Working with children and young people who have displayed harmful sexual behaviour: evidence based guidance for professionals working with children and young people

Harmful sexual behaviour and the Law

In Scotland, the age of criminal responsibility is 12 years as provided by the Age of Criminal Responsibility (Scotland) Act 2019 (‘the 2019 Act’). This means that a child cannot be held criminally responsible for harmful behaviour that amounts to a crime or offence which occurred when the child was aged under 12. Therefore, a child cannot be referred to the Children’s Reporter on offence grounds if the behaviour took place prior to the child’s 12th birthday. Additionally, whilst the 2019 Act does provide new specific investigative powers for police investigating the most serious cases of harmful behaviour to determine what happened, the child cannot be arrested or charged with offences. The aim is to protect children under the age of 12 from the harmful effects of early criminalisation whilst ensuring that they, and their families, receive the right support. At the same time it is also retains the entitlement for victims of the crime to have it fully investigated by the police, and be offered support. However, whilst the child cannot be referred on offence grounds, they could be referred to the Children’s Reporter on other grounds if there are concerns. Guidance has been published outlining safeguards for children under the age of 12 subject to an investigation in relation to harmful sexual behaviour.

For children aged 12 and above (but under 18), sexual behaviour may lead to the child being in conflict with the law and charged with a sexual offence. There are a variety of routes through the Scottish Children’s Reporter Administration (SCRA) or justice system, depending on the seriousness of the behaviour. At the time of writing, most allegations of criminal behaviour by someone over the age of 12 and under 16 years are not prosecuted or sentenced within the adult^[3] court system. Instead, these allegations are often dealt with by the Children’s Reporter, who makes a decision about whether a children’s hearing is required.

Where a child has been prosecuted and convicted in court, there is still opportunity to seek their remittal to the Children’s Hearings System up to the age of 17 years and six months^[4]. The Justice Social Work Reports (JSWR) and Court Based Services Practice Guidance direct that all CJSWRs, for children up to the age of 17 years and six months, must comment on the option of remittal to the Children’s Hearings System and clearly state what interventions and strategies will be implemented. Furthermore, creative use of all options under the Children’s Hearing System should be considered which might include secure care or a Movement Restriction Condition (MRC) as appropriate to the assessed level of need, recognising that deprivation of liberty should only be used as a last resort. Any resourcing required must be agreed with appropriate agencies and detailed within the CJSWR as well as any report for the Children’s Hearing System. Diversion from prosecution may also be an option for 16-and 17 years olds not jointly reported or subject to a compulsory supervision order through the children’s hearings system who have been charged with sexual offences in some situations.

There is often an assumption that assessments of risk or targeted work to reduce risk cannot be undertaken before a legal outcome after a child has been arrested. Although there are safeguards that must be provided, assessments and interventions can take place while a case progresses through the legal system, and a failure to do so can lead to missed opportunities and delay in helping a young person address any identified needs. The CYCJ has produced further information for practitioners that parallels guidance for therapeutic work with children who are witnesses in court.