Age of Criminal Responsibility Programme Board minutes: August 2021

Attendees and apologies

Present

• Lesley Sheppard (Chair), Scottish Government, Care, Protection and Justice Division

• Lucy Smith (LS), CRPJD
• Lynsey McKean (LM), Police Division
• Sarah Meanley (SM), Police Division
• Jim Thomson, Police Division
• Denise McKay (DM), Legal Directorate
• Anna Donald (AD), Victims & Witnesses Unit, Criminal Justice Division 
• Neil Hunter (NH), Principal Reporter, Scottish Children’s Reporter Administration
• John Trainer (JT), Chief Social Work Officer & Head of Child Care and Criminal Justice, Renfrewshire Council
• Gerard Hart (GH), Chief Executive, Disclosure Scotland
• Judi Heaton (JH), Police Scotland
• Sam McCluskey (SMc), Police Scotland
• Sharon Glasgow (SG), Social Work Scotland representative
• Rod Finan (RF), Office of Chief Social Work Adviser

Apologies

• Tom McNamara, CRPJD
• Graham Thomson, Police Division
• Iona Colvin, Chief Social Work Adviser

Supporting official

• Katrina McNeill, CRPJD

Items and actions

Welcome, introductions and apologies

The Chair welcomed board members to the meeting and noted the apologies. The Chair outlined the purpose of the meeting: to take stock of progress since the last meeting, to provide updates on implementation, particularly in relation to:

• court rules
• establishing the child interview rights practitioners (ChIRPs) register
• publication dates for ministerial guidance

Minutes, actions and matters arising

The Board approved the minutes of the meeting held on 25 May 2021.

There were five actions outstanding from the last meeting. The action log was circulated to the group in advance of this meeting. LS gave an update on the actions:

• court rules, to be discussed during this meeting
• the ChIRP policy paper and Code of Practice have been finalised, the Code of Practice was published on 4 June, and Regulations to establish the Register have been laid in Parliament.
• draft ChIRP training material was shared with the Police Scotland (PS) ACR Team and with training providers in Police Scotland, officials attended a mock training event on 23 June
• operations implications of the ACR Act at local levels and consideration of the UN Climate Change Conference of the Parties (COP-26) in November 2021
• PS and Social Work Scotland have regular meetings to discuss implementation issues, SMc advised that while there is no substantive update, policing arrangements for COP-26 continue to be a significant undertaking for PS, logistical implications are challenging
• it has been confirmed that a child’s home may be used as a place of safety

Update on court rules

LM updated the Board on progress, expanding on the paper that had been circulated in advance of the meeting. The Scottish Civil Justice Council (SCJC) are considering by correspondence the court rules that will support Part four of the Act. The rules will then be considered at the SCJC meeting in September. 

Police Division have established a working group to discuss the provision of an out of hours service for applications for court orders. The group has developed a summary paper for the next meeting at the end of August. The group is discussing with PS the possibility of expanding out of hours provisions to include orders for the taking of intimate samples (which was the original focus of the group), for the search of a child, and for investigative interviews. The group will develop an options paper for establishing an out of hours service, which will be explored in discussion with court service. As part of those, discussions, PS consider it will be difficult to move forward until court rules are available. The Scottish Courts and Tribunals Service (SCTS) will need time to develop their IT system once the rules are established. The Scottish Legal Aid Board (SLAB) will also need to review its IT and is carrying out exploratory work with legal aid solicitors to ensure duty solicitor support for children for out of hours applications.

The following key points were made during the board’s discussions:

• SMc asked that consideration be given to out of hours provision for other order-making powers (that is search of a child under 12, and for the investigative interview), lack of out of hour provisions for all three orders is a significant issue for PS
• LM confirmed the working group is aware of the challenges to putting in place out of hours provisions, and will update PS as soon as possible about including all three orders, she explained that the main issue is whether it is possible to have out of hours provisions at all
• the readiness of the court service (and of sheriffs) to deal with out of hours applications to ensure applications are progressed, LM confirmed that the working group is to consider how the judiciary might be consulted on this
• lessons could be learned from virtual court hearings, the worst case scenario would be that a comprehensive out of hours service is not in place at date of commencement, but a work around is being explored, SMc advised that PS would need details on what a work around might look like to enable them to implement it
• the Scottish Government consultation on the response to the pandemic includes consideration of virtual hearings, officials are considering all options including the possibility of a paper workaround, although there are implications for handling papers
• discussions are ongoing with SCTS on whether an out of hours process similar to that followed for out of hours child protection orders could be developed, decisions on whether applications could be considered virtually will be for the sheriff, and it was noted that some families may not have remote access

Action

• officials to provide an update on progress before the next meeting

Ministerial and other guidance

LS confirmed that the ministerial guidance on investigative interviews and on the use of the power to take a child to a place of safety guidance are due to be published on 2 September. There have been two main changes to the guidance on the use of the power to remove a child to a place of safety since the documents last came to Programme Board. The list of places of safety has been removed, this will be published separately and the guidance clarifies that a child’s home may be used as a place of safety. There have been no changes to the guidance on the investigative interview since it was last seen by Programme Board.

Officials are considering publishing the list of places of safety on the Youth Justice Improvement Board’s website. Board members shared concerns about the level of detail that will be published and the risk of information being accessed by people who do not need to see it.

Action

• officials to consider where and how to publish the list of places of safety and the level of detail provided in the list

Operational guidance

The operational guidance is being finalised. It will be made available to partners in early September to align with publication of the statutory guidance. This will support planning at a local level.

Update on establishing the register of child interview rights practitioners

An update paper was circulated in advance of the meeting setting out the statutory requirements and details of the applications to become a ChIRP. An expressions of interest exercise took place and applicants have been invited to take part in the training. A further assessment will then be made of who to appoint to the Register or place on the reserve list.

Whilst applications have not been received from solicitors based in every local authority area in Scotland, officials are confident that there will be Scotland-wide coverage, as most local authorities have at least one applicant and some have more than one. The Board noted that availability and travel time might impact on the timing of investigative interviews.

The Board agreed the importance of involving a ChIRP in the planning for an investigative interview as early in the process as possible; officials are mapping where issues might arise which will allow targeting areas without a dedicated ChIRP for future expressions of interest.

The Board discussed how PS will access the register, particularly out of hours. There will be an on-call rota within SG for access to the register. Where an investigative interview is planned to take place outwith office hours (such as at a weekend), because it meets the needs of the child, the ChIRP would be available for this.

Action:

• officials to provide update on ChIRP progress at next meeting

Update on other areas of implementation

Section 104 Order

The process for obtaining the section 104 Order is on track, with the Order due to come into effect in mid-December. The Implementation Team is seeking final ministerial agreement for the laying of the Order in Westminster.

SMc mentioned the presence of children from outside of Scotland at COP-26 in Glasgow (1 to 12 November 2021) and that, depending on the commencement date of the Act, the potential gap which could emerge. LSh noted this would only be relevant in a very specific set of circumstances for under 12s and the need to consider the balance of risk and impact. In the absence of the Order existing cross-border arrangements continue to apply.

Regulations

Two sets of regulations are being developed to support commencement. One is on jurisdiction and the other is on reporting requirements stemming from the use of the place of safety power. In relation to the regulations on reporting requirements, SMc raised concerns about the content of draft regulations, specifying the lack of ICT to support this until mid-2022, until which manual checks of every incident would be needed to deliver what may be required. It was confirmed that that discussions will continue with PS about proportionality and deliverability of reporting requirements.

AOB and date of next meeting

Date of commencement

​​​​​​​The Chair noted the need for partners to have clarity on the date of commencement for the Act, and advised that advice will be put to ministers setting out options and risks to inform their decision. The Chair thanked those would have made contributions, which will help officials clarify the options and risks for ministers’ consideration.

​​​​​​​The Board agreed for the next meeting to be held in four weeks. 

Action

• secretariat to send invitation for next meeting

Summary of actions

• officials to provide an update on progress on court rules before the next meeting
• officials to consider where and how to publish the list of places of safety and level of detail provided in the list
• officials to provide update on ChIRP progress at next meeting
• secretariat to send invitation for next meeting

The next meeting will be held on Thursday 16 September at 10:30am to12:00pm.

SG: DCAF: CRPJD

August 2021