United Nations Convention on the Rights of the Child - concluding observations 2023: SG initial response

8. Special Protection Measures

8.1 Asylum-seeking, Refugee and Migrant Children

No: 50a

UN Concluding Observation

Urgently amend the Illegal Migration Act to repeal all provisions that would have the effect of violating children’s rights under the Convention and the 1951 Refugee Convention, and bring the Act in line with the State party’s obligations under international human rights law to ensure children’s right to nationality, to seek asylum and to have their best interests taken as a primary consideration, as well as to prevent their prolonged detention and removal.

No: 50b

UN Concluding Observation

Amend the Nationality and Borders Act to abolish the designation of “Group 2” status to certain groups of refugee children, and ensure that all asylum-seeking and refugee children, including unaccompanied children, are not criminalized and have access to necessary support and services.

No: 50c

UN Concluding Observation

Review and strengthen the asylum process to ensure that children receive age-appropriate information and legal advice about their rights, asylum procedures and requirements for documentation; that their best interests are given primary consideration in all asylum processes; that their views are heard, taken into account and given due weight; and that they have access to child-friendly justice mechanisms and remedies.

No: 50d

UN Concluding Observation

Strengthen measures to ensure that all asylum-seeking, refugee and migrant children have equal and prompt access to education, health services, housing, psychosocial support, and social protection including benefit entitlements;

No: 50e

UN Concluding Observation

Put an end to the use of unreliable and invasive procedures for determining a child’s age; develop an age determination procedure that is child- and gender-sensitive, includes multidisciplinary assessments conducted by relevant professionals of the child’s maturity and level of development, and respects the legal principle of the benefit of the doubt; and ensure that children have access to legal advice throughout the process and, if necessary, can challenge the outcome of such assessments;

No: 50f

UN Concluding Observation

Ensure that children and age-disputed children are not removed to a third country.

No: 50g

UN Concluding Observation

Develop a consistent, statutory system of independent guardianship for all unaccompanied children, and ensure that all unaccompanied children throughout all jurisdictions of the State party are promptly identified and appointed a professionally trained guardian;

No: 50h

UN Concluding Observation

Review its system of family reunification involving unaccompanied children, with a view to ensuring that children have an unqualified right to apply for family reunification and that applications are considered in a consistent, expeditious and child rights-based approach, and that the best interests of the child are a primary consideration in all related decisions.

No: 51a-c

UN Concluding Observation

(a)Repeal its “Hostile Environment” policy and ensure the access of children without a regular residence status to independent legal representation, social protection and welfare benefits;

(b) Remove the designation of children without a regular residence status and their families into administrative categories that prevent them from accessing certain services, such as the “No Recourse to Public Funds” throughout all jurisdictions of the State party;

(c) Implement long-term solutions for the regularization of children without a regular residence status and strengthen measures to prevent their social exclusion.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 3.2 – Equalities and Inclusion in Relation to Particular Groups
• Sections 9.1 – Refugee and Asylum-seeking Children

Progress since November 2022

Asylum and immigration are reserved to the UK Parliament. The Scottish Government repeatedly raised concerns that the UK Government’s Nationality and Borders Act 2022 would not achieve the change that is desperately needed in our asylum and immigration systems.

The Scottish Government believes that the UK Government must repeal the Illegal Migration Act 2023 (2023 Act) and considers that the 2023 Act is a clear violation of children’s rights. The Scottish Government wrote to the UK Government to seek amendment to the Illegal Migration Bill prior to it gaining Royal Assent, so that exercise by UK Ministers of a regulation-making power to extend certain Act provisions to Scotland, should not take place without first seeking the consent of Scottish Ministers. The Home Office rejected this request. In June 2023, the Scottish Government hosted a summit to explore with key stakeholders, mitigations against the impact of the 2023 Act in Scotland. Following this event, Scottish Ministers are continuing to carefully consider options available to them in response to the 2023 Act.

The Scottish Government considers that unaccompanied children, including age-disputed children, should be taken into care and supported, not removed to a third country. Unaccompanied children in Scotland are safeguarded under the Children (Scotland) Act 1995 and have access to further services under the Children and Young People (Scotland) Act 2014. Like all children in Scotland, they are entitled to the full range of supports that can be made available to children under this and associated legislation and provisions. They should also be allocated a social worker and be subject to the same Looked After Children processes as any other child looked after under that legislation.

Age Assessment

Scotland has well-established age assessment procedures in place. Section 12 of the Human Trafficking and Exploitation (Scotland) Act 2015 requires that, where the age of a victim of human trafficking is uncertain, but there are reasonable grounds to believe they are under 18 years of age, the relevant authorities must presume that the victim is a child for the purpose of receiving immediate age-appropriate support and services until their age is formally established. The Scottish Government published refreshed Age Assessment Practice Guidance (2018) to reflect these changes. The Practice Guidance also advises that in cases where individuals state that they are under 18, but there is some doubt, that social workers should give the individual the benefit of the doubt and provide a children’s service in the interim, pending an age assessment. The Guidance, which includes a specific appendix to support taking a trauma-informed approach to age assessment, does not recommend the use of scientific or medical examinations as determinants of age.

In April-May 2023, the Scottish Government funded age assessment training for social workers and social work managers across Scotland who work, or may in the future work, with unaccompanied asylum seeking or trafficked children. The training took participants through the current legal framework and guidance applicable to the conduct of age assessments.

Local authorities also have processes in place to identify a child’s nationality and immigration status when their involvement with the child begins or when a child’s circumstances change. This includes referring the child to specialist legal advice and support, including a referral to the Child Trafficking Guardian Service, where appropriate.

Independent Child Trafficking Guardian Service

The Scottish Government launched the statutory Independent Child Trafficking Guardian Service on 1 April 2023. The service provides unaccompanied asylum seeking and trafficked children who arrive in Scotland alone, with a guardian to help them navigate life in Scotland and complex asylum and welfare processes. As part of the new statutory service, there is now a duty on local authorities to refer eligible young people to the service provider as soon as reasonably practicable.

Following an open and fair procurement process, the Scottish Government awarded the contract to run the new service to a consortium between Aberlour and the Scottish Refugee Council. Both organisations have been delivering guardianship support to separated children in Scotland since 2010 on a non-statutory basis. This contract will run for an initial three years and receive funding of just under £1 million annually. The service is also discussed at section 8.2.

New Scots Refugee Integration Approach

The Scottish Government is committed to supporting refugees, people seeking asylum and Scotland’s communities through our pioneering and collaborative New Scots: Refugee Integration Strategy approach in partnership with COSLA and the Scottish Refugee Council.

Delivery of the New Scots approach has been enhanced through the New Scots Refugee Integration Delivery Project, which was funded by the EU’s Asylum, Migration and Integration Fund to December 2023. The project included a £2.8 million grant fund, which awarded funding to over 50 projects between September 2021 and November 2022 to deliver initiatives designed to help New Scots settle into their new communities by promoting employability, education, health, and social and cultural connections. This EU funding ended in December 2023, following the UK’s withdrawal from the EU.

Ending Destitution Together

The Scottish Government and COSLA published the Ending Destitution Together Strategy in March 2021. The Strategy aims to improve support for people who are at risk of destitution because they are subject to a No Recourse to Public Funds condition. The Strategy’s vision is that no one in Scotland is forced into destitution and everyone has their human rights protected, regardless of their immigration status. The Strategy sets out a range of actions in the areas of essential needs; advice, advocacy; and inclusion. The principles of prevention, partnership and personalisation inform the Strategy’s approach. The Year 2 Report on the Ending Destitution Together Strategy was published in October 2023.

Next Steps

• The Scottish Government intends to review its Age Assessment Practice Guidance (2018) in light of the changes introduced via the Nationality and Borders Act 2022, and Illegal Migration Act 2023.
• Working in partnership, the Scottish Government, COSLA and the Scottish Refugee Council will refresh the New Scots refugee integration strategy, to build on the progress and experience of a decade of work under the New Scots approach. This will include wide ranging engagement so that the strategy continues to be informed by refugees, people seeking asylum and those with expertise in supporting them.
• The refreshed New Scots refugee integration strategy will be published in two stages. Stage One, to be published in spring 2024, will set out context, vision, principles, and outcomes. Stage Two, to be published in summer 2024, will set out actions to deliver on our vision.

8.2 Child Trafficking

No: 52a

UN Concluding Observation

Continue to strengthen measures aimed at ensuring the identification and referral of child victims of trafficking to appropriate child-friendly services, including by implementing the national referral mechanism throughout the State party.

No: 52b

UN Concluding Observation

Ensure that child victims of trafficking are always treated as victims and have access to the necessary support and services, including psychological support and legal assistance; and establish the system of independent child trafficking guardians throughout the State party;

No: 52c

UN Concluding Observation

Investigate all cases of trafficking of children, using intersectoral and child-sensitive proceedings, and bring perpetrators to justice.

No: 55a

UN Concluding Observation

Ensure that all children under 18 years of age, including 16 and 17-year-olds, who are victims of offences under the Optional Protocol, including sexual exploitation, sexual abuse material and sexual exploitation in prostitution, are treated as victims, receive adequate protection under the law and have access to remedies;

No: 55b

UN Concluding Observation

Amend the Modern Slavery Act to clarify that children can never consent to their own sale or exploitation

No: 55c

UN Concluding Observation

Take all necessary measures to prevent, prosecute and eliminate the sale and exploitation of children including by:

(i) requiring the digital business sector to put in place child protection standards;

(ii) ensuring that Internet service providers control, block and promptly remove online sexual abuse material of children; and

(iii) undertaking awareness-raising campaigns aimed at prevention for professionals working with and for children, parents and the public at large.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 9.2 – Trafficking and Exploitation

Progress since November 2022

Child victims of trafficking are looked after and accommodated under section 25 of the Children (Scotland) Act 1995. Support and protection for child victims of trafficking and any form of exploitation, including sexual, is provided within the context of Scotland’s child protection system. The National Guidance for Child Protection in Scotland, published in 2021 and updated in 2023, includes advice on identifying and supporting victims of child trafficking and exploitation and reflects learning from recent cases.

The National Referral Mechanism is the UK-wide framework for identifying victims of trafficking and ensuring they receive the support and assistance they need. The Scottish Government is continuing to work with the Home Office on its pilot to devolve decision-making about children in the National Referral Mechanism. Glasgow City Council is the only Scottish local authority participating. The pilot has been extended to run until March 2024.

The Scottish Government launched a new statutory service called Guardianship Scotland on 1 April 2023. Guardians provide advice and support around asylum claims and trafficking concerns, referring young people to child-friendly, experienced legal representatives, and ensuring that a child protection referral is made where there are concerns that a child may be being trafficked. The service is discussed further at section 8.1 of this report.

Human Trafficking and Exploitation (Scotland) Act 2015

The Human Trafficking and Exploitation (Scotland) Act 2015 (2015 Act) introduced a single offence for all forms of trafficking in Scotland. An offence of human trafficking is committed if a person takes a relevant action with a view to another person being exploited. Section 1(2) of the 2015 Act sets out the relevant actions. Section 1(3) of the Act makes clear that it is irrelevant whether a person consents to any part of the relevant action. Section 4 of the 2015 Act creates an offence criminalising where a person holds another person in slavery or servitude or requires them to perform forced or compulsory labour.

Offences under the 2015 Act carry a maximum sentence of life imprisonment. The Act also introduced Trafficking and Exploitation Prevention and Risk Orders, both of which came into force in 2017. To ensure that support and protection for young victims applies to all children, section 40 of the 2015 Act defines a child as a person under 18 years of age.

Section 8 of the 2015 Act places a duty on the Lord Advocate to issue instructions regarding the prosecution of persons who are, or appear to be, the victims of trafficking, slavery, servitude or forced or compulsory labour and who have allegedly committed a criminal offence. The Lord Advocate’s Instructions set a strong presumption against prosecution of child victims who have committed an offence in the course of, or as a consequence of, being trafficked or exploited.

Prosecutorial decisions are a matter for the Crown Office and Procurator Fiscal Service, and determinations of guilt are a matter for the Courts, both of which are independent from the Scottish Government.

Trafficking and Exploitation Strategy

The Trafficking and Exploitation Strategy (2017) set out three action areas to focus work towards the overall vision of eliminating human trafficking and exploitation as follows: identify victims and support them to safety and recovery; identify perpetrators and disrupt their activity; and address the conditions, both local and global, that foster trafficking and exploitation. In October 2022, the Scottish Government launched the second statutory review of the 2017 Strategy. As part of the review process, we engaged with key stakeholders including survivors. The findings of the Trafficking and Exploitation Strategy review, which were published in September 2023, include a commitment to develop a refreshed strategy in collaboration with partners, including those with lived experience of trafficking and exploitation.

Online Safety Act 2023

With reference to online safety, the UK Government’s Online Safety Act 2023 establishes a new regulatory regime aimed at ensuring that platforms in scope have systems and processes in place to deal with illegal and harmful content and their associated risk, particularly to children and young people. It empowers Ofcom to better regulate internet services and search engines and, in doing so, make the internet a safer place for users.

The Act provides for the mandatory removal of online child sexual abuse material (CSAM), mandatory risk assessments and mandatory reporting of CSAM to the National Crime Agency. Ofcom will produce a code of practice setting out steps that services should take to comply with their duties in respect of protecting against online child sexual abuse and exploitation, including CSAM.

The Online Safety Act 2023 and the Scottish Government’s national public awareness campaigns to support parents and carers to keep their children safer online are discussed further at section 4.4 of this report. Section 4.2 of the Embedding Children’s Rights in Scotland: Position Statement (2022) discusses the Scottish Government’s Digital Strategy (2021), which sets out the vision for an ethical digital nation, “A place where children and vulnerable people are protected from harm. Where digital technologies adopt the principles of privacy, resilience and harm reduction by design and are inclusive, fair, and useful.”

Next Steps

• The Scottish Government formally commenced the refresh of the Trafficking and Exploitation Strategy in December 2023.

8.3 Age of Criminal Responsibility

No: 54a

UN Concluding Observation

Raise the minimum age of criminal responsibility to at least 14 years of age.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 9.5 – Age of Criminal Responsibility

Progress since November 2022

The Age of Criminal Responsibility (Scotland) Act 2019 (the Act) 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 years of full commencement (from 17 December 2021).

The review period is now in the third and final year and the Age of Criminal Responsibility Advisory Group is making progress on gathering data on the use of police powers and the number of incidents of harmful behaviour by children under the age of 12. The Advisory Group has met twice since November 2022 and has discussed the work being taken forward to review the Act and what would be required to be put in place to support a future age of criminal responsibility in Scotland.

Next Steps

• By 16 December 2024, the statutory review period will conclude and the Advisory Group will provide a report to the Scottish Ministers outlining the findings from the review and its recommendations for a future age of criminal responsibility.
• By 16 December 2025, the Scottish Ministers will report to the Scottish Parliament on the findings of the review and will provide information to Parliament on any future age of criminal responsibility, based on the findings and evidence from the Review.

8.4 Youth Justice

No: 54b

UN Concluding Observation

Take legislative and other measures to ensure that:

(i) children are not prosecuted as adult offenders, without exception;

(ii) the child justice system is applied to all children who were below the age of 18 years when the offence was committed;

(iii) rehabilitation periods are determined based on the date the offence was committed, and not the date of conviction;

(iv) detention is used as a measure of last resort and for the shortest possible period of time and is reviewed on a regular basis with a view to its withdrawal; and

(v) life imprisonment is abolished for children and young people who committed offences when they were below the age of 18;

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 9.7 – 16 and 17 Year Olds in the Justice System
• Section 9.9 – Sentencing of Under 18s

Progress since November 2022

It is a fundamental principle of Scots constitutional law that, as the independent head of the systems of criminal prosecution and investigation of deaths in Scotland, the Lord Advocate takes decisions independently of any other person. That doctrine pre-dates devolution, but is reflected in section 48(5) of the Scotland Act 1998: ‘Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.’ This principle is not restricted to independence in prosecutorial decision-making. It extends to the content of prosecution policy, for which the Lord Advocate is responsible. So, it would be inappropriate to consider any changes which would undermine that constitutional independence. But with those introductory comments in mind, we offer some further comments below in relation to the UN Committee’s various Concluding Observations.

Care and Justice

We are clear that where children come into contact with care and justice services, or into conflict with the law, responses should only happen in age-appropriate systems and settings and that, should detention be required, then this will be in small, trauma-informed settings such as secure care.

The Children (Care and Justice)(Scotland) Bill is progressing through Parliament. Stage 1 scrutiny was completed in June 2023. The Bill will make important changes across a wide range of issues. These include raising the maximum age of referral to the Children’s Reporter to 18. This will enable all children under the age of 18 to be considered for referral to the Principal Reporter, removing existing restrictions on eligibility for 16 and 17 year olds. This will enable more children to benefit from the protection, guidance, treatment or control that can be afforded via Scotland’s unique age-appropriate, welfare-based Children’s Hearings System. This should reduce the number of children whose cases are dealt with via the criminal justice system but, as noted above, would not affect the constitutional independence of the Lord Advocate and Procurators Fiscal who will retain the discretion to begin criminal proceedings and to prosecute children in court, where appropriate.

For children who appropriately remain within the criminal justice system, the Bill contains a range of measures to enhance the rights of these children, recognising their treatment requires to be distinct from adults, whilst retaining the constitutional autonomy of the courts and judiciary. This includes reflecting the updated definition of a child in respect of criminal proceedings and enhancing steps to safeguard the welfare and safety of children in criminal proceedings and appearing at court.

We are supporting the development of youth courts across Scotland. North and South Lanarkshire both run a Structured Deferred Sentencing Court and Glasgow runs a youth court. Evaluations of the courts have been completed and were overall favourable. A blueprint for the development of youth courts, based on these evaluations, and national and international standards, is being developed through the subgroups of the Scottish Government-led Youth Justice Improvement Board. There is interest in developing youth courts in various other parts of Scotland, with dedicated support available for any area who wishes to consider this.

The Bill will also end the placement of under 18s in Young Offenders Institutions. Secure accommodation and intensive residential and community-based alternatives should instead be used where therapeutic trauma-informed approaches are required for the safety of the child or those around them. The decision to remand or sentence a child to be deprived of their liberty is a matter for the judiciary, informed by relevant legislation. As committed in our Programme for Government 2023-24 and our commitment to Keep the Promise, we will end new placements of under 18s in Young Offenders Institutions by the end of 2024 through the Children (Care and Justice) (Scotland) Bill, currently progressing through Parliament.

Rehabilitation

The general system of disclosure periods in Scotland uses the date of conviction rather than the date of an offence being committed. This is because if the date of an offence being committed was used, it may mean in some situations that a person would never have to disclose their offence, as a conviction was only achieved after expiry of the relevant disclosure period. This would not be appropriate given the operation of disclosure is intended to strike an appropriate balance between the rights of a person to move away from their previous offending behaviour and the rights of others to be aware of a person’s background when assessing their suitability for, for example, a job.

Sentencing of Under 18s

As discussed at Section 9.9 of the Embedding Children’s Rights in Scotland: Position Statement (2022), sentencing in individual cases is a matter for the trial judge, taking account of all the facts and circumstances of each particular case. In January 2022, the Scottish Sentencing Council Guidelines on the sentencing of individuals under 25 came into effect. This includes the guidelines that: “A custodial sentence should only be imposed on a young person when the court is satisfied that no other sentence is appropriate. If a custodial sentence is imposed on a young person, it should be shorter than that which would have been imposed on an older person for the same, or a similar, offence. The court should consider remitting a case to a Children’s Hearing for disposal where it is competent to do so”.

Section 207(1) of the Criminal Procedure (Scotland) Act 1995 provides that it shall not be competent to impose imprisonment on a person under 21 years of age.^[16] A court may impose detention (whether by way of sentence or otherwise) on a person, aged between 16 and 21 years of age, where the court would otherwise have a power to impose a period of imprisonment. However, a court can only impose detention on an offender aged under 21 if it is of the opinion that no other method of dealing with the offender is appropriate; and the court is required to state its reasons for that opinion (though this is subject to mandatory minimum sentences for certain offences relating to firearms and dangerous weapons).

In addition, the system of custodial sentencing operates in Scotland with release possible during the period of a sentence. For sentences of four years or less, release is automatic at the halfway point. For sentences of more than four years, release on a discretionary basis can be considered from the halfway point. This applies to all those held in custody/detention, including children.

Article 37 of the UNCRC states that children should not be sentenced to life imprisonment with no chance of release. In Scotland, when imposing a life sentence, the court must specify a ‘punishment part’, which is the period which the offender must spend in custody. When the punishment part of the sentence has elapsed, the prisoner may apply for parole. The Parole Board will release a life sentence prisoner if they consider the risk posed by that person can safely be managed in the community. If granted, the prisoner will be released on licence.

The Scottish Government is of the view that Article 37 of the UNCRC does not prohibit the use of ‘detention without limit of time’ with a fixed ‘punishment part’ (which are mandatory in Scotland for a person convicted of murder) and that, as the possibility of release exists once an offender has served the ‘punishment part’ of the sentence, our sentencing law is compatible with the prohibition of detention without the possibility of release.

Next Steps

• The Scottish Government will continue to work with partners to progress plans for implementation, in anticipation that the Children (Care and Justice)(Scotland) Bill will be passed by Parliament.
• The Children and Young People’s Centre for Justice continues to work with partners to support the potential development of youth courts across dedicated areas in Scotland.

8.5 Youth Justice – Early Intervention and Prevention

No: 54c

UN Concluding Observation

Develop early intervention for children and actively promote non-judicial measures, such as diversion, mediation and counselling, for children accused of criminal offences, and, wherever possible, the use of non-custodial measures for children, such as probation or community service;

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 9.3 – Reducing Violence and Preventing Offending Behaviour
• Section 9.7 – 16 and 17 Year Olds in the Justice System
• Section 9.9 – Sentencing of Under 18s

Scottish Government Position

Scotland has seen dramatic changes in the youth justice sector over the last decade, including a major reduction in the number of young people in custody and the number of young people referred to the Children’s Hearings System on offence grounds. The number of under 18s in custody on 30 June 2007 was 221. As at 2 February 2024, this number was down to two. The number of children referred to the reporter on offence grounds reduced by 73% from 9,765 in 2009-10 to 2,637 in 2022-23.

The Scottish Government is continuing to implement the Vision and Priorities for youth justice and accompanying Action Plan, which were published in June 2021. The Vision, which was informed by The Promise and the proposed incorporation of the UNCRC into Scots law, is continuing to support the agenda to keep children out of the criminal justice system and to promote the use of a whole system approach (WSA) to preventing offending by young people in Scotland.

The WSA was rolled-out in 2011. This multi-agency approach focuses on early intervention, diversion, court support, transitions and managing risk of serious harm for those up to age 18 (and above 18 in some local authorities). WSA focuses on considering children’s needs in a holistic way, looking at their whole wellbeing and encouraging early intervention, prevention, and co-ordination around the whole family. The WSA is discussed further at 9.7 of the Embedding Children’s Rights in Scotland: Position Statement (2022).

The Scottish Government published the first ever Violence Prevention Framework for Scotland in May 2023. The Framework, which draws on the evidence and research available on violence and what works to prevent it, is discussed further at section 4.6.

Next Steps

• The Scottish Government will continue to implement the Vision and Priorities for Youth Justice and accompanying Action Plan.

8.6 Legal Aid

No: 54d

UN Concluding Observation

Ensure the provision of qualified and independent legal aid to children alleged to have, accused of, or recognized as having infringed criminal law at an early stage of the procedure and throughout the legal proceedings;

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 3.14 – Legal Aid and Advice
• Section 9.8 – Legal Representation

Progress since November 2022

A children and young people’s Letter of Rights has been produced by the Scottish Government. It is given to child suspects and accused persons held in police custody in Scotland. Its purpose is to clearly explain their rights as provided for in domestic legislation. The Letter of Rights was developed by STARR (Scotland’s only curated space for secure care experienced children, young people, and adults), in conjunction with the Children and Young People’s Centre for Justice (CYPCJ). The CYPCJ works with young people in conflict with the law, ensuring that Scotland’s approach to these individuals is rights-based and will help contribute towards better outcomes for Scotland’s children and young people.

Children have the same access to legal advice on detention as adults. This is non-means tested. Through the Criminal Justice (Scotland) Act 2016, access to a solicitor and attendance by a solicitor at interview can be waived by a suspect. However, section 33 prohibits children under the age of 16, or those aged 16-17 and subject to a compulsory supervision order (CSO), or an interim compulsory supervision order, made under the Children's Hearings (Scotland) Act 2011, from being interviewed without a solicitor present. The child cannot waive that right. A child of 16-17 not subject to a CSO can consent to interview without a solicitor only with the agreement of a “relevant” person. Advice is provided either by a named solicitor or by a solicitor on the duty scheme. The Letter of Rights details all of the rights the child has when in police custody.

Next Stage

• The children and young people’s Letter of Rights (LoR) will be provided to all children and young people taken into police custody in any police station in Scotland.
• The LoR will be reviewed in 2024 by internal Scottish Government officials and external stakeholders to ensure it remains fit for purpose.

8.7 Use of Remand

No: 54e

Concluding Observation

Repeal the practice of remanding children into police custody, ensure that no child is held in police custody overnight, and avoid the use, and reduce the maximum duration, of pretrial detention;

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 9.7 – 16 and 17 Year Olds in the Justice System

Progress since November 2022

The Scottish Government does not plan to abolish the practice of remanding children into police custody. The Children (Care and Justice)(Scotland) Bill, which is currently before the Scottish Parliament, will extend to all under 18s the current legal requirement that where a child who is being prosecuted for an offence is not being liberated by the police, the place of safety must not be a police station unless it would be impracticable, unsafe or inadvisable for reasons of the child’s health to be kept anywhere else. An alternative place of safety should be considered for all children and, except in limited circumstances, children should not be kept in police stations.

In addition, during stage 1 of the Bill, evidence was shared suggesting that the general statutory requirement to take a child to a police station following arrest should be reconsidered. Discussions are underway with partners, including Police Scotland and the Scottish Police Authority, to consider this matter further, including the feasibility, practical, financial, and legal implications of any future legislative change.

A local event, which took place in Glasgow in September 2023, considered alternatives to both the requirement to take a child to a police station following arrest and places of safety should a child not be liberated prior to appearing at court. These matters were discussed further at a national event, led by Social Work Scotland and the Children and Young People’s Centre for Justice, in November 2023.

Next Steps

• Ongoing discussion with Police Scotland and the Scottish Police Authority to consider the practicalities, implications, and financial impacts of the above matters.

8.8 Capacity Building for Professionals in the Justice and Hearings Systems

No: 17c

UN Concluding Observation

Ensure all children have access to officials working with children in the justice system who have been adequately trained on children’s rights and child-friendly proceedings.

No: 54h

UN Concluding Observation

Ensure capacity-building for judges, prosecutors, police officers and other professionals on child-friendly justice procedures, children’s rights and the Convention.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 2.9 – Raising Awareness of Children’s Rights

Progress since November 2022

Training on children’s rights for professionals working within the Hearings System is discussed at section 2.9 of the Embedding Children’s Rights in Scotland: Position Statement (2022). This includes training provided to Children’s Reporters, Children’s Panel Members, Safeguarders and Children’s Hearings advocacy workers.

The independent Hearings for Children Report (May 2023), commissioned by The Promise Scotland, makes several recommendations relevant to capacity-building within the Children’s Hearings System. As an overarching principle, the Report states that “there must be a clear understanding at all levels… about what children and families’ rights are and how they should be accessed and upheld”. The Report includes the recommendation that there is “national oversight” by the Scottish Government of resourcing and provision of training on a range of topics, including children’s rights. There is also a specific recommendation that decision makers in the Hearings System must receive specialist training on how to support children to understand and access their rights. In addition to this, the report recommends that Sheriffs involved in Children’s Hearings proceedings must have a clear understanding of children’s rights. The Scottish Government published its Hearings for Children Report: Response in December 2023, and has accepted the recommendations relating to rights training. Further work is underway to implement this as part of the broader Children’s Hearings redesign work.

The Scottish Child Interview Model, which is expected to be introduced to every area of Scotland by end of 2024, delivers an interview process that secures the child’s best evidence at the earliest opportunity and minimises the risk of further re-traumatisation, see section 4.5. The interviews are carried out jointly by Police Officers and Social Workers using a trauma-informed approach to interviewing. The comprehensive training involves 35 days of face-to-face learning, pre and post course work and self-evaluation techniques. Participants learn about stages of child development, the impact of trauma and adversity, language and communication needs and how these can impact on a joint investigative interview.

Police Scotland constables have taken part in multi-agency training for Children’s Interview Rights Practitioners (ChIRPs) under Age of Criminal Responsibility legislation. The intention is to repeat the multi-agency training for social workers, police constables and ChIRPs on an annual basis.

Training for judges is a matter for the Lord President of the Court of Session, who is the head of the Scottish judiciary, independent of the Scottish Government, and has statutory responsibility for making and maintaining appropriate arrangements for the training and guidance of judicial office holders. Responsibility for the delivery of judicial training is delegated to the Judicial Institute which plays an active role in the European Judicial Training Network, and the International Organisation of Judicial Training. Training provided by the Scottish Courts and Tribunals Service to court staff is discussed at section 2.9 of the Embedding Children’s Rights in Scotland: Position Statement (2022).

With regard to the Scottish Prison Service (SPS), reference is made to the UNCRC within both the Officer and Residential Officer Foundation Programmes. Staff at HMP & YOI Polmont can access a UNCRC e-learning package through the local Learning and Development site. The SPS College is considering further input around additional UNCRC e-learning packages, which will allow training to be extended across all establishments, operationalising this within a prison context. The Family and Corporate Parenting strategies have also been reviewed.

Next Steps

• The Scottish Government published its response to the “Hearings for Children” report in December 2023. A Children’s Hearings Redesign Board made up of statutory partners has been convened to oversee the implementation of the recommendations that were accepted. The Redesign Board met for the first time in January 2024. A consultation on legislative change relating to children’s hearings redesign is planned for spring 2024.
• See also section 1.11 on awareness raising and training across the public sector.

8.9 Secure Care and Young Offender Institutions

No: 54f

UN Concluding Observation

For the few situations where deprivation of liberty is used as a measure of last resort, continue to strive for full compliance with the international requirement to detain children separately from adults and ensure that detention conditions are compliant with international standards, including with regard to access to education and health services, including mental health services;

No: 54g

UN Concluding Observation

Address the overrepresentation of children belonging to minority groups in detention and develop measures, in consultation with affected children and their families, to prevent racial profiling by law enforcement authorities;

No: 54i

UN Concluding Observation

Promptly investigate, applying a child-friendly and multisectoral approach, all allegations of cases of violence, including sexual abuse, against children in detention; prosecute and duly sanction perpetrators; and provide reparations to victims as appropriate;

No: 54j

UN Concluding Observation

End the use of solitary confinement and ensure that any separation of the child from others is for the shortest possible time and is used only as a measure of last resort for the protection of the child or others, in the presence of, or under the close supervision of, a suitably trained staff member.

Relevant section of Scottish Government’s November 2022 Position Statement

• Section 9.10 – Secure Care Accommodation
• Section 9.11 – Young Offenders Institutions

Progress since November 2022

Secure Care Accommodation

The Scottish Government is continuing to promote a Whole System Approach (WSA) to preventing offending by young people in Scotland. The approach focuses on early and effective interventions which aim to keep children out of the criminal justice system. This multi-agency approach focuses on early intervention, diversion, court support, transitions and managing risk of serious harm for those up to age 18. The WSA is discussed further at section 8.5.

Where custody is deemed the only option by the court, then the use of secure care is recommended, where possible, rather than a Young Offenders Institution. Secure care is a form of residential care that deprives children under the age of 18 of their liberty whilst also providing support, care, and education for the purpose of safeguarding and promoting their welfare and meeting their needs. It is for the small number of children who may be a significant risk to themselves or others in the community, whose needs and risks can only be managed in secure care's controlled settings. Secure care aims to provide intensive support, a nurturing environment, and safe boundaries to help these children re-engage and move forward positively in their communities.

Children and young people in secure care have access to education and health services, including mental health services, as any child would do in the community. General Practitioners and dentists visit secure centres regularly. Education is provided in-house and follows Scotland’s Curriculum for Excellence. Children also have access to outdoor space and sports during their placement. This is discussed further at section 9.10 of the Embedding Children’s Rights in Scotland: Position Statement (2022).

The Scottish Government has funded the Interventions for Vulnerable Youth (IVY) project since 2014. This project is a multi-disciplinary (psychology/social work) tiered approach to risk assessment and management for high risk young people (aged 12 to 18) who present with both complex psychological needs and a high risk of violent conduct. This includes support to those within secure care.

Segregation in secure care is never used as a punishment and should only be used as a last resort, for example to prevent a young person from significantly injuring themselves or others. Where segregation is used, there are strict measures and time limits to follow. This is discussed further at section 9.10 of the Position Statement (2022).

Future of Secure Care

The Scottish Government’s Reimagining Secure Care Project is discussed further at section 5.4.

Young Offenders Institution (YOI)

We are committed to ending the placement of under 18s in YOIs and supporting care-based alternatives as outlined at section 8.4. As of 2 February 2024, there were two under 18s in YOI in Scotland.

On admission to custody, a personal officer is provided to assist children’s introduction to the environment, supported by Peer mentors.

The central premise of the Scottish Prison Service’s refreshed Vision for Young People in Custody (2021) remains for young people to spend their time in custody enabling them to prepare for a positive future. Children undergo a review under the Whole System Approach, including their initial custody review with the community lead partner. They also receive a full assessment of their physical and mental health needs. Following this assessment, referrals are made to a doctor or Advance Nurse Practitioner (ANP), or other specialists, as necessary.

SPS is in the final stages of developing an overarching Mental Health Strategy with a series of outcomes that will reflect the needs of the whole population with the specific needs of children and young people referenced where relevant.

HMP&YOI Polmont’s Inclusion Unit is designed to work with those young people and women, whether on remand or convicted, who are most disengaged and finding it difficult to manage their time in custody. The staff provide individualised support that meets needs either on a one to one and/or group basis using a variety of interventions. Referrals to the unit come from staff and partners across the establishment.

Robust measures have been put in place by management within HMP & YOI Polmont, to reduce the number of children held within the Separation and Reintegration Unit (SRU).

In the event that someone is removed from association, there will normally be no unnecessary restrictions on entitlements to visits, including legal visits, access to telephones and correspondence and exercise, unless their management plan or care plan considers it necessary. The focus throughout the period the person is removed from association is to reintegrate them at the earliest and safest opportunity back into the mainstream population thus minimising any time spent separate from others. The Inclusion Team often support reintegration.

HM Inspectorate of Prisons for Scotland inspects the arrangements for persons removed from association.

Cases of Violence in the Youth Justice System

Instances of violence in secure care are reported to relevant bodies, including the Care Inspectorate, Police Scotland, and the Scottish Social Services Council, in line with child protection policies.

With reference to the SPS, any instances of violence involving children are reported to the police. Independent Prison Monitors, appointed under the Prisons (Scotland) Act 1989 to monitor the conditions in prison and the treatment of people in custody, also have powers to investigate any matter that a prisoner refers to them.

Next Steps

• See section 5.4, Keeping the Promise, and section 8.4, Youth Justice.