Movement restriction conditions in the children's hearing system: guidance

Definitions

1.0 A Movement Restriction Condition ( MRC) refers to the restriction placed on a young person's freedom of movement through the application of electronic monitoring ( EM) technology [2] . This guidance is concerned solely with MRCs imposed through the Children's Hearings System ( CHS). Although young people under the age of 18 may be subject to other forms of EM - through the Court by means of a Restriction of Liberty Order ( RLO) or as a condition of their release from custody on a Home Detention Curfew ( HDC) or as a specific release license condition - these fall outwith the ambit of the current guidance.

1.1 The decision to make a young person subject to an MRC cannot be taken separately from a decision about related packages of support, their nature, scope and duration. However the terms Intensive Support and Monitoring Service ( ISMS) and Intensive Support Service ( ISS) will not be used in the current guidance as these evolved in the period prior to the Act coming into effect. While individual implementation authorities will shape and define services to meet local needs and may continue to operate services so named, this guidance aims to reflect contemporary legal terminology.

Legislation, regulations and guidelines

2.0 It is essential that practitioners are conversant with the terms of the legislation under which MRCs are imposed. The key sections of note in the Act are:

• s.83 - Meaning of "compulsory supervision order"
• s.84 - Meaning of "movement restriction condition"
• s.86 - Meaning of "interim compulsory supervision order"
• s.125 - Compulsory supervision order: requirement to review
• s.150 - Movement restriction conditions: regulations etc.

2.1 While the Act outlines the overarching statutory framework for MRCs, it is equally important for practitioners to be familiar with The Children's Hearings (Scotland) Act 2011 (Movement Restriction Conditions Regulations) 2013.

2.2 Outwith the Scottish context, familiarity with a range of significant European and International Conventions, Rules, Standards and Guidelines concerning the rights of children and young people, specifically in the youth justice context, is also likely to be beneficial to practitioners. The key Conventions of note are:

• The United Nations Convention on the Rights of the Child (UNCRC) (1989)
• The European Convention on Human Rights (ECHR) (1950)

Meanwhile the UN Committee on the Rights of the Child also makes General Comments periodically on thematic issues. The most noteworthy of these is General Comment No. 10 (2007) - Children's rights in juvenile justice.

It is also important to consider the importance of certain international instruments passed by the UN General Assembly and other UN bodies, specifically:

• The UN Standard Minimum Rules on the Administration of Juvenile Justice ('the Beijing Rules') 1985;
• The UN Standard Minimum Rules for Non-custodial Measures ('the Tokyo Rules') 1990;
• The UN Guidelines on the Prevention of Juvenile Delinquency ('the Riyadh Guidelines') 1990; and,
• The UN Rules for the Protection of Juveniles deprived of their Liberty ('the Havana Rules') 1990;

As a member of the Council of Europe, Scotland (as part of the United Kingdom) is also expected to adhere to the rules and recommendations of the continent's leading human rights organisation. The Council of Europe's Committee of Ministers has issued numerous rules and recommendations of note, specifically:

• Recommendation No. R (92) 16 on the European Rules on community sanctions and measures;
• Recommendation Rec (2003) 20 concerning new ways of dealing with juvenile delinquency and the role of juvenile justice;
• Recommendation CM/Rec (2008) 11 on the European rules for juvenile offenders subject to sanctions and measures ('the European Rules');
• Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice 2010); and,
• Recommendation CM/Rec (2014) 4 on electronic monitoring.

2.3 While not an exhaustive summary, familiarity with the provisions of the documents outlined above should help to reinforce to practitioners several key points:

• to deprive any young person under the age of 18 of his liberty in any form constitutes a significant restriction that should only be imposed as a "last resort" [3] and for the shortest period possible.
• to promote longer term desistance from crime, EM "should be combined with other professional interventions and supportive measures aimed at the social reintegration of offenders" [4] .