Age of Criminal Responsibility (Scotland) Act 2019: child interview rights practitioners application guidance

Overview

The Scottish Government is preparing for the establishment and maintenance of a register of persons authorised to provide advice, support and assistance to children in relation to their involvement in investigative interviews.

Investigative interviews under the Age of Criminal Responsibility (Scotland) Act 2019 are intended for only the most serious cases, and only when interviews are necessary to properly investigate a child’s behaviour and the circumstances surrounding it.  When the behaviour being investigated relates to when the child was under 12 years of age, the child will have the right to a ChIRP, even if they are over the age of 12 by the time the interview takes place.

Statutory guidance for investigative interviews will be issued in accordance with the requirements of this Act (as set out in section 57(4)) reflecting the exceptional nature of investigative interviews.  This is expected to be published mid-June 2021.  It will explain that in cases of lower level harmful behaviour, police officers can still speak with children in an age appropriate way without the need for a child interview rights practitioner (ChIRP).

Background in the law

The Age of Criminal Responsibility (Scotland) Bill as introduced made provision (in section 40) for section 122 of the Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”), which allowed for the extension and adaptation of children’s advocacy services to assist children in relation to their involvement in a children’s hearing. It also introduced regulation-making powers around qualifications, training, expenses, fees and allowances.

Amendments passed at Stage 3 of that Bill essentially removed the references to “advocacy worker” and replaced them with “child interview rights practitioner”. The change to the role’s name was intended to address the views of key stakeholders – prospective children’s hearings advocacy providers and legal representatives already engaged in the Children’s Legal Assistance Scheme – who raised concerns about the use of the term “advocacy worker” because the role as outlined in the Bill as introduced was not consistent with their understanding of advocacy.   For example, an advocacy worker will help a child explore their options and rights but will not make recommendations or advise on a particular course of action which is applicable to the role of the ChIRP.  The fundamental purpose of the role in protecting children’s rights remains the same, but the changes make clear that protecting rights, age appropriate practice, and building trusted relationships, are at the core of our approach.

Section 51 of the Age of Criminal Responsibility (Scotland) Act 2019 (“the 2019 Act”), will when commenced, provide for a child who is involved in an investigative interview either by agreement under section 40(2) or by a child interview order made under section 44 to be supported by a child interview rights practitioner (ChIRP). The ChIRP will provide advice, support and assistance to children in relation to their involvement in these interviews. The ChIRP will be a solicitor enrolled in the roll of solicitors kept under section 7 of the Solicitors (Scotland) Act 1980 and will be drawn from the Children’s Legal Assistance Scheme. This linkage means it  may be possible to  continue to represent the child at any subsequent children’s hearing. This recognises and respects the fundamental importance of relationships for young children navigating these processes. The provision of “advice, support and assistance” includes the ChIRP:-

(a) helping the child to understand:

• the purpose of the interview
• the child's rights in relation to the interview (including the child's right to refuse to answer questions)
• what may happen as a result of the interview

(b) making recommendations to the child about the exercise of the child's rights in relation to the interview
(c) being present with the child in the room in which the interview is being conducted
(d) communicating on the child's behalf with the person conducting the interview or otherwise supporting the child in communicating with that person
(e) questioning whether the interview is being conducted:

• in accordance with any child interview order authorising the interview or otherwise fairly
• in a way that treats the need to safeguard and promote the wellbeing of the child as a primary consideration

The power to establish and maintain a register is contained in section 56 of the 2019 Act. This enables regulations to make provision in relation to the:- 

• appointment to the register (including period of appointment) and potential disqualification of persons to be known as child interview rights practitioners (ChIRPs)
• training of ChIRPs
• fees (including expenses and allowances) 

Applications are invited from individuals, supported by their law firm, to make a national and/or regional application for inclusion on the ChIRPs Register.  Individuals must be able to demonstrate the capacity to cover the totality of at least one local authority area and if individuals wish to be considered for more than one local authority area, we need assurances that any constraints on ability to travel would not adversely impact a prospective ChIRP carrying out this role. 

Consultation and policy development

In developing the policy for Child Interview Rights Practitioners (ChIRPs), we have consulted and engaged with representatives of the legal profession in Scotland, including: the Scottish Legal Aid Board, Clan Childlaw, the Law Society of Scotland, the  Scottish Child Law Centre, Livingstone Brown, the Faculty of Advocates, Keegan Smith, and McCarry’s Solicitors. We have also engaged with the Children’s Legal Assistance Scheme peer review group, and sought views from wider care and justice stakeholders associated with the Age of Criminal Responsibility Act implementation arrangements. 

We have been able to use feedback from stakeholders to refine the conditions of registration and the standards of practice, as well as gathering views on the fee structure and the overall management of the scheme.  We have also worked with Scottish Government Access to Justice colleagues on the proposed scheme. The consultation and feedback has enabled us to develop a Code of Practice for ChIRPs and a fee structure.  We expect the Code of Practice to be published on 11 June 2021.