Victims, Witnesses, and Justice Reform (Scotland) Bill: child rights and wellbeing impact assessment (CRWIA)

Assessing the impact against the UNCRC requirements

Further information about the UNCRC requirements, including easy-to-understand of the articles, can be found on the Children and Young People's Commissioner for Scotland website

Articles where a positive impact has been identified

• Article 1 – definition of the child
• Article 2 – non-discrimination
• Article 3 – best interests of the child
• Article 4 – implementation of the convention
• Article 12 – respect for the views of the child
• Article 13 – freedom of expression
• Article 16 – right to privacy
• Article 19 – protection from violence, abuse and neglect
• Article 39 – recovery from trauma and reintegration
• Article 40 – juvenile justice

Second optional protocol

• Article 8

Articles where a negative impact has been identified

• None

Articles where a neutral impact has been identified

• Article 5 – parental guidance and a child's evolving capacities
• Article 6 – life, survival and development
• Article 7 – birth registration, name, nationality, care
• Article 8 – protection and preservation of identity
• Article 9 – separation from parents
• Article 10 – family reunification
• Article 11 – abduction and non-return of children
• Article 14 – freedom of thought, belief and religion
• Article 15 – freedom of association
• Article 17 – access to information from the media
• Article 18 – parental responsibilities and state assistance
• Article 20 – children unable to live with their family
• Article 21 – adoption
• Article 22 – refugee children
• Article 23 – children with a disability
• Article 24 – health and health services
• Article 25 – review of treatment in care
• Article 26 – social security
• Article 27 – adequate standard of living
• Article 28 – right to an education
• Article 29 – goals of education
• Article 30 – children from minority or indigenous groups
• Article 31 – leisure, play and culture
• Article 32 – child labour
• Article 33 – drug abuse
• Article 34 – sexual exploitation
• Article 35 – abduction, sale and trafficking
• Article 36 – other forms of exploitation
• Article 37 – inhumane treatment and detention
• Article 38 – war and armed conflicts
• Article 41 – respect for higher national standards
• Article 42 – knowledge of rights

First optional protocol

• Articles 4 – 7

Second optional protocol

• Articles 1 – 7, 9 - 11

Impact on children and young people

The groups of children and young people affected by the Bill are:

• children and young people who are victims or witness in relation to a criminal investigation or criminal proceedings in Scotland
• children and young people who are accused of offending behaviour in criminal proceedings in Scotland
• children and young people who are involved in civil proceedings in Scotland

Some aspects of the policy only apply to children in the first group (victims and witnesses), and so the potential impact on that group is greater than on the other groups.

While the measures relating to civil cases will have a positive impact on vulnerable parties, including children, it is noted that it is relatively uncommon for children and young people to appear in civil court cases. For example, although contact and residence cases are about children, the views of the child at the centre of the case are not generally obtained in the court room and are obtained by other means (such as a form, being interviewed by a Child Welfare Reporter outwith court or being interviewed by the sheriff in chambers).

The evidence shows that women and girls are more at risk of sexual offending, so the policies which relate to these types of offences will have a greater impact on girls and young women.

Disabled children and young people may feel a greater impact, in particular those with learning disabilities. Evidence suggests that disabled children may be more at risk of sexual crime, while the EQIA carried out for this Bill found that disabled people may be more likely than non-disabled people to have experienced both crime in general and sexual crime, and to have been in contact with the civil justice system. The EQIA also found that LGBT+ people may be more at risk of crime and have less confidence in the justice system, so children and young people who identify as LGBT+ may be impacted more by the Bill.

The evidence also shows there is an increased risk of gender-based violence and more barriers to support for minority ethnic girls (and women), and that girls and young women from certain minority ethnic communities are at greater risk of some of the offences covered by the provisions on anonymity, for example female genital mutilation.

Negative impact or incompatibility issues

No negative impacts or potential incompatibility issues have been identified.

Options for modification or mitigation of negative impact or incompatibility

No negative impacts or potential incompatibility issues have been identified.

Positive impact: giving better or further effect to children's rights in Scotland

Article 1 – definition of the child

Where there are policies that have particular measures relating to children and young people, they relate to individuals aged under 18. These measures will have a positive impact as they ensure protection for people under 18, for example judicial oversight will be put in place if child or young person wishes to waive their right to anonymity, and children and young people will be afforded the same rights to special measures in civil cases and in the Sexual Offences Court as in other courts, with the additional protection of a Ground Rules Hearing being required to take place in all cases for child (and vulnerable) witnesses in the Sexual Offences Court.

Article 2 – non-discrimination

The Bill aims to embed reforms which have positive benefits in relation to a number of the UNCRC requirements. These reforms will apply to all children, where relevant, without discrimination.

Article 3 – best interests of the child

The Bill puts in place measures which are intended to help further the best interests of victims, witnesses and vulnerable parties, including children and young people. As set out in relation to articles 1 and 2, some of these measures include specific protections for children and young people and will help ensure that when actions are taken which concern them, their best interests are considered as a primary consideration.

The provisions on trauma-informed practice put justice agencies under an obligation to have regard to engaging with victims and witnesses (including children and young people) in ways that recognise that they may have experienced trauma, and by adapting practices and processes based on an understanding of trauma, to minimise any further trauma.

Article 4 – implementation of the Convention

The Bill contains provisions that strengthen the rights of children and young people an protect them from distress and re-traumatisation when they come into contact with the justice system.

Article 12 –views of the child

Trauma-informed practice involves enabling the effective participation of people in the justice system, and so the policy respects, and has the potential to help fulfil, children's rights to express their views on matters affecting them, and have weight given to those views. The provisions relating to special measures in civil cases and in the Sexual Offences Court may also help the chid or young person speak more freely in court.

The Victims and Witnesses Commissioner will have a general function to promote and support the rights and interests of victims and witnesses, and to engage with victims, witnesses and persons providing victim support services in exercising this function. As evidence detailed in this assessment has illustrated, child victims form a significant cohort within the justice sector and are automatically considered vulnerable when, for example, giving evidence. It is extremely likely, therefore, that the Commissioner will take an active role in engaging with children and young people and promoting their rights and interests.

The anonymity measures provide a mechanism through which a child may dispense with their anonymity through a third-party publisher should they wish to do so, where the child's views will be central to that process. The prohibition on publication as a result does not prevent the child victim themselves from publishing their own information, if they wish to do so.

The measures on independent legal representation are intended to enable the effective participation of victims in respect of this aspect of criminal procedure, and so the policy respects, and has the potential to help fulfil, rights in respect of the views of the child. In particular, the measures provide complainers with the right to make representations to the court on the accuracy of certain information and their views on whether it should be admitted as evidence.

Article 13 – freedom of expression

The provisions relating to child anonymity are consistent with article 12 because they ensure children have a right to publish information about themselves and that their right to do so is not restricted in law. The process for third party publishers to seek a waiver of the child's right to anonymity are considered to be line with article 13.2 as it is a restriction in law which is considered necessary for the protection of the rights of the child.

Article 16 – right to privacy

A robust scheme of anonymity will ensure a child's right to privacy is upheld, while

the right to independent legal representation is intended to support children and young people in relation to a particularly intrusive aspect of sexual offence case proceedings.

Article 19 – protection from violence, abuse and neglect

The Bill puts in place measures to support access to justice and to improve experiences of the justice system, to ensure that people are supported when they come into contact with justice processes and have confidence to report such crimes. By embedding trauma-informed practice and including particular safeguards for children in some measures the Bill supports children's rights to be protected from harm, and to have their needs addressed by those working in the justice system.

The Suffering in Silence: children and unreported crime report concluded that many children and young people do not realise that what they have experienced constitutes a crime or other form of victimisation requiring support and redress. It also found that many children and young people falsely assume responsibility for their experiences of harm and victimisation and, where children and young people feel in any way responsible for their victimisation, they are unlikely to report these experiences or seek support. A key function of the Victim and Witnesses Commissioner's role will be to raise awareness of and promote the interests of victims and witnesses, which will both help people, including younger victims, to identify victimisation and also educate the relevant authorities to respond appropriately.

Article 39 – recovery from trauma and reintegration

The statutory definition of trauma-informed practice created by the Bill – which underpins the policies on trauma-informed practice - is intended to help ensure that justice processes meet the needs of people (including children) who have experienced trauma and minimise the risk of causing them further trauma. The Victims and Witnesses Commissioner will have a function to promote best practice, in particular trauma-informed practice, by criminal justice agencies and persons providing victim support services.

Article 40 – juvenile justice

The provisions on trauma-informed scheduling and trauma-informed court rules apply to all participants in court cases, not just to victims and witnesses. In circumstances where a child is in conflict with the law, trauma-informed practice should respect children's Article 40 rights by helping to ensure their trial is conducted fairly, and that they are treated in ways that promote their sense of dignity and their reintegration in society.

Second Optional Protocol - Article 8

The Bill puts in place measures to embed trauma-informed practice, support and protect victims and witnesses and creates a Victims and Witnesses Commissioner to monitor criminal justice agencies' compliance with their Standards of Service, which include specific reference to vulnerable witnesses (including under 18s), particularly in relation to accessing special measures, and also partnership working with support organisations. The Bill contains measures which specifically relate to offences covered by this protocol. This is relevant to Article 8 of the Second Optional Protocol which requires parties to adopt appropriate measures to protect the rights and interests of child victims of these offences at all stages of the criminal justice process.