Victim Notification Scheme (VNS): independent review

Section 25: Children and Young Persons

With regard to children, we are concerned that the age of 12 is the threshold for a person to be treated as an eligible victim to register for the VNS in their own right and the parent, guardian or carer is excluded after that date. There is no provision under the current VNS for a child or young person over 12 to authorise an adult to share information or represent them. We were told of an instance where a child was not even aware they had been a victim or that they had been adopted, but there was now a risk of disclosure of both facts, according to this rule.

We can see no strong justification for treating a victim in this way without any qualification with regard to support or capacity. There may be discretion under current legislation to allow the child to appoint an adult to receive information on their behalf. That there should be is our view and this is supported by the Children and Young Persons Commissioner for Scotland.

We consulted the office of the Children and Young People's Commissioner for Scotland. Their response is attached to this report in Appendix D. Our attention was drawn to the CYPCS response to the Scottish Government's June 2022 consultation of the Children's Care and Justice Bill, where it was stated a single point of contact for children was important. We also noted the Commissioner's response to the August 2022 Scottish Government Consultation on Improving Victims' Experiences of the Justice System, following the publication of Lady Dorrian's report.

In the CYPCS response to us, it was stated that the UN Convention requires States to provide children with the right to express their views and due weight to be given according to their age and maturity. States should presume all children have the capacity to form their own views, the right to express them and they should not have to prove they have capacity. Understanding may vary between similarly aged children and as such children's views should be considered on a case-by-case basis in the context of their evolving capacities.

Child victims have the right to access support and information (UNCRC Article 39 – the right to physical and psychological recovery and social reintegration) and the right to an effective remedy. The UNCRC also lays down that States should presume that all children have the capacity to form their own views and the right to express them and that they do not first have to prove they have capacity.

In summary, age itself should not be an absolute determining factor. An evidence-based approach must be taken to the assessment of each individual child. Any role for parental, guardian or carer advice must be framed in a manner supportive of children's rights in line with their evolving capacities.

Under Scots Law, the Information Commissioner's Office recognises that all children and young people over the age of 12 have sufficient understanding. Information may be shared with parents where the child does not understand, the child authorises the adult or it is evident it is in the child's best interests.

Recommendation 13. Children's rights. Section 25

Any proposed reforms to the VNS with regard to children should be accompanied by a children's rights impact assessment.

Recommendation 14. Age of registration. Section 25

We have concluded that children over the age of 12 should have the ability to authorise an adult to act on their behalf in the light of the UNCRC and ICO considerations above, that children over the age of 12 should be treated on a case-by-case basis according to their capacity and choice where appropriate. We recommend that there should be a clearly laid-out process for establishing how a young person over the age of 12 should register, including how, where and when appropriate advice may be given, and safeguards to confirm any decision is proportionate and well-informed.^[7]