Justice for children and young people: vision and priorities 2024-26

1. Introduction

In Scotland, our ambition is ‘to be the best place in the world to grow up’. We want all of our children and young people to feel safe, protected, loved and supported at every point in their lives. Preventing children from taking a path where they are in conflict with the law and supporting them appropriately, constructively and effectively when they do, has been integral to our agenda for well over a decade.

This is consistent with ‘Getting it right for every child’ (GIRFEC), The United Nations Convention on the Rights of the Child (UNCRC) and Scotland’s National Performance Framework which aims to create a more successful country, give opportunities to all people living in Scotland, increasing wellbeing, creating sustainable and inclusive growth, reducing inequalities and giving equal importance to economic, environmental and social progress.

This ambition also interacts with and complements the Scottish Government’s Vision for Justice – working towards a safe, just and resilient Scotland. The work on this approach is reflected in the Vision for Justice Three Year Delivery Plan that was published in 2023.

Delivery of our approach to youth justice has been rooted in meeting the needs of children, adopting preventative and educational approaches as per Lord Kilbrandon’s report in 1964 and in line with the multi-agency whole system approach (WSA) to preventing offending by children and young people. The approach also seeks to ensure that children are diverted away from formal measures, with alternative interventions and services available. This support is not only for the child, but anyone affected, along with their family and wider community.

The needs of victims, particularly child victims, must also be identified, recognised and addressed. It is important to acknowledge that victimisation itself can contribute to offending, with research showing that those who cause harm are often first victims themselves. This view is reflected in the Edinburgh Study of Youth Transitions and Crime, a longitudinal study which has followed 4,300 then secondary school children in Edinburgh since 1998. The study also recommends that policies focus on prevention and early intervention.

Evidence also shows there are links between experiencing psychological trauma and adversity in childhood and victimisation and criminalisation later in life. Supporting children and their families impacted by psychological trauma and adversity can prevent and mitigate offending and re-offending as well as the likelihood of falling victim to violence in adulthood.

Over the last 13 years, there has been a move to a more preventative approach. Between 2008-09 to 2021-22, there was a 92% reduction in the number of children and young people prosecuted in Scotland’s courts and a 97% reduction in 16 and 17 year olds being sentenced to custody.

The Promise published in February 2020 states that a fundamental shift is required in how decisions are made with children and families.

The Promise goes on to observe that despite good intentions, far too many children and families within the care system have experienced a fractured system that operates only when they are facing crisis.

The approach to youth justice must align with UNCRC, proceed from a rights-respecting approach, support all children under the age of 18 and young people up to age 26 (where appropriate) to participate in decisions about them, and direct positive support to families - offering that support through safe and caring relationships.

The Promise’s key findings and calls to action for youth justice are centred on avoiding and stopping the criminalisation of care experienced children. Whilst working to prevent criminalisation of all children, Scotland must develop a more progressive, rights-based youth justice approach which builds on the Kilbrandon principles and makes them a reality for all. Meeting the imperatives of the Promise requires a fundamental shift in focus, time, commitment, resourcing and underlying structures.

There is a recognition that Scotland should work to move away from ‘cliff edges’ determined by chronological age alone, whereby children and young people transfer from one system to another when they reach a certain age. An example of change in this area is within the Children (Care and Justice) (Scotland) Act 2024, which includes provisions which will afford those over the age of 18 the ability to remain in secure accommodation up to age 19, in specific circumstances, where in the best interests of that young person and the other children residing in the secure accommodation.

While this is a positive move, more needs to be done to ensure thoughtful, purposeful and effective cross over of services, interventions, supports and systems. Scotland will pursue more gradual, individualised, transitions ensuring that supports and interventions are based on developmental ability and capacity rather than age alone. Improved collaboration between youth justice and adult services has been a key priority for a number of years.

The continuation of early intervention and prevention remains important, with tailored wrap around support for families and children and young people provided at the earliest opportunity, including increased provision around education and mental health and consideration of planning and decision making through family networks such as family group decision making.

Rights Respecting? Scotland’s approach to children in conflict with the law concluded that Scotland would benefit from thinking about children in conflict with the law from the perspective of rights. All children are rights holders, and these rights must be upheld in line with the UNCRC. The UNCRC sets out the fundamental rights of children, which must be adhered to.

The Scottish Government is committed to incorporating UNCRC into domestic law in Scotland. The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (“the UNCRC Act”) states that all children should be considered as children up to their 18^th birthday regardless of their legal status.

The UNCRC Act and this Youth Justice Vision sit alongside a wider policy context of our policy prospectus – Equality, Opportunity, Community: New Leadership – A Fresh Start, published in April 2023. This provides a commitment to three key missions to be achieved over the remainder of the current Parliament.

• Equality: Tackling poverty, especially child poverty, and protecting people from harm
• Opportunity: A fair, green and growing economy
• Community: Prioritising our public services

Youth Justice Vision June 2021 – June 2024

Scotland’s Rights-Respecting Approach to Justice for Children and Young People – Scotland’s Vision and Priorities was first published in June 2021.

The vision was aimed at all children up to the age of 18, and had been drafted for adaptation and application for all young people up to age 26. Both the vision and the action plan were prepared by the Scottish Government and members of the Youth Justice Improvement Board (YJIB), with delivery through a partnership approach. Two implementation groups were set up in 2021 to support the delivery of the Vision’s actions: Advancing Whole System Approach (WSA) Group and Children’s Rights Improvement Group (CRIG). Additional sub-groups were set up to consider Speech, Language and Communication Needs (SLCN) and Participation. Consideration was given to data gathering and a further group was set up at the end of 2023 to consider how data issues impact delivery on the ground and future policy development.

Changing Landscape

The priorities and action plan have been updated to reflect the changing landscape since the vision was first published in 2021. This includes acknowledgement of the ongoing commitment to keeping The Promise; implementation of the Children (Care and Justice) (Scotland) Act 2024; incorporation of UNCRC; future changes to secure accommodation and the wider spectrum of care planning for children; consideration of a future increase in age of criminal responsibility, with the work of the advisory group due to report in December 2024; and future children’s hearings redesign. Consideration is also required on future changes being brought forward through the National Care Service and National Social Work Agency.

Child protection and risk management are also key areas linked to improving Scotland’s response to children in conflict with the law.

There is a need to ensure that children who are exploited, including sexual exploitation, child criminal exploitation, children who are seeking asylum, and those whose behaviour presents a risk to themselves and/or others are all protected and viewed through a child protection, rather than a justice lens.

Children (Care and Justice) (Scotland) Act 2024

The Act makes important strides in Scotland’s commitment to keeping the Promise, further improving support for victims and embedding UNCRC principles. Central to the Act is the recognition that all under 18s are children. It raises the maximum age of referral to the Principal Reporter to 18 – for care and protection and offence cases alike - and importantly ends the use of YOI for under 18s.

Reimagining Secure Care

The Children and Young People’s Centre for Justice (CYCJ) were commissioned in December 2022 to deliver a project looking at reimagining secure care in Scotland. The project is due to end in summer 2024 when a report with findings and recommendations will be presented to the Scottish Government for consideration around future change, alongside COSLA, Social Work Scotland, Scotland Excel and Secure accommodation providers.

Age of Criminal Responsibility

The Age of Criminal Responsibility (Scotland) Act 2019 increased the age of criminal responsibility in Scotland from 8 to 12 years. It also places a duty on the Scottish Ministers to review the operation of the Act with a view to considering a future age of criminal responsibility within three full years of the commencement of section 1 of the Act (from 17 December 2021). An Advisory Group has been meeting regularly to support Ministers with the review and is supported by four subgroups focussed on data and research, victim support, operational implications, and community confidence. The Advisory Group is now in its third and final year and the group will provide the Scottish Ministers with recommendations for a future age of criminal responsibility by December 2024.

Children’s Hearings Redesign

The Hearings System Working Group (HSWG) was established by the Promise Scotland in the summer of 2021 to keep the Promise with regard to the redesign of the current Children’s Hearings System. The group was independent of the Scottish Government and was chaired by Sheriff David Mackie. The HSWG published its final report – Hearings for Children on 25 May 2023 and the Scottish Government provided an official response on 21 December 2023.

A Children’s Hearings Redesign Board has now been established with membership drawn from the leaders of those organisations with statutory responsibility for the delivery of the children’s hearings system. This Board have responsibility for oversight of non-legislative work towards children’s hearings redesign. It is chaired by Scottish Government and COSLA and will report to Ministers and COSLA leaders.