We submitted a response to the Scottish Government’s consultation on improving victims’ experiences of the justice system.
Introduction and summary
We welcome the Scottish Government’s commitment to implementing the recommendations of Lady Dorrian’s independent review on improving the management of sexual offence cases in Scotland.
In line with our mandate and remit, we have set out below our views on aspects of the consultation which are most likely to impact on the human rights of children and young people in Scotland.
We recognise that a number of the recommendations contained in the independent review group’s final report will require primary legislation if they are to be implemented. We are concerned that Scottish Government has failed to publish a Children’s Rights Impact Assessment to accompany the proposals in the consultation document.
Our response builds upon our previous response to proposals contained in the Children’s Care and Justice Bill Consultation relating to information and support for victims in the Children’s Hearing System, available here. We would also highlight our evidence on the Children (Scotland) Act 2020, which introduced significant changes to the way in which children’s participation rights are respected in the civil justice system.
Human Rights Context
Child victims and witnesses
Children who have been the victims of crime have a right to access support and information. This is reflected in Article 39 of the UN Convention on the Rights of the Child (“UNCRC”) which provides that children who have been the victim of rights violations have a right to physical and psychological recovery and social reintegration.
The right of child victims to an effective remedy is also essential. The UN Committee on the Rights of the Child has formally set out its position on the right to a remedy in General Comment No. 5 (2003) on general measures of implementation of the UNCRC (Articles 4, 42 and 44, paragraph 6). The Committee clarifies that the right to an effective remedy exists under the UNCRC by interpreting that “for rights to have meaning, effective remedies must be available to redress violations” and “this requirement is implicit in the Convention”. The Committee also highlights the need for special consideration for child victims. It states that “children’s special and dependent status creates real difficulties for them in pursuing remedies for breaches of their rights” and recognises the need to ensure “effective, child sensitive procedures available to children and their representatives […] child-friendly information, advice, advocacy, including support for self-advocacy, and access to independent complaints procedures and to the courts with necessary legal and other assistance”. Finally, the Committee explicitly recognises, as important elements of the right to an effective remedy, the right to “appropriate reparation, including compensation, and, where needed, measures to promote physical and psychological recovery, rehabilitation and reintegration, as required by article 39”.
The Guidelines of the Committee of Ministers of the Council of Europe on Child Friendly Justice (“CoE Guidelines”) apply whenever a child engages with any element of the justice system. The Guidelines’ fundamental principles are participation; best interests of the child; dignity; protection from discrimination and rule of law. They identify the following general elements that cover all interaction with the justice system: “information and advice; protection of private and family life; safety (special preventative measures); training of professionals; multidisciplinary approach…”.
Voice of the child and evolving capacities
Article 12 requires States to provide children with the right to express their views and for due weight to be given to their views in accordance with their age and maturity. This is one of the four general principles of the UNCRC. The importance of this right is echoed by the CoE Guidelines.
Paragraph 20 of the Committee on the Rights of the Child General Comment 12 makes it clear that States should presume that all children have the capacity to form their own views and the right to express them and that they do not first have to prove they have capacity. General Comment 12 states that “age alone cannot determine the significance of a child’s views” as levels of understanding vary even within similarly aged children. As such the views of children must be considered on a case-by-case basis. Due regard should also be considered in the context of the concept of the evolving capacities of the child. Even very young children are capable of forming and expressing a view and the greater the age and capacity of the child, the more seriously their views should be considered.
Victims’ Commissioner for Scotland
We welcome in principle the establishment of a Victims Commissioner. We agree with Victim’s Support Scotland that the purpose of the role should be to amplify the voices, views and experiences of those affected by crime, and to influence decision making. While recognising that the proposals are in an early form, we have several questions regarding the proposed role’s functions, powers, and remit.
Function and powers
Our office’s function to promote and safeguard the rights of children and young people covers a broad range of areas, some of which are also covered by the remit of other bodies. In the past, we have carried out work which touches upon the rights of child victims and witnesses. By way of example, we provided evidence to the Justice Committee’s Call for Views on the Children (Scotland) Bill, which included evidence on special measures and child witnesses. Furthermore, our recent response to the Children’s Care and Justice Bill Consultation included evidence on the right of victims to access support and information in the Children’s Hearing System.
We note that one of the proposed functions of the Victims Commissioner would be raising awareness and promotion of victims’ interests and rights. We consider that there is significant scope for overlaps between the proposals and our own general function in relation to child victims and witnesses.
We consider that it is important to draw a distinction between the role of specialist bodies which are set up to fulfil a policy aim, and that of National Human Rights Institutions (NHRIs) and Independent Children’s Rights Institutions (ICRI). As an ICRI, the work of our office is framed and guided by the principles articulated in General Comment no.2 (CRC Committee, 2002) and the UN Paris Principles (UN, 1993). In working to ensure respect for the rights contained in the UNCRC, General Comment no.2 recommends that ICRIs have the power to, amongst other things: undertake investigations into any situation of violation of children’s rights; conduct inquiries on matters relating to children’s rights; and review the adequacy and effectiveness of law and practice relating to the protection of children’s rights. In addition to having these functions, our office places children’s voices and experiences at the heart of our work, thereby ensuring direct accountability to children and young people across Scotland, while working on their behalf.
The proposals are likely to overlap with the role and remit of other organisations who undertake work to support and advocate for the rights of victims and witnesses. These include statutory bodies such as the Equality and Human Rights Commission and the Scottish Human Rights Commission (who both share the role of NHRI in Scotland); as well as a wide range of national, regional and local organisations such as Victim Support Scotland, Scottish Women’s Aid, and Rape Crisis Scotland. Many of these organisations have been working for many years to amplify the voices and experiences of victims, including child victims. The Victims Commissioner’s proposed functions could therefore lead to duplication of work. We would welcome further detail on how this role will add value to the work of existing victim’s rights organisations.
As required under paragraph 13 of General Comment 2 (CRC Committee, 2002), our office has the power to carry out what are referred to as ‘general investigations’ and ‘individual investigations’ into whether, by what means and to what extent, a service provider has regard to the rights, interests and views of children and young people in making decisions or taking actions that affect those children and young people (or a specific child or young person for individual investigations). However, our office is prevented from exercising this power where to do so would duplicate the investigatory function of another body in Scotland. Our office is required to report to Parliament following the conclusion of any investigation, including any recommendations arising from any investigation.
We note the Scottish Government’s preference for the Victims Commissioner to have a power to carry out investigations into systemic issues affecting victims of crime, to report on these issues, and to make recommendations to the Scottish Government, criminal justice agencies and those providing services to victims in Scotland. The consultation document expressly refers to our own investigatory powers.
This proposal will likely result in a significant overlap with our office’s power to investigate a service provider’s decisions and actions in relation to child victims and witnesses. The proposals risk constraining our office’s ability to investigate issues relating to child victims and witnesses which are brought to our attention.
For these reasons, we consider that the proposed role should be established by legislation, which clearly sets out the Victims Commissioner’s functions and powers. Any legislation should be drafted to avoid, as far as possible, any cross-over in remit and responsibilities already held by any other organisation in Scotland. We consider that addressing any potential overlaps in remit and responsibilities through legislation is preferable to proceeding by way of Memorandum of Understandings between bodies.
In recognition of the scrutiny and investigatory role of NHRIs and IHRIs, as set out in international law, it is important that the proposed role’s powers do not seek to limit the powers of existing statutory bodies, such as our own office. This is particularly important not only from the standpoint of legal certainty, but to reduce the risk of confusing children and those that represent their interests. For these reasons, we would recommend that a duty is placed on the Victims Commissioner to notify our office when they propose to investigate any issue relating to the human rights of children and young people.
We note the proposal to extend the remit of the Victims Commissioner to include the Children’s Hearings System.
Both adults and children are involved in the Children’s Hearings System. It is not immediately clear from the consultation document who would fall within the proposed remit of the Victims Commissioner. For the purposes of this response, we will assume that the proposal relates to children and adults who have been the victim of an offence committed by a child subject to a referral to the Children’s Reporter. We would however welcome clarity from the Scottish Government on this point.
There is a risk that the proposal could distort the ethos of the Children’s Hearings system, which is centred on the welfare of the child, and based on the fundamental principle that the needs of the child should be the key and that children who offend and children who are in need of care and protection should be dealt with in the same system. Unlike the criminal justice system, the Children’s Hearing System puts the best interest of the child at the centre of proceedings. Taking a children’s rights-based approach, it is important to balance the victim’s right to information and support against the rights of the child offender subject to a children’s hearing.
For this reason, we consider that if the Victims Commissioner’s remit is to extend to the experiences of victims in the Children’s Hearing System, then great care must be taken to ensure that legislation recognises that the rights of the child subject to the Children’s Hearing must be centre stage. We would also welcome further clarity on how extending the remit would link with the ongoing review of the Children’s Hearings System by Sheriff David Mackie, the findings of which are yet to be published.
Any child who has been harmed has a right to support to recover from their experience. As noted above, under Article 39 UNCRC, children who have been the victim of rights violations have a right to physical and psychological recovery and social reintegration (see also General Comment no.5).
Children who come into contact with the justice system are entitled to services which are child-centred, trauma-informed and respect the rights and wellbeing of the child at all times. Children and young people have told us that child victims are entitled to support which is tailored to the individual needs of the child involved:
“It’s too easy to apply one set of guidelines to every scenario […] You should look at things differently when the person who has been harmed is a child. […] We know that trauma affects people in childhood differently than when you’re an adult. Again, that’s not always going to be the case, but there’s enough research to back up this point. […] What does that support look like? Well, the easiest one is mental health – do they need to speak with someone? Do they need to be put in contact with a specialist? I don’t think we should be telling someone if they’ve had this experience they shouldn’t be getting this type of support if that’s what they’re asking for but, nor should we be saying you can get anything you like because this has happened to you. […] It all depends on what has happened and who it’s happened to.”
CYPCS Young Adviser
We support the proposal to underpin trauma-informed practice and person-centred approaches in legislation. However, we also agree with the position of Children 1st on this issue, namely that legislation must be supported by adequate resource allocated to implementation. We also agree that there needs to be a drive towards significant culture change where our systems and processes are trauma- sensitive. In this regard, we have previously expressed our support to the development of the Bairn’s Hoose in Scotland, which the Scottish Government has committed to introducing. We feel that this could play a role in delivering the culture change required to ensure that child victims receive the specialist, trauma-informed support they need.
We would welcome further clarity on how the proposals to underpin trauma-informed approach in legislation will complement the establishment of the Bairns Hoose; as well as how the Victims Commissioner and a Bairns Hoose would interact.
Special measures in civil cases
We refer to our previous evidence on the Children (Scotland) Act 2020, and in particular, the provisions relating to vulnerable witnesses. We recommend that any child witness in any proceedings be afforded the same protections and special measures across all settings (including in non-evidential civil hearings). This is to ensure that anything which may inhibit them expressing their views, including their presence or the presence of others, can be addressed. Children also have a right not to be discriminated against on the basis of which part of the legal system they are interacting with.
Anonymity for complainers in sexual offence cases
We welcome the proposal to introduce an automatic right to anonymity for all complainers in sexual offences. Where child complainers are concerned, we consider that this proposal will positively support children’s right to privacy under Article 8 ECHR and under Article 16 UNCRC. Any protection for children however should not be limited to traditional forms of media, but also to online publications (including social media), so as not to undermine the right to anonymity. We feel that the protection should also be available to child complainers at the earliest opportunity.
It is important to recognise the importance of the right to anonymity for a child accused. In this regard, no child who commits an offence under the age 18 should be publicly identified in any situation, at any time. This position reflects international standards. In General Comment no.24, the UN Committee on the Rights of the Child emphasises “the right of a child to have his or her privacy full respected during all stages of the proceedings, in accordance with Articles 16 and 40 (in particular Article 40 (2)(b)(vii)). The Committee also calls for lifelong protection from publication regarding crimes committed by children, on the basis that it is likely to have a negative impact on access to education, work, housing and safety and as a result impede the child’s reintegration and assumption of a constructive role in society (General Comment no.24, paragraphs 66-71).
The consultation document asks whether children should be able to set any right to anonymity aside, and if so, at what age this should be permitted.
We have consistently expressed the view that age limits in some areas of Scots law are not consistent with the provisions of the UNCRC. This does not mean however, that distinctions cannot be made based on maturity, development and evolving capacities. Indeed, the UNCRC requires that States balance their obligations to protect children, with a recognition of the evolving capacity of the child and rights to autonomy.
Minimum ages should, without exception, be consistent with all rights set out in the UNCRC. This means that in areas where children’s protection is at risk (e.g. in the justice system), all children under the age of 18 should be afforded special protection. Where minimum ages are necessary to correct for potential abuses of power (e.g. sexual consent), their enforcement should never run counter to children’s rights. In areas where age restrictions serve no protective purpose and potentially curb children’s development, freedoms, and even protection (e.g. the freedom to choose or leave a religion, access to complaints mechanisms), minimum ages should be avoided. Finally, where tensions are present between children’s protection and autonomy (e.g. consent to medical treatment), children’s capacity should be the deciding factor and should not be judged generally, but in relation to the issue at hand and the individual child. This judgement should take into account the social and cultural norms in a given context, and the power imbalances at play in questions of consent.
We consider that in light of the sensitive nature of the information being disclosed, namely the identity of a child victim of sexual violence, a children’s rights approach ought to be taken, which takes into account the individual circumstances of each child and their capacity. A legal mechanism, such as an application to a judge, could allow such an individual assessment to be made. While we recognise that the proposals are still in early form, we are however unable to envisage what any legal oversight mechanism would look like. We would therefore welcome further detail as regards how any judicial oversight mechanism would operate; and what factors the court would apply to ensure that a decision taken by a child is fully informed, supports participation rights under Article 12 UNCRC, and is in the best interests of the child.
 Final Report from the Lord Justice Clerk’s Review Group, March 2021. Available here: https://www.scotcourts.gov.uk/docs/default-source/default-document-library/reports-and-data/Improving-the-management-of-Sexual-Offence-Cases.pdf?sfvrsn=6
 See our evidence to the Justice Committee’s Call for Views on the Children (Scotland) Bill, available here: https://www.cypcs.org.uk/get-help/policy-and-law/our-policy-work/evidence-submission-justice-committee-call-for-views-on-the-children-scotland-bill/. We also contributed to the formal consultation on proposals in November 2018 and to the earlier informal consultation which informed it
 Gerison Lansdown, UNICEF Innocenti Insight Centre, The Evolving Capacities of the Child. Available here: https://www.unicef-irc.org/publications/pdf/evolving-eng.pdf
 General comment no. 2 (2002), The role of independent national human rights institutions in the promotion and protection of the rights of the child. Available here: https://digitallibrary.un.org/record/490983?ln=en
 Principles relating to the Status of National Institutions (The Paris Principles), General Assembly resolution 48/134, available here: https://www.ohchr.org/en/instruments-mechanisms/instruments/principles-relating-status-national-institutions-paris
 The General Comment provides that NHRIs must have the power to “consider individual complaints and petitions and carry out investigations, including those submitted on behalf of or directly by children,” and have the necessary powers to do so effectively.
 Section 7, Commissioner for Children and Young People (Scotland) Act 2003
 Section 7(2A), 2003 Act
 Section 11, 2003 Act
 Evidence submission: Justice Committee Call for Views on the Children (Scotland) Bill. Available here: https://www.cypcs.org.uk/get-help/policy-and-law/our-policy-work/evidence-submission-justice-committee-call-for-views-on-the-children-scotland-bill/