Criminal Justice Modernisation and Abusive Domestic Behaviour Reviews (Scotland) Bill: child rights and wellbeing impact assessment

Conclusion

7. As a result of the evidence gathered and analysed against all UNCRC requirements, what is the potential overall impact of this proposal on children’s rights?

Positive

8. If you have identified a positive impact on children’s rights, please describe below how the proposal will protect, respect, and fulfil children’s rights in Scotland.

As the measures in Part One of this Bill are not specifically for children and young people, the impact range from neutral to positive. Where they do benefit from these, the impacts have been set out below:

Virtual hearings are useful in situations where vulnerability and attendance at court can risk (re)traumatising children and young people or otherwise have a significant adverse emotional or psychological impact.

The use of fiscal fines as a diversionary measure for low level offences allows individuals between the ages of 16-18 to avoid having to undergo prosecution in the courts.

• UNCRC Articles
  • Article 3 Best interests of the child:
    • Virtual hearings offer more flexibility in how people, including children and young people engage with the justice system and justice processes. These provisions align to other work across our justice system that is allowing children (and vulnerable witnesses) to give their evidence in criminal trials and to participate in civil and tribunal hearings within a safe, sensitive and secure environment. This is taking into consideration the best interests of the child, and not having the default as attending court in person, which evidence shows can be traumatic and / or retraumatising.
    • Fiscal Fine offers an option that is not prosecution for young people. Prosecution can have significant impacts on young people, and measures to offer an alternative are welcomed across our justice system. They are also not compulsory, meaning there is flexibility for the young person to decline and also to take into consideration their and their family’s circumstances.
      • While none of the measures solely focus on child victims or young people who are victims, the measures in virtual attendance takes into consideration the vulnerabilities and needs of child victims. By allowing children (and vulnerable witnesses) to give their evidence in criminal trials virtually it contributes to protecting their rights and wellbeing – in the face of traumatic events, as it does not force them to physically be in court and expose them to possibly traumatic interactions or challenges with attending court in person that have been well documented (like non-child appropriate rooms, coming into physical contact with the accused, and having to travel far distances from home).
    • While none of the measures solely focus on child victims or young people who are victims, the measures in virtual attendance takes into consideration the vulnerabilities and needs of child victims. By allowing children (and vulnerable witnesses) to give their evidence in criminal trials virtually it contributes to protecting their rights and wellbeing – in the face of traumatic events, as it does not force them to physically be in court and expose them to possibly traumatic interactions or challenges with attending court in person that have been well documented (like non-child appropriate rooms, coming into physical contact with the accused, and having to travel far distances from home).
• Second Optional Protocol
  • Article 8 - States Parties shall adopt appropriate measures to protect the rights and interests of child victims of the practices prohibited under the present Protocol at all stages of the criminal justice process, etc.
    • While none of the measures solely focus on child victims or young people who are victims, the measures in virtual attendance takes into consideration the vulnerabilities and needs of child victims. By allowing children (and vulnerable witnesses) to give their evidence in criminal trials virtually it contributes to protecting their rights and wellbeing – in the face of traumatic events, as it does not force them to physically be in court and expose them to possibly traumatic interactions or challenges with attending court in person that have been well documented (like non-child appropriate rooms, coming into physical contact with the accused, and having to travel far distances from home).

The provisions in Part Two of this Bill help to give further effect to the rights of children as specified within UNCRC, under the following:

• Children’s non-discrimination as a result of their lived experience of a domestic homicide or domestic abuse related suicide (Article 2, paragraph 2 of UNCRC)
• Child protection and wellbeing, taking into account the rights and duties of parents, legal guardians, or other individuals legally responsible for them (Article 3, paragraphs 2 and 3; Articles 5, 9, 10, 18 and 20 of UNCRC)
• Children’s rights to express their views freely in all matters affecting the child, and be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child (Articles 12, 13 and 14 of UNCRC)
• Children’s right to privacy (Article 16 of UNCRC)
• Children’s protection from violence, abuse and neglect (Article 19 of UNCRC)
• The statutory services provided to children (Articles 23, 24 and 25 of UNCRC)

The proposal has the potential to improve long-term outcomes for children who are victims of domestic abuse or have had lived experience of a domestic homicide or domestic abuse related suicide. The proposals also are positive in relation to article 6 in that a child has a right to live. By learning lessons and helping to prevent future deaths of children in the context of domestic abuse the proposals should have a positive impact on children’s right to live.

9. If a negative impact has been identified please describe below. Is there a risk this could potentially amount to an incompatibility?

N/A

Mitigation Record

What options have been considered to modify the proposal in order to mitigate negative impact or potential incompatibility issues?

Please summarise mitigation actions taken below

Issue or risk Identified per article/ Optional Protocol

N/A

Action Taken/ To Be Taken

N/A

Date action to be taken or was taken

N/A

10. As a result of the evidence gathered and analysed against all wellbeing indicators, will the proposal contribute to the wellbeing of children and young people in Scotland?

N/A in relation to Part One of this Bill.

If yes, please provide and explanation below:

Yes: in relation to Part Two of this Bill.

The proposal has the potential of contributing to all eight wellbeing indicators (healthy, safe, included, responsible, respected, active, nurtured, achieving) and with particular prevalence to the following indicators.

In addition to highlighting, promoting and solidifying good practice, the learning generated from individual reviews, any thematic findings that would prompt changes in practice, and the long-term focus on children’s development contributes to the indicators of Safe, Healthy, Achieving, Nurtured, Active, and Responsible. The review process will also give a voice to children and young people who have been affected by Domestic Homicide and Domestic Suicide which contributes to the indicators of Respected and Included.

11. How will you communicate to children and young people the impact that the proposal will have on their rights?

Part One

Given the minimal impact of Part One of this Bill on children’s rights, the development of an accessible CRWIA is not considered to be proportionate. However, the CRWIA will be published on the gov.scot website so those wishing to access it can do so. In so far as is possible the CRWIA has been written in accessible language so those reading it can understand its content and impact.

Part Two

The Children and Young People Group, which supports the development of the Domestic Homicide and Suicide Review Model, identified that centring children’s experiences and engagement with children and young people will have to be considered throughout the review process, including the use of different forums and a variety of engagement methods. It has also been recognised by stakeholders that barriers may exist when trying to communicate with children, and the approach the review would take in this regard is very important. A particular barrier identified is children and young people’s experience of services and potential mistrust of services. By working closely with those who are experienced in working directly with children and young people who have lived experience of domestic abuse, the Children and Young People Group is able to help add the voices of children and young people which is helping to strengthen the model as it is developed.