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

5. How will the policy/measure give better or further effect to the implementation of the UNCRC in Scotland?

The Bill enables children up to age 18 to be afforded the protection of the children's hearings system where appropriate and necessary for their welfare. This includes children who require care and protection to protect them from harm as well as those who are in conflict with the law.

Children who engage in harmful behaviour are some of the most vulnerable in society^[3] and are often victims and witnesses of harm themselves and may also need protective measures due to other needs, as well as to address their behaviour. As such, they require responses that are centred around their care, protection and reintegration. The UN Committee on the Rights of the Child (CRC) is clear that strictly punitive approaches are contrary to children's human rights^[4] and stigmatise these children further, in turn increasing the risk of reoffending, due to the knock on effect factors that support desistance such as educational attainment, employment, and future aspirations^[5]. The CRC has highlighted observations that the criminal court context, even where adapted, is not an optimal forum for considering the needs and developmental and cognitive stage of children^[6]. The CRC, in General Comment No. 24^[7], also states:

The Promise also stated that:

"…Scotland must consider how to ensure that children have the totality of their cases dealt with in an environment that upholds their rights and allows them to effectively participate in proceedings. Traditional criminal courts are not settings in which children's rights can be upheld and where they can be heard… To ensure that all children benefit from the Kilbrandon approach to youth justice, there must [be] more efforts to ensure children stay within The Children's hearings system."

The different aspects of the Bill and its impacts are set out below.

Age of Referral to children's hearings and criminal justice.

This provision in effect allows the children's hearings system to be recognised as an appropriate forum for children up to age 18, within the limits of the Lord Advocate's Guidelines and the independence of prosecutorial decision-making. This reframes the Scottish definition of a child for the children's hearings system, retaining the ethos of the children's hearings system as a system to address the needs of children requiring compulsory measures of care.

This provision ensures there is no differential treatment of a child due to age alone, instead promoting equality of access to this system, and allows decisions to be made with the child's welfare as a paramount, if not primary consideration in all cases. This recognises the need to be able to treat children differently from adults as envisaged by article 40.

Due to the ability of the children's hearings system to review a child's compulsory order where necessary to meet their needs, a more bespoke, holistic flexible approach to their welfare is more likely to improve outcomes in the longer term. The extensive children's hearings powers include making a measure of residence for a child away from their normal home; making a measure of where they attend school; provide for services to support their needs; and to keep them safe and secure if necessary and proportionate. Interim measures are available if necessary as a matter of urgency. These are considered beneficial, not only to the referred child but to those children affected by their behaviours if they are in conflict with the law. By helping address underlying causes of behaviour and looking more holistically at the circumstances surrounding a child's offending behaviour – in-line with the Kilbrandon ethos on which the children's hearings system was founded – Scotland can help them reintegrate and rehabilitate^[8]. Articles engaged are 1, 2, 3 12, 16, 37 40

Offences against children to which special provisions apply.

As a consequence of a child being considered as up to 18 the special provisions under schedule 1 of the Criminal Procedure (Scotland) Act are extended to age 18, which is a positive factor for 17 year olds to whom these provisions will now apply. Articles engaged are 1, 3, 12, 37, 40

Measures to prohibit contact with specified persons.

The effect of this is to have clarity that a children's hearing may, if necessary make a measure on a child's order to include restrictions on contact with others, either for their own direct welfare, or to avoid their contact with others who they may harm; provided it is a measure necessary for their welfare. This measure would be reviewed if not complied with, allowing a children's hearing to review the child's needs and available measures. The aim is for this to have a positive effect on the child to avoid a specified person where it would not be in their interest to have unregulated contact. Articles engaged are 3, 12, 37, 39, 40

Amend the test for MRC in the 2011 Act.

Decoupling the test for MRC from secure accommodation criteria allows a children's hearing or sheriff to more flexibly meet the needs of a child where it is at least a primary consideration for their welfare for their movements to be restricted to protect them against causing harm to themselves or others. This will allow, where appropriate, intensive support to be given to the child whilst their movements are restricted with the aim of preventing further harm being caused by parts of their behaviour or to them. Articles engaged are 1, 3, 6, 12, 37, 39, 40

Provision of information to persons affected by child's offence or behaviour in the children's hearings system.

The Bill will mean child victims will have contact with the Principal Reporter and the children's hearing rather than the Procurator Fiscal if a child of 16 and 17 is referred to the Principal Reporter. Special measures under the Vulnerable Witnesses (Scotland) Act 2004 apply to proof proceedings associated with children's hearings in the same way as at court in the criminal justice system, and the Bill will place the Principal Reporter under an obligation to advise a victim of their right to receive information about the outcome of a children's hearing, subject to exceptions where appropriate Articles engaged are 3, 12, 16, 17, 40

Places where children can no longer be detained.

Under various Bill provisions, no child can be detained in a young offenders institution (or prison). Instead the Bill provides that where deprivation of liberty is required, children will normally be detained in secure accommodation, whether or not the child has already been subject to compulsory measures via the children's hearings system. This will allow appropriate care and support to be provided to meet the child's needs and respect children's rights. This also addresses the concerns about children's placement in YOIs including as raised by the Independent Care Review and the HMIPS Year of Childhood Pre-Inspection Survey^[9] which raised particular concerns about meeting children's psychological, educational, social or cultural rights and needs. Articles engaged are 1, 3, 20, 37, 39, 40

Abolition of remand centres

There are no remand centres in Scotland. The repeal of references to remand centres in legislation will ensure that if children are detained, they are cared for and supported in appropriate child-centred facilities. Articles engaged are 3, 37, 40

Referral or remit to Principal Reporter of children guilty of offences.

The effect of this is to allow greater opportunity for a court to seek advice of a children's hearing or remit for disposal when dealing with a child who has been convicted. This will ensure a court has a holistic view of a child's needs and circumstances to assist in appropriate sentencing, and to remit to a children's hearing should a compulsory supervision order best meet the needs of a child. Articles engaged are 3, 12, 40

Restriction on report of suspected offences involving children.

This affords the courts additional powers to protect a child's identity for actions carried out in childhood. This should also mitigate the potential detrimental rights implications that can accompany such identification. Articles engaged are 3, 6, 16, 24, 39, 40

Restriction on report of proceedings involving children.

This will ensure that the identity of a witness (who may be a victim) under 18 years old is protected, minimising the risk of a breach of the child's privacy, and prevent further unintentional consequences resulting from an offence committed against them. This could minimise the likelihood of children being publicly named in later life, even once the sentence imposed has been completed, assisting their rehabilitation and reintegration into society. Articles engaged are 3, 16, 40

Meaning of 'secure accommodation' and secure accommodation authorisations.

The Bill amends the criteria for making a secure accommodation authorisation through the children's hearings system and considering the continuation of a child's placement, as well as in respect of children in secure accommodation through other routes where these criteria are used. This will decouple the MRC and secure authorisation criteria and revise the criteria to include the child being likely to cause physical or psychological harm to another person. Existing safeguards remain to ensure that depriving a child of their liberty will remain in accordance with a procedure prescribed by law and with appropriate safeguards. Articles engaged are 3, 37, 39, 40

Custody of children before proceedings.

For all under 18s an alternative place of safety should be considered when a child is to appear before court and except in limited circumstances, children should not be kept in police stations. Changes are made to the rights to intimation, access to another person, local authority notification and visits, respecting the responsibilities of parents and the evolving capabilities of children, whilst recognising children in such circumstances may also require protection. Articles engaged are 3, 12, 37, 40

Steps to safeguard welfare and safety of children in criminal proceedings.

Participation needs of children in court

Provision is made for the court to determine on a case-by-case basis what amendments may be required to best meet the needs of each individual child,. Such provision supports the child's full understanding of and participation in proceedings which is essential in upholding children's rights, including to a fair trial. Participation is a fundamental principle of child-friendly justice, which requires support to ensure children's right to be heard and express views can be upheld. The ability for the child to understand proceedings is at the core of participation and the exercising of a child's rights. Articles engaged are 3, 12, 40

Extend the provision that children in summary cases should have their case heard in a closed court^[10], with this now also being an option in summary and solemn proceedings where there is an adult co-accused. These measures enable the court to make a decision based on the individual considerations in a particular case, providing all children with the opportunity to benefit from such safeguards and protections, while upholding the rights of the adult co-accused. These provisions seek to improve the experience of children at court and enhance the rights of children by recognising the additional rights and vulnerabilities all children under the age of 18 experience by virtue of their age. They also seek to bring consistency to existing provisions that vary dependent on the types of proceeding and who is involved in the case, recognising that in whatever circumstances, children should be treated as children and they may require additional safeguards and protections. Articles engaged are 3, 6, 40

Extension of secure accommodation beyond 18.

Provision is made in the Bill to remove the necessity for children to automatically leave secure accommodation, solely based on their chronological age (i.e. turning 18), up to a maximum of 19 years old. This will be achieved by regulations supplemented by guidance. Any decision will be made on a case-by case basis to ensure that the decision is in their best interests and not contrary to the best interests of other children in the facility. Articles engaged are 3, 12, 40

Children detained in secure accommodation to be treated as 'looked after children'.

The Bill provides parity by enabling any child who is sentenced or remanded to secure accommodation to be treated as if they were a "looked after" child (if not already) for the duration of their placement. This will assist the child to be supported as they return to the community and include access to aftercare entitlements should the child leave secure accommodation on or after their 16^th birthday. Articles engaged are 3, 12, 20, 37, 39, 40

Strengthening scrutiny and safeguards for Cross border provision.

Children from England, Wales and Northern Ireland are also affected by the Bill, where the intention is to place the child in a residential placement in Scotland, and also through the provisions on sentencing placements for children not resident in Scotland.

The provisions allow for regulations to be made to provide further safeguards to cross border children, such as advocacy as may be necessary; and place appropriate duties on placing authorities, and enable the Scottish Ministers to impose a range of conditions on potential and existing providers of cross border placements thus strengthening the regulatory and scrutiny role of the Care Inspectorate in relation to such placements. Combined these measures should ensure these children are not overlooked and their needs are properly communicated and met.

In placing a duty on prospective providers of residential care services for children that they must inform the bodies with statutory responsibility for preparing a children's services plan of any application to be registered with the Care Inspectorate appropriate provision will be made to ensure that care services and the placements they take are visible to local services. Articles engaged are 3, 12

Repeal of Part 4 (Named Person) and Part 5 (Child's Plan) of the Children and Young People Scotland Act 2014 .

Parts 4 (Named Person) and 5 (Child's Plan) of the Children and Young People (Scotland) Act 2014 were due to commence in August 2016. However, following a Supreme Court judgement,^[11]they were not commenced and have never been in force.

The Supreme Court found the intention of the named person policy to be "unquestionably legitimate and benign", but had concerns around information sharing provisions of the 2014 Act.

In response to the Supreme Court ruling the Children and Young People (Information Sharing) (Scotland) Bill was introduced with an intention to make changes to the rules relating to information sharing which were part of the Named Person provision in the 2014 Act (Part 4).

A practice development panel was formed to devise comprehensive information sharing guidance compatible with Article 8 of ECHR rights. The panel concluded that guidance of this nature would be extremely complex, may inhibit practitioners and for those reasons decided not to release the guidance.

On 19 September 2019 the Deputy First Minister announced in Parliament the intention to seek to repeal Parts 4 and 5 of the 2014 Act, and to withdraw the Children and Young People (Information Sharing) (Scotland) Bill. The Deputy First Minister also stated the Scottish Government's continued commitment to GIRFEC and an intention to produce refreshed GIRFEC practice guidance.

The first phase of the refreshed GIRFEC materials were published on 30 September 2022, including statutory guidance on the assessment of wellbeing. This suite of documents sets out the refreshed position in the light of the UK Supreme Court ruling.

GIRFEC seeks to realise children's rights on a day-to-day basis and to enhance the wellbeing of all children and young people as well as building a flexible scaffold of support: where it is needed, for as long as it is needed.