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

7. What evidence have you used to inform your assessment?

The UNCRC, the internationally mandated children's rights treaty, already ratified by UK, informs our strategies and programmes and feeds into our national outcomes. It sets out the rights that all children have and outlines what children need, to give them the best chance of growing up happy, healthy and safe.

The backdrop of the proposed UNCRC Incorporation (Scotland) Bill^[12] has focused the attention in Scotland onto children aged 16 and 17 years in the care and justice systems as currently not all of this age group come within the definition of child. Enhancing the ability of all people up to 18 to be given protections afforded to children is supported by UNCRC principles and by analysis in consultation responses by the Commissioner for Children and Young People^[13] and the Children and Young Peoples Centre for Justice, both agencies skilled in the area of child's rights.^[14]

The Independent Care Review^[15] published its report, The Promise^[16] in 2020. This told Scotland what it must do to make sure that all children and young people are loved, safe and respected so that they can reach their full potential. The Scottish Government is committed to Keeping The Promise by 2030. Our implementation plan to achieve this was published on 30 March 2022 and has received cross-party support^[17] in the Scottish Parliament.

National and international evidence^[18] has highlighted the significant detrimental impact on children being deprived of their liberty, even for short periods particularly within custodial institutions. Accordingly international human rights instruments^[19] specify that where children do require to be deprived of their liberty, this should take place in correctional or educational facilities, in a manner that takes account of children's needs and age and prioritises ensuring the child's effective reintegration into their community as soon as possible. In Scotland, secure accommodation provides such facilities.

In terms of the number of children in YOIs in Scotland, this fluctuates. There were an average of eight children in YOIs in the period July to September 2022 and the last full yearly figure shows an average of seven child detainees in YOIs^[20]. However, in keeping with other baselines used in this Financial Memorandum based on pre-pandemic data, the figure for 19/20 stands at an average of 16.^[21]

The Inspectorate for Prosecution in Scotland's thematic report^[22] on the prosecution of young people in the Sheriff and Justice of Peace courts demonstrates the approach being taken in Scotland under the Scottish Government Youth Justice Strategy^[23] which has had the effect of reducing the numbers of children being dealt with by formal systems and instead being diverted through early intervention, diversion and use of robust community alternatives. This supports the approach taken in this Bill to remove as many children as possible from the criminal justice system.

SCRA studied^[24] a cohort of children in conflict with the law and noted that already there is a trend towards younger children being diverted out of the criminal justice system, avoiding the negative consequences to the benefit of children, their families and victims, recognising that criminalisation of children can result in stigma and negativity towards a child. This supports the approach taken in this Bill.

Research confirms that police stations and cells can be frightening, distressing and traumatising places for children, with by their very nature their ability to be child-centred limited^[25]. Children report that it can be difficult to understand what is happening to them, what their rights are and how these can be upheld^[26]. Therefore, it is important that children are only kept in police custody when this is necessary and proportionate.

Diverting children from prosecution has been proven to facilitate desistance from crime and to be more cost-effective^[27].

While secure accommodation and YOIs can both deprive children of their liberty, the environments are very different^[28]. Whilst it is recognised that YOIs have made great improvements, they are not primarily designed to be therapeutic environments, cannot offer the same level of trauma and attachment informed support, nor the high staff to child ratio sometimes necessary to meet the needs of these children. Safe and trusting relationships are the cornerstone of promoting children's healthy development and positive outcomes. However these are extremely difficult if not impossible to develop in a custodial environment such as a YOI, due to the purpose of prison, the inbuilt power imbalances, the restricted regime, a climate of fear, the building design and a lack of in-depth trauma related support^[29]. Different supports and interventions can also be afforded within each environment, including in respect of family support and contact, as well as the staff having different skills and qualifications. The expectations and requirements on children are also different within both settings, with children in secure accommodation regardless of their legal status expected to engage with interventions and education, with services available at the point of need.

There is a less evidence^[30] on the use of MRC's within compulsory orders , albeit the numbers are relatively low (average of 26 per year – 2 per month – over the past 4 financial years), and the intention behind the Bill is not to promote wide-scale use or to alter the significant threshold by which a panel makes such as decision. Decisions are made independent of government on a case-by-case basis and subject to being necessary and proportionate with the welfare of the child as at least a primary consideration. Whilst the new criteria may give children's hearings the ability to put a child on a measure in wider circumstances than before, they will only be used where appropriate. The consequence of raising the age of referral to 18 means there will be more 16 and 17 year olds in the hearing system and the availability of MRCs as a tool for children who need their structure to safeguard their welfare may support a child from revisiting a harmful scenario.

Promoting rehabilitation and reintegration should in accordance with international human rights legislation and Scottish Government policy,be a core aim for approaches to children and young people in conflict with the law, and arguably serves the interests and safety of the public. However as a Hart^[31] has concluded "there seems little doubt that being publicly named puts rehabilitation at risk". This is because the identification of children and young people reduces the ability to access the identified core components that support rehabilitation, reintegration and desistance such as safety, healthy and positive relationships, education and employment opportunities, connectedness and sense of self-worth. Moreover, where a child is not named but is subsequently named after turning 18 this can make the progress made in terms of rehabilitation and reintegration more challenging to sustain, which further supports the extension of childhood anonymity.

Rights based reviews of Scotland's approaches to children in conflict with the law highlighted^[32] rights concerns which informed development of the Bill and has sought to address a wide range of these. Children's rights organisation, such as the Commissioner for Children and Young People^[33], CYCJ and Dr Claire Lightowler^[34] add support to these changes and in addition support extra measures to support children, for example in relation to anonymity for child victims and children who are themselves prosecuted.

In relation to information for victims Lady Dorrian's recent review^[35] (published 12 May 2022) highlights the challenges of effectively supporting victims where the child causing the harm is themselves in need of the welfare based children's hearings system, and the measures in the Bill aim to balance the competing interests where it is appropriate to do so.

Children outwith Scotland who require placement here benefit from the measures that will evolve from the Bill. The places where they stay will be regulated, and inspected, to ensure that their needs are met and this aims to meet the concerns raised whilst the deprivation of liberty regulations were going through Parliament.^[36]