Prisoners (Early Release) (Scotland) Bill: child rights and wellbeing impact assessment

Conclusion

7. As a result of the evidence gathered and analysed against all UNCRC requirements, what is the potential overall impact of this proposal on children’s rights?

The overall impact of this Bill is positive in terms of the rights of children who are serving short sentences of under four years in secure accommodation. There are also potential positive impacts for children with a parent being released from prison at an earlier stage.

There are some identified negative impacts on the rights of children for children who are victims, especially during the initial stages of commencement of this Bill when release points would be moved earlier than planned. However, where negative impacts may occur, mitigations have been identified that will limit the impact. It should also be noted that most negative impacts as a result of the release of a prisoner would largely apply regardless of the release point being retained at the 50% point of the sentence, or being reduced to 40%.

8. If you have identified a positive impact on children’s rights, please describe below how the proposal will protect, respect, and fulfil children’s rights in Scotland.

A number of positive impacts on the rights of children and young people have been identified. As above, these impacts have been broken down into categories of children and young people who may be affected.

1. Children and young people serving short sentences of under four years in secure accommodation and young adults sentenced as children

It has been assessed that bringing forward the point of release for some children serving short sentences of under four years in secure accommodation could positively impact a number of children’s rights. It is important to emphasise the changes be proposed by the Bill will result in an earlier release by a maximum of approximately 21 weeks. The impact of the rights outlined below is therefore quite limited.

In terms of UNCRC article 3, this Bill is assessed as being in the best interests of the child. The Bill will reduce the time spent in secure accommodation and increase their opportunity for integration within the community.

In terms of UNCRC article 9, there will be a positive impact on children’s rights in limiting separation from parents. This is because children serving sentences in secure accommodation are limited in the contact they have with their parents, wider family and the community. Bringing forward the point of release will limit the separation of parent and child.

In terms of UNCRC article 37(b), this bill will ensure that the shortest appropriate time is spent in secure accommodation.

Finally, rights outlined in UNCRC 40(1) on treating children in a way that recognises the desirability of promoting the child’s reintegration are also positively impacted.

2. Children and young people as victims of crime

No positive impacts have been identified on children and young people as victims of crime.

3. Child or young person whose parent/carer is serving a short-term sentence

Parents and carers who are serving eligible short-term sentences will be released at an earlier stage than they otherwise would have been. For some children and households this will have a positive impact in terms of the availability of a parent to be involved in a child’s life, and for the parent to contribute to the household in terms of increased earning potential, childcare and supporting the child’s emotional wellbeing.

Therefore, this Bill may have a positive impact for some children and young people in terms of UNCRC article 3, best interests of the child and UNCRC article 9 in limiting separation from parents. It is important to emphasise that a reduction in custodial sentence of 10% will result in an earlier release by a maximum of approximately 21 weeks. The impact of this is therefore quite limited in terms of positively impacting children’s rights.

9. If a negative impact has been identified please describe it below. Is there a risk this could potentially amount to an incompatibility?

A number of negative impacts on the rights of children and young people have been identified. As above, these impacts have been broken down into categories of children and young people who may be affected.

1. Children and young people serving short sentences of under four years in secure accommodation and young adults sentenced as children

A potential negative impact has been identified in terms of UNCRC article 2, non-discrimination, in terms of the exclusions to the change in release point for those serving sentences for sexual offences or domestic abuse. This is because children who are detained for these offences will not be eligible for automatic early release at 40% of the sentence, which could have brought about other positive impacts for them as outlined in question 8.

2. Children and young people as victims of crime

It has been assessed that there may be a potential negative impact on the rights of children and young people who are victims of crime, particularly in cases where the prisoner involved in their case is released at an earlier point if victims have been preparing for release based on the existing legislative framework. In these circumstances victims may feel unprepared for an earlier release date. This Bill could therefore be assessed as having a negative impact on UNCRC article 3, best interests of the child. Efforts will be made to mitigate this potential negative impact by facilitating access to information about the release of individual prisoners when victims of crime wish to receive this, and by providing for tranches of release to reduce the impact on support services, including VSOs.

3. Child or young person whose parent/carer is serving a short-term sentence

Some children and young people may be positively impacted by the earlier release of a parent or carer. There is also the potential for negative impacts, depending on the individual circumstances of each family.

There may be a negative impact on children’s rights in cases where there is a history of abusive behaviour or violence, especially when the family member released returns to the family home. There may also be cases where for other reasons, children and young people do not wish to have contact with their incarcerated parent. However, any negative impact would likely to have been felt at a later stage if the release point had remained at 50% and the impact is limited to the effect of bringing forward the release point to 40%.

Mitigation Record

What options have been considered to modify the proposal in order to mitigate a negative impact or potential incompatibility?

Please summarise mitigation actions taken below

Issue or risk identified and relevant UNCRC requirement

A potential negative impact has been identified in terms of UNCRC article 2, non-discrimination, in terms of the exclusions to the change in release point for those serving sentences for sexual offences or domestic abuse.

Action Taken / To Be Taken

Under section 208 of the Criminal Procedure (Scotland) Act 1995, children can have their case referred to the Parole Board at any point during their sentence, with no exclusions based on offence type. No changes will be made to this and children under the age of 18 may still be referred to the Parole Board if assessed as appropriate by the relevant authorities. This includes for children who may have received sentences for sexual offences or domestic abuse.

Children who are sentenced to a period of detention in secure accommodation during summary proceedings under section 44(1) are regularly reviewed and the child can be released at any time if they no longer meet the criteria for detention in secure accommodation.

There are therefore already legal avenues for children to be released at any point in their sentence regardless of the type of offence for which they have received a sentence, and this Bill will not change these provisions.

Issue or risk identified and relevant UNCRC requirement

There is a potential negative impact on UNCRC article 3, best rights of the child, in terms of children who are victims of crime in cases where the prisoner involved in their case is released at an earlier point than they would have otherwise been released.

Action Taken / To Be Taken

In order to ensure that community-based services, including victim support organisations, are prepared for the implementation of the proposals, we have begun engagement and will continue this over the coming months to consider what can be done to raise awareness of changes to release point, and to ensure that accurate information is made available.

In addition, prisoners immediately eligible for release will be released in tranches, rather than in one day. The aim of this is to mitigate the impact of the initial release on the resources of community-based services, including victim support organisations, ensuring that victims have adequate access to services that may provide support and information.

There are also systems in place for victims who wish to receive information about the release of a prisoner involved in their case. Through the Victim Notification Scheme and Victim Information Scheme, victims over the age of 12 can nominate a VSO to receive information at the same time as them, or on their behalf, regarding the release of the linked individual in their case. Parents or carers of children under the age of 12 may exercise the right to receive this information on behalf of a child.

Issue or risk identified and relevant UNCRC requirement

There is a risk to the wellbeing of children and young people whose parent is released from prison in cases where there is a history of abusive behaviour or violence, especially when the family member released returns to the family home. There may also be cases where for other reasons, children and young people do not wish to have contact with their incarcerated parent. This would impact UNCRC article 3 (Best interest of the child) and UNCRC article 19 (protection from violence, abuse and neglect).

Action Taken/ To Be Taken

Provisions have been made within the Bill to exclude certain categories of offender from earlier release. This includes those who are serving all, or part, of their sentence for sexual offences or domestic abuse.

Local support networks may be also be available, for example, where the child or young person is in contact with Children and Families Social Work, or any relevant third sector provider. This type of support provision would be available depending on the circumstances involved in each case.

Voluntary throughcare support remains available for those released from custody, which aims to reintegrate an individual back into the community and provide whole family support where needed.

10. As a result of the evidence gathered and analysed against all wellbeing indicators, will the proposal contribute to the wellbeing of children and young people in Scotland?

It is anticipated that this Bill will positively affect the following children’s wellbeing indicator:

Included: By bringing forward the point of release for most people serving short-term sentences, some children will leave secure accommodation at an earlier stage than if this change had not been made and will spend a longer period under supervision in the community. This will offer children a greater chance for inclusion.

11. How will you communicate to children and young people the impact that the proposal will have on their rights?

Given the very small number of children who will be impacted by a change to their release date upon introduction of the measures within the Bill, it would be appropriate for staff who work with children to make an informed decision about the best way to communicate to them that their release point will be sooner than it otherwise would have been.

When calculations are done, the Child Placement Manager will send written confirmation to the child’s secure accommodation key worker and their social worker. The change in legislation will be explained at the regular multi-agency placement review meetings which take place with the child and family in attendance, so there is an opportunity to discuss and ask questions. Secure staff and social work will also discuss with the child on a 1:1 basis to ensure they understand the implications.

Once the measures within the Bill commence, all other children who receive an eligible short-term sentence will then have their sentence in secure accommodation explained to them by the Scottish Government’s Child Placement Manager (Youth Justice Team), as is currently the case.

This CRWIA will also be published online on the Scottish Government’s website so that is it available for all interested parties.

In addition, an information sheet^[33] has been published on the Scottish Government’s website providing information on the prison population, wider actions being taken to address the prison population, and this Bill. This information sheet will be regularly updated reflecting feedback from victim support organisations to ensure it meets the needs of victims who may access this information.