Key points
- 16 and 17-year-olds in Scotland are denied legal protections given to their peers in the rest of the UK. They may face criminalisation or increased contact with the police as a result.
- 16 and 17-year-olds in Young Offenders’ Institutions are treated in the same way as adults, in ways that may constitute cruel or degrading treatment.
- Emergency legislation has extended how long children may be kept in secure care, or in Young Offenders’ Institutions. This may make it harder to challenge the legality of being detained.
Access to justice during a pandemic
There is more than one way in which someone under 18 in Scotland may be lawfully detained— to be kept somewhere under supervision and not allowed to leave. They may be detained due to a criminal conviction, or in secure care if they are judged to be a significant risk to themselves or others.
Before a child is detained due to conflict with the law, or for care and protection, they have the right to a fair trial within the justice system. But their participation in the processes of justice has been restricted during the pandemic. There’s a reliance on online systems which children may find intimidating and limited supports in place to allow them to participate effectively.
UNCRC Article 37
I have the right not to be punished in a cruel or hurtful way
UNCRC Article 40
I have the right to get legal help and to be treated fairly if I have been accused of breaking the law
An Impact Assessment for the coronavirus pandemic
We supported the Observatory of Children’s Human Rights Scotland to create an Alternative Children’s Rights Impact Assessment, looking at the laws and policies passed in Scotland in response to the coronavirus pandemic.
The Impact Assessment looked at how these had affected children and young people in nine different areas, including children and young people in conflict with the law and in secure care. It found that issues were occurring for children and young people at multiple stages of the justice process. And it found various ways in which rights were limited when children and young people were detained, whether for reasons relating to the justice system or their mental health.
Adults in power often make decisions that affect people― such as laws and policies. When they do this, they don’t always think about the impact these decisions will have on children and young people.
A Children’s Rights Impact Assessment, or CRIA,is a way to include children and young people in a decision. It looks at the ways the decision might affect the rights of children and young people― both positively and negatively.
By doing this, it means people know what the effect of the decision on children and young people is likely to be.
More in the Rights questions and answers section
Independent Children’s Rights Impact Assessment on the Response to Covid-19 in Scotland: Appendix 9
What needs to change as a result of this Impact Assessment?
Our office has made several recommendations around what Scottish Government and others need to change as a result of what this Impact Assessment has found. They’re changes which will help keep human rights promises to children and young people as we recover from the coronavirus pandemic, and which will safeguard their human rights in any future crisis.
Timescales have been extended for court hearings and for how long you can be in secure care or Young Offenders’ Instutions
Emergency coronavirus legislation has extended the amount of time court hearings last for and the amount of time you can be in secure care. This may make it harder to challenge whether you’ve been deprived of your liberty in a legal way.
Being detained for longer is a significant concern as it should only ever be as a last resort and for the shortest period of time.. It can have a large impact on your access to a family environment and on your right for your situation to be regularly reviewed.
What are some concerns around criminalisation of children for breaking lockdown guidance?
Children and young people in Scotland could be penalised or criminalised for breaking laws and State guidance around coronavirus restrictions.
Potentially more at risk of this are children and young people who:
- have communication needs,
- are already visible to the police, or
- are in residential care.
The age of criminal responsibility is still 8 in Scotland, although referrals to Children’s Hearings on offence grounds have stopped for under 12s.
What are some concerns around safeguards for 16 and 17-year-olds?
The UNCRC is clear: the protections it contains are for everyone under 18.
But Scots law doesn’t define when a child becomes an adult in a consistent way. In some cases it considers 16 and 17-year-olds as adults, meaning they are denied safeguards they have both under international law and in other parts of the UK.
Safeguards around testing laws don’t apply to 16 and 17-year-olds
Emergency legislation means people can be detained and tested for coronavirus in Scotland, with refusal to comply being a criminal offence. Laws around this have limited safeguards for children, but these don’t apply for 16 and 17-year-olds in Scotland― though they do for their peers in the rest of the UK.
16 and 17-year-olds have been charged and fined with Fixed Penalty Notices
Emergency legislation originally meant 16 and 17-year-olds in Scotland could be issued with Fixed Penalty Notices if they didn’t comply with restrictions around lockdown and social distancing.
Police Scotland can keep information around Fixed Penalty Notices for two years, so children who received them may be subject to ongoing negative interaction with police.
We called for this legislation to be amended and it was, but not before an unknown number of 16 and 17-year-olds were issued with Fixed Penalty Notices.
Delays in court proceedings could lead to children being dealt with as adults
Because there are delays in court proceedings, trials around something someone did when they were a child may not be dealt with by the justice system until that child becomes and adult.
16 and 17-year-olds could be penalised for their own children’s actions
Parents under 18 could have been penalised if their children didn’t follow restrictions around lockdown and social distancing.
What are some concerns for those in Young Offenders’ Institutions?
Children haven’t been prioritised for release from custody
As lockdown restrictions came into place across the world, the UN Committee on the Rights of the Child recommended under 18s were released from custody where that was possible.
But this hasn’t happened in Scotland. Early release isn’t available for those on remand, and there are no specific considerations in place for under 18s.
Under 18s in Young Offenders’ Institutions are treated as adults
The UNCRC is clear that everyone under 18 is entitled to its protections, but 16 and 17 year-olds in Young Offenders’ Institutions are treated in the same way as adults― and in ways that may constitute cruel, inhuman or degrading treatment, as a suspected case of coronavirus may lead to enforced isolation, increased time in cells and a lack of social contact.
It also means they may miss out on safeguards around mental health care and child protection, and be unable to access health support, mental health services, and showers.
Family contact isn’t happening
All external visits to Young Offenders’ Institutions have been stopped, so families can no longer visit. As digital access doesn’t always happen in practice, family contact is restricted online as well.
Secure care and coronavirus risk
Where a child in some secure care centres develops coronavirus symptoms then those they live will need to also self-isolate for 14 days. That’s a significant length of time for children, particularly those in secure care who will have experience of distress and trauma.