Raising the age of referral: consultation

Appendix A

Illustrative examples:

The following scenarios are not uncommon and are offered as a means of demonstrating the potential benefits of the proposed changes to allow 16 and 17 year olds access to the children's hearings system.

Jane

Jane has just turned 16 and lives with her parents and two sisters aged 14 and 12. She has a learning disability and rarely leaves her home. She confides in her sisters that she has been sexually abused by her father for the past three years. Police and social work are informed.

There is not sufficient evidence to prosecute her father and her mother does not believe that anything happened.

Currently Jane's younger sisters could be referred to a Children's Hearing on the basis that they may be in need of compulsory measures of supervision. The standard of proof is less than the criminal standard, and if proven the Hearing could then consider whether both girls should be looked after away from home or other measures put in place to protect them.

At present Jane could not be referred to the Reporter as she is over 16. It may be possible to carry out a Child Protection investigation, however the inability to refer Jane to the Reporter would limit the powers available to those seeking to protect her. She could be made subject to an Adult Support and Protection investigation however that would depend on her capacity and whether she meets the statutory tests.

If children aged 16 and 17 were eligible for referral to the Reporter the benefits to Jane and her siblings would be as follows:

• All the girls would be within the same system with similar rights and access to supports.
• Offer an opportunity for a wider assessment of Jane's needs and provide supports. For example a measure that Jane does not reside in the same house as her father or have contact with him
• An advocate or legal representative could be appointed to ensure Jane's voice is heard during the proceedings if she is unable otherwise to participate effectively.
• The Hearing could give full consideration to the facts of the case and decide how best to protect Jane and her siblings.
• Validate Jane's allegations acknowledging her status as a victim.

Harry

Harry was previously subject to a Compulsory Supervision Order (CSO) because his relationship with his parents had deteriorated beyond repair and they were unable to impose parental control. He was placed with foster parents and got on well with them but at 16 the CSO was terminated. Several months later, and after an argument with his foster father he left home.

Harry is now homeless and using heroin. He met his ex-foster mother in the street and talked of ending his own life. He is vulnerable to involvement in offending, accidental overdose, the long term effects of his current situation and risks of self-harm. If not for his age he could be referred to the Reporter on the basis of s67(2)(i) misuse of drugs or s67(2)(m) conduct likely to harm himself. He would qualify for after care support but only if he seeks it voluntarily.

At present Harry could not be referred to the Reporter as he is over 16 years.

If he was eligible for a referral to the Reporter, a children's hearing could be arranged and result in him being made subject to a compulsory supervision order that could lead to stable accommodation, ongoing provision of advice and guidance with review, that would enable him to enjoy greater safety and co-ordination of the various supports that he requires.

Sabina

Sabina is 17 and lives at home with her mother and younger sister. She is in 6^th year at school. Sabina's mum has physical and mental health difficulties which mean she cannot work, the family are dependent on benefits.

Sabina is found by the Police breaking into a house. When the police question her she explains that the family have been struggling financially since her father left last year and that she was breaking in to the house for money to buy food for the family. She is charged by the Police, due to the nature of the offence, the matter cannot be dealt with via Early and Effective Intervention. Police submit a report to the Crown Office and Procurator Fiscal Service (COPFS).

At present Sabina could not be referred to the Reporter. If the age of referral to the Reporter was raised Sabina could be jointly reported to the Reporter and COPFS. The judgement as to whether or not the case would be retained in the criminal justice system or referred to the Reporter would be a matter for the Procurator Fiscal.

Lewis

Lewis is 16 and lives with his parents. He is enrolled in an access to construction course at college but his attendance in recent months has been poor. He has been spending time with a new peer group, some of whom look a lot older than him and he has become more withdrawn and distant with his parents. Lewis often fails to return home and can be out of contact with his parents for a couple of days at a time, on occasions he has returned with unexplained injuries and has refused medical attention. Lewis has been open about his cannabis use with his parents but they suspect he may be using other drugs as they have found several small bags in his pockets and in his bedroom.

Police stop Lewis near the house of an adult known for involvement in criminal activity. As a result of him acting suspiciously and attempting to run he is searched and found to be in possession of £600 cash.

Following investigation it is established that Lewis has been subject to criminal exploitation by a serious organised crime group. The group is known to have used Lewis and other children to supply cocaine and heroin to neighbouring towns and cities. Since being found by the Police Lewis has received threats, the family home has been targeted and windows smashed.

At present Lewis could not be referred to the Reporter. It could be possible to carry out a Child Protection investigation, however the inability to refer Lewis to the Reporter would limit the powers available to those seeking to protect him. He is at risk of escalating into the criminal justice system. Referral to the Reporter could allow a children's hearing to take place for consideration to be given to the supports required to keep Lewis safe.