Working with children in conflict with the law 2021: standards

Introduction

These standards outline the minimum expectations for all strategic and operational services delivering youth justice in the community, secure care and young offender institutions (YOI) and fit within the Scottish Government's A Rights-Respecting Approach to Justice for Children and Young People: Scotland's Vision and Priorities.

Article 40 of the United Nations Convention on the Rights of the Child (UNCRC) gives all children under 18 who have been accused of committing a crime or offence the right to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and assuming a constructive role in society.

These standards must influence how services are designed and delivered to ensure the state meets the human rights of all children in conflict with the law. They focus on duties and functions, offering the opportunity for flexibility to meet local needs. These standards have been developed by key partners and agencies working directly and indirectly with children and are endorsed by the Scottish Government, Youth Justice Improvement Board (YJIB) and National Youth Justice Advisory Group (NYJAG).

Aims

The aims of these standards are to:

• Ensure that the rights of children are upheld and underpin justice for children in Scotland in line with international human rights standards, and in particular the UNCRC.
• Provide a framework for best practice and ensure that quality is maintained.
• Encourage and support innovation and best practice to improve outcomes for children.
• Ensure that every child in Scotland in conflict with the law has positive outcomes.

Focus

The standards focus on:

• Children's Rights and Participation
• Prevention and Early Intervention
• Children's Hearing System
• Alternatives to Prosecution
• Court and judicial proceedings
• Deprivation of liberty
• Assessing, Reducing and Managing the Risk of Harm
• Transitions
• Victims
• Improving Outcomes

Who are they for

These standards are aimed at practitioners and professionals working with all children up to the age of 18 who are in conflict with the law or on the edge of such behaviour.

Organisations include:

• Local Authorities
• Third Sector
• Crown Office and Procurator Fiscal Service (COPFS)
• Police Scotland (PS)
• Scottish Courts and Tribunal Service (SCTS)
• Scottish Children's Reporter Administration (SCRA)
• Children's Hearings Scotland (CHS)
• Private or Non-Governmental Organisations fulfilling public functions (including Scottish Prison Service and secure care centres)

Whilst the standards are not directly aimed at children, it is expected that all those providing services uphold their responsibility to ensure that the children they are working with are made aware of these standards and importantly speak to the child to ensure that they understand them and know what to expect. This is important for all children but particularly those with disabilities, protected characteristics, care experience, young carers or those with additional wellbeing needs (including speech, language and communication needs). Additional support may need to be offered by the professional in line with Getting It Right For Every Child (GIRFEC) policy assessment and planning framework.

Background, Research and Policies

Scotland's unique approach to supporting children in conflict with the law builds on Lord Kilbrandon's report (1964) by responding to deeds in the context of needs. The view of Lord Kilbrandon, which led to the creation of the Children's Hearings System, was that it was not useful to categorise children based on their offending behaviour alone, but to look behind the presenting problems to find the underlying causes in the life of the individual child. He concluded that children who offend and children in need of care and protection all shared a common experience - a lack of support at one or various points in their life, and that evidence tells us that they are often the same children.

There is an ambition that Scotland is the best place in the world for a child to grow up. Recognising, respecting and promoting the rights of children is essential to achieving this. The UNCRC sets out the fundamental rights of all children under 18. The report Rights Respecting? Scotland's Approach to Children in Conflict with the law highlights how to ensure Scotland complies with UNCRC for these children.

Article 12 clearly outlines that children who are capable of forming their own views have the right to express their views freely in all matters affecting them and those views must be taken into account in all decision making. It follows that children must be supported to be heard at all stages of any interventions. Participation and engagement with children and families is fundamental in this process and should be adhered to throughout all of the following standards to ensure that those children feel valued and receive the most appropriate supports possible. It is important that their voices are heard and the views of children and families are considered throughout. This also includes during service design.

Those working with children in conflict with the law must uphold their rights and promote their wellbeing, ensuring their work is underpinned by GIRFEC principles. Approaches adopted must be in partnership with child protection, health and educational services. Many children who display offending behaviours are also highly vulnerable and may have experienced crime and trauma in their own lives. An assessment of their vulnerability as well as the risk of harm they may present to others must be taken into account. Whilst this can be complex and challenging, it is critical to the wellbeing of the child, the people they have (or may potentially have) harmed and the confidence the community has that harm will be reduced and addressed effectively whilst protecting the child's rights and best interests.

There are a number of areas of policy development to which these standards have been aligned, such as Children's rights and the recommendations of the Independent Care Review in the Promise. They should also be read alongside relevant wider standards and guidance such as:

• Community Payback guidance
• Court Social Work Standards
• Secure Care Pathways and Standards Scotland
• Health and Social Care Standards
• How Good Is Our School
• HMIPS Standards for Inspection and Monitoring

Integration and sustainability of the Whole System Approach to offending behaviour is part of the strategic planning landscape including Community Planning, Children's Service Planning and Community Justice. Local and national partners have a key role to play.

The Children and Young People (Scotland) Act 2014 ("the 2014 Act") outlines the duties for corporate parents across Scotland. These duties aim to ensure that collectively we focus on the task of safeguarding and promoting wellbeing, to ensure children and young people up to the age of 26 do not face additional barriers because of care experiences. Organisations who are listed as "corporate parents" for the purposes of Part 9 of the 2014 Act, and their practitioners who support children who engage in offending behaviour, must be clear on their corporate parenting responsibilities, fulfil these responsibilities and recognise their accountability if this is not achieved.

In Scotland we are committed to a safer, stronger Scotland by supporting everyone's right to feel safe in their home and community. Whilst there is a focus on supporting those children in conflict with the law and where possible keeping them out of formal systems and custody, the needs of victims must also be recognised and supported. There is a specific need to support child victims, who are usually those harmed by other children. The use of restorative justice is one area of practice which may offer assistance and support to victims. The Scottish Government Restorative Justice Action Plan aims to have Restorative Justice available across Scotland by 2023 to all those who wish to access it, and at a time appropriate to the people and case involved.

All children should be included, engaged and involved in education and only ever excluded for the shortest period necessary as a last resort to protect the child or others from significant harm. There is an expectation that education authorities and schools use the policy frameworks of GIRFEC and Included, Engaged and Involved guidance when developing policies and procedures on exclusion, ensuring all children's rights to education are fulfilled.

Promoting children's positive mental health and wellbeing is also crucial to supporting them to realise their potential. Children and their families must be supported to enable them to have good mental and physical health and wellbeing in accordance with Articles 23 and 24 of the UNCRC. The Children and Young People's Mental Health Taskforce was jointly commissioned by the Scottish Government and COSLA in June 2018. The aim of the Taskforce was that children, young people, their families and carers should know that they are supported in good mental health and be able to access services which are local, evidence based, responsive and delivered by people with the right skills.

Research relating to brain development highlights that it is not until the mid-20s, and possibly later, that the brain is fully developed. Early experiences can also promote or inhibit children's ability to learn and build the skills they need to engage and interact with others. Given this, it is crucial that children are supported to understand and retain important information, particularly their rights. As stated above children's voices must be heard in relation to matters that affect them and they must be supported to be heard at all stages within the youth and criminal justice system. Identifying children with additional support needs at an early stage is essential to ensure that they are treated fairly, that they are clear what their rights area and that they are included in decision making. This is particularly important given the high number of children in conflict with the law who experience some form of speech, language and communication needs or disability.

Details around specific policy, practice and legislation which supports youth justice practice in Scotland is detailed under each standard. Further details can also be found in the Children and Young People's Centre for Justice (CYCJ) practice guide and Youth and Criminal Justice in Scotland: the young person's journey.

National Performance Framework

In Scotland we have a National Performance Framework which aims to create a more successful country, give opportunities to all people living in Scotland, increase wellbeing, create sustainable and inclusive growth, reduce inequalities and give equal importance to economic, environmental and social progress. This is underpinned by core values - to treat all our people with kindness, dignity and compassion, respect the rule of the law and act in an open and transparent way. The framework sets out national outcomes with progress being measured against 81 national indicators.

The outcomes which are specifically relevant to youth justice are:

• We grow up loved, safe and respected so that we realise our full potential.
• We live in communities that are inclusive, empowered, resilient and safe.
• We are well educated, skilled and able to contribute to society.
• We are healthy and active.
• We respect, protect and fulfil human rights and live free from discrimination.

The standards outlined in this document are aimed to complement the National Performance Framework.

Monitoring the delivery of the standards

The Youth Justice Improvement Board will provide governance to oversee the implementation of the standards. In anticipation of the changes in practice, approaches, experiences and outcomes which the standards will bring, they will be subject to ongoing monitoring, review and updating.

The delivery of the standards will be monitored through mechanisms such as self‑evaluation, internal organisation discussions and survey, discussions and surveys with children and through formal inspection processes.

The standards will be reviewed two years after publication, by the Scottish Government and key partners, to ensure they are still relevant. Whilst reviewing the standards engagement will take place with young people to ensure their views are considered.