COVID-19 Children and Families Collective Leadership Group - short-life group on under-18s in custody: report

Delivering improvements in the experience for under-18s in YOIs

The first responsibility of the Short-Life Group was to support colleagues across the system to deliver improvements in the experience for under-18s in YOIs and also identify how to reduce the number of under 18s in YOIs.

There had been significant concern expressed at CLG regarding the experience and human rights of young people in Polmont following the publication of a pre-inspection survey report by HMCIP and CYCJ in October 2021 which highlighted a number of serious concerns^[5].

The Governor of Polmont provided the Short-Life Group with a comprehensive update on improvements for under-18s in custody delivered by January 2022. These included:

• Re-alignment of Full Time Barnardos worker to work closely with individuals and reduce social isolation and encourage participation in activities available
• Engagement with young people around their ambitions with training opportunities available through Fife College (December 2021)
• Access to vocational training for both remand and convicted individuals
• Provision of mobile phones for all under-18s with 930 minutes provided monthly
• Unless there are restrictions in line with Scottish Government health requirements because of Covid-19 outbreaks, there are no restrictions to the regime for 16 and 17 year olds in Polmont with staff proactively engaging with the young person in communal areas and in their cells depending on the activity
• Re-alignment of Full Time Inclusion Officer who commenced in January 2022 to support young people to engage in activities and connect and improve relationships with their families
• Development and implementation of new non-pain inducing techniques for young people and women in Polmont

Although outwith the remit of the Short-life Group, it was commented that, should there be delays in removing children from prison custody, there is a need to review any Prison Rules which are not aligned to the Youth Justice Strategy including currently agreed practices on a range of fronts nor recognises the wealth of international expectations and legislation specific to children as opposed to adults.

Reducing the number of under 18s in YOI

In 2019 an Expert Review on Mental Health and Young Offenders Short Life Working Group developed a matrix which identified key opportunities to share information and maximise opportunity to avoid custody throughout the young person's pathway through the system. This matrix reinforces the need to take a whole system approach and progress with improving information sharing. (Annex 3)

A range of work has also been undertaken as a result of the 2021 Programme for Government and this is described in the following sections. The short life working group are supportive of this work continuing.

The following work is underway:

• Discussions and drafting towards a Children's Care and Justice Bill, including a 12 week public consultation expected in spring 2022.
• Ongoing discussions with key partners including COSLA, Scotland Excel, secure care providers, Social Work Scotland to consider funding of secure care placements from summer 2022, allowing priority capacity for young person and young people living in Scotland.
• Quarterly Youth Justice Improvement Board meetings. The Board oversees the delivery of the Youth Justice Vision. The priorities within the vision are being delivered through the Advancing Whole System Approach (WSA) implementation group chaired by Neil Hunter SCRA and John Trainer SWS and the Young Person's Rights group chaired by Fiona Dyer CYCJ and Juliet Harris Together Scotland. Both groups have met twice.
• The Advancing Whole System Approach (WSA) implementation group is focused on delivering the actions within the Youth Justice vision including reinforcing the reinvigorating the WSA to under 18s, developing a consistency of approach to Early and Effective Intervention, creating lasting systems and supporting culture change. This group are also looking at extending WSA beyond 18, supporting the raising of the age of referral to the Reporter to 18 for all young person and supporting the agenda of no under 18s in YOI.
• A Community Alternatives Working Group chaired by John Trainer has been set up to look at community alternatives across Scotland with the view to publishing a framework for practitioners on community alternatives to remand by September 2022. This group sits under the Advancing WSA group.
• The Community Alternatives Working Group has met on one occasion and has requested specific information from all 32 local authority areas on what the current alternative provision across the country looks like. An assessment of gaps is being undertaken and good practice shared. The group is prioritising this work with a timeframe of end of April 2022 for publication of updated framework for alternative to custody and secure care.
• Review and address the outstanding considerations of the Cross System Group on 16/17 year olds in the hearings system, which reported in September 2021, before any legislative change commences.
• The Young Person's Hearing System Working Group to report on current practice with future work to enact the recommendations.
• Work with SPS, Secure providers and other key partners to consider the needs of the current YOI population to ensure the supports, opportunities and mechanisms are in place to meet the needs and address the risks of all under 18s in alternative provision in the future.
• Work progressing on providing confidence of Judiciary and prosecutors in secure care, Young Person's Hearings System and community alternatives.

Emergency release of prisoners powers

A consideration for the Short-Life Group was the potential for regulations to be used to reduce number of under-18s in Polmont. However, these were focussed on release only and cannot stop courts sending under 18s to Polmont. The powers were also only for those who had been sentenced and could not be used for children on remand.

This is because the court has specifically decided an accused person requires to be remanded for the purpose of an ongoing court process, and that decision can be reviewed at any time. The regulation making power does not allow provision to be made for such children to be held elsewhere if released.

The Scottish Government's position is that amendments to Regulation 2 removing the Governor's veto could mean the provision would fall foul of Article 3 of the ECHR, which requires the State to actively protect identified persons to whom an offender would pose a risk of harm. The Scottish Government consider that given the complexities involved in the legal changes required, it is important that these matters are considered against all the competing and intersecting issues and not in isolation. This is to ensure that the legislative barriers are addressed appropriately without detrimental impacts on other parts of the system.

It should be noted that this is not a view shared by all members of the group and some feel that the use of emergency powers must be considered. There was disappointment that the Scottish Government were not prepared to agree to the amendment of the Governor's regulations. In addition some members expressed frustration and disappointment about the delay in this decision being made.

Legislation

The planned Children's Care and Justice Bill will set out proposals to help meet the asks from the Promise that 16/17 year olds should no longer be placed in YOI and that children who need to have their liberty deprived should be cared for in small, secure, safe, trauma informed environments in a manner that upholds their rights.

Engagement is taking place ahead of consultation and will continue, looking at these matters in-depth with a range of interested parties, as provisions are shaped ahead of introduction.

With Parliament's backing, Scottish Government hope to raise the age of referral to the Principal Reporter to 18 for all children, with a presumption against under 18s in the Criminal Justice System, as far as consistent with the Lord Advocate's prosecution policy. The Short Life Working Group are supportive of these proposals.