how it would be funded, with services already stretched across Scotland.

Young people

Eleven young people agreed that additional support should be provided, with no young people that answered this question disagreeing. Responses expressed the need for support to be tailored to individual needs, and include appropriate and effective mental health supports, including support to recover from trauma, with some young people saying that this could be provided by social workers and other saying this support should be provided by therapists and mental health professionals. One young person highlighted that whilst additional support should be available to victims, they felt the focus should be on supporting the child who has harmed.

Three young people's responses also argued that a key means to support (child) victims is to ensure that the school is involved and aware of the situation, particularly where the person who has harmed attends the same school as the victim.

"It depends case to case. The victim's school should know about it. What if it's a classmate? It could happen again and school should be aware that there's a risk. Counselling could be offered if the victim needs it. Mental health support should definitely be offered, and so should trauma recovery. Social workers roles shouldn't really be about that though."

[Case 92, Individual Young Person]

Question 4

Should a single point of contact to offer such support be introduced for a person who has been harmed?

Yes / No

If yes, should this be available to all people who have been harmed or only in certain circumstances? (Please specify)

If yes, who should be responsible for providing the single point of contact? Please give reasons for your answers

Statistical overview

  • The proposal to offer a single point of contact to a person who has been harmed received one of the highest levels of support across the consultation, at 97%
  • Only two respondents did not support this proposal, both of whom were individual young people

Main themes

Of those who agreed that a single point of contact should be introduced, a majority felt that this should be available for 'all' people harmed. A key rationale given for why a single point of contact should be introduced for a person who has been harmed was that it would reduce the number of times they would need to repeat and re-live often-traumatic experiences to various agencies. It was seen as being preferable therefore by many respondents, for a person who has been harmed to receive information and support from a single source, through which trust and rapport can be established.

However, a key concern raised by Children's Rights organisations, along with many Delivery Organisations, related to the potential barriers to implementing a single point of contact in the current information sharing landscape, whilst it was also noted that robust information sharing agreements that respected data protection laws would need to be in place for whichever agency was appointed as a single point of contact. Victim organisations also stressed the need for more consultation and development regarding a single point of contact. Here, whilst this proposal was supported by Victim organisations, to limit the re-traumatisation of victims and coordinate information, there was concern that this proposal was being steered by efficiency needs, rather than the best interests of persons who have been harmed.

"We are undecided on this question, as we believe the proposal needs further discussion and development […] we are not convinced that a single point of contact in itself is a crucial difference to improving the support offered to children and young people. Rather, the support and information that is offered whether that is through one person, or several should be relationship based person centred, and trauma informed, rather than built out of the efficacy needs of a system."

[Case 57, Scottish Women's Aid]

A number of respondents stated that further detail relating to the proposal was needed. Concerning who should be responsible for providing the single point of contact, there were various agencies suggested. Most popular amongst these was a Victim organisation or SCRA/SCRA Victim Information Services. Other options, included:

  • Whichever agency/worker had an existing, positive relationship with the child
  • Barnahus/Bairns' Hoose
  • Police Scotland
  • Local Authorities
  • Crown Office and Procurator Fiscal Service
  • A Restorative Justice Co-ordinator
  • An MSP Minister

Young People

Seven young people agreed and two disagreed with the proposal. Reasons for supporting this proposal were similar to that of adult responses, with young people highlighting that retelling experiences to multiple agencies can be retraumatising and that one contact can help build up trust. Furthermore, a single point of contact was seen to be a useful 'communication bridge', as someone who could gather information and updates from a range of organisations and relate these to the person who has been harmed. Some young people felt this should be available to all victims, whilst others felt this should be based on the needs of the person who has been harmed or on the severity of the harm. Importantly, young people highlighted that the decision on whether they receive a single point of contact or the opportunity to engage with multiple agencies should rest with the person who has been harmed, as preferences might differ and there is the possibility of relationship breakdown where the person assigned is not well suited to the role:

"It depends on the person. They should be given the choice. Some people might want to talk about what's happened and would want to speak to lots of different people about it. Also what if the person they're given isn't very good? Other people might not want to talk and it'd be easier for them just to have one person. They should be asked what they want to have."

[Case 91, Individual Young Person]

There were differing views across young people responses about who should be a point of contact, with some saying this should be an assigned social worker, whilst others argued that it was better for this to be carried out by someone whose sole responsibility was as a single point of contact, rather than a responsibility added on to social workers.

Question 5

Should existing measures available through the children's hearings system be amended or enhanced for the protection of people who have been harmed?

Yes / No

Please give reasons for your answer

If yes, please provide details of how they should be amended or enhanced

Statistical overview

  • A high proportion of respondents did not answer this question. Of those that did, this question received one of the more polarised responses of the consultation, with 58% agreeing and 42% disagreeing.
  • Individuals were more likely to support this proposal, at 63% compared to 55% of organisations
  • Delivery Organisations and Representative Groups supported this at 63% and 60% respectively, compared to only 43% of Hybrid Organisations and 25% of Influencer Organisations
  • Importantly, both Children's Hearings Systems-related organisations that answered this question disagreed with it. Conversely, all Police related organisations and all Secure Care Centres that answered this question agreed.

Main themes

A range of reasons were offered for why existing measures should be amended or enhanced. A key justification was that since the children's hearings system would be receiving (if the proposals were to be implemented) referrals for higher-level harms and older children, measures need to be amended or enhanced to allow the children's hearings system to adequately deal with these harms and maintain public confidence in the system's ability to do so. This reasoning was particularly prominent in responses from Victim organisations and Police-related organisations. Related to this, Victim organisations, Local Government/Social Work organisations and Third Sector respondents who supported this proposal, underlined that enhanced measures were essential for the safety and protection of victims and the public and that criteria for protective measures should be expanded to also include non-physical and evolving methods of harm.

"It is acknowledged that the scope of this Bill means that the CHS will ultimately manage more harmful behaviours and greater case referrals with the introduction of older children to the system. Providing the CHS with additional provisions that supports victims will ultimately provide the public reassurance that victim welfare is still a significant consideration, whilst responding to the needs of children who have caused harm."

[Case 22, Police Scotland]

In considering how existing measures could be amended or enhanced, many respondents suggested that there should be greater scope for the use of Movement Restriction Conditions (MRCs) and that there should be enforced consequences for non-compliance with these and other measures. Issues surrounding MRCs will be discussed further under Question 6. A small number of respondents from Victim organisations and Police-related organisations argued that measures available through the children's hearings system should mirror what is available through the criminal justice system. However, responses from Local Government/Social Work, Third Sector and Children Rights organisations, as well as Children's Hearings Systems-related organisations, cautioned that the children's hearings system is grounded in welfare-based principles and that the introduction or enhancement of more punitive measures could work to undermine this philosophy.

"The fundamental purpose of the Children's Hearing System is to consider orders to support the needs of the child who has been referred. This core focus is the system's strength, and was given clear support by The Promise. Children's hearings may already require that the child comply with any other specified condition under section 83(h) of the Children's Hearing Act (2011), or that the local authority carry out any specified duties in relation to the child under section 83(i). The addition of any new measures which do not benefit the child, but another individual will need considerable thought to ensure they align with the ethos of the system."

[Case 58, Children's Hearings Scotland]

Other reasons for disagreeing with the proposal to enhance measures available through the children's hearings system was that the present measures are sufficient and that the focus should instead be on resourcing and raising awareness of the support and protective mechanisms already available. This theme came up across sectors - and by both those who had answered yes and no to the proposal - including in Local Government/Social Work responses, Secure Care Centre responses, Police-related responses and Children's Rights organisations. Specifically, it was referenced that Framework for Risk Assessment, Management and Evaluation (FRAME) and Care and Risk Management (CARM) approaches are already appropriate.

"CYCJ does not believe that existing measures available within the children's hearings system require to be altered in any way, and hold a view that the existing suite of options are adequate in delivering the desired level of care and protection […] Moreover, FRAME provides good practice guidance with regards to risk practice and CARM offers those supporting the child with a framework for risk management oversight and scrutiny that could be put in place to reduce heightened risk of harm whilst promoting strengths and developmental opportunities."

[Case 68, Children and Young People's Centre for Justice]

Young people

Five young people supported this proposal and two did not. One respondent felt more information was needed before making a decision and cautioned that further restrictions might make people who have harmed feel more isolated and have negative consequences for their relationships and mental health. There was also concern from one respondent regarding who should decide what measures are put in place, and a belief that this should not be solely down to one agency:

"Any decision to limit the freedom of a child should be a multi-agency decision based on the mental health of the child, and the potential for serious harm caused to the child or other people."

[Case 92, Individual Young Person]

There were differing views amongst young people in relation to electronic monitoring. One young person argued that this can be useful for people who are a risk to others or who repeatedly abscond, whilst another young person argued that tags:

"...are dehumanising, like microchipping a dog."

[Case 93, Individual Young Person]

Question 6

Should MRCs be made available to children who do not meet the current criteria for secure care? Yes / No

Please give reasons for your answer

If yes, what should the new criteria for MRCs be?

Statistical overview

  • A high proportion of respondents did not respond to this question. Of those that did 62% agreed and 38% disagreed
  • Interestingly, and in contrast to Question 5, individuals supported this less than organisations, at 53% compared to 67%
  • Delivery Organisations had the highest level of support at 72%, compared to 60% of Hybrid Organisations and Representative Groups and only 50% of Influencer Organisations
  • In relation to sector groupings, all Police-related organisations and Secure Care Centres supported this proposal at 100%. Conversely, only a third of Children's Hearings System-related organisations responded 'yes'.

Main themes

Respondents provided a range of reasons as to why current criteria for Movement Restriction Conditions (MRCs) should be lowered, but which differed in their emphasis. Some responses that supported a lowering of the criteria for MRCs emphasised the benefits of the MRC to individuals other than the child referred (however, see points previously raised in Question 5 that concern this potential shift in focus from the 'best interests of the child'). Victim organisations and Police-related responses stressed that lowering the criteria of MRCs was crucial for victim and public protection - especially in instances of domestic or sexual abuse - where there is a risk of ongoing harm to the victim. There was also a view expressed that the criteria should be extended beyond physical harm, to also incorporate emotional and psychological harm. The need for victims to be aware of MRCs, to enable them to report any instances of non-compliance was also highlighted.

"The conditions for a hearing to consider imposing a MRC are rightly, based on stringent standards. Under current provision, when a hearing is considering a MRC, the referred child must meet the criteria for secure accommodation. However, in some circumstances there may be benefits and additional protection afforded to the person who has been harmed as a result of imposing this restriction. For example, this may be beneficial where a person may experience emotional or psychological harm as a result of contact or may be subject to potential harassment or intimidation from the child concerned."

[Case 28, HM Inspectorate of Constabulary]

Responses from Delivery Organisations including Local Government/Social Work and Police-related organisations highlighted that lowering the criteria for MRCs could be seen as being in the best interest of the child who has caused harm, where it allows them to remain supported in the community. This was particularly emphasised by Secure Care Centre respondents, who highlighted that by the point at which a child is placed in secure care, their welfare and protection needs are too high to be effectively dealt with in the community by an MRC. Lowering the criteria for MRCs therefore was seen as providing an earlier intervention that can halt trajectory into secure care. Responses from Local Government/Social Work stressed that for this to be effective, MRCs cannot operate in isolation, but as part of a wider support package and robust wraparound services.

"Given the severity of placing a child in secure care, the thresholds and criteria for this need to be clear. If a child meets this high tariff, then in practice there is often not realistically another option as placing a child in secure care is the only way to keep them and others safe. For this reason, the stipulation that MRCs only be available when a child meets the current criteria for secure care needs reconsidered. In considering whether the use of MRCs is appropriate the focus needs to be on the care package around the child and how the MRC would contribute to this..."

[Case 32, East Lothian Council]

However, other respondents felt that the current criteria for secure care was appropriate. Many of these responses referenced existing international children's and human rights standards around children's liberty, in order to qualify the appropriateness of the current high threshold. Relatedly, it was also suggested that such measures can work against children's best interests and extenuate feelings of stigma, stress and anxiety.

"In addition, electronic monitoring devices can have an adverse impact on children's participation in society, including education and their rehabilitation. Children may be prevented from participating in activities due to concerns about the visibility of the devices, particularly in the summer months. Wearers report feeling stigmatised, scrutinised, and anxious about potentially breaking the conditions of their monitoring requirements and incurring further consequences. Families of a child or young person being monitored also experience this stress."

[Case 39, Children and Young People's Commissioner Scotland]

Concerns were also expressed that amending the existing criteria would be disproportionate and potentially lead to the over application of MRCs. This, several respondents argued, could lead to up-tariffing, with more persons subjected to MRCs leading to higher levels of non-compliance and subsequent entry into secure care. Moreover, a response from one Legal organisation highlighted that reducing the criteria for MRCs would be out of step with the stringent criteria for the restriction of movement through the criminal justice system, which is to be used only as an alternative to custody.

"If these orders were more widely applicable and more children were placed on them, this could also lead to greater numbers of children not complying with these orders and being drawn further into the system and experiencing the ramifications of this. Moreover, increasing their use does nothing to address the underlying welfare issues a child may be experiencing."

[Case 27, Children in Scotland]

A restriction of movement should properly be seen as an infringement upon the liberty of the subject. The criminal courts only consider such a measure in the following circumstances: a. Where such a condition is necessary to secure the subject's compliance with the standard conditions of bail […and] there was a significant possibility that the subject would otherwise require to be remanded in custody. b. By way of sentence, only in cases where the offence and circumstances of the offender are of sufficient gravity to warrant a custodial sentence. […] A Restriction of Liberty Order can only be imposed following adjournment for a Criminal Justice Social Work Report. Such reports shed light on potential issues of vulnerability as well as the consequential risk to others within a household should the offender's liberty be restricted. The proposal to extend movement restrictions or Restriction of Liberty Orders to those who do not meet the criteria for secure care would not be consistent with the general approach currently adopted in relation to adult accused persons. Consequently, the SSSA view this proposal as a disproportionate measure

[Case 34, The Sheriffs' and Summary Sheriffs' Association]

Another key concern that was expressed by both those who support and disagreed with this proposal was the current lack of evidence surrounding their usage or effectiveness. This was particularly raised by Local Government/Social Work respondents, who stressed that MRCs can be difficult to enforce, and that enforcement could hinder the development of meaningful therapeutic relationships.

"MRCs are an important option to have at our disposal, however, our experience in Glasgow is that MRCs are ineffective in that there is limited compliance with these. There may be an unintended consequence that increased use of MRCs may escalate children through our systems where there is non compliance."

[Case 41, Glasgow Health and Social Care Partnership]

Given such reservations, it was highlighted that any expansion of MRCs should be subject to robust assessment and regular reviews.

Young people

Five young people disagreed with the reduction of criteria and two agreed. Of those who agreed, it was felt MRCs could play a positive role in allowing a young person to remain with their family and in their community and facilitate a balance between protecting victims whilst supporting the child who has harmed. Of those who disagreed, two highlighted as a key concern the (over)use of MRCs to manage children who are absconding, which was felt to be counterproductive and disproportionate:

"If the child isn't a risk to anyone then they shouldn't have their rights taken away. Even in cases where a child frequently absconds, some of the measures that are part of MRCs are over the top. Instead, they should be getting the right support to address what's causing the child to abscond rather than trying to control the behaviour."

[Case 90, Individual Young Person]

One young person also questioned what would happen to a child on an MRC once they turned 18, and whether the child would then enter the criminal justice system and remain under some form of supervision, or whether the MRC and associated support would cease.

Question 7

Should any of the above options be considered further?

Yes / No

1. Enabling all children under the age of 18 to be remitted to the Principal Reporter for advice and disposal in their case even where they had initially been prosecuted and have pled, or been found, guilty.

2. Promoting wider use of the existing ability for the children's hearings system to require support to be offered to a young person on a voluntary basis following the termination of any CSO by virtue of that individual turning 18. This could be strengthened to include the need for the children's hearing to provide a closure report at the end of a child's CSO where this is being discharged or ceasing only by virtue of the child turning 18.

3. Increasing the age to which children can remain subject to measures through the children's hearings system for a period beyond the child's 18th birthday.

If yes, which option(s)?

Please give reasons for your answer, including any positive or negative implications of any of the proposals.

Statistical overview

  • This question had two aspects. Not all respondents who answered 'yes' to the first aspect of the question then specified which option(s) they supported in the second aspect of the question
  • For the first part, 92% agreed that (some of) the above options should be considered further
  • Five respondents disagreed, including three individuals, one Third Sector organisation and one Children's Hearings Systems-related organisation
  • For the second aspect of this question, within which respondents were able to select multiple options, Option 1 was the most popular, with 84% of those who answered this part supporting its further consideration.
  • Option 2 received 60% whilst Option 3 received 62%
  • Forty percent supported further consideration of all three options

Main themes

Option 1

Option 1 received the highest support across purpose and sector groupings. Various reasons were given for supporting this proposal. Several respondents argued this would lead to improved outcomes, with more children and young people able to be supported via the children's hearings system. This was expressed as particularly important given that many children in conflict with the law have experienced trauma, abuse and other adversities in childhood:

"[XXXXX] supports increasing the age of referral to the Principle Reporter up to 18 years of age for all cases. Many of the children, young people and parents we work with have experienced trauma, loss and abuse, often multiple and severe which can have significant lasting impacts upon their lives. This proposal will increase the window of opportunity to respond differently to the needs of many vulnerable 16/17 year olds through a rights based trauma informed approach to policy and practice."

[Case 24, Third Sector Organisation]

Relatedly, many respondents who supported this proposal argued that it would resolve the discrepancy for 16- and 17-year-olds, whereby only those who are subject to measures through the children's hearings system (and a small number of other exceptions) can be remitted to the Principal Reporter. It was felt this would bring about equity for this age group, treating all under 18s as children and allowing the rehabilitative potential of the children's hearings system to be maximised. This was deemed particularly important given that 16- and 17-year-olds can fall between services and systems and face a postcode lottery in terms of how they will be dealt with via criminal justice systems.

"NYJAG would fully support this extension to the legislation that enables all children to be remitted for advice and disposal. This will remove the legal anomaly that a child needs to be subject to a CSO before they can be considered for this. Children not on a CSO at the time of conviction are no less vulnerable, and indeed in some cases often have less support at the time they most need it."

[Case 43, National Youth Justice Advisory Group]

Several respondents, however, raised concerns over the impact this proposal would have on resources and capacity. This was particularly stressed by Delivery Organisations, including Local Government/Social Work and Children's Hearings Systems-related organisations. It was emphasised that raising the age of remittal could constitute a significant increase in the number of children who would need assessment and support through the children's hearings system and their associated agencies, including social work and third sector services.

"While keeping children out of the adult justice system is clearly a priority, addressing the underlying causes of the behaviour must remain the primary objective. It must be acknowledged again that a compulsory supervision order alone does not bring about the changes required to improve the outcomes for children and young people. It is the support, supervision, and monitoring which accompany the order which have the ability to bring about change. Significant new resources would likely be required to ensure there is sufficient capacity in children's and adults services to provide the intensive, relational support children and young people need and deserve."

[Case 58, Children's Hearings Scotland]

In addition to concerns over implementation, a small number of responses expressed that this proposal might not be in the best interest of the child. One respondent raised concerns that 16- and 17-year-olds could become targets for child exploitation and trafficking, where it is perceived that there will be less ramifications should they be identified and their case dealt with via the children's hearings system, rather than the criminal justice system. A separate respondent highlighted the options available to young people subject to the criminal justice system, where they might have individualised support from a justice social worker and access to (unpaid) work as part of a Community Payback Order (CPO). This respondent argued that these options can give 16- and 17-year-olds structure to their lives and be particularly effective in supporting desistance and proposed that similar options be made available through the children's hearings system.

Separately, some respondents, including individual responses and responses from organisations who support victims, expressed that this proposal would be detrimental to victims who have been harmed by 16- and 17-year-olds. This was seen as particularly problematic for serious harm and sexual offending, where it was felt that the children's hearings system was not an appropriate response for older children. Specifically, one respondent raised concern that protective measures, including bail conditions, would not be appropriately replicated in the children's hearings system which would threaten victim safety. Moreover, it was felt that transferring proceedings from a court to a children's hearing would hinder the victim's ability to be involved in proceedings and have their perspectives listened to:

"A victim would lose the ability to see and hear what is happening regarding the harm they have suffered but they would also lose the ability to tell a court by way of an victim statement as allowed under section 14 of the Criminal Justice (Scotland) Act 2003 (the 2003 Act) […] A Children's Hearing system does not provide any means of a victim having their voice heard or being able to tell the person making a decision regarding the child who has harmed, what the effects have been on them of the child's behaviour."

[Case 19, Third Sector]

Option 2

Of those who selected an option(s), 60% chose Option 2. The key reason given for this was that the proposal would improve transitions for young people and offer a continuity of support for those whose Compulsory Supervision Orders (CSOs) are being terminated by virtue of them turning 18. This was particularly emphasised by Local Government/Social Work respondents. It was expressed that a closure report would facilitate multi-agency working, informing aftercare support of the needs and risks of the young person.

"A closure report, identifying the ongoing needs and supports, would seem to be a good way of capturing key information to inform next steps at this transitional point in the young person's life."

[Case 89, The Educational Institute of Scotland]

"Providing a report and summary of the children's hearing system involvement and identifying risks and needs that remain, would ensure that there is a continuity of support. As a young person turns 18, their risks and needs might remain, requiring further support and management into adult services. This report could provide adult services with a comprehensive understanding of what supports have been in place and what is still required. This information could also be used to tailor ongoing throughcare and aftercare services for care experienced young people."

[Case 30, British Psychological Society]

Relatedly, several respondents highlighted that this option would help alleviate the 'cliff edges' that young people can face, where they are no longer eligible for the support they need by virtue of turning 18. It was expressed that this proposal would allow for a young person's needs, risks and developmental stage to be taken into consideration when determining whether further support is required, rather than simply their age:

"The importance of planned and supported transitions at key phases of life and development is crucial and there is a risk for young people when their support comes to an end that they potentially face a 'cliff-edge' where support falls away entirely. It is also our opinion that chronological age alone as a benchmark is unhelpful, overly simplistic and fails to allow recognition of the developmental needs of individual children and young people – as outlined previously – which require careful consideration, particularly where children have experienced trauma and other forms of adversity."

[Case 74, Aberlour]

Conversely, several respondents raised key concerns related to this proposal, including that the proposal could complicate an already complex landscape, given that there are already aftercare requirements and duties that cover children whose CSOs have been terminated on or after age 16. However, several respondents also expressed concerns that this support was not being consistently provided:

"This may merely add a layer of confusion and complexity. We already have a significant statutory aftercare support system, strengthened by the reforms of the 2014 Act up to the age of 26 years old. Local authorities have clear statutory duties to support young people leaving care – including any young person who has been the subject of measures in the Hearing system age 16 plus. Young people can rely upon their section 29 rights to aftercare support."

[Case 85, Perth and Kinross Council]

"What is largely unknown is whether this support is provided, what rights and options the child has if this support is not made available and whether the children's hearing's identification of ongoing needs makes any impact on the outcome for the child once supervision has ended. Before a closure report is seen as a viable option, further exploration of the efficacy of the existing provision is required. To ensure we are getting it right for children and young people, clear accountabilities and resources for providing ongoing support are essential along with a route for recourse if the support is not provided."

[Case 58, Children's Hearings Scotland]

Option 3

Of those who selected an option(s), 62% chose Option 3. The reasons given for this support closely reflected those given in support of Option 2, namely, that it would better support a young person's transition into adulthood and ensure a continuity of support. It was also expressed that extending measures past a young person's 18th birthday would mean more time for these measures to effect positive change.

"There should not be a cliff edge resulting in no access to services when a child reaches 18. This realisation for a 17 year old can be stressful and traumatic and therefore not in the child's best interest. The current Pathways model for care experienced young people up until the age of 26 provides a framework for how young adults are supported."

[Case 58, Children's Hearings Scotland]

"This move would also be in line with legislation which enables eligible young people with care experience to have support from local authorities up until the age of 26."

[Case 91, Individual]

"This is important because for support offered by the Children's Hearings System to be effective, it must be able to continue for a sufficient amount of time to allow a care plan to be implemented that will meet a child's individual needs. This is unlikely to happen if a child is referred to SCRA and brought to a hearing several months before their 18th birthday for example, as this would leave little time for meaningful change."

[Case 71, CELCIS]

Despite supporting the ethos of this proposal, several respondents raised concerns over the legal implications. It was felt that whilst support should continue to be made available on a voluntary basis, it would not be appropriate or proportionate for the children's hearings system to apply compulsory measures. Relatedly, several respondents raised concerns that this proposal could be disproportionate, leading to young people remaining within the children's hearings system unnecessarily or without a clear purpose.

"Option 3 may be very difficult as it may bring conflict with UNCRC and many other legislative standards that ensure those over 18 are fully and legally seen as adults able to make decisions for themselves apart from when they lack capacity or are assessed as being seriously mentally ill."

[Case 40, Local Government/Social Work]

"The transition to adulthood may require some support, and for many this may involve input from statutory agencies. But in our submission it is not appropriate for the children's hearing to retain a supervising role over those who are no longer children."

[Case 34, The Sheriffs' and Summary Sheriffs' Association]

"The continuation of a CSO beyond the age of 18 years for purposes of prevention of potential future harm would not be compatible with rights issues and could be considered disproportionate."

[Case 28, HM Inspectorate of Constabulary]

As with Option 1 and 2, several respondents also emphasised that this proposal would expand what is required of the children's hearings system and would need to be adequately resourced for implementation to be effective.

Young people

Six young people responded 'yes', of whom four specified which options they supported: two supported all three options, one supported Options 1 and 2, and one supported only Option 1. Two young people responded 'no', that none of the options should be considered further - but did not provide a qualitative response explaining this position.

Qualitative responses to these questions from young people largely provided a general response to the proposal to maximise the use of the children's hearings system, rather than comments on specific options. These responses often reflected themes apparent in the 'adult' responses, including emphasising that these proposals would support children's transitions into adulthood, and offer a continuity of support rather than arbitrary cliff edges based on age rather than need, as well as diverting young people from criminal justice systems.

"STARR recommends the extension of the Children's Hearing System to include young people over the age of 18. This would align with the Scottish Government's youth justice strategy by working to keep children and young people out of formal justice systems. This would also help to minimise short sentences which often do not provide enough opportunity for any rehabilitative benefits whilst removing young people from their communities and can result in them losing tenancies and social security benefits."

[Case 102, STARR]

Young people provided various proposals for the age to which the children's hearings system should be extended to, including: up to 21, up to 26 or determined case-by-case based on the individuals' developmental needs. A small number suggested this should end at 18. In considering the age of remittal to the Principal Reporter, it was suggested by several young people that this should be extended to 18 for all children but that for serious harms, cases should remain in the criminal justice system.

"I think this depends on the case. Children should be protected up to age of 18 and should have their cases remitted to the Principal Reporter, but for some extreme crimes like murder you should have to go to court."

[Case 92, Individual Young Person]

Question 8

Please give details of any other ways in which the use of the children’s hearings system could be maximised, including how the interface between the children’s hearings system and court could change

Sixty-six respondents provided a response to this question. A number of respondents highlighted that the children's hearings system should be maximised to ensure that more children stay within it, rather than appearing at courts, as this would correspond strongly with existing international children's rights standards and a child-centred approach.

"There are significant limitations on the ability of courts to deliver this child-friendly approach. We therefore strongly support the use of the children's hearing system (CHS) for offences by those under the age of 18 wherever this is possible."

[Case 99, Third Sector]

Within several responses there was also reference to the need for those working within the children's hearings system to feel confident in their ability to deal with a range of offence-based cases, using the measures at their disposal.

"Amongst the 373 incidences of a child aged 16 or 17 being referred to the Principal Reporter on offence based grounds in 2020-21, several episodes relate to acts of violence and sexual harm. Thus, it is critical the workforce are competent and confident in their understanding of the needs of this group, of what developmentally informed interventions that reflect and encourage their increasing agency and self-efficacy look like, in accordance with UNCRC, within a risk management context. This may require additional support and training for panel members, social workers, education and wider partner agencies and corporate parents in line with all of our responsibilities to deliver GIRFEC."

[Case 68, Children and Young People's Centre for Justice]

"We are of the view that there is no sound basis for the two-tier approach which exists in the system at present. However, we would caution that there are challenges with the children's hearings system in general, including volunteer panel members who are not experienced in dealing with children accused of a crime, and potentially have not received the appropriate level of training (including trauma informed training) which is required to fulfil their role."

[Case 47, Legal]

The potential impact of proposals concerning the children's hearings system on the workings of the Court was also identified by one respondent.

"Whilst the proposals above are likely to reduce the volume of hearings involving child accused in the criminal courts, there may be a significant impact on other types of court procedure. For example, we anticipate an increase in:

  • appeals to the sheriff against the decisions from children's hearings;
  • an increase in applications for Interim Compulsory supervision orders; and
  • applications for review of grounds determinations."

[Case 101, Scottish Courts and Tribunals Service]

Other responses highlighted the need for greater alignment between policy and legislation to ensure clarity around the definition of the child; greater communication and closer working relationships between the two systems; a more streamlined and efficient system when children are referred to the Sheriff; the adoption of a Youth Court for 18–21-year-olds; the use of a child advocate at court; as well as, making language, processes and formalised legal structures more simplified, to assist children's participation.

Young people

Young people provided a range of responses to this question, with some arguing that all children should go through the children's hearings system, whilst others argued that court should be used for cases of extreme harm. Several responses argued the children's hearings system should be expanded to include young people past the age of 18, up to 21 or 26. Some caveated this extension on the basis that there were additional or developmental needs or to support a gradual transition into adult systems where this is necessary.

For those who felt court would still be necessary for some young people, various suggestions were made on how to make courts more child-friendly, some of which reflected those proposed in Question 9, including:

  • Separate rooms/courts for young people
  • Providing breaks
  • Assigned advocates
  • Specially trained judges
  • Sit around a table rather than dock/bench
  • Child friendly language
  • Use of online platforms
  • No adults present that do not need to be there

One young person however felt that the formal set-up of courts provided an important function, and should be maintained:

"I still think that in some cases a dock should be used, like in a court. If a person has committed a crime then they need to know that and know that they've done something wrong. Sitting round a table sends the wrong message."

[Case 92, Individual Young Person].


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