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

Recommendations for Covid-19 Collective Leadership Group

In addition to current activity underway detailed earlier in this Report, the following 4 Recommendations are made to the Covid-19 Collective Leadership Group for Children and Families:

• Recommendation 1: Undertake a Trauma Informed Review of the Young Persons Pathway to YOI
• Recommendation 2: Recognising the needs and rights of the young person and support their understanding of court processes to ensure meaningful participation
• Recommendation 3. Assess and review key policies through the lens of UNCRC and other human rights treaties
• Recommendation 4: Identify and remove legal impediments to alternatives to remand and take immediate action where possible to remove under-18s from custody

Recommendations in Detail

Recommendation 1: Undertake a Trauma Informed Review of the Young Persons Pathway to YOI

HMIPS, HMICS, Care Inspectorate and Inspector of Prosecutions have already started work on this area across the age range. It is recommended that other stakeholders join this work representing the services and systems young person come into contact with, from the point of arrest, will come together to review a young person's pathway to custody. This work will identify the key decision-making stages from arrest to custody and map out the alternative, developmentally-appropriate courses of action which could divert the young person from progressing further at each stage

It's important that Advocacy for the young person is provided throughout their journey and ensuring the young person understands what is happening and also has their voice and views heard

Recommendation 2: Recognising the needs and rights of the young person and support their understanding of court processes to ensure meaningful participation

There is a need to make sure our services are responsive with appropriate support and understanding of all relevant aspects of UNCRC and the role of advocacy in supporting the young person through the availability of bail supervision, other services as appropriate e.g. mental health services, and where necessary alternative accommodation and link in with work undertaken by the Youth Justice Improvement Board and its sub groups.

Recommendation 3: Assess and review key policies through the lens of UNCRC and other human rights treaties

Including the Youth Justice: Whole System Approach to Preventing Offending by Young People, to identify any gaps and improvements that can be made including through the new Justice Strategy and Review of Continuing Care.

Further suggestions for follow-up activity include drawing on wider work by the Centre for Youth and Criminal Justice on Scotland's approach to children in conflict with the law^[6] and Clan Childlaw's proposals on creating a more child-friendly and accessible legal aid system.^[7] This would help to ensure that children's rights, their dignity and respect are central to the ethos, practice and delivery of services with appropriate support and understanding of UNCRC and the role of advocacy.

Recommendation 4: Identify and remove legal impediments to alternatives to remand and take immediate action where possible to remove under-18s from custody

• Access to secure accommodation is determined by the person's legal status as a child (under 16 or 16/17 and subject to a compulsory supervision order or interim compulsory supervision order), all other 16/17 year olds are classed as adults and, therefore, there is no legal route in to secure accommodation should they be required to be deprived of their liberty.
• An alternative to remand may require more and different community supervision packages and secure accommodation to be consistently available to the courts at all times - or the capacity to remit to the hearing system for disposal.

Conclusion

A key driver for improvement is the commitment within The Promise Change Programme One^[8] that by 2024 16 and 17 year-olds will no longer be placed in YOIs for sentence or on remand. This is also a commitment within the Programme for Government.^[9]

Addressing the issue of under-18 year olds being isolated in Polmont YOI using information provided by the Scottish Prison Service.

The Short-life Group recognises the significant work that has been undertaken within Polmont and across the system to engage stakeholders in progressing improvements. The HMIPS – Year of Childhood Pre-Inspection Survey 2021 has noted that staff helped individuals to feel safe in custody. The Short-life Group agreed that it was essential the focus is now on what can be changed now to prevent under 18s coming into Polmont, potentially including under emergency legislation, and ensure that the wider parts of the system are prepared for when longer term legislative change is made.

Understanding key decision points and opportunities to provide additional support and alternative approaches to custody.

This Report includes work currently underway and recommendations for further work.

It is critical that UNCRC and the Promise are embedded within a systematic approach that engages with the young person and respects their rights and choices.

A number of members of the group have strongly recommended that, in addition to the action proposed under the Children's Care and Justice Bill, Coronavirus Emergency Legislation is used to take more immediate action to remove under-18 year olds from YOIs and place them in secure care provision.

There was strong disappointment from group members that the Scottish Government were not prepared to agree to the amendment of the Governor's regulations.

The Children and Young People's Commissioner Scotland does not consider the recommendations reflect the urgency of the changes required and does not agree that working to 2024 is sufficient.

The impact of trauma and the desire to reduce this was a strong commitment demonstrated throughout the Short-life Group meetings. It was agreed all work to improve the experience of the young person must consider the impact of trauma throughout all the processes and decision making at each crucial point in a young person's journey.

It is requested that every effort is made to ensure all actions and potential new processes, services, procedures and systemic approaches proactively divert young people away from custody including through improving information and notification between police, courts, legal representatives and custody settings.

The recommendations within this Report reflect strong commitment to build on work already underway and fully embed UNCRC recognising the impact of trauma on the young person and that improvements in policies, procedures and responses can reduce re-traumatising and can be life changing for young people.

The Short-life Group seeks endorsement of the recommendations by CLG on 3 March 2022 with this Report forwarded to Ministers for their response.

Joanna Macdonald
Chair of SLG
3 March 2022

Update (31 March) - CLG endorsed the recommendations at its meeting on 3 March and the report was subsequently forwarded to Ministers. The Cabinet Secretary for Justice and Veterans wrote on 31 March to the Conveners of the Education, Children and Young People; Covid-19 Recovery Committee; and Criminal Justice Committee setting out the action that the Scottish Government is taking to reduce offending by children and young people and safeguarding them within the youth justice system with a view to keeping under 18s out of YOIs. The Cabinet Secretary highlighted the recommendations of the sub-group and how these will be taken forward through legislative and other action including the forthcoming Children's Care and Justice Bill and work to Keep The Promise.