Equally Safe: consultation on legislation to improve forensic medical services for victims of rape and sexual assault

Chapter 5: Victims who are children or young people

Background

48. The Government wants every child and young person in Scotland to develop mutually respectful, responsible and confident relationships with other children, young people and adults. This is part of the Government's wider ambition in making Scotland the best place for children in which to live and grow up.

49. All children and young people have the right to be cared for and protected from harm and abuse and to grow up in a safe environment in which their rights are respected and their needs met. Children and young people should get the help they need, when they need it and their safety is always paramount.

50. The National Guidance for Child Protection in Scotland^[52] sets out the responsibility of all public services including justice and health and the government has been clear that the system as a whole must continue to improve how it looks after victims and witnesses and we are working in partnership with justice agencies to make this happen.

51. Getting it Right for Every Child (GIRFEC) is the national approach in Scotland to improving outcomes and supporting the wellbeing of our children and young people by offering the right help at the right time from the right people. It supports them and their parent(s) to work in partnership with the services that can help them. It puts the rights and wellbeing of children and young people at the heart of the services that support them – including NHS and criminal justice services – to ensure that everyone works together to improve outcomes for a child or young person.

52. Victims of rape and sexual assault include children and young people. It is crucial that the healthcare response is sensitive to the specific needs of children and young people. The CMO Taskforce will shortly be consulting on a draft clinical pathway for children and young people and has established a Children and Young People Expert Group^[53]. The Group is specifically looking at the recommendations of the options appraisal exercise carried out in 2018 in relation to how the service model will be delivered across Scotland for children and young people. The Group is working with Health Board nominated leads and multi-agency partners to develop costed proposals for services that meet the Healthcare Improvement Scotland National Standards and the agreed national standards from the three Managed Clinical Networks (MCN) for child protection within the existing framework for child protection.

53. Any child can be affected by sexual abuse. But they may be more at risk if they have a history of previous sexual abuse, a disability or have experienced other forms of abuse^[54].

54. Both boys and girls can be sexually abused. Research suggests that girls are at a greater risk of being sexually abused by a family member and boys are at a higher risk of being abused by a stranger^[55]. Around a third of sexual abuse against children and young people is committed by other children and young people^[56]. Research has shown that teenage girls aged between 15 and 17 years reported the highest rates of sexual abuse^[57].

55. Compared to their non-disabled peers, disabled children were estimated to have: almost 4 times higher odds of experiencing some kind of violence, almost 4 times higher odds of experiencing physical violence and almost 3 times higher odds of experiencing sexual violence^[58].

56. Evidence shows that children and young people often report offending against them some time after the opportunity for forensic evidence capture has passed. An examination may still be relevant to check for other signs of abuse or neglect. However it is imperative that there is a holistic and trauma informed approach to healthcare and recovery from the outset, and that they have appropriate access to ongoing therapeutic support.

57. It is the Scottish Government's clear ambition to improve how children, in the first instance, and vulnerable witnesses participate in our criminal justice system by enabling the much greater use of pre-recording their evidence in advance of a criminal trial. This is why Ministers introduced the Vulnerable Witnesses (Criminal Evidence) (Scotland) Bill^[59] to the Scottish Parliament.

58. The Scottish Government wants to balance a child's right to recovery from the point at which they disclose abuse with their right to access justice in a child-centred way, in line with the principles of the Convention on the Rights of the Child and GIRFEC.

59. The Scottish Government is exploring the application of the Barnahus concept for immediate trauma informed support for child victims of serious and traumatic crimes within the context of Scotland's healthcare and criminal justice system.

60. The Barnahus model was established in Iceland in 1998. It seeks to provide a trauma informed response to child victims and witnesses of serious and traumatic crimes in a familiar and non-threatening setting.

61. In law, younger children do not have capacity to consent to medical procedures such as the taking of samples, therefore a non-abusing parent or guardian must give consent for them. Young people aged 16 or over are presumed to have legal capacity and section 2(4) of the Age of Legal Capacity (Scotland) Act 1991^[60] recognises that a child under the age of 16 may have capacity to consent to medical procedures where they are capable of understanding the nature and possible consequences of the procedure ("Gillick competence").

62. Arrangements for the provision of forensic medical services to victims of child sexual abuse will in practice need to take account of the particular needs of the victim in situations where there are child protection concerns, where people are suspected to be sexually exploited, vulnerable or where mental health issues may be relevant in an assessment whether to involve police or other authorities. See the National Guidance for Child Protection in Scotland: Guidance for Health Professionals in Scotland (2012 aka "the pink book")^[61] and the National Guidance for Child Protection in Scotland (2014)^[62].

63. The Government proposes to carry out a Child Rights and Wellbeing Impact Assessment which will include consideration of the rights set out in the Convention on the Rights of the Child.

Question 7:

Should special provisions be included in legislation to reflect the distinct position and needs of children and young people? Do you have any views on how such special provisions should operate?

Question 8:

More generally, do you have any views on potential impacts of the proposals in the Chapters of this paper on children and young people including their human rights or wellbeing?