Victim Notification Scheme (VNS): independent review

Appendix D: Submission from Children and Young People's Commissioner Scotland

Independent Review of the Victim Notification Scheme

Briefing paper

December 2022

Established by the Commissioner for Children and Young People (Scotland) Act 2003, the Commissioner is responsible for promoting and safeguarding the rights of all children and young people in Scotland, giving particular attention to the United Nations Convention on the Rights of the Child (UNCRC). The Commissioner has powers to review law, policy and practice and to take action to promote and protect rights. The Commissioner is fully independent of the Scottish Government.

Introduction

We welcome the opportunity to provide this briefing for the Independent Review of the Victim Notification Scheme, which forms part of the Scottish Government's programme to transform the way in which justice services are delivered. This has the aim of putting the voices of victims and a trauma-informed approach at the heart of Scottish justice.

The Chair of the Independent Review had a provisional meeting with Officers from the Commissioner's Office on 5 October 2022 to discuss the roles of children and young people within the scheme. The Commissioners Office emphasised the key role of children's rights within the review.

In the terms of reference to the Independent Review, the Scottish Government recognises that victims and victim support organisations have concerns about the current operation of the scheme. The independent review of the VNS will specifically consider the current eligibility criteria, in particular around the age of children and young people and the provisions for other persons to receive information on their behalf.^[12]

What follows is a statement of principles setting out some of the key children's rights engaged within the balance of rights process. It is not possible to anticipate all the issues that might arise without sight of the final detailed recommendations which will be made by the review. The Commissioner would anticipate commenting further during the formal public consultation process to follow.

We also wish to draw the Chair's attention to our responses to the Scottish Government's Children's Care and Justice Bill Consultation (which addresses child victim's access to support and information),^[13] and the Improving Victims' Experiences of the Justice System (which addresses children who come into contact with the justice system and their right to services which are child-centred, trauma-informed, and rights-respecting)^[14].

Human Rights Context

The following rights under the United Nations Convention of the Rights of the Child (UNCRC) are engaged, amongst others:

• Article 1 (definition of child)
• Article 3 (best interests of the child)
• Article 5 (parental guidance and child's evolving capacities)
• Article 12 (views of the child)
• Article 13, 14 and 17 (seek and receive information)
• Article 16 (privacy)
• Article 39 (recovery from trauma)
• Articles 4, 42 and 44, paragraph 6 (general measures of implementation)

Voice of the child and evolving capacities

Article 12 requires States to provide children with the right to express their views and for due weight to be given to their views in accordance with their age and maturity. This is one of the four general principles of the UNCRC. The importance of this right is echoed by the The Guidelines of the Committee of Ministers of the Council of Europe on Child Friendly Justice ("CoE Guidelines").

Paragraph 20 of the Committee on the Rights of the Child General Comment 12 makes it clear 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. General Comment 12 states that "age alone cannot determine the significance of a child's views" as levels of understanding vary even within similarly aged children. As such the views of children must be considered on a case-by-case basis. Due regard should also be considered in the context of the concept of the evolving capacities of the child. Even very young children are capable of forming and expressing a view and the greater the age and capacity of the child, the more seriously their views should be considered.^[15]

Child victims and witnesses

Children who have been the victims of crime have a right to access support and information. This is reflected in Article 39 of the UNCRC which provides that children who have been the victim of rights violations have a right to physical and psychological recovery and social reintegration.

The right of child victims to an effective remedy is also essential. The UN Committee on the Rights of the Child has formally set out its position on the right to a remedy in General Comment No. 5 (2003) on general measures of implementation of the UNCRC (Articles 4, 42 and 44, paragraph 6). The Committee clarifies that the right to an effective remedy exists under the UNCRC by interpreting that "for rights to have meaning, effective remedies must be available to redress violations" and "this requirement is implicit in the Convention". The Committee also highlights the need for special consideration for child victims. It states that "children's special and dependent status creates real difficulties for them in pursuing remedies for breaches of their rights" and recognises the need to ensure "effective, child sensitive procedures available to children and their representatives […] child-friendly information, advice, advocacy, including support for self-advocacy, and access to independent complaints procedures and to the courts with necessary legal and other assistance". Finally, the Committee explicitly recognises, as important elements of the right to an effective remedy, the right to "appropriate reparation, including compensation, and, where needed, measures to promote physical and psychological recovery, rehabilitation and reintegration, as required by article 39".

The CoE Guidelines apply whenever a child engages with any element of the justice system. The Guidelines' fundamental principles are participation; best interests of the child; dignity; protection from discrimination and rule of law. They identify the following general elements that cover all interaction with the justice system: "information and advice; protection of private and family life; safety (special preventative measures); training of professionals; multidisciplinary approach…".

Children and the Victim Notification Scheme

The Victim Notification Scheme (VNS) gives effect to the rights introduced by Part 2 of the Criminal Justice (Scotland) Act 2003 as subsequently amended. Eligible victims have rights to be told when the prisoner is considered for parole. It is important to note that the VNS is an "opt-in" scheme.

As it currently stands, we note that where a victim is a child under 12, a parent or carer registers for the VNS on the child's behalf. A child over the age of 12 registers for the Scheme in their own right. If they do so, the information will be sent directly to them.^[16]

We note that the prescribed categories of adults who may opt in on behalf of children is highly restrictive. Under the current scheme, there is no provision for children over the age of 12 to authorise a person of their choosing to receive information on their behalf.

Taking a children's rights approach

The UNCRC requires that anyone under the age of 18 are considered to be children. This does not however mean that children should be excluded from the VNS. On the contrary, children enjoy participation and an array of decision-making rights prior to turning 18 (General Comment 12 on the Right of the Child to be Heard).

As set out above, the right of children to be heard under Article 12 UNCRC must be considered in the context of the concept of the evolving capacities of the child. Adolescents in particular exercise increasing levels of agency to take responsibility for their rights (General Comment No. 20 on the Rights of the Child in adolescence).

This does not mean that the VNS should operate in a manner which would be harmful to children. The State has an obligation to protect children's wellbeing. However, such protections cannot be allowed to operate in such a manner as would effectively exclude participation wholesale. Any blanket approach to the assumption of harm must therefore be avoided. Instead, the threshold adopted must be more than trivial and an evidence-based approach must be taken to the assessment of those criteria for each individual child.^[17] This extends to the any guidance issued to staff pertinent to the operation of the scheme.

Harm can never be assumed. It is often important for children to know about legal processes involving their abusers for their mental wellbeing and health. It is also sometimes important for children to be aware of risks to allow them to protect themselves. Any breach of the child's rights must be proportionate to the risk being managed. Sometimes the risk to a child's mental health will be real, but it many cases it is important to recognise the resilience of the child.

Where age restrictions potentially curb children's rights (including withholding information that would allow a young person to protect themselves from a potential abuser) minimum ages should be avoided. Where restrictions are necessary for the purposes of protection (to prevent a real risk of serious detriment to mental health for example) they must be framed in a manner proportionate to that purpose and not infringe on children's rights more than is necessary. This cannot be presumed on a blanket basis. The child will often be the best indicator of this.

This does not mean that they must do so alone. Parents, carers and nominees of the young person's choosing will often have a role in supporting children in the exercise of their rights. However, this cannot be exercised in such a way as to deny a child their right to participation nor indeed their right to privacy (protected under Article 16 UNCRC and Article 8 of the European Convention on Human Rights). Therefore, any role for parental guidance under the VNS must be framed in a manner which is supportive of children's rights in line with their evolving capacities.^[18]

Finally, taking a human-rights based approach requires children and young people to be involved in any decisions to reform the VNS and how it operates. Any proposals for reform should also be accompanied by a children's rights impact assessment. Our office has worked in partnership with other children's rights organisation to produce a practical guide 'Listen, engage, have fun', which gives practical advice and guidance in involving children in Child Rights Impact Assessment (CRIA) and Child Rights Impact Evaluation (CRIE) for leaders, policy makers, and practitioners.

Scots Law

It is important to consider the child's individual circumstances, often referred to as their age and stage. Similar schemes in relation the provision of information to children and young people often provide for qualifying provisions in relation to understanding and significant distress:

• Understanding. For example, the regulations governing the provision of information to children involved in children's hearings contains exceptions where a child would not be capable of understanding (see ss 73 & 94 of Children's Hearings (Scotland) Act 2011 and rule 18 of the Rules of Procedure in Children's Hearings Rules 2013).
• Significant distress. Exceptions are also sometimes made in relation to distressing information. However, due to the competing considerations involved a higher threshold is normally applied so that it does not cover information which might be upsetting but never-the-less falls short of placing their "physical, mental or moral welfare at risk" (see sections 73 and 201 of the Children's Hearings (Scotland) Act 2011).

In relation to capacity and understanding, this is assessed relative to the issue at hand. Understanding may be supported in a manner appropriate to the child's age and stage of development. A question therefore arises for the Chair in relation to the role of parents, carers or other nominees of the young person's choosing.

The Information Commissioner's Office recognises the presumption that all children and young people in Scotland over the age of 12 year old have sufficient understanding ("What rights do children have?" ICO). They provide that the information may also be shared with parents where:

• the child does not understand
• the child authorises for the adult to get this
• it is "evident" it is in the child's best interests

This is no doubt something that the Chair will want to consult the Information Commissioner about and take independent legal advice upon.

Child perpetrators

For the sake of completeness, it is necessary to recognise that the convicted person may also be a child. In those circumstances the balance of rights requires careful consideration of the protection and right to privacy of the children who have been convicted of offences. A balance requires to be struck between this and the rights of the child victim to information and protection. There will be connections here to the Scottish Government's Children's Care and Justice Bill.^[19]

Similar schemes which have sought to find the appropriate balance can be found under:

• Sections 179A of the Children's Hearings (Scotland) Act 2011
• Section 17 of Age of Criminal Responsibility (Scotland) Act 2019

Concluding remarks

In understanding the human rights implications, it is key to remember that this is an opt in scheme. Any scheme must include a process for identifying the views of the child on the process to be followed in respect of them. Indeed, children are often the most immediate and direct source of information in relation to what may or may not be harmful to them.

Children must not be prevented from receiving notifications under the VNS if they choose to opt in. Indeed, it is often necessary that children receive information to allow them to protect themselves within the community, as well as for their own emotional wellbeing and mental health.

However, there would appear to be greater scope under the scheme for allowing nominees of the child's choosing to play a role in supporting children in the exercise of their rights. In that regard, the current scheme must be revised to allow young people over 12 to authorise a nominee of their choosing to opt in on their behalf.

If this is to be child rights compliant, it must be executed in a faithful manner, and any provisions under the scheme must operate in a manner that is supportive rather than prohibitive of the child's rights.