Children - raising the age of referral: consultation analysis

Executive Summary

Background

The Scottish Government launched a consultation to gather views on the principle of raising the age at which children can be referred to the Children’s Reporter to include all under 18s - whether on care, protection or offence grounds. This includes those who come to the attention of agencies for vulnerability such as those at risk of exploitation, abuse or harm due to their own behaviour or the behaviour of others.

The consultation opened on 17 June 2020 and closed on 7 October 2020. An independent analysis of consultation responses was commissioned, and this report presents the findings from that analysis.

Methodology

The consultation was open to both individuals and organisations and feedback was gathered via:

• a main online consultation questionnaire - containing seven substantive questions (three with both open and closed components) focussing mainly on the general principle of raising the age as well as the grounds for referral and potential implications of any changes for agencies involved in the youth justice system. Views on consequences of the change for victims harmed by children were also sought, focused on if/how victims should be better supported in the event of legislative change;
• a shorter Easy Read online consultation questionnaire - containing three substantive questions (two with both open and closed components) focussed mainly on the perceived fairness and equality of the proposals; and
• a series of qualitative engagement events to canvass the views of children and young people, including those with lived experience of the care and justice systems in Scotland.

The majority of responses were submitted via Citizen Space, the Scottish Government’s online consultation platform. All responses were read and logged into a database for analysis purposes. Closed question responses were quantified to ascertain the number and percentage of respondents who agreed/disagreed with each proposal or question statement, and open question data were analysed thematically to provide an overview of the main feelings expressed by participants.

Number and Nature of Responses Received

A total of 277 unique responses were received to the online consultation questionnaires, including 124 (45%) for the main consultation and 153 (55%) for the Easy Read version. The majority of responses came from individuals (n=202; 73%) compared to organisations (n=75; 27%). Among the organisations that responded, there was a reasonable split between public sector and other organisations, including those in the third sector, legal system representatives and academia as well as a number of child and adult care and protection committees.

There were nine separate submissions including feedback from sessions with children and young people.

Main Findings

Support in Principle

There was overwhelming support to raise the maximum age of referral with the large majority of respondents indicating that the age should be raised to 18 for care, protection and offence cases.

Respondents’ support for the proposal centred mainly around the need for equality, such that all young people up to 18 years of age had equal opportunities to access the appropriate care, assistance and support that they needed. The proposal was welcomed as a way of providing greater protection for the most vulnerable young people as well as potentially avoiding unnecessary custodial sentences/criminal records which may hinder future life prospects.

Raising the age would also remove the anomaly that, currently, a child turning 16 who is not already subject to a compulsory supervision order (CSO) or an open referral to the Reporter cannot be referred to the children’s hearings system, unless by the court following guilt being accepted or established (which many viewed as discriminatory). The importance of harmonising definitions of a ‘child’ in legislation was also a central feature of supportive responses.

Main Arguments Against the Proposal

Among the minority of (mainly individuals) who were against the proposal, the main reason given was that young people should be treated as adults once they passed 16 years of age, consistent with them enjoying other adult privileges such as voting, marriage, consensual sexual activity, etc. Some young people may not wish to be retained within a system designed for children, it was felt, and to do so was potentially over-protecting, patronising and may undermine responsibility and independence for some young people.

A small number (including young people themselves) also suggested that the children’s hearings system may not be a sufficient deterrent to young people or may be seen as a ‘soft option’, offering a non-satisfactory response for victims as well as potentially doing nothing constructive to prevent re-offending or to enable desistance. This was seen as especially relevant in cases where young people were prolific or high tariff offenders.

Importantly, even those who disagreed with the proposal overall suggested that cases should be dealt with on their individual merits as some young people may benefit from the wider support (including rehabilitation) afforded by the youth justice system. Young people who responded to the consultation also seemed to stress that responding to individuals’ unique needs was key.

Grounds for Referral

The majority of respondents felt that the existing grounds for referral to a children’s hearing were sufficient, however, there was some perceived inconsistent use of referral grounds between agencies and some differences in interpretation of their meaning. Greater clarity and precision on the existing grounds was encouraged (including making them appropriate to the extended age range) as well as making them more easily understood for panel members and young people alike. This would also give the grounds greater legitimacy amongst the young people whom the proposed change seeks to support, it was felt.

A number of potential new grounds were mentioned which would better reflect the wide range of Adverse Childhood Experiences (ACEs). There was particularly strong encouragement for new grounds linked to those who have experienced or are at risk of sexual exploitation or trafficking as well as those at risk of criminal exploitation (including being targeted, groomed and forced into participation in criminal activity). Those aged 16 and 17 were seen as being particularly at risk in both of these regards.

Potential Implications

The main general implications of the proposal for Children’s Hearings Scotland (CHS), the Scottish Children’s Reporter Administration (SCRA) and partner organisations were seen as increased workloads (brought about by more referrals and more complex referrals), greater demand on support services and the need, therefore, for increased resources to support the change. Extra costs would be offset by better outcomes for young people and society in the long term, it was felt.

The likely need to increase numbers of panel members and SCRA support staff to respond to the change (i.e. increased capacity) as well as the possible need to review panel member recruitment criteria to ensure better representation and diversity were both frequently mentioned. The need for potential specialisation of staff and panel members, to ensure a wider range of expertise, also featured often in responses as did the possible need to consider the professionalisation of the national children’s panel to ensure consistent, competent decision making. Existing challenges with recruitment and retention of sufficient numbers of panel members was also raised as something which may be exacerbated by the change in legislation, with potentially even fewer volunteers coming forward (because of a perceived increase in complexity of the role).

Training was also seen as a key need that would result from the change with specific suggestions including increasing panel members awareness of local services and supports available to young people, better understanding age appropriate risks for those aged 16 and 17 and increased familiarity with ACEs and the impact of trauma-histories on offending behaviours.

Support for Victims and Witnesses

The majority of respondents felt that, if the age of referral to the Reporter was increased, amendments would be required to ensure sufficient access to information and support for victims harmed by children. Restorative justice approaches were widely supported, with victims given an opportunity to have their views and experiences heard. Greater education among the public to raise awareness of the benefits of restorative justice may, however, be needed.

A robust, clear and transparent communications strategy was encouraged to provide victims with information regarding the process change and what it means for victims, including information about what support would be available within a new system. Information would need to be accessible and made available in a wide range of formats to meet communication preferences and needs, it was stressed. A separate more detailed and focused consultation may be required to better understand victims’ needs in light of the proposed change.

Only a small number of respondents indicated that amendments would not be required on the basis that victim support is an important but separate issue and the privacy rights of the child and the child’s safety/protection should be the primary focus of the change. Managing victims’ expectations around what can be shared was also noted as important when dealing with children and young people referred to the Reporter. Overall, however, there was support for a justice system that ensures all decisions are made in the best interest of the child whilst also being transparent and fair to victims (including young victims).

Views of Young People

The views of young people who took part in the consultation events largely mirrored those of the main consultation respondents. Increasing the age of referral would give young people an opportunity to be heard and engage with support to make positive life choices, as well as providing an opportunity to explore and address previous offending and trauma histories. Wider benefits included helping young people to better understand the seriousness of their actions while upholding their rights, as children. Young people highlighted that those aged 16 and 17 were still developing (cognitively and emotionally) and may lack maturity to be managed effectively in the adult criminal justice system. This view was echoed by some of the main consultation respondents.

Conclusions

Many challenges in implementing the proposed change were identified, including managing non-compliant behaviour of older young people, ensuring smooth transitions between child and adult services and how justice stakeholders would respond to increasing demand for support for young people, both practical and emotional. Despite the recognised challenges, however, the consultation highlighted a clear majority support for the proposal which would be embraced by most as ensuring that children and young people get the right support at the right time to enhance wellbeing and maximise opportunities for better life outcomes.