UN Convention on the Rights of the Child: Scottish Governments detailed response to the UN Committees 2008 Concluding Observations

YOUTH JUSTICE

126	Administration of juvenile justice [A40]	Concluding Observation 78. The Committee recommends that the State party fully implement international standards of juvenile justice, in particular articles 37, 39 and 40 of the Convention, as well as the General Comment n° 10 on "Children's rights in Juvenile Justice" the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("the Beijing Rules"), the United Nations Guidelines for the Prevention of Juvenile Delinquency ("the Riyadh Guidelines") and the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty ("the Havana Rules"). Domestic Concerns There is an urgent need to transform the juvenile justice system in the UK, especially England and Wales, to ensure that it complies with the UNCRC. The UK Govt and devolved administrations should ensure that the best interests and welfare of the child is a primary consideration in dealing with children in trouble with the law. Consideration should be given to improving and adopting the welfare-based children's hearing system across the UK.	The children's hearings system is a welfare-based approach to tackling offending by children and young people. More than 99% of children and young people who are subject to statutory measures in response to their offending behaviour are dealt with through the hearings system. SG is committed to the principles of the hearings system and to ensuring that it is a modern and flexible system. We are currently consulting on a number of changes to the hearings system aimed at ensuring it remains an appropriate and effective means of tackling offending by young people. Respondents noted that the figure of 99% of children being dealt with by the children's hearing system only applies to those under 16 yrs. Respondents expressed support for SG's consideration of Youth Hearings for 16 - 17 yr olds with a wider range of options than presently available to the children's hearing system, including restorative approaches. The Youth Justice Framework is examining different options for more youth-centred approaches to reduce the number of custodial disposals for young people. The SG response should make reference to the situation and needs of victims. SG will: Introduce a Bill reforming the Children's Hearings System in Scotland which will keep the ethos and principles of the System while seeking to strengthen and modernise it. These reforms will respect the System's aim of protecting children's rights whilst ensuring that it can assist in the response to the needs of young people and their future behaviour. Consider, and where appropriate, implement changes recommended by the Prisons Commission Continue to work with and support local partners to implement good practice and ensure risks and needs associated with children and young people who offend are addressed.
127	Administration of juvenile justice [A40]	Concluding Observations 78. It also recommends that the State party: a) raise the minimum age of criminal responsibility in accordance with the Committee's General Comment n° 10, and notably its paragraphs 32 and 33; Domestic Concerns SG should ensure that the minimum age of criminal responsibility in Scotland should be raised considerably; The UK Govt and devolved administrations should increase the age of criminal responsibility. Scotland has the lowest age of criminal responsibility in Europe.	The age of criminal responsibility in Scotland was last reviewed in early 2002 and at that point, Ministers concluded that age 8 continued to be an appropriate threshold in the context of our welfare-based approach to youth justice and the fact that the vast majority of children who offend are dealt with through the children's hearings system All respondents to this section of the consultation document (and most of those at the consultation events) agreed that the age of criminal responsibility should be examined and there were numerous calls for the age to be raised to a minimum of 12, with one respondent proposing 18 yrs. Children and young people said that the current age of criminal responsibility was inappropriate, some were shocked when they realised how young one could be held responsible for your actions. The majority felt that age 12 was about right. Respondents noted by way of justifying such a change that it would encourage society to 'takes responsibility for young people's actions and commit to finding better solutions' and that having a such a low age of criminal responsibility 'is incompatible with a welfarist approach to juvenile justice'. One respondent proposed that 14 yrs, in accordance with the UN Committee's recommendation was the preferred age. However if lower than 14, 13 was proposed on grounds of consistency with Scottish criminal law and prosecution practice, notably in relation to the Sexual Offences (Scotland) Bill where 12 year olds will be vulnerable to prosecution if the age is set at 12 yrs. SG was also urged to raise the age above the internationally accepted minimum as a matter of principle. An important point was made with regard to the terminology. It was proposed that 'minimum age for prosecution' more accurately defined the purpose of having an age threshold, rather than 'minimum age of criminal responsibility' which suggests there is no responsibility under this age. SG will: Reflect on the comments from the UN Committee, and the points raised in the Scottish Parliament debate on 6 November, regarding the age of criminal responsibility. These will help inform our thinking on any changes to legislation.
128	Administration of juvenile justice [A40]	Concluding Observations 78. It also recommends that the State party: b) develop a broad range of alternative measures to detention for children in conflict with the law; and establish the principle that detention should be used as a measure of last resort and for the shortest period of time as a statutory principle; Domestic Concerns SG should ensure that: Children aged under 18 and certified by the court as unruly and depraved are not remanded in prison or in a remand centre, but placed in a specialised secure unit with staff trained to address mental health issues and the specific needs of vulnerable children; The UK Govt and devolved administrations should remove children from prison service custody. For the small number in need of detention for their own or public safety, detention should be for the shortest time possible in small, child-centred settings with the clear aims of meeting the child's needs and rehabilitation. There should be clear statutory thresholds to ensure that custody is used as a last resort. The UK Govt and devolved administrations should invest more in alternatives to custody and should provide appropriate services to meet the needs of children in the youth justice system with mental health problems and/or learning difficulties.	From 1 April 2008, The Intensive Support and Monitoring (Scotland) Regulations 2008 extended the application of Intensive Support and Monitoring, as an alternative to secure care, to all 32 local authorities following the successful completion of Phase 1 roll-out in seven local authority areas. This allows children's hearings to put in place a package of intensive support with a movement restriction condition for young people. The Scottish Government has announced measures to help keep children out of prison. In February 2008, SG announced plans to abolish unruly certificates, which currently allow children aged 14 and 15 years appearing on a charge before a criminal court to be remanded in prison custody. A consultation on the abolition of unruly certificates and alternative proposals concluded in July 2008 and a provision has been included in the Criminal Justice and Licensing Bill to repeal unruly certificates as an option. Similarly, SG is committed to the principle that children aged 16 and 17 should be held in prison as a matter of last resort and for the shortest time possible. SG has also noted the comments of the Prisons Commission on the handling of 16 and 17 year olds who offend. There were a number of the issues under the theme of youth justice that attracted support and comment from consultation respondents, including the age of criminal responsibility and minimum age of prosecution, ASBOs, the mental health of young people who offend, the Children's Hearings System, young people in the prison estate and alternatives to detention. Children and young people particularly highlighted the role of adults - parents and police - in challenging negative behaviour at an early stage as a way of preventing offending. Another point made by children and young people, specifically from those who had experience of the youth justice system, was the importance of relationships being built up between them and the people who decide whether they should be sent to a secure unit. Some felt that it was unfair that strangers were able to pass judgement on them. They also felt that more could be done to allow young people a "second chance" before being locked up. One young person commented: " Young people must be treated fairly in the justice system and prison is not the answer when someone has their whole life ahead of them" SG will [Action 21]: Deliver on the priorities of Preventing Offending by Young People: A Framework for Action, which will support young people who present a high risk to themselves or others and those who make the transition to the criminal justice system. This framework, along with other streams of work, will: reduce the number of under 18s who reoffend and receive custodial sentences as adults by: ensuring an effective age-appropriate response, including a range of interventions, in both children's and criminal justice systems; and promoting effective community-integration. Specific actions in this area are: Diversion from formal measures Develop and implement a consistent process for delivery of diversionary services for young people who offend and dealt with either by children's or adult services including an improved response from commission of offence to effective disposal. Improve practice to strengthen transitions into adulthood, including where that requires continued intervention to meet needs and manage risks. Community alternatives to custody / secure care Reduce the number of under 18s in prison or secure care by promoting robust community-based alternatives and effective decision-making (including wraparound / ISMS/ Community Payback orders for 16/17 year olds); Use of custody Implement legislation to abolish the unruly certificate by which under-16s can be remanded to prison. Ensure that no under 16s go to prison for any other reason, and that any under 18s in prison have an appropriate regime and where practicable are kept separate from adult prisoners (unless it is not in their interests). Work with secure providers to ensure that provision for children and young people with mental health issues have their needs met either within their units or in the community. The prevention and high risk strands of the youth justice framework for action actively consider the mental health needs of young people involved in, or at risk of becoming involved in, offending . Work with partners will continue to embed good practice at a local level.
129	Administration of juvenile justice [A40]	Concluding Observations 78. It also recommends that the State party: c) children in conflict with the law are always dealt with within the juvenile justice system and never tried as adults in ordinary courts, irrespective of the gravity of the crime they are charged with; Domestic Concerns SG should ensure that No child under the age of 18 is tried as an adult in Scotland, irrespective of the circumstances or the gravity of his/her offence, and the Children's Hearing System should be allocated such resources as are required to extend the system to 16 and 17 year olds; at the very least Sheriffs in all criminal courts should be required to refer a child to the Children's Hearings System for advice and/or disposal following a guilty plea or conviction of a person under 18. The UK Govt and devolved administrations should ensure that no child is tried in an adult court or held in adult institutions	Children under 16 are seldom tried in adult courts. The Lord Advocate has issued guidelines to all Police Forces in Scotland regarding the most serious cases that would be considered for prosecution. Even in these circumstances all cases are discussed with the Children's Reporter in order that information can be shared and agreement reached that will meet the best interest of the child and deal with concerns of public safety. The Children's Hearings system or alternative diversionary schemes will deal with other crimes and offences. Local Authorities are encouraged to maintain young people who are particularly vulnerable or who may have a long history in the Children's Hearings System on a supervision requirement once they reach 16 and beyond. Whilst remaining on supervision these young people can continue to be managed in the Hearings system. Depending on the seriousness of the offence they may be dealt with in the criminal justice system however if convicted they must be referred back in order that the Hearing can advise the Sheriff on disposal options. A common theme in consultation responses in this area was the transition between the youth justice and adult criminal justice systems. While there was limited criticism of the Children's Hearings System (with one young person preferring the adult court system: " I would rather go to court 'cos the court, they tell you whatï¾•s happening…") in general it was regarded as a positive way to deal with young people who offend. There were suggestions that either the system should be extended or a different youth system should be created that would allow a smoother transition for 16s and 17s who offend and make it easier for them to successfully leave the criminal justice system altogether. SG will: Encourage the continuation of supervision requirements for the most vulnerable and challenging young people to ensure age appropriate services are available for 16 and 17 year olds to improve outcomes for them, their families and communities. As part of Preventing Offending by Young People, develop a tool-kit of good practice taken from the pilot youth courts and implement nationally. [Action 21]
130	Administration of juvenile justice [A40]	Concluding Observations 78. It also recommends that the State party: d) following the welcomed withdrawal of its reservation to article 37(c) of the Convention, ensure that, unless in his or her best interests, every child deprived of liberty is separated from adults in all places of deprivation of liberty; Domestic Concerns The UK Govt should withdraw its reservation to Article 37(c). The UK Govt and devolved administrations should ensure that children are detained separately from adults. That u18s are not held separately from adults at Polmont.	The Scottish Government is fully supportive of the UK Government's decision to remove its reservation to Article 37(c). During the consultation, children and young people expressed concern about the concept of being in prison along with adults. One primary school pupil commented: "Can you imagine that - a wee child in prison with loads of adults?" SG will: Ensure that no under 16s go to prison through the use of unruly certificates or for any other reason and that any under 18s in prison have an appropriate regime and where practicable are kept separate from adult prisoners (unless it is not in their interests). [Action 21]
131	Administration of juvenile justice [A40]	Concluding Observations 78. It also recommends that the State party: e) provide for a statutory right to education for all children deprived of their liberty; Domestic Concerns UK Govt and devolved administrations should ensure that children in detention have an equal statutory right to education and should improve education for children in care The UK Govt and devolved administrations should make sure that children in custody retain their right to education and provide education across all secure settings.	Under Standards in Scotland's Schools etc. Act 2000, all children of school age have a right to education. This includes children in detention and children in care Education authorities have to make sure education is adequate and efficient for all pupils (including those in care) and that any additional support needs ( ASN) are identified and reviewed and provision for ASN is made in their education. The Education (Additional Support for Learning) (Scotland) Act 2004, further strengthened duties to identify, review and make provision for ASN. All young offenders in Scotland are able to access education programmes. Although the primary focus is on literacy and numeracy a range of classes are available. All secure units in Scotland offer educational programmes. Secure units are Scottish Qualification Authority approved exam centres, meaning young people can obtain school qualifications while detained. Education is offered to both sentenced and Local Authority placed young people. Post 16's in secure are offered the same education as under 16's and skills based and vocational training is also offered where possible. In Polmont YOI, Post 16s are able to access a range of classes with a particular focus on Literacy and Numeracy. Skill deficiency is identified through their Integrated case management process Respondents fully agreed with the importance of these actions as central to improving outcomes for young people. Support was expressed for the work of HMIE to improve standards including those who are looked after or looked after and accommodated. SG will: Continue to work with secure care providers and HMIE to ensure that the range and standard of educational provision is high. Guidance on the implementation of the Curriculum for Excellence in secure care has been prepared and published and we will work with providers and other partners to support implementation across the secure estate. SG will work with secure providers and other partners to develop wider access to vocational opportunities in line with the More Choices, More Chances agenda. Support the work that Polmont is doing looking at the reintroduction of Peer Tutors and to encourage young people to participate in all classes and encourage them to obtain Certification that will be useful to them when seeking employment on release. We also encourage young people prior to release to sign up for Courses at their local College
132	Administration of juvenile justice [A40]	Concluding Observations 78. It also recommends that the State party: h) adopt appropriate measures to protect the rights and interests of child victims or witnesses of crime at all stages of the criminal justice process.	The Vulnerable Witnesses (Scotland) Act 2004 now fully implemented (see 38) contains a number of provisions specifically to help child witnesses give their evidence. SG actions in this area were supported. The provisions of the Vulnerable Witnesses (Scotland) Act apply to Children's Hearing Court proceedings as well, being civil rather than criminal, even in relation to offence grounds. Intermediaries should be used to support vulnerable witnesses. One response maintained that despite improvements brought about by the Act, children continue to be upset and distressed by court questioning and SG should commission research on children's direct experiences in order to shape future improvements. SG will: Review and update the Child Witness Support Guidance Pack which gives advice to practitioners in their dealings with child witnesses. Consider what further research might be undertaken about the witness (including children) experience to inform future developments Examine communication support needs for witnesses through a multi-agency working group Roll out across Scotland the visual recording of joint investigative interviewing of child witnesses. Such interviews will be carried out by specially trained staff and they could reduce the need for children to give their evidence in court
133	Anti-social behaviour	Concluding Observations 80. The Committee recommends that the State party conduct an independent review on the ASBOs with a view to abolishing their application to children. Domestic Concerns SG must amend the ASB etc. Scotland Act 2004 to ensure that the 'best interests' of the child is always paramount in any proceedings affecting that child; The UK Govt and devolved administrations should reconsider the use of ASBOs for children. ASBOs should not be available as a disposal for children. Custody should not be available for breach of an ASBO by a child. The privacy of children subject to ASBO proceedings should be respected. Concern that ASB legislation and practice tends to make community rather than child's best interests as primary consideration and can lead to criminalization of children.	The Scottish Government is currently reviewing ASB legislation and practice in Scotland. This includes looking at the use of anti-social behaviour orders and the SG guidance for those working with them locally. The review provides an opportunity to shift the focus away from short-term enforcement measures towards longer term preventative action and promote - through partnership working - the development of shared outcomes that meet the needs of everyone in our communities. Officials from the Children's Rights Team have been involved in this review to help ensure that the rights of children are taken into account. The Young People team has also been involved as part of work looking at media perceptions of those involved in and affected by ASB, including children and young people. Respondents welcomed the review and expressed agreement with the anticipated shift in emphasis from short term enforcement to long term preventative action and development of shared outcomes and more cohesive services to children. Concern was expressed at the legacy of negative portrayal of young people in the media and reporting of anti social behaviour, and how this shapes perceptions of young people and how they see themselves. SG will: Revise guidance on ASB issues in light of review findings

126

Administration of juvenile justice

[A40]

Concluding Observation

78. The Committee recommends that the State party fully implement international standards of juvenile justice, in particular articles 37, 39 and 40 of the Convention, as well as the General Comment n° 10 on "Children's rights in Juvenile Justice" the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("the Beijing Rules"), the United Nations Guidelines for the Prevention of Juvenile Delinquency ("the Riyadh Guidelines") and the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty ("the Havana Rules").

Domestic Concerns

There is an urgent need to transform the juvenile justice system in the UK, especially England and Wales, to ensure that it complies with the UNCRC.
The UK Govt and devolved administrations should ensure that the best interests and welfare of the child is a primary consideration in dealing with children in trouble with the law. Consideration should be given to improving and adopting the welfare-based children's hearing system across the UK.

The children's hearings system is a welfare-based approach to tackling offending by children and young people. More than 99% of children and young people who are subject to statutory measures in response to their offending behaviour are dealt with through the hearings system. SG is committed to the principles of the hearings system and to ensuring that it is a modern and flexible system. We are currently consulting on a number of changes to the hearings system aimed at ensuring it remains an appropriate and effective means of tackling offending by young people.

Respondents noted that the figure of 99% of children being dealt with by the children's hearing system only applies to those under 16 yrs.

Respondents expressed support for SG's consideration of Youth Hearings for 16 - 17 yr olds with a wider range of options than presently available to the children's hearing system, including restorative approaches. The Youth Justice Framework is examining different options for more youth-centred approaches to reduce the number of custodial disposals for young people. The SG response should make reference to the situation and needs of victims.

SG will:

Introduce a Bill reforming the Children's Hearings System in Scotland which will keep the ethos and principles of the System while seeking to strengthen and modernise it.
These reforms will respect the System's aim of protecting children's rights whilst ensuring that it can assist in the response to the needs of young people and their future behaviour.
Consider, and where appropriate, implement changes recommended by the Prisons Commission
Continue to work with and support local partners to implement good practice and ensure risks and needs associated with children and young people who offend are addressed.

127

Administration of juvenile justice

[A40]

Concluding Observations

78. It also recommends that the State party:

a) raise the minimum age of criminal responsibility in accordance with the Committee's General Comment n° 10, and notably its paragraphs 32 and 33;

Domestic Concerns

SG should ensure that the minimum age of criminal responsibility in Scotland should be raised considerably;
The UK Govt and devolved administrations should increase the age of criminal responsibility.
Scotland has the lowest age of criminal responsibility in Europe.

The age of criminal responsibility in Scotland was last reviewed in early 2002 and at that point, Ministers concluded that age 8 continued to be an appropriate threshold in the context of our welfare-based approach to youth justice and the fact that the vast majority of children who offend are dealt with through the children's hearings system

All respondents to this section of the consultation document (and most of those at the consultation events) agreed that the age of criminal responsibility should be examined and there were numerous calls for the age to be raised to a minimum of 12, with one respondent proposing 18 yrs. Children and young people said that the current age of criminal responsibility was inappropriate, some were shocked when they realised how young one could be held responsible for your actions. The majority felt that age 12 was about right.

Respondents noted by way of justifying such a change that it would encourage society to 'takes responsibility for young people's actions and commit to finding better solutions' and that having a such a low age of criminal responsibility 'is incompatible with a welfarist approach to juvenile justice'. One respondent proposed that 14 yrs, in accordance with the UN Committee's recommendation was the preferred age. However if lower than 14, 13 was proposed on grounds of consistency with Scottish criminal law and prosecution practice, notably in relation to the Sexual Offences (Scotland) Bill where 12 year olds will be vulnerable to prosecution if the age is set at 12 yrs. SG was also urged to raise the age above the internationally accepted minimum as a matter of principle. An important point was made with regard to the terminology. It was proposed that 'minimum age for prosecution' more accurately defined the purpose of having an age threshold, rather than 'minimum age of criminal responsibility' which suggests there is no responsibility under this age.

SG will:

Reflect on the comments from the UN Committee, and the points raised in the Scottish Parliament debate on 6 November, regarding the age of criminal responsibility. These will help inform our thinking on any changes to legislation.

128

Administration of juvenile justice

[A40]

Concluding Observations

78. It also recommends that the State party:

b) develop a broad range of alternative measures to detention for children in conflict with the law; and establish the principle that detention should be used as a measure of last resort and for the shortest period of time as a statutory principle;

Domestic Concerns

SG should ensure that:

Children aged under 18 and certified by the court as unruly and depraved are not remanded in prison or in a remand centre, but placed in a specialised secure unit with staff trained to address mental health issues and the specific needs of vulnerable children;
The UK Govt and devolved administrations should remove children from prison service custody. For the small number in need of detention for their own or public safety, detention should be for the shortest time possible in small, child-centred settings with the clear aims of meeting the child's needs and rehabilitation. There should be clear statutory thresholds to ensure that custody is used as a last resort.
The UK Govt and devolved administrations should invest more in alternatives to custody and should provide appropriate services to meet the needs of children in the youth justice system with mental health problems and/or learning difficulties.

From 1 April 2008, The Intensive Support and Monitoring (Scotland) Regulations 2008 extended the application of Intensive Support and Monitoring, as an alternative to secure care, to all 32 local authorities following the successful completion of Phase 1 roll-out in seven local authority areas. This allows children's hearings to put in place a package of intensive support with a movement restriction condition for young people.

The Scottish Government has announced measures to help keep children out of prison. In February 2008, SG announced plans to abolish unruly certificates, which currently allow children aged 14 and 15 years appearing on a charge before a criminal court to be remanded in prison custody. A consultation on the abolition of unruly certificates and alternative proposals concluded in July 2008 and a provision has been included in the Criminal Justice and Licensing Bill to repeal unruly certificates as an option.

Similarly, SG is committed to the principle that children aged 16 and 17 should be held in prison as a matter of last resort and for the shortest time possible. SG has also noted the comments of the Prisons Commission on the handling of 16 and 17 year olds who offend.

There were a number of the issues under the theme of youth justice that attracted support and comment from consultation respondents, including the age of criminal responsibility and minimum age of prosecution, ASBOs, the mental health of young people who offend, the Children's Hearings System, young people in the prison estate and alternatives to detention. Children and young people particularly highlighted the role of adults - parents and police - in challenging negative behaviour at an early stage as a way of preventing offending. Another point made by children and young people, specifically from those who had experience of the youth justice system, was the importance of relationships being built up between them and the people who decide whether they should be sent to a secure unit. Some felt that it was unfair that strangers were able to pass judgement on them. They also felt that more could be done to allow young people a "second chance" before being locked up. One young person commented: " Young people must be treated fairly in the justice system and prison is not the answer when someone has their whole life ahead of them"

SG will [Action 21]:

Deliver on the priorities of Preventing Offending by Young People: A Framework for Action, which will support young people who present a high risk to themselves or others and those who make the transition to the criminal justice system. This framework, along with other streams of work, will: reduce the number of under 18s who reoffend and receive custodial sentences as adults by: ensuring an effective age-appropriate response, including a range of interventions, in both children's and criminal justice systems; and promoting effective community-integration. Specific actions in this area are:

Diversion from formal measures

Develop and implement a consistent process for delivery of diversionary services for young people who offend and dealt with either by children's or adult services including an improved response from commission of offence to effective disposal.
Improve practice to strengthen transitions into adulthood, including where that requires continued intervention to meet needs and manage risks.

Community alternatives to custody / secure care

Reduce the number of under 18s in prison or secure care by promoting robust community-based alternatives and effective decision-making (including wraparound / ISMS/ Community Payback orders for 16/17 year olds);

Use of custody

Implement legislation to abolish the unruly certificate by which under-16s can be remanded to prison.
Ensure that no under 16s go to prison for any other reason, and that any under 18s in prison have an appropriate regime and where practicable are kept separate from adult prisoners (unless it is not in their interests).
Work with secure providers to ensure that provision for children and young people with mental health issues have their needs met either within their units or in the community.
The prevention and high risk strands of the youth justice framework for action actively consider the mental health needs of young people involved in, or at risk of becoming involved in, offending . Work with partners will continue to embed good practice at a local level.

129

Administration of juvenile justice

[A40]

Concluding Observations

78. It also recommends that the State party:

c) children in conflict with the law are always dealt with within the juvenile justice system and never tried as adults in ordinary courts, irrespective of the gravity of the crime they are charged with;

Domestic Concerns

SG should ensure that No child under the age of 18 is tried as an adult in Scotland, irrespective of the circumstances or the gravity of his/her offence, and the Children's Hearing System should be allocated such resources as are required to extend the system to 16 and 17 year olds; at the very least Sheriffs in all criminal courts should be required to refer a child to the Children's Hearings System for advice and/or disposal following a guilty plea or conviction of a person under 18.
The UK Govt and devolved administrations should ensure that no child is tried in an adult court or held in adult institutions

Children under 16 are seldom tried in adult courts. The Lord Advocate has issued guidelines to all Police Forces in Scotland regarding the most serious cases that would be considered for prosecution. Even in these circumstances all cases are discussed with the Children's Reporter in order that information can be shared and agreement reached that will meet the best interest of the child and deal with concerns of public safety. The Children's Hearings system or alternative diversionary schemes will deal with other crimes and offences.

Local Authorities are encouraged to maintain young people who are particularly vulnerable or who may have a long history in the Children's Hearings System on a supervision requirement once they reach 16 and beyond. Whilst remaining on supervision these young people can continue to be managed in the Hearings system. Depending on the seriousness of the offence they may be dealt with in the criminal justice system however if convicted they must be referred back in order that the Hearing can advise the Sheriff on disposal options.

A common theme in consultation responses in this area was the transition between the youth justice and adult criminal justice systems. While there was limited criticism of the Children's Hearings System (with one young person preferring the adult court system: " I would rather go to court 'cos the court, they tell you whatï¾•s happening…") in general it was regarded as a positive way to deal with young people who offend. There were suggestions that either the system should be extended or a different youth system should be created that would allow a smoother transition for 16s and 17s who offend and make it easier for them to successfully leave the criminal justice system altogether.

SG will:

Encourage the continuation of supervision requirements for the most vulnerable and challenging young people to ensure age appropriate services are available for 16 and 17 year olds to improve outcomes for them, their families and communities.
As part of Preventing Offending by Young People, develop a tool-kit of good practice taken from the pilot youth courts and implement nationally. [Action 21]

130

Administration of juvenile justice

[A40]

Concluding Observations

78. It also recommends that the State party:

d) following the welcomed withdrawal of its reservation to article 37(c) of the Convention, ensure that, unless in his or her best interests, every child deprived of liberty is separated from adults in all places of deprivation of liberty;

Domestic Concerns

The UK Govt should withdraw its reservation to Article 37(c). The UK Govt and devolved administrations should ensure that children are detained separately from adults.
That u18s are not held separately from adults at Polmont.

The Scottish Government is fully supportive of the UK Government's decision to remove its reservation to Article 37(c).

During the consultation, children and young people expressed concern about the concept of being in prison along with adults. One primary school pupil commented: "Can you imagine that - a wee child in prison with loads of adults?"

SG will:

Ensure that no under 16s go to prison through the use of unruly certificates or for any other reason and that any under 18s in prison have an appropriate regime and where practicable are kept separate from adult prisoners (unless it is not in their interests). [Action 21]

131

Administration of juvenile justice

[A40]

Concluding Observations

78. It also recommends that the State party:

e) provide for a statutory right to education for all children deprived of their liberty;

Domestic Concerns

UK Govt and devolved administrations should ensure that children in detention have an equal statutory right to education and should improve education for children in care
The UK Govt and devolved administrations should make sure that children in custody retain their right to education and provide education across all secure settings.

Under Standards in Scotland's Schools etc. Act 2000, all children of school age have a right to education. This includes children in detention and children in care

Education authorities have to make sure education is adequate and efficient for all pupils (including those in care) and that any additional support needs ( ASN) are identified and reviewed and provision for ASN is made in their education. The Education (Additional Support for Learning) (Scotland) Act 2004, further strengthened duties to identify, review and make provision for ASN.

All young offenders in Scotland are able to access education programmes. Although the primary focus is on literacy and numeracy a range of classes are available. All secure units in Scotland offer educational programmes. Secure units are Scottish Qualification Authority approved exam centres, meaning young people can obtain school qualifications while detained. Education is offered to both sentenced and Local Authority placed young people. Post 16's in secure are offered the same education as under 16's and skills based and vocational training is also offered where possible.

In Polmont YOI, Post 16s are able to access a range of classes with a particular focus on Literacy and Numeracy. Skill deficiency is identified through their Integrated case management process

Respondents fully agreed with the importance of these actions as central to improving outcomes for young people. Support was expressed for the work of HMIE to improve standards including those who are looked after or looked after and accommodated.

SG will:

Continue to work with secure care providers and HMIE to ensure that the range and standard of educational provision is high.
Guidance on the implementation of the Curriculum for Excellence in secure care has been prepared and published and we will work with providers and other partners to support implementation across the secure estate.
SG will work with secure providers and other partners to develop wider access to vocational opportunities in line with the More Choices, More Chances agenda.
Support the work that Polmont is doing looking at the reintroduction of Peer Tutors and to encourage young people to participate in all classes and encourage them to obtain Certification that will be useful to them when seeking employment on release. We also encourage young people prior to release to sign up for Courses at their local College

132

Administration of juvenile justice

[A40]

Concluding Observations

78. It also recommends that the State party:

h) adopt appropriate measures to protect the rights and interests of child victims or witnesses of crime at all stages of the criminal justice process.

The Vulnerable Witnesses (Scotland) Act 2004 now fully implemented (see 38) contains a number of provisions specifically to help child witnesses give their evidence.

SG actions in this area were supported. The provisions of the Vulnerable Witnesses (Scotland) Act apply to Children's Hearing Court proceedings as well, being civil rather than criminal, even in relation to offence grounds. Intermediaries should be used to support vulnerable witnesses. One response maintained that despite improvements brought about by the Act, children continue to be upset and distressed by court questioning and SG should commission research on children's direct experiences in order to shape future improvements.

SG will:

Review and update the Child Witness Support Guidance Pack which gives advice to practitioners in their dealings with child witnesses.
Consider what further research might be undertaken about the witness (including children) experience to inform future developments
Examine communication support needs for witnesses through a multi-agency working group
Roll out across Scotland the visual recording of joint investigative interviewing of child witnesses. Such interviews will be carried out by specially trained staff and they could reduce the need for children to give their evidence in court

133

Anti-social behaviour

Concluding Observations

80. The Committee recommends that the State party conduct an independent review on the ASBOs with a view to abolishing their application to children.

Domestic Concerns

SG must amend the ASB etc. Scotland Act 2004 to ensure that the 'best interests' of the child is always paramount in any proceedings affecting that child;
The UK Govt and devolved administrations should reconsider the use of ASBOs for children. ASBOs should not be available as a disposal for children. Custody should not be available for breach of an ASBO by a child. The privacy of children subject to ASBO proceedings should be respected.
Concern that ASB legislation and practice tends to make community rather than child's best interests as primary consideration and can lead to criminalization of children.

The Scottish Government is currently reviewing ASB legislation and practice in Scotland. This includes looking at the use of anti-social behaviour orders and the SG guidance for those working with them locally. The review provides an opportunity to shift the focus away from short-term enforcement measures towards longer term preventative action and promote - through partnership working - the development of shared outcomes that meet the needs of everyone in our communities.

Officials from the Children's Rights Team have been involved in this review to help ensure that the rights of children are taken into account. The Young People team has also been involved as part of work looking at media perceptions of those involved in and affected by ASB, including children and young people.

Respondents welcomed the review and expressed agreement with the anticipated shift in emphasis from short term enforcement to long term preventative action and development of shared outcomes and more cohesive services to children. Concern was expressed at the legacy of negative portrayal of young people in the media and reporting of anti social behaviour, and how this shapes perceptions of young people and how they see themselves.

SG will:

Revise guidance on ASB issues in light of review findings

Page updated: Wednesday, November 18, 2009

Scottish Government