9. Special Protections
Relevant UNCRC Articles: 22, 30, 32, 33, 35, 36, 37(b-d), 38-40
This cluster focuses on groups of children and young people who require special protection.
9.1 Refugee and Asylum-seeking Children
LOIPR request: 30 asylum-seeking, refugee and migrant children.
Asylum and immigration are matters reserved to the UK Parliament. Asylum is discussed at section 3.2.
The New Scots Refugee Integration Strategy 2018-2022 (2018) sets out Scotland's approach to support the vision of a welcoming Scotland. Children and young people can arrive with their families through the asylum dispersal process or through refugee resettlement programmes, or they may arrive unaccompanied. Some of these children will have had traumatic experiences in their formative years. They may also have missed significant amounts of education, which can be challenging, particularly if they are having to learn a new language. The Strategy recognises that children and young people may require additional support to access the services they need and opportunities to participate in society. The Strategy is also discussed at section 3.2.
9.2 Trafficking and Exploitation
LOIPR request: 32(a)-(c) Optional Protocol (OP) on the sale of children, child prostitution and child pornography, including the National Referral Mechanism.
Child trafficking is the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation. Child victims of trafficking continue to be looked after and accommodated under section 25 of the Children (Scotland) Act 1995. Support and protection for child victims of trafficking and any form of exploitation, including sexual, is provided within the context of Scotland's child protection system. The National Guidance for Child Protection in Scotland (2021) includes advice on identifying and supporting victims of child trafficking and exploitation and reflects learning from recent cases. We have established a national implementation group to provide strategic oversight and offer support to local areas.
In Scotland, the Human Trafficking and Exploitation (Scotland) Act 2015 (2015 Act) introduced a single offence for all forms of trafficking. Offences under the 2015 Act now carry a maximum sentence of life imprisonment. The Act also introduced Trafficking and Exploitation Prevention and Risk Orders, both of which came into force in 2017. To ensure that support and protection for young victims applies to all children, section 40 of the 2015 Act defines a child as a person under 18 years of age.
Section 12 of the 2015 Act requires that, where the age of a victim of human trafficking is uncertain, but there are reasonable grounds to believe they are under 18 years of age, the relevant authorities must presume that the victim is a child for the purpose of receiving immediate age-appropriate support and services until their age is formally established. The Scottish Government published refreshed Age-Assessment Practice Guidance in March 2018 to reflect these changes. This includes a specific appendix to support taking a trauma-informed approach to age assessment. A series of workshops have also taken place with practitioners to assist with the implementation of the guidance. The Scottish Government plans to further review Scotland's Age Assessment Guidance in light of the recent enactment by the UK Parliament of the Nationality and Borders Act 2022.
Section 8 of the 2015 Act places a duty on the Lord Advocate to issue and publish instructions for prosecutors about the prosecution of suspected or confirmed adult and child victims of the offence of human trafficking and the offence under section 4 (slavery, servitude and forced or compulsory labour). The Lord Advocate's Instructions continue to be applied by prosecutors. The instructions direct prosecutors that if there is sufficient evidence that a child aged 17 or younger has committed a criminal offence and there is credible and reliable information to support the fact that the child is a victim of human trafficking or exploitation and that the alleged offending took place in the course of or as a consequence of the child being a victim of an offence of human trafficking or of slavery, servitude and forced or compulsory labour, then there is a strong presumption against prosecution of that child for that offence.
National Referral Mechanism
The National Referral Mechanism is the UK-wide framework for identifying victims of trafficking and ensuring they receive the support and assistance they need. The Scottish Government has been working with the Home Office to make the National Referral Mechanism more child-friendly and to ensure that any reforms reflect Scotland's distinct laws and institutions.
A Home Office pilot to devolve decision-making about children within the National Referral Mechanism was launched in 2021. The pilot is assessing whether determining if a child is a victim of modern slavery within existing safeguarding structures is a more appropriate model for making such decisions for children. This approach will enable decisions about whether a child is a victim of modern slavery to be made by those involved in their care and ensure the decisions made are closely aligned with the provision of local, needs-based support and any law enforcement response. Glasgow City Council was selected as a pilot site and is currently the only Scottish local authority participating. Initially the pilot was scheduled to run for 12 months but has been extended to run until spring 2023.
Scottish Guardianship Service
The Scottish Guardianship Service, which currently operates on a non-statutory basis, provides additional support to vulnerable children who have been victims or are at risk of being trafficked. The service provides guardians to help trafficked children in Scotland in their recovery and to navigate the complex legal and asylum processes. The service was established in 2010 and is currently funded by the Scottish Government.
Section 11 of the 2015 Act places a duty on Scottish Ministers to provide an independent guardian for unaccompanied asylum seeking children, where there is reason to believe they might have been, or are at risk of being, trafficked, and for whom no-one in the UK has parental rights and responsibilities. This will, for the first time, put the role of the guardian on a statutory footing alongside other support services. A consultation on the roles and responsibilities of the independent child trafficking guardian (ICTG) was held in 2019, with a majority of respondents in agreement with the proposed functions of the new role. Work is ongoing to develop the new service. The Scottish Guardianship Service will continue to provide a guardian to victims of child trafficking until the ICTG service is operational. A tender has been launched to appoint a provider for the service ahead of the service going fully operational in April 2023.
Trafficking and Exploitation Strategy
The Trafficking and Exploitation Strategy (2017) set out three action areas to focus work towards the overall vision of eliminating human trafficking and exploitation as follows: identify victims and support them to safety and recovery; identify perpetrators and disrupt their activity; and address the conditions, both local and global, that foster trafficking and exploitation. Each action area is led by an implementation group with membership ranging across government, law enforcement, victim support, local authorities, business, NGOs and academia. A separate group exists for child trafficking and links into the other strands. The fourth annual progress report on the Strategy was published in January 2022.
In line with the Strategy, in October 2018 the Scottish Government published guidance for businesses on how to identify and mitigate the risks of human trafficking and exploitation across their operations and supply chains. We also published guidance for healthcare workers (2019) on recognising the signs of human trafficking and exploitation and how to respond if they have concerns. COSLA has also published guidance (2019) to support Scottish local authorities in developing good practice to identify, refer and support victims of human trafficking and exploitation, and disrupt and deter criminal activities. In addition, working with partners across the Trafficking and Exploitation Strategy, a National Referral Mechanism toolkit was launched in March 2021 to support early interactions with potential victims of trafficking.
The Scottish Government published a research paper on Child Trafficking in Scotland (2020) by the University of Stirling. The study focused on the unique needs of children and young people who had been victim to trafficking and highlighted improvements to current practice to ensure these children get the right help, at the right time. Importantly, the research included interviews with trafficked children and young people in Scotland. Those first-hand accounts will inform how we continue to improve the support and services available.
9.3 Reducing Violence and Preventing Offending Behaviour
LOIPR request: 22(f) tackling cyberbullying, online sexual exploitation, gang-related violence and knife crime.
Scotland has adopted a public health approach to reducing violence that focuses on tackling the underlying causes through collaborative prevention and early intervention work with public and third sector partners within communities across Scotland. The Scottish Government funds a number of programmes that specifically aim to prevent people from experiencing violence in the first place but, as and when it does occur, to offer support as early as possible to divert them away from violence. Over £24 million has been invested in violence prevention since 2008. In 2022-23, our partners are being provided with over £2 million to support ongoing and innovative violence prevention activity across Scotland, including an increase of 14% to the Scottish Violence Reduction Unit's budget. Examples of the support provided to help young people, their families and communities are set out below:
- The Scottish Violence Reduction Unit (SRVU) – The Unit is a national centre of expertise in tackling violence, which works with Police Scotland, the Scottish Government and other public and third sector partners, to prevent violence wherever it is found, from the streets, to classrooms, homes and workplaces. Over £16 million has been provided to the SRVU since 2008.
- No Knives Better Lives (NKBL) – Supported nationally by Youth Link Scotland, this programme aims to prevent the incidence of violence and knife carrying amongst young people and provides resources and support to local partners across all 32 local authority areas. Since 2008, more than £4.5 million has been provided to the programme.
- Mentors in Violence Prevention (MVP) – This is a gender-based violence prevention programme, nationally supported by Education Scotland, engaging with all 32 local authorities using the bystander approach to give young people a chance to explore and understand how they can safely support themselves and each other and challenge attitudes and assumptions that underpin gender-based violence.
Expert Group on Preventing Sexual Offending/Harmful Sexual Behaviour
In September 2017, an Expert Working Group was established on preventing harmful sexual behaviour (HSB) involving children and young people, bringing together a cross-sectoral range of interests including the Scottish Youth Parliament, Youth Link Scotland and Rape Crisis Scotland. The Group's Final Report (2020) contains findings relating to the nature, causes and frequency of HSB by children towards other children; highlights existing best practice; and sets out 19 proposals for further action. The Scottish Government has taken forward a range of actions to address these proposals including: the publication of revised National Guidance for Child Protection in Scotland (2021) and updated Care and Risk Management (CARM) guidance (2021). A sub-group of the National Child Protection Leadership Group has been established to oversee further delivery of the proposals.
9.4 Youth Justice
"If everyone follows the Standards, children's experiences of the justice system should get better."
Hannah, a young person with experience of Scotland's justice and care systems, discussing the Youth Justice Standards (2021).
The Scottish Ministers view youth justice through the prism of children's rights. The guiding principle of 'needs not deeds' from the 1964 Kilbrandon Report remains core to preventing offending and improving life chances, as does supporting delivery of the whole system approach across Scotland, a partnership approach including Police Scotland, local authorities, Scottish Prisons Service (SPS) and Crown Office and Procurator Fiscal Service (COPFS), based around early intervention, prevention and keeping children out of the criminal justice system as far as possible.
9.5 Age of Criminal Responsibility
LOIPR request:31(a) raising the age of criminal responsibility.
The Age of Criminal Responsibility (Scotland) Act 2019 (2019 Act) increased the age of criminal responsibility in Scotland from 8 to 12 years, the highest age of criminal responsibility within the four nations of the UK. The Act's provisions were commenced in full on 17 December 2021.
The Act reflects the Scottish Government's progressive commitment to international standards of human rights and has the effect that a person can no longer acquire a criminal conviction on the basis of behaviour that occurred when they were aged under 12. The Act removed the ability to refer a child to a Children's Hearing on offence grounds in relation to behaviour which occurred before their 12th birthday; though it is still possible for such a child to be referred to a Children's Hearing on welfare and protection grounds. The Act provides specific investigatory powers for the police, to enable allegations of seriously harmful behaviour by under 12s to be investigated, and also changes the disclosure regime such that any behaviour by a child under 12 cannot automatically be disclosed by the State in later life.
The Scottish Government has been open about its ambition to see the age of criminal responsibility increased further. That is why the Act places a duty on the Scottish Ministers to review the operation of the Act in general, and also with a view to considering a future age of criminal responsibility within 3 years of the commencement of section 1 of the Act (from 17 December 2021). An Advisory Group comprising a range of different stakeholders has been established to support Ministers with the review and work is ongoing to determine what might be required to support a future age of criminal responsibility in Scotland.
9.6 Children's Hearings System
LOIPR request: 31(b) application of child justice system.
Children can be referred to the Children's Hearings System both on offence and welfare grounds. The Children's Hearings (Scotland) Act 2011 (2011 Act) strengthened and modernised the Children's Hearings System, whilst continuing to respect the fundamental principle that children and young people who offend and those who require care and protection are equally in need and deserving of all the support and help that can be provided. The Children's Hearings System is discussed further at section 3.13.)
9.7 16 and 17 Year Olds in the Justice System
Scotland has seen dramatic changes in the youth justice sector over the last 12 years, including a major reduction in the number of young people in custody and the number of young people referred to the Children's Hearings System on offence grounds. According to official statistics, the number of under 18s in custody on 30 June 2007 was 221. On the same day in 2021, this number was down to just 17. The number of children referred to the reporter on offence grounds reduced by 71% from 9,765 in 2009-10 to 2,840 in 2019-20.
Our Vision and Priorities for youth justice and accompanying Action Plan were published in June 2021. The views of stakeholders, particularly children and young people, informed the development of these documents. The Vision, which is informed by the Promise and proposed incorporation of the UNCRC into domestic law, will continue to support the agenda to keep children out of the criminal justice system and to promote the use of a whole system approach to preventing offending by young people in Scotland.
The Programme for Government 2019-20 made a commitment to consult on enabling joint reporting to the Crown Office and Procurator Fiscal Service and the Principal Reporter of all 16 and 17 year olds' offence cases. Scottish Ministers agreed to widen the consultation to seek views on increasing the age at which children can be referred to the Reporter on care, protection and offence grounds. This includes young people at risk of exploitation, abuse or harm due to their own behaviour or the behaviour of others. The proposed changes would enable agencies to provide child-centred support for all under 18 year olds.
Following two public consultations in 2020 and 2022, the Programme for Government 2022-23 committed to the introduction of a Children's Care and Justice Bill. The Bill aims to improve experiences and outcomes for children in Scotland who interact with the Children's Hearing and criminal justice systems. It also aims to improve experiences and outcomes for all children who are accommodated in care and justice settings in Scotland, including those who are placed here across borders in exceptional circumstances. The Bill will help Scotland to Keep the Promise.
Whole System Approach
The whole system approach (WSA) to preventing offending by young people was rolled out in 2011. This multi-agency approach focusses on early intervention, diversion, court support, transitions and managing risk of serious harm for those up to age 18. The Expert Review of Mental Health Provision in Polmont (2019), recommended that consideration should be given to an extension of the WSA beyond the age of 18. Whilst the WSA currently focusses on young people up to the age of 18, it is recognised that much of the approach could be expanded beyond the age of 18, allowing support to young people who are experiencing later maturation and who require age and stage appropriate support.
Some local authorities currently deliver a WSA service to those over the age of 18. A total of £800,000 funding was provided across all 32 local authorities in 2018-19 with a further £800,000 provided in 2019-20 to support local authorities to re-energise strategic planning supporting the WSA up to age 18 and, where possible, to support an extension to young people beyond this age up to 21 (to 26 for Care Experienced people). This funding supported continued partnership working and strengthened links between youth justice, community justice, education, third sector and children's services.
For some aspects of WSA to extend beyond 18, there would need to be a change in legislation, there would also be an impact on resources for both children's and adult services. However, there is a willingness from key partners to continue to deliver this successful approach to under 18s and to consider expanding the approach to enable those over 18 up to 21 and 26 in some circumstances, to benefit. Information is required around numbers and needs of those over 18 who would benefit from such an expansion, along with information about costings and resources. Expanding WSA beyond the age of 18 features in the Vision for Youth Justice (2021) and also the Justice Vision (2022).
Procedures for arrest are contained within Part 1 of the Criminal Justice (Scotland) Act 2016 (2016 Act). Sections 50 and 51 of the 2016 Act place a duty on Police Scotland not to detain a person (which includes a child) unreasonably or unnecessarily in custody and to consider a child's wellbeing as a primary consideration when making decisions in relation to a child, including a decision whether or not to hold a child in custody. Section 52 of the Act requires the police to keep a child in their custody at a police station apart from any adult who is officially accused of an offence, unless there are child welfare reasons to the contrary. In dealing with a person in custody, Police Scotland adhere to the Standard Operating Procedures on the Care and Welfare of Persons in Police Custody and the 2016 Act (Arrest Process).
9.8 Legal Representation
LOIPR request: 31(d) right to effective legal representation.
The Criminal Justice (Scotland) Act 2016 provides at section 33 that the following persons cannot consent to being interviewed by the police without a solicitor present: (a) under 16s; (b) persons aged 16 or 17 who are subject to a compulsory supervision order or an interim compulsory supervision order; and (c) persons aged 16 years or over who, owing to mental disorder, appear unable to sufficiently understand what is happening or to effectively communicate. Furthermore, those persons aged 16 and 17 who are able to consent to being interviewed by the police without a solicitor present can only consent with the agreement of a relevant person: a parent or other suitable adult.
Any child, relevant person or deemed relevant person taking part in a Children's Hearing is allowed to attend with legal representation. Part 19, section 191 of the Children's Hearings (Scotland) Act 2011 sets out conditions and where children's legal aid is available, including when automatically available, which includes all scenarios where a secure care authorisation might be made within a Compulsory Supervision Order (CSO). The Scottish Legal Aid Board (SLAB) maintain a register of those solicitors eligible to provide legal aid assistance in Children's Hearings related proceedings. SLAB make the grant of children's legal aid which is subject to conditions imposed by SLAB. The provision of legal aid is discussed further at section 3.14.
9.9 Sentencing of Under 18s
LOIPR request: 31(c) life imprisonment and imprisonment as a last resort.
Article 37 of the UNCRC states that children should not be sentenced to life imprisonment with no chance of release. In Scotland, when imposing a life sentence, the court must specify a 'punishment part', which is the period which the offender must spend in custody. When the punishment part of the sentence has elapsed, the prisoner may apply for parole. The Parole Board will release a life sentence prisoner if they consider the risk posed by that person can safely be managed in the community. If granted, the prisoner will be released on licence.
The Scottish Government is of the view that Article 37 of the UNCRC does not prohibit the use of 'detention without limit of time' with a fixed 'punishment part' (which are mandatory in Scotland for a person convicted of murder) and that, as the possibility of release exists once an offender has served the 'punishment part' of the sentence, our sentencing law is compatible with the prohibition of detention without the possibility of release.
Sentencing in individual cases is a matter for the trial judge, taking account of all the facts and circumstances of each particular case. In January 2022, the Scottish Sentencing Council Guidelines on the sentencing of individuals under 25 came into effect. This includes the guidelines that:
"A custodial sentence should only be imposed on a young person when the court is satisfied that no other sentence is appropriate. If a custodial sentence is imposed on a young person, it should be shorter than that which would have been imposed on an older person for the same, or a similar, offence. The court should consider remitting a case to a children's hearing for disposal where it is competent to do so."
Section 207(1) of the Criminal Procedure (Scotland) Act 1995 provides that it shall not be competent to impose imprisonment on a person under 21 years of age. A court may impose detention (whether by way of sentence or otherwise) on a person, aged between 16 and 21 years of age, where the court would otherwise have a power to impose a period of imprisonment. However, a court can only impose detention on an offender aged under 21 if it is of the opinion that no other method of dealing with the offender is appropriate; and the court is required to state its reasons for that opinion (though this is subject to mandatory minimum sentences for certain offences relating to firearms and dangerous weapons).
Consideration of Alternatives to Remand
LOIPR request: 31(e) alternatives to pre-trial detention.
The decision on whether or not to remand a young person is a matter for the independent courts. A multi-agency group was set up in 2018 to consider the use of remand and bail. The group updated court guidance available through the Children and Young People's Centre for Justice (CYCJ) and carried out research on the use of remand and bail. The group's report was published in December 2020 and further discussions have taken place with His Majesty's Chief Inspector of Prisons for Scotland (HMCIPS) and Community Justice Scotland to understand what more can be done.
In 2021, the Scottish Government Youth Justice team commissioned CYCJ to carry out research work to gather information about the remand population. This included Scottish Prison Service (SPS) data and information gathered through social work. Findings showed that there was a lack of communication with the child when bail was being opposed. There were also barriers to providing alternatives to remand and children did not fully understand the court process. Findings also showed the need for more accommodation to be made available to reduce bail being opposed. Other work includes discussions with local authorities to explore what community-based alternatives are available and to support the development and strengthening of alternatives where there are gaps. The Scottish Government is also in discussions with partners around the future of secure care (see section 9.10).
9.10 Secure Care Accommodation
LOIPR request: 31(f) and (g) use of segregation and access to education and health services for children in detention.
Where custody is deemed the only option by the court, then the use of secure care is recommended, where possible, rather than a young offenders institute. Secure care is a form of residential care that restricts the freedom of children under the age of 18. It is for the small number of children who may be a significant risk to themselves or others in the community, whose needs and risks can only be managed in secure care's controlled settings. Secure care aims to provide intensive support, a nurturing environment and safe boundaries to help these highly vulnerable children re-engage and move forward positively in their communities.
Children and young people in secure care have access to education and health, including mental health services, as any child would do in the community. When a young person first enters secure accommodation they are initially placed in an assessment unit where their needs, including health, education, vulnerability and strengths are assessed. Education is provided in-house and follows Scotland's Curriculum for Excellence. The children also have access to outdoor space and sports during their placement.
Each of Scotland's secure centres employ a nurse and all children and young people undergo a full health check on placement. A General Practitioner Doctor visits secure centres at least every two weeks or as required. A dentist also visits each centre regularly to treat young people.
Access to mental health support varies across the centres. A professional advisory group is considering the mental health needs of children in secure care, which will inform development of NHS Community Forensic/Secure Care Outreach CAMHS across Scotland. The Scottish Government has funded the Interventions for Vulnerable Youth (IVY) project since 2014. This project is a multi-disciplinary (psychology/social work) tiered approach to risk assessment and management for high risk young people (aged 12 to 18) who present with both complex psychological needs and a high risk of violent conduct. This includes support to those within secure care.
Segregation in secure care should not be used as a matter of routine, it is an extreme measure to be taken only when other appropriate measures have been tried and have been unsuccessful. Segregation in secure care is never used as punishment and should only be used as a last resort, for example to prevent a young person from significantly injuring themselves or others. Where segregation is used, there are strict measures and time limits to follow. Statute requires that every use of this practice is recorded and places strict limits on its implementation. During the period of segregation the young person will be monitored at least every 15 minutes. The staff member responsible for placing the young person in their bedroom must record the reason for the segregation/separation and these must be passed to the unit manager.
When the period of segregation ends, the young person must be given the opportunity to comment or respond to the situation. The young person's comments should be recorded along with details showing the time segregation ended. This is submitted to the unit manager to review and file.
Future of Secure Care
Consultation undertaken ahead of the introduction of the Children's Care and Justice Bill (see section 9.7) elicited views on a range of matters, including on whether all children who require to be deprived of their liberty should be cared for in safe, secure, trauma-informed environments, such as secure accommodation rather than young offenders institutions. Demand and supply of secure care is complex, and secure units' operations are funded almost exclusively from their bed rate. We recognise that this model must change and discussions are ongoing to consider future options. We will continue to work with partners, to explore alternatives to remand with secure care and intensive community-based alternatives to be considered instead.
9.11 Young Offenders Institutions (YOIs)
We are committed to ending the placement of under 18s in YOIs and supporting care-based alternatives. No child under the age of 16 has been detained in either a prison or a YOI in Scotland in over 10 years. As noted in section 9.7, official statistics show that the number of under 18s in custody has reduced significantly since 2007. As of 2 November 2022, there were 6 under 18s in YOI in Scotland.
Young people aged 16 and 17 who are sentenced to detention in a YOI are held separately from those aged 18 and over, in recognition of the vulnerability and significant care requirements of these young people. There are, however, occasions where it has been determined to be in the child's best interests that there should not be full separation. For example, there have recently been so few girls under age 18 in custody in Scotland that their full separation from those aged 18 and over would result in a greatly impoverished learning and social environment. In these cases, contacts are carefully considered and monitored, taking account of individual needs, circumstances and wellbeing.
Since 2014, the Scottish Prison Service has had a Vision for young people in custody. This has now been refreshed to reflect the changing landscape of youth justice and to provide an updated view of the population, including in relation to continuing reductions in the population of young people in custody and the increasingly complex needs of individuals. Additionally, there is evidence of high proportions of adversity and trauma in the young people's lives prior to their arrival in custody. The central premise of the refreshed Vision remains for young people to spend their time in custody enabling them to prepare for a positive future. A key purpose is for SPS and partners to provide an environment and opportunities in which young people can learn new skills which will aid employability.
Young people are given an assessment during their induction to the YOI and educational providers then develop an individualised learning plan for the young person, enabling each individual to progress and achieve outcomes across the four fundamental capacities of Scotland's Curriculum for Excellence. On admission to custody, young people also receive a full assessment of their physical and mental health requirements followed by an addictions assessment, if required. Following this assessment, referrals are made to a doctor or Advance Nurse Practitioner (ANP), or other specialists, as necessary and healthcare staff may contact any external services for information regarding medical histories.
Since the publication of the Expert Review of Mental Health Services at HMP&YOI Polmont, despite national challenges to recruiting to mental health posts, NHS Forth Valley has used Action 15 funding provided by the Scottish Government to increase the mental health workforce. This has included recruiting additional speech and language therapist sessions and mental health occupational therapists. Leadership structures have also been reviewed within NHS Forth Valley prison sites to improve and support staff retention and career progression. Additional support has been provided to staff working at Band 7 and a competency framework for mental health staff has been introduced. All NHS staff working at HMP&YOI Polmont undergo Essential CAMHS and Decider training, and a trauma-informed tool for young people is being adapted by NHS Education for Scotland.
HMP&YOI Polmont relaunched its Inclusion Unit in February 2021. This unit is designed to work with those young people and women, whether on remand or convicted, who are most disengaged and finding it difficult to manage their time in custody. The staff provide individualised support that meets needs either on a 1-1 and/or group basis using a variety of interventions. They take responsibility for the more complex cases across the establishment and ensure a comprehensive plan is in place for each person, working with colleagues, third sector partners and community based services.
Solitary confinement is not practised in Scottish Prisons. Rule 95 of the Prisons and Young Offenders Institutions (Scotland) Rules 2011 enables a Governor to remove a prisoner or young offender, including those aged 16 and 17 years old, from association with other prisoners or young offenders for an initial period of no more than 72 hours. The Governor can take this action where they are satisfied it is appropriate to do so to protect the interests of the individual or to ensure the safety of any other person or in order to maintain good order or discipline in the YOI. In addition, the Governor can order that a prisoner or young offender be accommodated in specified conditions (which could include removal from association) where a healthcare professional advises that it is appropriate to do so in order to protect the health or welfare of the individual or any other prisoner or young offender.
The Rules provide important safeguards for persons removed from association which ensure that the reason for removal is clearly communicated to the person and that they are afforded the opportunity to make representations about their removal.
Whilst removed from association, there will normally be no unnecessary restrictions on their entitlements to visits, including legal visits, access to telephones and correspondence and exercise, unless their management plan or care plan considers it necessary. The focus throughout the period the person is removed from association will be to reintegrate them at the earliest and safest opportunity back into the mainstream population thus minimising any time spent separate from others. HM Inspectorate of Prisons for Scotland inspects the arrangements for persons removed from association.
Cases of Violence in the Youth Justice System
LOIPR request: 31(h) investigating cases of violence within the child justice system.
SPS report any allegations of physical or sexual abuse to Police Scotland for independent investigation. Independent Prison Monitors appointed under the Prisons (Scotland) Act 1989 to monitor the conditions in prison and the treatment of prisoners also have powers to investigate any matter that a prisoner refers to them.
Current policy and practice ensures reporting of violence and investigation. The Prisons and Young Offenders Institutions (Scotland) Rules 2011 ('The Prison Rules 2011') at Part 11 (Discipline) and Part 12 (Requests and Complaints) detail how matters relating to discipline (breaches, punishment, appeals) and prisoners' requests and complaints are to be dealt with. SPS and the Scottish Government are engaging in work to respond to the Scottish Child Abuse Inquiry covering the scope of the enquiry from the 1930's to 2014.
9.12 Shifting the Balance from Custody to Community-Based Interventions
Stakeholder request: measures to tackle the impact of parental imprisonment.
It is estimated that around 20,000 children in Scotland are affected by parental imprisonment. Having a parent in prison is recognised as an Adverse Childhood Experience.While we are clear that prison is necessary for those who pose a risk of serious harm in order to protect the public and keep victims safe, we also recognise that imprisonment damages the connections that prevent people from offending or reoffending, such as family relationships, accommodation and employment. Short-term imprisonment, including remand, is evidenced as not being an effective measure to address the underlying causes of offending behaviour. Without proper support during their sentence, or following release, people can cycle back into the criminal justice system and potentially prison.
In recognition of this, the Scottish Government has a long-term aim for imprisonment to only be used for those who pose a risk of serious harm and for community-based interventions to be utilised consistently for those who don't pose such risks. This is a long-term objective, but we are taking a number of short to medium-term actions to refocus how imprisonment is used. This includes: introducing the Bail and Release from Custody (Scotland) Bill in 2022 to reform the law governing bail decisions and some mechanisms around prison release; increasing consistency by named public bodies who engage in pre-release planning; increasing investment in community-based interventions and community sentences; and continuing to fund third sector voluntary throughcare services which support individuals leaving short-term prison sentences by providing flexible and practical support, in line with their individual needs, to help them reintegrate successfully back into the community.
9.13 Prison Visitors' Centres
The Scottish Government provides support for families impacted by imprisonment through its grant funding of the core running costs for 12 Prison Visitor Centres operated by the third sector. Visitor Centres work with the families of those in custody, providing a range of practical and emotional help with everyday needs and signposting families to specialist services where appropriate. Visitor Centres work hard to maintain family ties and parental bonds. They often support children's visit sessions and create a variety of activities that maximise engagement between a child and their parent, including marking notable calendar events such as Mother's day or Father's day. Funding of £800,000 has been allocated to Prison Visitor Centres in 2022-23, with a total of £4.7 million provided since 2016.
9.14 Young People in the Armed Services
LOIPR request: 33. Optional Protocol on the involvement of children in armed conflict.
Matters of defence are reserved to the UK Government however, across all parts of the UK a young person can join the Armed Forces from the age of 16. In Scotland, as in the rest of the UK, parental consent for 16 and 17 years old is required before they can do so.
The Ministry of Defence has strict policies that prevent the involvement in hostilities of UK service personnel under the age of 18. The Scottish Government expects the Ministry of Defence to uphold these policies in full and, in response to queries from the Scottish Government, the MOD confirmed that there was no intention to change this policy and offered assurances that the UK Government takes the duty of care towards all recruits seriously, in particular for those under 18.
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