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

4. Raising the Maximum Age of Referral to the Principal Reporter

4.1 Background

The Promise is clear that more should be done to ensure children can stay within the welfare-based children's hearings system.

Children are usually referred to the Principal Reporter^[38] by police, social work or schools, but can be referred by anyone, such as a concerned relative^[39].The Principal Reporter will then consider whether to convene a children's hearing^[40], that will determine whether compulsory legal measures of supervision are required for the child. The various grounds on which a child can be referred to the Principal Reporter are legislatively defined^[41].

The recommendation to increase the maximum age of referral to include all children under 18 received unanimous support among responses to the consultation on raising the age of referral to the Principal Reporter^[42], as detailed in the analysis report of December 2020^[43]. Whether on care and protection grounds or offence grounds, the Scottish Government's intention is to enable this important structural shift.

4.1.1 Referral on offence grounds

Where children are alleged to have committed an offence, the police must jointly report certain offences to the Procurator Fiscal and to the Principal Reporter. These offences are set out in the Lord Advocate's guidelines to the Chief Constable on the Reporting to Procurators Fiscal of offences alleged to have been committed by children ("the Lord Advocate's Guidelines")^[44].

Where an alleged offence is jointly reported, there is a binding agreement between Scottish Children's Reporter Administration (SCRA) and COPFS – 'Decision Making in Cases of Children Jointly Reported'^[45], which details the presumption that the child will be referred to the Principal Reporter in relation to an offence and factors for consideration in overriding this presumption. Although the decision regarding the jointly reported case is for the Procurator Fiscal, such a decision shall not be taken until the case has been discussed with the Principal Reporter. The Lord Advocate retains constitutional authority over the processes on such matters.

In the welfare-based children's hearings system it is not the role of a children's hearing to sentence a child or impose a retributive penalty in respect of an offence committed, no matter how serious. In coming to a decision, the hearing must respect the general principles^[46], namely:

• that the welfare of the child is the paramount (or when absolutely necessary to protect members of the public from serious harm a primary) consideration^[47];
• that the views of the child must be taken into account; and
• that the hearing may only make or continue an order only if it is better for the child for the order to be in force than not (sometimes referred to as the "minimum intervention principle").

Children can remain subject to a CSO onlyif the hearing considers that it is necessary for the protection, guidance, treatment or control of the child. A child can only be subject to an order issued by the children's hearing up to age 18 (at which point the order ceases to have effect).

The Promise is clear that: "Despite the principles of Kilbrandon that aimed to ensure a welfare-based approach to offending, a significant number of children involved in offending behaviour are dealt with in Criminal Courts rather than through The Children's Hearing[s] system. 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 Hearing[s] system."

It is key that this approach be made applicable to under 18s whether being referred on either care or justice grounds – often this can be a combination of both. This will also support the upholding of the Scottish Government's Youth Justice Vision which commits to raising the age of referral to 18, alongside a presumption against under 18s in the criminal justice system, insofar as that is consistent with the extant Lord Advocate's prosecution policy.

4.1.2 Referral on care and protection grounds

All children and young people must be able to benefit from the Kilbrandon approach, especially those who need care and protection because of the actions or omissions of others in their lives.

In the previous consultation on raising the age of referral to the Principal Reporter, roughly two thirds (68%) of respondents agreed that, if the age of referral was increased, the existing grounds for referral to the Principal Reporter were sufficient. We are not proposing the addition of any new grounds for referral.

In 2020-21^[48]:

• 9,665 children in Scotland were referred to the Principal Reporter, 2,207 on offence grounds and 8,013 on non-offence grounds. 555 children were referred on non-offence and offence grounds.
• Some children referred for offending are referred on multiple occasions and referrals can contain multiple charges - the 2,207 children referred on offence grounds were referred for 9,142 alleged offences on 5,282 referrals^[49].
• Over half of these offences were classed as miscellaneous (4,600) or other crimes (1,075); 1,339 for fire-raising, vandalism etc.; and 1,260 crimes of dishonesty.
• 381 were sexual crimes; 320 motor offences; and 167 non-sexual crimes of violence.
• Of the 2,207 children referred on offence grounds, only 79 had a hearing arranged on new grounds. The most common reason for not arranging a hearing was that a CSO was not necessary or that the current order / measures were sufficient.

The 2020 consultation responses and the activity of the cross system working group established under the Youth Justice Improvement Board^[50] which reported in September 2021, set out a range of operational and practical implications of any future legislative change around raising the age of referral.

Many of these factors relate to policy, practice, staffing, training, availability of services and resource across services and may impact on the roles and remits of those discharging the children's hearings system. Managing these impacts is under discussion with the responsible partners. This will continue alongside the preparatory work to develop the Children's Care and Justice Bill to ensure the system as a whole is ready to maximise the benefits of any increase to the maximum age of referral to the Principal Reporter.

The Promise identified significant support for, and commitment to, the underlying principles of Kilbrandon, alongside issues with the operation of the children's hearings system, some of which echo the experiences highlighted by children with experience of secure care^[51] and in conflict with the law^[52].

The Promise Plan 2021-24 requires that by 2024 the children's hearings system will have gone through a redesign process, to rethink the underpinning structures, processes and legislation. In addition to the ongoing improvement activity by the Children's Hearings Improvement Partnership^[53] focused on the current system, the Hearings System Working Group has been established, chaired by Sheriff Mackie, to take forward transformational redesign work on the system and to report in early 2023. That Working Group is a partnership between Children's Hearings Scotland, Scottish Children's Reporter Administration and The Promise Scotland, with the Scottish Government playing an observer role.

The group will engage with stakeholders to produce collective proposals for redesign and define the required legislative changes. Accordingly, the proposals and questions within this consultation are specific to those which require consideration to support the increase in age of referral to the Principal Reporter, and do not extend to include proposals generated by the Hearings System Working Group.

4.1.3 People who have been harmed by a child

It is often other children who are harmed by children. Regardless of which system is used to address a child's behaviour, it will be imperative to keep communities safe and maintain public confidence in a rounded rights-respecting manner that also meets the legitimate concerns of people who have been harmed and their families and demonstrates a commitment to real and inclusive justice.

In a paper to the Victims Taskforce^[54], victim support organisations identified four key themes raised in feedback from people affected by crime, regarding how their experience of the criminal justice system could have been improved. These were:

• being heard;
• accessing information;
• feeling safe; and
• experiencing compassion.

The proposals in this section of the consultation seek to ensure that people who have been harmed have access to consistent, appropriate and timely information and support, and are treated with fairness, compassion and in a trauma informed manner, where their safety and well-being is a priority. It is recognised that children who cause harm have often been harmed themselves at earlier stages in their childhood.

Work is ongoing under the Victims Taskforce to co-ordinate and drive action to improve the experiences of people who have been harmed and witnesses within the criminal justice system, whilst ensuring a fair justice system for those accused of crime. The taskforce has two key work streams on a Victim-Centred Approach and a Trauma Informed Workforce. In addition, work is underway to improve support to children who have been harmed and witnesses, including to uphold the Programme for Government commitment to ensure that all eligible children have access to a 'Bairns' Hoose' by 2025^[55]. The 'Bairns' Hoose' will ensure all children in Scotland who are alleged to have been harmed by, or witnesses to, abuse or violence, however that is dealt with, as well as children under 12 whose behaviour has allegedly caused significant harm, have access to trauma informed recovery, support and justice. Key elements of the 'Bairns' Hoose' include the provision services from the whole team around the child in one child friendly setting, with a key aim being to reduce the number of times children have to recount their experiences through a coordinated, needs-led approach.

For cases dealt with through the criminal justice system, the Victims Code for Scotland^[56] clearly and simply sets out the rights of people who have been harmed and what should be expected from criminal justice agencies. This includes the right to information, including case specific information, participation (where appropriate), protection and support. The statutory basis for the Victims Code is established in the Victims and Witnesses (Scotland) Act 2014, which also sets out a range of general principles and rights. There is not a comparable code for victims where children's offences have been dealt with outwith the criminal justice system.

In considering particular offences, the independent review led by Lady Dorrian on improving the management of sexual offence cases^[57] found that people who have been harmed continue to feel frustrated and under-informed. Recommendations were made in respect of both the children's hearings and criminal justice systems, including:

• The provision of further information to people who have been harmed on how the children's hearings system works, including the restrictions on the provision of information and the reasons for that, and reviewing how this information is provided;
• The role of police and where appropriate COPFS, in providing timely information - where there is a possibility that an allegation will be managed through the hearings system - on the different procedures and how restrictions on the provision of information will apply; and
• People who have been harmed having a single point of contact and access to advocacy support.

The Scottish Government has established a Governance Group to further consider the recommendations and will consult later in 2022 on recommendations which require legislation to be implemented.

4.1.4 Implications of raising the maximum age of referral to the Principal Reporter

The ability to refer all 16 and 17 year olds to the Principal Reporter would lead to an increase in the number and range of cases being dealt with by the children's hearings system, including offence cases, and therefore an increase in people who have been harmed and their families coming into contact with this system. As further discussed in Section 5, some cases will still require the criminal justice system to play the main role in dealing with a child's offending behaviour. The decision of whether or not to prosecute would be one for the Procurator Fiscal taking account of the factors as detailed in the prosecution code^[58]. These include considerations related to the law, evidence and public interest - such as the nature and gravity of the offence, the impact of the offence on the person harmed, circumstances related to the offence and the child who caused harm.

In responses to the 2020 consultation raising the age of referral to the Principal Reporter, the vast majority of respondents (77%) advised that amendments would be required to ensure sufficient access to information and support for people who have been harmed by children if the age of referral were to be increased. We therefore need to consider whether legislative change can be made to promote greater access to information, support and protection to people who have been harmed where cases are dealt with through the children's hearings system. It will remain crucial to ensure the overarching welfare approach and principles of the system are not eroded; that a rights-based approach is maintained; and that the risk of harm to any child is not increased.

All people who have been harmed who come into contact with the police should receive a Victim Care Card, which provides information such as the investigating officer's name, contact details and how to access support from Victim Support Scotland. However, beyond this the information and support provided to people who have been harmed varies dependent on whether the case is dealt with by the children's hearings system or criminal justice system.

4.2 Information

4.2.1 Information where a person has been harmed by a child who has been referred to the Principal Reporter

SCRA offers a Victim Information Service for people who have been harmed, their parents or other relevant persons, where a child is thought to be responsible and has been referred to the Principal Reporter. The level and type of information which can be shared is:

• About the children's hearings system;
• The outcome of the referral (i.e. whether or not a hearing was arranged and the outcome of the hearing)^[59]; and
• About how Scotland treats children who do things which are against the law.

Information about the measures (conditions) on a CSO or Interim CSO (ICSO) is not shared with the person who has been harmed. This means that if for example, there is a measure on such an order that a child's movement or contact with a person who has been harmed is restricted, that person will not be aware of such conditions. This means that the person who has been harmed would not know if such measures were not being complied with, nor be able to alert the implementation authority to concerns.

Victim Information Co-ordinators write to people who have been harmed when identified in a police report at the initial stage of their investigation. People who have been harmed can then opt in to receive the above information. Safeguards are in place to ensure that the provision of such information would not be detrimental to the child who has caused harm, or to any other child, taking account of factors including the age of the child referred, seriousness and circumstances of the offence, the effect on those harmed, and other factors the Principal Reporter considers appropriate. The information provided must be proportionate and not include more information than is necessary. Victim Information Co-ordinators also provide the point of contact for requests for information from the Criminal Injuries Compensation Authority and insurance companies.

4.2.2 Information where a person has been harmed by a child who went to the criminal justice system

If a case is dealt with through the criminal justice system, people who have been harmed have the right to request information about their case from agencies^[60] such as Police Scotland, COPFS and the Scottish Courts and Tribunals Service. This will be dependent on what stage of the process that the information is sought and may include, for example, information about a decision not to prosecute and to request a review of that decision. When a case proceeds to court, people who have been harmed have a right to request information on the dates of any court hearings, the final decision of a court in a trial or any appeal arising from a trial, and any reasons for it.

Where protective measures are made prior to conviction, for example bail conditions, or as part of the outcome/disposal of a case, for example, where a non-harassment order is imposed by the court, the person who these measures relate to would be informed.

4.2.3 Proposals

Respondents to the raising the age of referral to the Principal Reporter consultation cited various types of information seen as important for people who have been harmed. This included information relating to the children's hearings system and case-specific information such as the outcome of the hearing, the risk management plans put in place, the effectiveness of support and acknowledgment of harm. In responses from children and young people, there was a range of views on whether change was needed. These varied between perspectives that more information for people who have been harmed was definitely needed, to more cautious views that the provision of further information should be conditional and determined on a case-by-case basis, including consideration of why the information was being requested and whether this may place the referred child at risk, and that details of interventions or personal information should not be included.

The provision of further information to people who have been harmed on how the children's hearings system works and the different procedures and restrictions on the provision of information that apply has already been recommended by the Lady Dorrian review^[61]. The Scottish Government are considering whether more case-specific information should be provided through the children's hearings system. We are particularly keen to identify if measures within an order relating directly to a person who has been harmed, for example through restricting a child's movement or contact with others, whether that person, or their parents in the case of a child who has been harmed, should be informed. Any changes would need to ensure the sharing of information remains proportionate and in accordance with existing legal protections in respect of children's and human rights, including to privacy, and data protection. The ethos and core principles of the Children's hearings system must also be respected.

4.2.4 Questions

Question 1: Where a person has been harmed by a child whose case is likely to proceed to the children's hearings system, should further information be made available to a person who has been harmed (and their parents if they are a child) beyond what is currently available?

Yes / No

• If yes: what further information should be made available?
• If yes: are there specific circumstances when further information should be provided and what would those circumstances be?

Please give reasons for your answer

Question 2: Where a person has been harmed by a child who has been referred to a children's hearing, should SCRA be empowered to share further information with a person who has been harmed (and their parents if they are a child) if the child is subject to measures that relate to that person?

Yes / No

Please give reasons for your answer

4.3 Access to support

All people who are harmed should have consistent and universal access to support throughout their journey, no matter which system deals with the offence(s) affecting them. All people who have been harmed who come into contact with the Police Should receive a Victim Care Card with details on how to access support from Victim Support Scotland.

4.3.1 Support where a person has been harmed by a child who has been referred to the Principal Reporter

Where a case goes on to be dealt with through the hearings system, the SCRA Victim Information Service can help people who have been harmed to access support organisations offering practical and emotional support. Individuals can also independently access these support services. However, people who have been harmed and their families have reported that the support available can be insufficient and access arrangements disjointed. In particular, children who have been harmed appear to face difficulties in accessing support and protection within services such as social work and education, potentially because a child protection response to the harm has been more focussed on risk within the referred child's home environment. This should improve through consistent application of the new national child protection guidance. At time of writing, these concerns appear particularly acute when a child who has been harmed remains in the same community and educational setting as the child who has caused the harm. Those who have been harmed and their families often make unfavourable comparisons between the holistic approach applied to supporting the child who has caused the harm through the children's hearings system; and the support available to them.

4.3.2 Proposals

The Scottish Government is keen to explore how a more comprehensive, joined-up, trauma-informed approach to support can be developed for people who have been harmed, particularly following the referral of a case to the Principal Reporter. For children who have been harmed, in particular, this may need to be a multi-disciplinary approach, requiring professionals from, for example, health, education, social work and the third sector to work together to provide a suitable package of support. In doing so we are interested both in whether additional support should be provided, as well as what this should be, and if a single point of contact for each individual who has been harmed is appropriate. This role could be to provide a single conduit of information and to provide, arrange and coordinate access to support. This would require the gathering and collation of information from different agencies as appropriate. This would seek to reduce people who have been harmed needing to contact various different agencies for information and address gaps and delays in safe and appropriate information provision.

Further consideration would need to be given to the feasibility of such a role, who would be responsible for delivery, and how this would interface with existing measures including the SCRA Victim Information Service and developments related to the 'Bairns' Hoose' It would be important that the single point of contact was available throughout the person's journey from the harm being caused, through decisions being made on if how to proceed with the case, through to its conclusion and any subsequent support.

4.3.3 Questions

Question 3: Where a person has been harmed by a child who has been referred to the Principal Reporter, should additional support be made available to the person who has been harmed?

Yes / No

• If yes, what additional supports do you feel are necessary?
• If yes, should this apply to all people who have been harmed or only in certain circumstances? (Please specify)

Question 4: Should a single point of contact to offer such support be introduced for a person who has been harmed?

Yes / No

• If yes, should this be available to all people who have been harmed or only in certain circumstances? (Please specify)
• If yes, who should be responsible for providing the single point of contact?

Please give reasons for your answers

4.4 Protection for people who have been harmed and preventative measures

Scotland needs to support the confidence of the public, professions and people who have been harmed in the measures that are available through the children's hearings system. Where a child has caused harm, the person who has been harmed must be protected. In preventing future victimisation, children should be able to access the services, supports and interventions they require as part of any statutory order.

4.4.1 Current children's hearings system measures

The Children's Hearings (Scotland) Act 2011^[62] allows for children placed on a CSO or ICSO to be made subject to specific measures. These can include:

• Specifying where the child is to reside;
• Allowing a person the child is living with to restrict their liberty as appropriate;
• A Movement Restriction Condition (MRC) using electronic monitoring alongside intensive supports;
• Secure accommodation authorisation;
• Regulating contact between the child and a specified person or class of person;
• Requiring that the child comply with any other specified condition. This might include measures like treatment in respect of substance misuse or mental health concerns; undertaking interventions or specific activities; or avoiding specific behaviours;
• Making a condition can also be made that the implementation authority carry out specified duties in relation to the child.

Through these existing measures that can be attached to an order, current mechanisms exist that could be used to protect people who have been harmed. For example, a condition of 'no contact' with a person could be used, or a condition 'not to harass or cause further harm' to any person who has previously been harmed. In addition, a MRC could be used to specify that a child's movement is restricted away from a particular place, for example a victim's home address, places they frequent or where an offence took place.

Any decision to include these measures needs to take full account of the general principles set out in sections 25 to 29 of the Children's Hearings (Scotland) Act 2011, and must comply with the relevant statutory criteria for making an order or including a measure. The welfare of the child referred can become a primary, as opposed to the paramount consideration where necessary for the purpose of protecting members of the public from serious harm^[63]. A child could not however be made subject to an order or particular measures attached to that order solely for the best interests or protection of others.

When a hearing is considering a MRC, the referred child must currently meet the criteria for a secure accommodation authorisation^[64], which includes that the child is likely to cause injury to another person. However, it may be that a person who has been harmed would benefit from a MRC being in place where the potential for harm is broader than being physically injured - for example through emotional or psychological harm from coming into contact with a child who has caused harm, or from being harassed or intimidated by this child.

Because the children's hearings system is not a criminal process, there is no applicable concept of "breaching" an ICSO / CSO and the attached measures. In the event that a child does not comply with an order, the implementation authority would have a duty to request a review by a children's hearing of a CSO^[65]. The children's hearing considering the CSO or ICSO could include more restrictive measures on the order, as a result of the lack of compliance.

There is also no current ability to share information with a person who has been harmed about the existence of measures in a ICSO / CSO to restrict a child's movement or contact with a person who has been harmed. This means that they would not necessarily know if those measures were not being complied with, or be able to alert the implementation authority.

4.4.2 Current criminal justice system measures

Through the criminal justice system a number of protective measures are available, at various stages of that process, that are not accessible via the children's hearings system. They include bail conditions, notification requirements for sexual offenders, disqualification from driving and non-harassment orders. Even where there are comparable measures available, there are key differences as to enforceability.

For example, in respect of bail, the court may admit a person to bail on the standard conditions (including a condition of appearing at court diets on time, not committing an offence while on bail, and not to interfere with or cause alarm or distress to witnesses). Further conditions that the court, or as the case may be the Lord Advocate, considers necessary to secure that the standard conditions of bail are observed can be included. It is an offence to breach bail which can result in arrest, prosecution and punishment, with possible penalties including a fine or imprisonment^[66].

4.4.3 Measures outwith the children's hearings system or criminal justice system

Support to manage and address parts of a child's behaviour that may pose a risk of harm can be provided outwith either system. For example, where a child is subject to formal risk management measures (for example 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.

4.4.4 Proposals

In maximising the use of age-appropriate systems and creating a context where more children's cases are likely to be dealt with through the children's hearings system, it is necessary to consider whether additional protections may be required for people who have been harmed. This could include considering whether existing measures should be amended or enhanced. In doing so, we must ensure that the fundamental welfare-based and non-punitive principles of the children's hearings system would be retained and that existing rights to privacy for referred children, would be upheld. As a result, certain measures currently available through the criminal justice system have already been considered. The current Scottish Government assessment is that these could not appropriately be replicated in the children's hearings system - certainly not without fundamentally distorting the ethos of the system.

As detailed above, a range of measures exist that can be attached to any order through the children's hearings system could be adapted to offer better protection to people who have been harmed. It may be that awareness of these measures could be enhanced or they could be utilised more frequently or appropriately, for example through the provision of guidance to decision-makers.

It may be that amending or enhancing existing measures is deemed necessary, and we would welcome respondents' suggestions on how this could be achieved. By way of possible examples, one potential change would be to require a children's hearing to consider the necessity of attaching measures to an order for the protection of any person(s) who has been harmed where there is a risk of further serious harm (whether physical or otherwise). This echoes and extends the already statutorily defined ability for a children's hearing or court to safeguard and promote the welfare of the child as a primary consideration rather than the paramount consideration for the purpose of protecting members of the public from serious harm (whether physical or not)^[67].

A further example would be to revisit the stipulation that a Movement Restriction Condition (MRC) is only available when a child meets the current criteria for secure care^[68]. There are different apparent options for revising the criteria for the use of MRCs. For example, the condition related to the child is likely to cause injury to another person, this could be changed to likely to cause serious harm (whether physical or not) to another person^[69].

Alternatively, the criteria for an MRC could be linked to the commission or alleged commission of particular offences or harms.

A further option would be for the criteria to be broadened to relate to the particular vulnerabilities of the person who could be harmed.

Any of these changes to MRC criteria could lead to the wider use of such measures in cases where there are concerns about the safety of members of the public, particular people who could be harmed and the protection of children or others. Clear parameters on when these measures could appropriately be used, and review mechanisms, would be required.

Respondents will also wish to consider if any expansions of this nature would remain consistent with the welfare-based approach of the children's hearings system.

4.4.5 Questions

Question 5: Should existing measures available through the children's hearings system be amended or enhanced for the protection of people who have been harmed?

Yes / No

Please give reasons for your answer

• If yes, please provide details of how they should be amended or enhanced

Question 6: Should MRCs be made available to children who do not meet the current criteria for secure care?

Yes / No

Please give reasons for your answer

• If yes, what should the new criteria for MRCs be?

4.5 Maximising the use of the children's hearings system and supports to children beyond the age of 18

The children's hearings system and criminal justice and courts system interact in respect of certain limited circumstances including in the ability of the court to remit^[70] a child's case to the hearings system for advice and/or disposal. In respect of jointly reported cases^[71] where it has been determined that the child will be referred to the Principal Reporter, that decision cannot be reconsidered. In other words, the Procurator Fiscal cannot decide subsequently to prosecute the child in relation to that particular offence. Conversely, where it has been decided that the Procurator Fiscal will deal with the offence, they can reconsider that decision at a later date and could refer the child to the Principal Reporter as an alternative to proceeding with prosecution. If a child went on to commit further offences, these could be jointly reported and further discussion between the Principal Reporter and the Procurator Fiscal would take place in determining how to proceed with those further offences.

There are various sentencing disposals that can be made through the courts that are not available through the children's hearings system. These include detention in custody, disqualification from driving, and notification requirements for sexual offenders. These measures cannot easily be replicated in the hearings system without jeopardising its ethos. Limits on disposals available through the children's hearings system may become a reason for the decision for a child's case to be retained by the Procurator Fiscal and the justice system.

Current disposals through the children's hearings system cannot extend beyond a child's 18^th birthday. This does not mean to say that services, supports and interventions do not continue beyond a child's 18^th birthday, but not as part of compulsory measures through the children's hearings system. The children's hearings system can place a duty on the local authority to give such supervision or guidance as the child will accept, on termination of a CSO^[72]. Any child who was a looked after child^[73] and ceased to be looked after on or after their 16^th birthday, yet who is less than 26 years of age, may be eligible for such support in the form of aftercare^[74]. Services can also be accessed through adult and criminal justice social work services. The eligibility criteria are guided by relevant legislation and local prioritisation frameworks. There are concerns, as detailed elsewhere, that turning 18 can become a cliff-edge for support for some young people.

4.5.1 Proposals

In order to maximise the use of the children's hearings system and to ensure supports to those children on turning 18, an initial exploration of the interfaces between the children's hearings system and criminal justice system, and the powers across each system, has been undertaken. The differences between the children's hearings system and the criminal justice system including their distinct purposes, must be respected. Certain measures can only realistically be made available via one system or the other. Scotland's future approach must be mindful of the challenges children can face in understanding the different systems they are involved in, and in complying with multiple orders often with different purposes, requirements and measures^[75]. Therefore, the Scottish Government is keen to gather views on the following illustrative options, as well as for respondents to put forward any suggested alternatives.

Possible options:

1. Enabling all children under the age of 18 to be remitted to the Principal Reporter for advice and disposal in their case even where they had initially been prosecuted and have pled, or been found, guilty^[76]. This would extend the existing legislative provision to cover all children charged under summary and solemn proceedings and not be dependent on a child being subject to measures through the children's hearings system. The exception would remain in respect of an offence where the sentence is fixed by law. This option would support the reinforcement of the position in respect of remittal as detailed in the Scottish Sentencing Council Sentencing Young People Guideline^[77].

2. Promoting wider use of the existing ability for the children's hearings system to require support to be offered to a young person on a voluntary basis following the termination of any CSO by virtue of that individual turning 18. This could be strengthened to include the need for the children's hearing to provide a closure report at the end of a child's CSO where this is being discharged or ceasing only by virtue of the child turning 18. This report could detail any identified needs or risks that remain. It could be shared with the implementation authority who would be responsible for assessing the support needed, including on a multi-agency basis, to address these needs or risks. This assessment and any subsequent provision of support could be provided under existing aftercare duties, where applicable.

3. Increasing the age to which children can remain subject to measures through the children's hearings system for a period beyond the child's 18^th birthday. Consideration would require to be given as to what age this could continue to, and whether this would only available for children who had already been referred to the Principal Reporter prior to turning 18. An extension of this nature may also support the optimisation of benefits of raising the age of referral to the Principal Reporter. If measures cannot extend beyond a child's 18^th birthday, there will be limits to the range of support that can be provided to those who are referred close to this upper age range. Further considerations, not least in respect of the differential rights of young people as adults, the ethos of the hearings system, and the implications for services of any such change would need to be taken into account.

4.5.2 Questions

Question 7: Should any of the above options be considered further?

Yes / No

• If yes, which option(s)?

Please give reasons for your answer, including any positive or negative implications of any of the proposals.

Question 8: Please give details of any other ways in which the use of the children's hearings system could be maximised, including how the interface between the children's hearings system and court could change