Consultation on the Minimum Age of Criminal Responsibility

Existing national child protection guidance already gives clear direction about the seriousness with which concerns about children who place themselves at risk or harm should be treated. (These should be treated no less seriously than concerns about children who are at risk as a result of their care). Reference is made to both criminal behaviour and other problematic or harmful sexual behaviour. Child protection committees are required to ensure that services in their area are guided by multi-agency policies, procedures and systems for identifying and responding to situations where children and young people place themselves at risk through their own behaviour.
Connections between offending behaviour in children and their own experiences of abuse have been long recognised and should be understood by practitioners. Experience of abuse may be contributing to the child’s offending behaviour. Equally, children’s experience of becoming involved in offending may impact on their future safety, in turn suggesting a need for child protection measures. Child protection national guidance is therefore an appropriate vehicle for providing direction to both individual services and multi-agency partnerships in responding to children involved in offending behaviour.

We anticipate that some extension to, and strengthening of, parts of the national guidance would be required. The underpinning principles already make the important connection between circumstances when children engage in risky behaviour, including offending, and their need for protection. However, it would be helpful to make this connection much more explicit and to highlight the particular risks to individual children as a result of any risks they pose to others. At present, the guidance notes that children engaged in offending behaviour also have wellbeing or welfare needs. We do not think this is strong enough. We would prefer to see children’s offending behaviour described as a risk to their wellbeing in itself. The inclusion of specific examples in the guidance which make clear the intimate connection between harmful behaviour and child abuse/neglect would be helpful.
We would also like to see changes in language so that children under 12 are no longer described as engaging in ‘criminal’ behaviour.
The national risk assessment framework could also be helpfully strengthened by including specific examples to enhance practitioners’ awareness of a child’s risk taking or harmful behaviour as a child welfare/protection concern.

We think it would be very helpful to explore the extent to which those bodies and individuals charged with making critical decisions about children who display harmful behaviours are competent and confident in assessing and managing risk. It would be helpful to find out the extent to which they can access comprehensive training materials to support how risk behaviour is recorded and shared and whether staff can access up-to-date training and guidance to support their assessment of both the child’s vulnerability and potential risk they may present to others.
The Care Inspectorate is leading joint inspections of services for children and young people in all community planning partnership areas in Scotland and to date, we have inspected in 23 areas across the country. Our findings so far confirm that there remains a need for continued improvement in skills and confidence of staff and managers across services in assessing risks and in developing and implementing plans to manage these risks effectively.
We would greatly welcome a multi-agency scoping study of training and skills which will determine any specific skills or knowledge gaps within the children’s workforce as a result of increasing the age of criminal responsibility. This study would also be a welcome opportunity to raise the profile of the importance of risk assessment skills and the value placed on them. We suggest that any such study should involve the range of professional staff from across disciplines, who make a contribution to assessing and managing risks in respect of children and young people. It should necessarily include staff who carry named person and lead professional roles.

We agree with the advisory group which makes a very convincing case that the existing care and protection grounds would still allow children presenting with harmful behaviour to be referred for consideration of compulsory measures should offence grounds for 8-11 year olds be removed. We note research published by SCRA in March 2016 which found very low numbers of 8-11 year olds referred for offending who subsequently went on to be referred to a Children’s Hearing by the Reporter (implying that their needs could be appropriately met without compulsory measures). For only one child in the sample of 100 referred in 2013/14, was referral and consideration of compulsory supervision dependent on the use of offence grounds. The majority of children in the 8-11 age group who were referred on offence grounds were also referred on care and protection grounds, demonstrating the clear link between children’s behaviour and their need for care and protection.

We are fully in agreement with the need to retain some police powers where removing them may have a detrimental effect on the child’s rights. We agree with the report of the Advisory Group that any powers retained by the police should be available for use only in exceptional circumstances and be underpinned by established child protection procedures. This would include the use of the Scottish Government’s guidance on joint investigative interviewing. Clear procedures, rooted in the context of protecting the child, must be in place to support police powers in these circumstances.

If the need to obtain forensic samples is only to establish a child’s involvement in an incident of harmful behaviour, it would not be legitimate to retain the sample for future use. We therefore feel it would be inappropriate for police to retain samples taken from any child aged below 12 years. Retaining samples does not support the ethos that a child aged 8-11 years is not criminally responsible for the behaviour. We think that the model envisaged within the Advisory Group’s report should be adequate to ensure emerging patterns of behaviour are recognised through the recording of welfare concerns.

• Narrowly defined set of circumstances in which these powers could be used
• Independent ratification must be sought before the use of these powers
• Legal advice must continue to be available
• Independent advocacy
• Additional safeguards

We agree that the information a child may provide in a joint investigative interview which is about their own actions rather than the actions of others can be different to other disclosures and could potentially have different implications for the child. This suggests careful consideration must be given to having the right safeguards in place at this and each stage of the process. Legal representation will be important in helping secure the child’s rights, providing the legal representative also has a sound understanding of child protection processes and is committed to assisting the child to get any help and intervention s/he may need.
Embedding the new model firmly in child protection processes should ensure safeguards in those processes are equally available to this group of children. This would include quality assurance carried out by senior managers, child protection lead officers or the child protection committee. Findings from our joint inspections to date show that, overall, quality assurance of child protection practice tends to be better developed and more routinely applied than practice for other groups of children.
Clearly, information gathered as part of the joint investigative interview will need to go further than the assessment of the child’s needs, given that it may form part of potential grounds for compulsory measures of supervision. As such, information will require to be of a quality that would render it admissible for the purposes of a proof hearing.

Yes, we agree with this presumption. Children’s rights are best respected when appropriate care is taken with sensitive information.

Yes, there must be a presumption that information would only be disclosed in exceptional circumstances where there was a compelling argument that to do so would protect other people. We suggest that clear guidance be drawn up which lays out the kind of circumstances in which it would be appropriate to release information. This guidance should also direct consideration of the impact of any such release on the child’s wellbeing and support staff in developing and implementing a plan to manage any associated risks and provide necessary support to the child and his/her family. An independent ratification process would be very helpful in providing the necessary safeguards in this regard.

In principle, we do not believe that information about an incident of harmful behaviour that took place in childhood should continue to be disclosed when that person reaches the age of 18. We believe that to do so is not in keeping with an ethos of regarding children as in need of support and protection rather than as criminally responsible when they commit an offence before the age of 12. We accept there could be highly exceptional circumstances where disclosure of information could be argued to be essential to protect public safety. In this case, an independent ratification process similar to that described above would be required. We would like to see a clear presumption of non-disclosure.

We do not foresee any adverse impact on the support available to victims and witnesses as long as their needs continue to be recognised as victims/witnesses of harmful behaviour, rather than of a crime. Their needs should continue to be properly considered in this context and appropriate help identified and provided to them. We do not see any reason why provision of support to victims, including child victims, should be dependent on criminal proceedings being taken against a child.

We agree wholeheartedly with the recommendation that the age of criminal responsibility in Scotland be raised from 8 to 12 years. We greatly welcome this long awaited and important proposal which will bring Scotland in line with the aspirations of the United Nations Convention on the Rights of the Child. We believe that such a change would appropriately address concerns that, at 8 years, Scotland currently has the lowest age of criminal responsibility in Europe. In our view, children under 12 who commit offences should be understood as children who require effective intervention and support to help them moderate their behaviour rather than the punishment that is the primary aim of criminal prosecution. We expect that a move to raise the age of criminal responsibility would be significant in supporting a welcome shift in public attitudes towards children whose difficulties manifest themselves in harmful behaviour towards others.

As wide a consultation as possible with children and young people across all age groups would help embed the principles behind this proposed increase in the age of criminal responsibility. It would be important, however, to consult specifically with children and young people who have been involved in offending, and those who are identified as at risk of offending. These children and young people are likely to have a unique and valuable perspective. We also suggest that children from a range of different communities across the country should be included in any consultation. Children and young people in small or rural communities whom we meet in the course of our scrutiny and improvement activities often describe more stigma when they, or members of their family, are involved in offending than their peers in urban communities. For them, the impact of being labelled as ‘criminal’ within their own community can be devastating and permanent.

Good public information will be crucial to embedding a wider culture change which encourages positive views of children and respect for their rights. A public campaign such as that aimed at removing the stigma of being “in care” might meet with success in supporting a change in public attitudes and would be a welcome demonstration of the Scottish Government’s avowed commitment to promote children’s rights and give them the best possible start in life.
In addition, detailed and specific information will need to be provided to all those working with children and families highlighting what this change will mean in practice.