Children (Care and Justice) (Scotland) Bill: child rights and wellbeing impact assessment

2. What impact will your policy/measure have on children's rights?

This CRWIA should be read alongside the Equality Impact Assessment (EQIA) and the Policy Memorandum attached to the Bill.

The Bill redefines children as being up to the age of 18 for the children's hearings system and for the purposes of criminal justice and procedure. All of the provisions in the Bill aim to have a positive impact on children.

The measures in the Bill have common strategic aims. These include:

• Promoting the requirements of the United Nations Convention on the Rights of the Child (UNCRC),
• Scotland's Getting it Right for Every Child (GIRFEC) policy,
• Whole System Approach (WSA),
• Keeping the Promise, ensuring more children can benefit from the welfare-based ethos of the Kilbrandon principles which underpin the children's hearings system and
• A Rights Respecting Approach to Justice for Children and Young People: Scotland's Visions and Priorities.

The Bill affects a number of children's care and justice services between which there is a great deal of interaction. The Bill does not and cannot make specific direction for every situation involving matters relating to children's care and justice. Rather, where children come into contact with such services the provisions are structured to create a framework which recognises their rights to best meet their needs, in line with the wider approach of the UNCRC.

There are many positive benefits to the provisions. Examples include:

• By adjusting the definition of 'child' under the Children's Hearings (Scotland) Act 2011 to include all children up to 18, it is likely that more 16 and 17 year olds will be able to benefit from referral to the Principal Reporter. The children's hearings system treats the welfare of the referred child as the paramount consideration, except in limited circumstances where its welfare is a primary consideration. In addition, the change in definition pulls through to the criminal justice system so that - in the main - children are treated as children up to age 18. For example, by changing the age of child to 18 in schedule 1 of the Criminal Procedure (Scotland) Act 1995 children of 17 will then benefit from the special provisions that the schedule affords.
• In expanding the provisions for remittal for advice and disposal between the criminal courts and a children's hearing, a decision made by a court will be made against a background of information about the child's specific circumstances, allowing for the disposal to be made in the most appropriate way for the individual child.
• Under 18s will benefit from the provision removing the ability for children to be remanded or sentenced to young offenders institutions (YOIs) or prisons, with secure accommodation as the alternative when a child is to be deprived of liberty.^[1]
• 'Closed' courts^[2] being used for more children appearing in criminal proceedings, and a more focused consideration of the participation needs of the child, which will help reduce any unnecessary negative impacts of a criminal court appearance. In addition, the Bill increases the courts' powers to protect a child's anonymity for as long as the court decides appropriate, against a background of factors. Child victims and witnesses are also protected up to age 18.
• A more consistent approach to the upholding of children's rights when they are in police custody, including in respect of intimation, parental access, local authority involvement and solicitor access.
• Additional supports for children both in and after leaving secure accommodation, and after the termination of a compulsory supervision order made by a children's hearing, will also benefit children as they transition into adulthood.
• Changing the tests for measures of Movement Restriction Conditions (MRCs) that can be imposed by children's hearings expands the options open to a hearing to support children where they might be putting themselves at risk of harm or at risk of harming others, including other children. Adjusting the secure authorisation test also allows makes it clearer when the threshold is met.