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

4. If a negative impact is assessed for any area of rights or any group of children and young people, can you explain why this is necessary and proportionate? What options have you considered to modify the proposal, or mitigate the impact?

The Bill provides that regulations may be made to provide that children may remain in secure accommodation rather than automatically being transferred to YOI if they have been sentenced or remanded before the age of 18, to a maximum age of 19. This could detrimentally impact on the rights of other children cared for within this accommodation to be kept separate from adults. However, secure care providers are already under obligations to ensure the interests of all children in that facility are taken into account during placing decisions. Moreover via planned regulations, as supplemented by guidance, necessary to implement this the Scottish Government will consider whether any adjustment to best interest stipulations is helpful in such instances. This can ensure case-by-case consideration will be informed to ensure any continuation of a young person's placement beyond 18 will be in the best interests of that young person and not contrary to the best interests of any other child. This is consistent with UNCRC.

Changing tests for MRC and secure accommodation could result in more children having their liberty restricted or deprived. However, this is not the broad policy intent and therefore no change is made to existing safeguards that such measures can only be put in place where necessary and appropriate. This will mitigate any potential for more widespread use.

The provisions extending the ability for closed criminal courts when a child is appearing might reduce the ability for children who have been harmed to be involved in proceedings beyond their giving of evidence. However, this is an extension of existing practice and is important in upholding the rights of all children being brought before court and promoting equality of opportunity. It is anticipated that some cases that would have been prosecuted summarily may instead be dealt with in the children's hearings system, which are also held in private. Moreover, in summary and solemn cases where the child is jointly charged with an adult, the court retains discretion to utilise closed courts and is not required to do so. Existing provisions for closed courts to include witnesses and other persons directly concerned in that case, and such other persons as the court may specially authorise to be present also remain.

Children in cross-border placements

The power to make regulations in respect of children coming from other parts of the UK to be placed in care in Scotland is intended to reduce the numbers of these children in such placements and we accept this may adversely affect the choices of where these children can be placed. However we consider that, other than in a small number of exceptional cases, a child's best interests are not likely to be met when they are such a distance from the place – and people and familiarities – they usually consider to be home.

There is a balance to be struck between the rights of Scottish children who require care placements, and the rights of children from other parts of the UK where a place in Scotland is being pursued. The Promise is clear that marketised practices regarding cross-border placements into Scotland, whereby they are purchased by a local authority in another UK jurisdiction, must end. However, since these placements are being driven by a lack of adequate provision for children elsewhere in the UK, superior courts in other jurisdictions can and do determine that the best option for a child is to be accommodated in a childcare setting located in Scotland. Scottish Ministers and the Scottish Parliament cannot prevent that. They cannot regulate what happens when a court process in another jurisdiction is engaged and has made a legal decision, nor can they affect or re-litigate the outcome of that process.

Thus the Bill – in combination with the new regulatory regime and other non-legislative action – aims to strike a balance between regulation, deterrence and assurance. Bill provisions acknowledge the fact that the number of residential accommodation settings in Scotland over recent years has increased, and the provisions aim to bear down on further 'market-driven' proliferation. They do so by directing prospective new care service providers to tailor proposed provision to Scotland's particular needs – by increasing scrutiny and communication around proposed new services with statutory planning partnerships. This helps balance the needs of Scottish children better against commercial motivations.

The Bill also takes additional regulation making powers to explore how to approach other orders (of which there are a number, regarding cross-border placements), based on evidence emerging from the new Deprivation of Liberty (DOL) orders regulatory regime. Therefore there is flexibility inbuilt by making a regulatory power to allow further provision to be made when evidence is available that this is necessary.

Children who have been harmed

There may be different impacts on children who are on conflict with the law and child victims. The provisions strive to strike a balance to ensure that, where best possible, child victims benefit from any changes made for "accused" children. For example, rights to anonymity extend to both groups of children.

Under the Bill provisions it is anticipated that more 16 and 17 year olds who are involved in offending behaviour will be channelled to the children's hearings system. This forum, and the structures and mechanisms which surround it, is different to the criminal courts. Evidence indicates that where a child's behaviour causes harm to others, these are often other children. Therefore it is prudent to make an assessment of the balance of rights regarding meeting needs of both the child who been harmed and the child who has caused harm.

The Scottish Government recognises that the two systems have different approaches and underpinning principles, principally:

• The process for providing information to a person who has been harmed, and nature of information available;
• The involvement of the person who has been harmed in processes;
• Restrictions on reporting proceedings;
• Certain disposals are system-specific.

Action has been made to assist those who have been harmed, in light of this.

The Bill does however place an obligation on the Principal Reporter to advise victims of their right to request information, under certain exceptions, which reflect that in some cases it will not be in a victim's best interests, or possible, for them to be so advised.

The Bill also makes provision to bolster the ability for measures to be placed on a child through compulsory orders where necessary to avoid a child causing harm to themselves or others. This includes through the revisions to the test for a MRC, and the ability to impose specific measures as part of a CSO to prohibit a child approaching or communicating with a specified person.

However, one key difference between the hearings system and the criminal court is the ability of a child victim to be notified of the details of measures taken against the offending child. Unlike where a court disposal is a matter of public record, where a compulsory measure is imposed by a hearing they would only be notified this was the outcome but none of the details of that measure or any elements which pertain to them.

However, the Kilbrandon ethos of the hearings system is well established and the protection of privacy for the referred child has been in place for younger children for a significant period of time. The Bill enables the raising of the maximum age of referral to the Principal Reporter, but does not dilute the welfare based principals of the hearings system. This is in line with recommendations from Lady Dorrian's Improving the Management of Sexual Offences Cases review:

"Broader information for complainers is required, addressing how the Children's hearings system, and associated referral proceedings, work, explaining in particular the restrictions applicable to the provision of information and the reasons for these, all with a view to helping mitigate complainers' concerns, and enabling them to appreciate the requirement of confidentiality in these proceedings."

Moreover, it is important to recognise the need to support, manage and address elements of a child's behaviour that may pose a risk of harm to others, even if they are dealt with by the children's hearing. For example, where a child is subject to formal risk management measures (such as under Care and Risk Management procedures), victim safety planning will be considered as part of a multi-agency risk management plan. In those cases, information could be shared with a person who has been harmed as deemed necessary. This provides a key safeguard.

Also, the discretion of Procurators Fiscal, who are aware of the mechanisms of both systems, to prosecute in the criminal courts remains. In recognising these mechanisms which take into account the rights of those that have been harmed, as well as the Bill provisions outlined above and the overall approach of UNCRC, it is deemed the legislation at introduction strikes an appropriate balance of rights in this area.

Regarding criminal courts, the Bill also reforms the reporting restrictions for children, including child victims and witnesses, who are part of an investigation into a suspected offence, or involved in proceedings. Therefore, the Bill increases equity between the hearings system and the courts on such matters