Stage 1 briefing
Our office has issued a briefing to MSPs ahead of the Stage 1 debate on the above bill on 22 June 2023.
We support the general principles of this Bill and urge you to give it your support at Stage 1.
This Bill will help Scotland meet its international human rights obligations to ensure that children’s rights are protected when they are in need of care and protection, whether or not they are in conflict with the law. In the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, which this parliament passed unanimously, Article 1 states that a child is “every human being below the age of 18 years” with no exceptions.
Age of referral and definition of a child
We welcome the increase in the age of referral to children’s hearing proposed in section 1 of the Bill and the changes made to the Criminal Procedure (Scotland) Act 1995 by section 8 to ensure that “child” is understood as meaning any person under the age of 18 in line with Article 1 of the UNCRC. This will allow children aged 16 and 17 to be referred to a Children’s Hearing on both welfare and behaviour grounds.
Many children aged 16 and 17 are already in the children’s hearing system, including those who commit serious crimes. However the changes in this Bill will help to ensure all children have access to the same care, support, and protection.
For children in conflict with the law, the Bill will ensure that Scotland complies with its duties under Articles 37 and 40 of the UNCRC, as outlined in the UN Committee on the Rights of the Child’s General Comment 24. For children in conflict with the law, the Bill will improve Scotland’s compliance with its duties under Articles 37 and 40 of the UNCRC, as outlined in the UN Committee on the Rights of the Child’s General Comment 24.
Detention of children in prisons (sections 16 to 19)
As we noted in our written evidence to the Education Children and Young People (ECYP) Committee, the number of children who are remanded or sentenced to HMYOI Polmont is now very low. The vast majority of these children are untried.
Our view is that the needs of these children can be met by current secure care provision and capacity in Scotland. Secure care providers already support children aged 16 and 17, including those who have been involved in serious offending. As demonstrated by research from CYCJ and others, a great many of these children have experienced significant trauma and have been victims of crimes, including neglect and abuse.
Movement Restriction Conditions (MRCs) (Section 4)
We are pleased that the Education Children and Young People Committee has recognised, in its Stage 1 report, the potential for MRCs to constitute a deprivation of liberty.
Although imposition of an MRC is a less significant interference in a child’s human rights than a placement in secure care, they are still a serious interference in the human rights of a child. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) state that “restrictions on personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum”. Depending on the level and combination of restrictions, there is a real potential for MRCs to constitute a deprivation of liberty in terms of Article 5 of the ECHR.
We are concerned that the proposals contained within this Bill considerably broaden the criteria for imposing MRCs, allowing them to be imposed in situations where there is a risk to the child’s “physical, mental or moral welfare” or a risk of harm, including psychological harm to another person.
We would therefore welcome an amendment of this Bill at Stage 2 to clarify that MRCs should only be imposed where there is a substantial or serious risk of harm to the child or others.
In order to comply with Article 5 and 6 of the ECHR and Articles 37 and 40 of the UNCRC, it is essential that children have access to legal advice and representation whenever there is the possibility of a deprivation of liberty, in line with S. v Miller. We therefore support the Committee’s call for the Scottish Government to bring forward an amendment to ensure access to a solicitor where an MRC is considered.
We note that when MRCs were originally introduced into the children’s hearings system, they were accompanied by a package of intensive support. Evaluation has identified that the support provided was the crucial element, rather than the restriction itself. The Scottish Government must ensure that sufficient resources are available to provide this, in line with their duty under Article 4 of the UNCRC, to make maximum use of available resources in realising children’s rights.
Cross border placements
We have long-standing concerns that the practice of placing children from England and Wales in Scottish residential care settings creates a “second class” of looked after children in care in Scotland. These children do not enjoy the full protections of the oversight of Scottish inspection/regulatory agencies; local authorities (including child protection, social work and education professionals); Children’s Reporters; Police Scotland; health services; advocacy organisations; and members of the local Community Planning Partnerships.
We acknowledge the difficulties English local authorities have in identifying suitable placements for children, who are some of the most vulnerable in society. Our view is that placing any child at great distance from their community and family is unlikely to be in their best interests. This applies equally in the case of long-distance placements within Scotland. However, where the placement is in a different jurisdiction, with different education and health systems which even the placing authority may have limited understanding of, the situation and vulnerability is compounded.
Our concerns extend beyond children on Deprivation of Liberty orders made under the inherent jurisdiction by the High Court in England and Wales or by the High Court of Justice in Northern Ireland. We are also concerned about the number of children on care orders placed in residential care, often with little or no communication with Scottish authorities or local health, education and care and protection services.
Deprivation of Liberty orders
Our view is that the regulations brought forward by the Scottish Government in June 2022 failed to provide human rights protections for children placed in Scotland under orders from the High Courts of England and Wales and of Northern Ireland that are equivalent to those provided when an order is made in Scotland.
We continue to hear examples of children from England and Wales who have been deprived of their liberty in Scotland under conditions which have not fully respected their rights under the ECHR and UNCRC (particularly in relation to their rights to education and to the highest attainable standard of health).
In meetings with Scottish Government officials during the consultation stage, our office was repeatedly assured that the Regulations were to be regarded as a short term measure, with the current Bill representing the longer term ‘vehicle’ for addressing cross-border placements. We are therefore disappointed that the current Bill’s provisions on cross-border placements lack detail, and do not appear to address all the concerns set out in our written and oral evidence on the Regulations, particularly as regards parity of protections.
In particular, we note that Section 25 is largely a framework provision, with further detail being added at a later date. Until such time, we assume that the Regulations will continue to be in force. For the reasons set out above, we do not consider this to be an acceptable position. The available evidence shows that children affected by cross-border placements are amongst the most vulnerable, with complex health, education and wellbeing needs. It is vital that the above-mentioned concerns are addressed as a matter of urgency, and this Bill must be the vehicle for doing that.
Our concerns are outlined in full in our Stage 1 evidence on this Bill and we will continue to urge Scottish Government to bring forward amendments which address these issues.
Age of Criminal Responsibility
The Age of Criminal Responsibility (Scotland) Act 2019 set an age of criminal responsibility below the internationally acceptable minimum age of 14, as confirmed by the Parliamentary Assembly of the Council of Europe in 2014 and reiterated by the Committee on the Rights of the Child the very week the bill passed.
In its recent Concluding Observations on the implementation of the UNCRC in the United Kingdom, the UN Committee on the Rights of the Child called for the age of criminal responsibility to be raised to 14.
Our view is that this bill presents an important opportunity to bring Scots law into line with international human rights standards and call for amendments to be brought forward at Stage 2 to raise the age of criminal responsibility immediately.
 Dr Claire Lightowler, 2020. Rights Respecting? Scotland’s approach to children in conflict with the law. CYCJ.https://www.cycj.org.uk/resource/rights-respecting-scotlands-approach-to-children-in-conflict-with-the-law/
 United Nations Standard Minimum Rules for the Administration of Juvenile Justice. Para 17.1(b) page 10. https://www.ohchr.org/Documents/ProfessionalInterest/beijingrules.pdf
 2001 SLT 531, where the Court of Session found that the absence of funded legal representation in the children’s hearing system in certain circumstances was contrary to the child’s right to a far hearing, protected by Article 6 of the ECHR.
 Roe, A, 2022 What do we know about children and young people deprived of their liberty in England and Wales? An evidence review. Nuffield Family Justice Observatory. https://www.nuffieldfjo.org.uk/resource/children-and-young-people-deprived-of-their-liberty-englandand-wales
 CYPCS, 2021. Children (Care & Justice) (Scotland) Bill. https://www.cypcs.org.uk/resources/children-care-justice-scotland-bill/