Children (Care and Justice) (Scotland) Bill

Stage 2 Briefing

January 2024

We provided members of the Education Children and Young People with a briefing ahead of their consideration of amendments to this bill at Stage 2.


This briefing has been prepared for members of the Education, Children and Young People Committee ahead of their consideration of the above bill at Stage 2. We previously submitted evidence to the Committee at Stage 1[1].

Children’s hearings system: rights and welfare issues for the child

SupportOppose
165, 166, 171119, 120, 121, 172, 177

Amendment 166 requires the government to commence section 3 of the Children (Scotland) Act 2020 within 6 months of this bill being given royal assent. Section 3 of the 2020 Act strengthens children’s rights to participate in children’s hearings. We should not be in a position where additional legislation is required to bring this into force.

Amendments 119, 120 and 121 would require that children receive three different assessments for neurodivergent and neurodevelopmental conditions. Our view is that children should receive a holistic assessment, with specific specialist assessments being requested where appropriate. We are concerned that requiring these three assessments to be undertaken for all children, even where there is no evidence that they are necessary, would place additional pressure on specialist services, for which there are already long waiting times.

In addition, these assessments can be traumatising, even where there is strong evidence indicating they be carried out and the child could be adversely affected by any resultant delay in decision making. We therefore oppose these amendments, but would support a commitment from Scottish Ministers for stronger guidance and training for children’s panel members on the impact of neurodivergent conditions.

Amendment 172: we agree that children who experience domestic abuse need better support but have concerns about the wording of this amendment. In particular, any referral process for victims should be consensual – it cannot be a “must” duty on the Principal Reporter.  

We recognise and share the concerns that give rise to amendment 177, which deals with children who do not meet the threshold for a Compulsory Supervision Order. However, we do not think the amendment as drafted is an effective way to address these issues. It duplicates the existing role of public authorities under GIRFEC and it may disproportionately interfere with the rights of the child. We therefore do not support this amendment.

Children’s hearings system: victims

SupportOppose
13, 17,2, 168, 173, 6, 12, 178, 14, 15, 175, 180, 122, 123, 184

As we made clear in our Stage 1 evidence to this Committee, victims have a right to support – regardless of whether the person who harmed them is referred to a Children’s Hearing or prosecuted in the court. Access to that support should be entirely independent of these processes. This support should focus on their recovery and rehabilitation and extends to therapeutic and psycho-social support as well as medical treatment. In the case of child victims, this right is enshrined in Article 39 of the UNCRC.

We are very aware that, in many cases, this is a right which is not being realised and that as a result, many victims feel frustrated and let down by the justice system. In our Stage 1 evidence we called on Scottish Government to do more to provide meaningful support to victims. We therefore welcome their amendment 17 which requires Scottish Ministers to make provision for support services for victims. It is good to have this put on a statutory footing and it may serve to address some of the practice issues noted elsewhere, regarding provision of support to victims. We are particularly pleased that it provides for regulation of the training and qualifications of people providing support services. We also support amendment 181 in principle but note that the Victim Information Service in SCRA is already in place and could be resourced to fulfil this role.

Children’s hearings and the Kilbrandon principles

Both the UNCRC and the Council of Europe’s Guidelines on Child Friendly Justice require a different approach to children who are in conflict from that taken in adult courts. This is because all children under 18 are entitled to additional protections simply because they are children – this is what the Scottish Parliament agreed, in March 2021 and again in December 2023, when it voted unanimously to incorporate the UNCRC into Scots law.

In Autumn 2020, The Promise called upon Scotland to uphold the principles that underpin the Children’s Hearing System and the Kilbrandon Review. Children’s hearings are required by the Children’s Hearings (Scotland) Act 2011 to apply three overarching principles when making decisions about a child. These are:

  • The need to safeguard and promote the welfare of the child throughout the child’s childhood is the paramount consideration.
  • The child must be given an opportunity to express a view and, if the child chooses to express a view, Panel Members must have regard to the child’s view, taking into account the child’s age and maturity.
  • An order can only be made if the children’s hearing considers it is better for the child that a Compulsory Supervision Order, or warrant, is made than if it is not made.[2]

This means that the children’s hearing system operates very differently from criminal courts. Importantly, it means that the focus must be on the needs and rights of the child, even where the child has been referred on offence grounds. Our view is that many amendments in this group inadvertently undermine these principles.

Information sharing

A range of amendments have been lodged which seek to require the provision of information about the child who has caused harm to the victims. We understand that some victims want to know what has happened to the child who has harmed them, and that in some cases rights to protection from harm may be engaged which may justify sharing information to support safety planning.

However, it is also the case that both the UN Committee on the Rights of the Child (in General Comment 24) and the Council of Europe have emphasised how important it is to the recovery and reintegration of children in conflict with the law that their identity is protected. It is important to note that encouraging rehabilitation and reducing reoffending also has the result of reducing the number of victims of future offences.

This means that children in conflict with the law should not be publicly identified in the press, social media or within their communities, in line with Article 8 of the ECHR and Articles 16 and 40) of the UNCRC. Balancing these considerations, it is possible for information to be shared on a limited and confidential basis with victims where it is necessary and proportionate to protect their safety.

Our view is that all of the amendments submitted set the criteria for sharing information too broadly. The test should be protection from harm. We oppose amendments 15 and 178 for this reason,but would support revised amendments, with the text “necessary for safety planning” at Stage 3. Amendment 15 is worded too vaguely.

In order to ensure that information sharing is necessary and proportionate, an individual assessment should be made on a case-by-case basis. This is usually done by the Principal Reporter. We therefore oppose all amendments which require information to be shared automatically in specific circumstances, including amendments 122, 175 and 180 which do not allow for an individual assessment.

Impact on or views of the victim

A number of amendments seek to provide for additional consideration of the impact on victims, or of their views or concerns. Our view is that this has the potential to undermine the paramountcy of the best interests of the child in conflict with the law[3], as well as create an expectation from victims that cannot be delivered within the Kilbrandon Principles. Simply importing processes designed for the criminal justice system into the hearings system is likely to undermine the effective operation of the latter and not deliver the policy intent. In the case of child victims, there may be a need to balance the best interests of both children, however our view is that current legislation strikes the correct balance. We therefore oppose amendments 168 and 184.

Safety of victim

Amendment 173 requires firstly that a CSO “be specific to the circumstances of the child’s offence or behaviour”. Our view is that this may inadvertently reduce the options available to the panel, leaving them unable to address underlying causes of behaviour or a welfare need of the child (including previous trauma) even where a child is also referred on welfare grounds. Second, it requires a CSO to “consider the concerns and safety of the person affected…” Our view is that existing legislation, together with the measures in this bill (including government amendments) allows for the correct balance to be struck between protecting victims and the rights of the child who has caused harm. Amendments 174 and 176 seek to clarify this, but our view is that they are unnecessary.

We oppose amendment 6 which seeks to prohibit any contact with the victim where a CSO is made. There will be instances where this is not needed or not appropriate, for example where the person affected is a parent or where offending is low level and not targeted at an individual.  These decisions must be made on an individual basis.

Ways of working and training

SupportOppose
 188, 211

While we agree that the issues in amendments 169 and 187 are important, we feel that current training for children’s panel members meets the requirements of 169 and 187. We do not feel these amendments are necessary. Likewise, our view is that current work on GIRFEC, together with children’s rights reporting required by the UNCRC Incorporation Act will fulfil the requirements of amendments 188 and 211, which we therefore oppose.

Emergency placement in secure accommodation

We support amendment 1.

Prosecution of children, appropriate system

SupportOppose
 3, 18, 19, 189, 190

Our view is that several of these amendments are contrary to the general principles of this bill, as agreed by parliament at Stage 1 and are therefore out of scope. In their Stage 1 report on this bill, this committee noted that the Scottish Government had stated that the main objective of the bill is to:

“Improve experiences and promote and advance outcomes for children, particularly those who come into contact with care and justice services. Building on Scotland’s progressive approach to children’s rights in line with the UNCRC, the Bill’s provisions aim to increase safeguards and support, especially to those who may need legal measures to secure their wellbeing and safety.”

In addition, in their conclusion, this Committee stated that it:

“acknowledges that, in order to be compliant with UNCRC, any young person up to the age of 18, who is accused of an offence, should have access to age-appropriate justice.”

And that

“The Committee requests that the Scottish Government urgently addresses these concerns to ensure that all under 18s in Scotland have access to age-appropriate justice.”

Yet a number of amendments have been lodged which not only reverse changes proposed in the bill as published but which are, in fact, retrogressive in terms of current law and practice; and will result in fewer 16 and 17 year olds having access to age-appropriate justice. This is incompatible with the UNCRC. On this basis we oppose amendments 3 and 19

We have addressed the issues of victims right to information above. We oppose amendment 189.

Amendment 18 is potentially incompatible with the presumption of innocence contained within ECHR Article 6 and UNCRC Article 40. Where a decision not to prosecute were made on the basis of insufficient evidence, but changed as a result of the victims risk of psychological harm, this could result in wrongful prosecution. We oppose amendment 190 for similar reasons.

Terminology

SupportOppose
7, 8, 9, 10 

We support the changes in terminology by amendments in this group, which updates the 2011 Act to more closely match the language of the UNCRC.

Young Offenders Institutions (YOIs)

SupportOppose
 11, 92, 93, 94, 96, 98, 100, 102, 106, 107

As with the earlier group Prosecution of children: appropriate system, our view is that these amendments are not only retrogressive and incompatible with the UNCRC but at odds with the general principles of this bill acknowledged in this Committee’s Stage 1 report and agreed by parliament at Stage 1. Our view is that they are therefore out of scope.

Despite the overwhelming evidence, including from HM Inspector of Prisons, of the importance of removing children from YOIs, amendments 11, 92, 93, 94, 96, 98, 100, 102, 106 and 107 would in fact increase the number of children placed in a YOI.

Attendance at children’s hearings

SupportOppose
 179

We emphatically oppose amendment 179, which would enable any person to attend a children’s hearing, for any reason, with only extremely limited scope for the chair to refuse entry. It would apply to all children’s hearings, convened regarding any ground(s) for referral, about a child of any age. We do not understand the intended purpose of this amendment.

Reporting restrictions

SupportOppose
16, 25, 43, 52, 84 

We support these amendments which strengthen provisions already in the bill. For further discussion of reporting restrictions see below.

Legal Aid

We support the intention of both amendments 185 and 186. We have consistently called for extension of legal aid to children in all circumstances and the UN Committee on the Rights of the Child has made a number of recommendations to this effect, most recently in their 2023 Concluding Observations. Amendment 185 would extend legal aid to all children referred to a children’s hearings on offence grounds. We have come across situations where a child has not understood that accepting s67(2)(j) grounds results in them effectively having a conviction on their PVG record. Amendment 186 goes further and provides legal aid for all children referred to a children’s hearing.

However, we’re unable to support these amendments in their present form, as they would also extend legal aid to a range of adults and we are not clear what evidence would support the need for this. We would welcome amendments at Stage 3 which would limit this to children.

Reporting Restrictions

We would like to emphasise that reporting restrictions is a different issue from discussion about information sharing above. The Council of Europe Guidelines[4] are clear that all children involved in the justice system – victims, witnesses and children in conflict with the law – should have their privacy protected. This means that there should be effective legislation to prevent the child’s identity being made public by the press and other forums i.e. social media. The presence of reporting restrictions does not mean that information cannot be shared on a confidential basis, including with the victim, where proportionate or necessary.

Reporting restrictions – self identification

SupportOppose
20, 24, 48, 49, 50 

Reporting restrictions – powers and public interest test

SupportOppose
21, 191, 30 to 40, 42, 44, 45, 51, 54, 55, 60, 61, 62, 65 to 79, 81, 82137, 138, 147, 148, 192, 149, 150, 151

The UN Committee on the Rights of the Child, in their General Comment 24 on the right of children in conflict with the law, recommends that:

“there should be lifelong protection from publication regarding crimes committed by children. The rationale for the non-publication rule, and for its continuation after the child reaches the age of 18, is that publication causes ongoing stigmatization, which is likely to have a negative impact on access to education, work, housing or safety. This impedes the child’s reintegration and assumption of a constructive role in society. States parties should thus ensure that the general rule is lifelong privacy protection pertaining to all types of media, including social media.”

We therefore support amendment 191.

Of the two approaches to extending provision, on balance, we support the Scottish Government approach to amending this section and strengthening provisions in the bill on reporting restrictions. However, we are not satisfied that it provides enough protection of the Article 8 ECHR and Article 16 UNCRC rights of secondary victims who are themselves children (i.e. siblings or children of a deceased victim).

The amendments lodged by Ruth Maguire have much to recommend within them, but it is not possible to “mix and match” provisions from the two sets of amendments. We are concerned that being over-prescriptive about whose identity can be protected and what particular information cannot be published may have unintended consequences. We would strongly encourage Scottish Government to strengthen the bill with further amendments on this issue at Stage 3.

Reporting restrictions: time restrictions take effect

SupportOppose
22, 46 

These amendments provide maximum protection for victims and witnesses.

Reporting restrictions: deceased victims

SupportOppose
 124, 126, 125, 127 to 146, 152, 153, 154

In principle, we support any measures to protect the identity of victims, including deceased victims, as well as measures that will protect their close family from distress. We acknowledge that repeated press coverage and public discussion of the murder of a child is traumatic and can cause lasting harm to their family, including siblings. As stated above, our view is that the identity of any child involved, in any way, in children’s hearings or the adult justice system should be protected by reporting restrictions. We agree that these should extend beyond death in the case of deceased victims.

Unfortunately, we must note that existing case law on this issue in the UK has been inconclusive, with reporting restrictions imposed by the Courts being successfully challenged (usually by the press). Much of the existing case law involves children killed by adults and sadly, these have included cases where the child was murdered by a member of their immediate family. These cases have involved a complex balancing of the rights of victims, particularly under Article 8 of the ECHR with the right of the press and others to freedom of expression in Article 10 of the ECHR.

We note the letter published by Victim Support Scotland and a range of other organisations. We are in agreement on the key point that the rights of child victims and their siblings must be better protected and call on the Scottish Government to further explore how protections can be strengthened, and to bring amendments to this effect at Stage 3.

Reporting restrictions: identity of workplace and minor and technical

We support all amendments in this group.

Rights and Welfare of children involved in criminal proceedings

We support all amendments in this group.

Remit to children’s hearings from criminal courts

SupportOppose
89, 90, 9185, 86, 87, 88, 206

We support amendments 89, 90 and 91. Amendment 91 allows a child to be referred to a children’s hearing for remittal after a non-harassment order (NHO) is made. Our view is that this will ensure that the child receives the support they need to comply with the NHO and will therefore strengthen protections for victims.

Our previous comments regarding incompatibility with both the UNCRC and the general principles of this bill as agreed by Parliament at Stage 1 apply to the remaining amendments in this group. We oppose amendments 85, 86, 87, 88 and 206.

Detention in secure accommodation post-18

SupportOppose
 95, 97, 103, 104

We support the provisions which allow children to remain in secure care after their 18th birthday, but not after their 19th birthday, to enable planned transitions to adult life. The Committee on the Rights of the Child, in General Comment 24, state that the continuation of a child’s stay “in the facility for children should be possible if that is in his or her best interests and not contrary to the best interests of the children in the facility.”  This is a decision that should be made on an individual basis and as part of the planning for the child’s transition to adulthood.

We oppose all amendments in this group.

Minor and technical

We support all amendment in this group.

Measure for children who have committed and offence

SupportOppose
105207, 208, 209

We support amendment 105, but note our concern that a full CRWIA was not carried out before applying adult regulations to the National Secure Adolescent Inpatient Service (Foxgrove), despite our call for regulations to reflect the additional protections children deprived of their liberty are entitled to under the UNCRC.

While we recognise and welcome the intention behind amendments 207, 208 and 209, we think they are unnecessary and may have unintended consequences. The reporting duties could be covered by the reporting duties introduced via the UNCRC Incorporation Act.

In the case of restorative justice, we also note that evidence shows it is effective only when the child in conflict with the law participates voluntarily. It should never be mandatory and no negative inference should be taken from non-participation.

Secure transportation

SupportOppose
212162, 163

On balance, we prefer amendment 212, however there are elements of amendment 162 we would like to see added at Stage 3, or to form part of a ministerial commitment on the content of the standards in order to strengthen these provisions. 

Regarding the use of restraint, addressed by amendment 163, we re-iterate our position that there is a need for national human rights based legislative standards, guidance, and monitoring of restrictive practices across all settings. We would welcome a commitment from the Minister that this is being taken forward. Whilst amendment 163 sets out a basic framework for reporting, data collected should be across all nine protected characteristics, although we note small numbers may mean disaggregated data can only be published at a national level. We would welcome further consideration of this at Stage 3.

Secure accommodation

SupportOppose
 108, 109

Amendments 108 and 109 would reduce the ability of secure accommodation providers to respond appropriately to the needs of the children they care for. For example, a child referred on welfare and offence grounds, who had experienced major trauma but had also engaged in criminal activity such as shoplifting, would have to be accommodated only with other children who had committed offences, were amendment 9 in force.

Decisions should be made on an individual basis, taking account of the risk and needs of all children involved. In our experience secure providers already manage these issues carefully and considerately.   

We acknowledge the intention behind amendments 155 and 156 which address the use of restraint and restrictive practices in secure care. This has been an issue we have worked on for a number of years. Our view is that there needs to be holistic, rights based statutory guidance which applies in all situations where children may be restrained. We would welcome a commitment from the Minister that this work is being taken forward.  

We fully support secure care staff being appropriately trained and resourced to meet the needs of all children and young people in their care. For this reason, the links to specific conditions are not helpful and could inadvertently result in discrimination against children with other disabilities.

We note it is also important that children in secure care have access to FCAMHS.

Cross-border Placements

SupportOppose
112, 113214, 215, 216, 217

Amendment 112 and 113 provide for the Scottish Government to make regulations on the recognition of non-Scottish orders. We have had a longstanding concern that the rights of children on such orders were not protected to the same extent as children on Scottish orders. Of particular concern is children on Deprivation of Liberty Orders placed in Scotland outwith secure care. We have been in close and frequent discussion with the Scottish Government on areas where the current regulations could be strengthened, We therefore welcome this provision which will allow the rights of these children to be better respected.

We recognise that the intent of amendment 215 is strengthening the rights of children placed in Scotland, however there is a risk of these amendments being interpreted as a duty on Scottish Ministers – our view is that this must remain the duty of the placing authority.

Likewise, amendment 214 is well intentioned and we are also concerned that children are often placed in Scotland for reasons other than their best interest. However, there is limited scope for Scottish Ministers to challenge a determination by the English Courts in individual cases. The measures we are suggesting to the Government to strengthen the regulations will improve matters on a systemic basis.

Amendment 216 will not, unfortunately, address one of our gravest concerns, which is children on Deprivation of Liberty orders being placed in children’s homes (often set up on an ad hoc basis) rather than secure. Again, significantly strengthened regulation is the solution here.

We would welcome a ministerial commitment to reporting, on a regular basis, on all forms of cross-border placements (including mental health placements) in and out of Scotland and saving that an amendment to that effect at Stage 3.

Impact, operation and commencement of the Act

SupportOppose
 218, 219, 220

We recognise the intent behind amendments 218 and 219 but cannot support it as the language is not appropriate for children’s hearings. We note that much of this information is already collected by SCRA, who have recently carried out research on it to support work on bringing the age of criminal responsibility in line with minimum international legal standards.

Likewise, we recognise the intent behind amendment 220, but feel that it is not appropriate for legislation.

Age of Criminal Responsibility

In our Stage 1 evidence we expressed our disappointment that the age of criminal responsibility in Scotland remained below the international minimum acceptable age of 14 and that the Scottish Government had not taken the opportunity of this bill to increase it. We note work is underway to explore increasing the age further and we support the aim of increasing it to 16. However, our view is that an increase to 14 is needed urgently. We did explore the possibility of an amendment on this issue but were disappointed to be advised it was likely to be out of scope of this bill. We refer members of the Committee to our previous submissions on this issue.


[1] https://www.cypcs.org.uk/resources/ccj-bill-stage-1/

[2] Children’s Hearings Scotland, 2022. Practice and Procedural Manual. Version 4. https://www.chscotland.gov.uk/media/upyba23h/master-copy-practice-and-procedure-manual-v4-0-4-2022.pdf

[3] Section 16 of the Children (Scotland) Act 1995

[4] Page 57

Back to top