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New law will deliver long-needed change, but questions remain

Stephen Bermingham

Head of Practice and Policy

Here at Children’s Hearings Scotland we very much welcome the Children (Care and Justice) (Scotland) Bill, which was introduced to the Scottish Parliament in December 2022 and, all going well, is expected to come into force in April 2024.

This Bill is an endorsement of the Children’s Hearings System and a recognition that the principles the system was built on should be extended to all children. Currently, the protections of the Children’s Hearings System are not available to some children over 16, meaning when children are in conflict with the law, they receive different treatment depending whether or not they are on a Compulsory Supervision Order. To rectify this, and ensure Scotland is treating everyone under 18 as a child, the Bill raises the age of referral to the Children’s Hearings System to include all 16- and 17-year-olds. This is a change that the CHS community has been calling for, for a long, long time.

The Education, Children and Young People Committee in the Scottish Parliament is currently considering the evidence as part of Stage One of the Bill. We looked at the Bill and provided feedback to the Committee. What were my key takeaways?

Support for all children

First, as Scotland aims to be the first part of the UK to incorporate the United Nations Convention on the Rights of the Child (UNCRC) into domestic law, it must adapt and flex to ensure that our unique Children’s Hearings System can support all children. Because the UNCRC applies to everyone under the age of 18, this is non-negotiable. 

Second, the Bill is not just for children that come into conflict with the law but this is the overwhelming focus of attention. Why? Perhaps these are the young people who have the highest profile and are known to statutory services. These are the children who are in secure care and Young Offenders Institutions and are placed under movement restrictions. These are the children who appear in court and, in extreme cases, make the press. Children should not be placed within the adult criminal justice system and this Bill recognises that. But we need to shift the dial and focus less on the “deeds” of children and more on the “needs” of those whose circumstances mean they would benefit from the support of the Children’s Hearings System.

Resources needed

We expect that most new referrals for 16- and 17-year-olds will be for children in need of care and protection. These children will likely be experiencing a range of challenges, from poor mental health, persistent poverty and criminal and sexual exploitation to addiction issues, and will require intensive support to protect them. And therein lies the rub of the issue. The intensive support will have to come from local authorities who are already really struggling. They will need to be resourced to provide intensive support packages for about 1,000 additional young people a year. This is not the direct responsibility of CHS as it’s up to local authorities, COSLA and the Scottish Government to provide the appropriate level of resources needed. However, our Panel Members care deeply about the children they make life-changing decisions with, and it is a constant frustration for them that the right resources aren’t always available at a local level. CHS will do what we can to make sure the right supports are made available at a local level.

Third, there are concerns about the timescales for supporting 16- and 17-year-olds, particularly with joint referrals. Currently it takes about nine months on average from a referral being made to the Reporter to a substantive decision being taken by the children’s hearing, due to the time taken for the grounds for referral to be established. Discussions around joint referrals can add further time before the referral. We must do everything possible to speed up these timescales if this Bill is going to have the impact that it hopes to have.

Fourth, the Bill lowers the threshold for Movement Restriction Conditions (electronic tags) but needs to give greater detail on how this will be put into practice. The Bill allows for Movement Restriction Conditions to protect the child from harm or to protect a potential victim from the child. The Bill makes reference to GPS tracking but we need to better understand how this will be implemented while protecting children’s privacy, as enshrined in Article 16 of the UNCRC. Who will monitor children, what will happen if there is a “breach”, and how will information be managed safely?

Quality of care

Fifth, we welcome the fact that children will no longer be sent to a Young Offenders Institution (YOI) or adult prison as these settings are incompatible with promoting children’s rights. The use of prison for children on remand is particularly unacceptable and fails to recognise the inherent vulnerabilities of children, regardless of their actions. There is a significant body of evidence that placing children in custody deprives children of their rights, is traumatising and does not lead to positive outcomes. It is important to recognise that the number of children in YOIs (Polmont is the only YOI in Scotland) is at an all-time low, fewer than 10 at time of writing. However, the crux of the issue is that the secure care alternatives must be better for those children that need it than the current provision in YOIs for this to represent an improvement.

A welcomed addition in the Bill Is that any child placed in secure care is treated as “looked after” which should mean they get aftercare support when they leave. Depriving a child of their liberty is a drastic measure, and the duty of care must extend to when they have left.

A concerning theme in recent years, highlighted by The Promise Scotland and others, is the increase in cross-border placements (from other parts of the UK), where children are placed in residential homes, deprived of their liberty, often isolated from their families without the full range of safeguards that children supported through the Children’s Hearings System receive. The Bill proposes new powers to the Care Inspectorate so they have additional duties in terms of registration and oversight of these care settings, many of whom make significant amounts of money from “lawful but awful” provisions. 

‘Relevant person’

Finally, a tricky area in relation to the Bill is the deeming of someone a “relevant person” in relation to 16- and 17-year-olds referred to children’s hearings.

The Children’s Hearings (Scotland) Act 2011 provides automatic relevant person status to someone who holds parental responsibilities or rights. This gives the parent automatic rights to participate in a child’s hearing, receive copies of the reports, challenge grounds for referral and appeal the decision of the hearing. It is important to recognise the developing independence and autonomy of a young person who at 16, for example, has the right to live independently, get married, have children, work and vote. There may be situations where the young person would not want a parent to automatically be deemed a relevant person, receive sensitive information and be involved in decisions that affect them. At the very least it would intuitively feel appropriate that a 17-year-old should have a say as to who is a relevant person in their hearing.

I would welcome your feedback on my reflections, which do not cover every aspect of the Bill. There are areas in the Bill that need further clarification. However, I do believe this is a significant step forward in protecting children’s rights in Scotland.