Children's Care and Justice Bill - policy proposals: consultation

2. About this Consultation

The Scottish Government's Programme for Government^[1] 2021/22, commits to: "…safeguard young people within the youth justice system, supporting a presumption against under 18s in the Criminal Justice System, keeping them out of young offenders' institutions where possible and appropriate, while ensuring that victims receive the support they need. We will bring forward a Children's Care and Justice Billto support this transformation".

In this consultation, the Scottish Government is seeking views and feedback on policy proposals to inform the development of the Children's Care and Justice Bill, intended to be introduced to the Scottish Parliament. The Government's future legislative programme will be set out in the Programme for Government. This consultation covers potential legislative reforms to promote and advance the rights of all children and people who have been harmed. In particular, the objectives of these proposals are to safeguard and support Scotland's children towards positive outcomes and destinations, especially those who may need legal measures to secure their wellbeing and safety. The proposals have a particular focus on children coming into contact with care and justice services or who come into conflict with the law.

Evidence, from children and young people with experience of the care and justice systems, from practitioners, stakeholders and academics and from the Promise^[2], has been fundamental to the development of these proposals. Additionally, system reviews and subsequent articulated ambitions of the outcomes that Scotland should seek to pursue for its children and young people^[3], offer important context. The Lord Advocate's independent role as head of the system of criminal prosecutions in Scotland also needs to be recognised and respected in reference to issues explored in this consultation.

The Scottish Government is committed to co-designing solutions, and this consultation is therefore also aimed at eliciting views on how we collectively achieve our aims for children and young people. In respect of certain elements of these proposals, prior consultation has already been undertaken and specific proposals have been developed. In respect of other matters, the document outlines issues and objectives and then sets out options as to potential solutions.

The Promise^[4] articulated how to take forward the findings of Scotland's Independent Care Review in order to improve outcomes for Scotland's most vulnerable children, particularly those who come into contact with the care system. The Scottish Government is committed to keeping the Promise in full by 2030. Certain elements of the Promise require to be kept by 2024 in line with change programme ONE^[5] published in 2021. The proposals in this consultation are part of this commitment. The Scottish Government published a Promise Implementation Plan on 30 March, which references the Children's Care and Justice Bill as part of the package.

Successful implementation of legislation must be supported by enhanced interventions and services; support for a skilled, confident and empowered workforce; culture and practice change; partnership working; and efforts to promote public understanding and to command broad confidence in Scotland's communities. Therefore the Bill is one pillar of a number of such efforts being taken forward to Keep The Promise by 2030. That wider context makes it necessary to acknowledge the implications of some proposals, and to indicate where wider potential measures will be required to support successful practical implementation.

Getting it Right for Every Child (GIRFEC)^[6] policy recognises all under 18s as children, as does some domestic Scottish legislation and the United Nations Convention on the Rights of the Child (UNCRC)^[7]. The term 'child' or 'children' in this consultation document therefore refers to that age-group, unless otherwise stated. 'Young people' is typically used to refer to those aged 18-25 years in keeping with wider legislation and policy developments^[8].

Children's care and justice are complex and emotive areas, and many of the issues explored in this document are challenging. However, addressing difficult issues is necessary to achieve our goals in relation to children, young people, people who have been harmed and justice^[9]. While many of the considerations relate to children in conflict with the law, these will impact on all children who are in need of care and protection, as well as those who may be harmed by parts of a child's behaviour. That integrated philosophy is central to GIRFEC. The proposed changes will also affect children who are placed or who may be placed in care settings in Scotland from other jurisdictions. The policy aims that the proposed legislation seeks to support are:

• To ensure children receive the right help and support they require, at the right time, as far as possible and appropriate without statutory intervention.
• Where any child requires the support and intervention of formal systems, to ensure this is available through the age-appropriate children's hearings system by raising the maximum age of referral to the Principal Reporter.
• To ensure children are treated in a way that is trauma-informed and accounts for their age and stage of development, recognising that this approach is constrained by current structures and systems.
• To maximise the use of measures to support children in the community, and with their family wherever possible. Where a child requires to be deprived of their liberty, to ensure that this only happens in age-appropriate care facilities where possible and appropriate by enabling more children to access secure care or other residential or community-based alternatives.
• That cross-border placements should only occur in exceptional circumstances where the placement is in the best interests of an individual child, with the introduction of additional safeguards and regulation.
• To enhance the rights to appropriate protection, support and information for people who have been harmed irrespective of the age of the person who has caused the harm or the system dealing with their case.
• To make other technical and procedural alterations to existing legislation in such areas where deemed necessary and appropriate.