Overarching Themes

A child’s journey through the justice system takes place within the wider context of child and adult support and protection. Getting it Right for Every Child (GIRFEC), the Whole System Approach to children in conflict with the law, and A Rights-Respecting Approach to Justice for Children and Young People: Scotland’s Vision and Priorities provide the overarching policy framework, while Multi-Agency Public Protection Arrangements and diversity are also relevant. All professionals, regardless of their organisation, have roles and responsibilities in respect of child protection and respecting, protecting and fulfilling children’s rights.

GIRFEC/WSA

In Scotland, the ambition is ‘to be the best place in the world to grow up’, where all children are loved, have their voices heard, their rights respected and their outcomes improved (Scottish Government, 2021a). To achieve this:

“Children, young people and their families must be supported at an early stage through early intervention and preventative approaches. For those who come into conflict with the law, their rights must be upheld, their life chances improved and services and systems must support them effectively to address their needs and the circumstances which have led to their behaviour, in order to achieve positive outcomes. Children are diverted away from the criminal justice system, wherever possible and appropriate, in order to avoid the criminalisation of their behaviour, but receive effective support to attend to any needs underlying the harmful conduct. For the small minority who will go through the criminal justice system then they are meaningfully supported to participate and understand the system and processes” (Scottish Government, 2021a, p.7).

Getting it Right for Every Child (GIRFEC) and a multi-agency Whole System Approach (WSA) provide the overarching policy framework for youth justice practice.

Getting it right for every child (GIRFEC)

GIRFEC is the national approach in Scotland to improve outcomes and to support the wellbeing of our children by offering the right help at the right time from the right people. GIRFEC puts the rights and wellbeing of children at the heart of the policies and services that support them and their families - such as early years services, schools and the NHS. It provides a common language and framework that helps people working with children and families to think about wellbeing in the same way and tailor the help they offer to an individual’s needs in a way that suits them and their family.

Whole System Approach (WSA)

The WSA has made a significant contribution towards progress in effectively responding to children in conflict with the law, being an integral part of Scotland’s youth justice strategies. The purpose of WSA is to support children at risk of being or in conflict with the law at the earliest opportunity by utilising voluntary supports, and where necessary within formal systems to meet identified needs and risks. The main elements of the WSA are:

• Early and effective interventions by providing timely and proportionate interventions as appropriate
• Opportunities to divert children from prosecution, where appropriate
• Robust community alternatives to secure care and custody
• Managing children where parts of their behaviours present a risk of harm
• Court support
• Improving reintegration back into the community for children leaving secure care and custody

Under A Rights-Respecting Approach to Justice for Children and Young People: Scotland’s Vision and Priorities the focus is on continuing to deliver a reinforced and reinvigorated WSA to under-18s and to extend up to the age of 26 where possible and appropriate.

All practice should meet the Standards for those working with children in conflict with the law, which outline the minimum expectations for all strategic and operational services delivering youth justice in the community, secure care and young offender institutions. The Standards are aimed at practitioners and professionals working with all children who are in conflict with the law or on the edge of such behaviour.

Every child involved in the Children’s Hearings System or court should have a Child's Plan. This plan should incorporate any current single agency plans and directly address needs and risks.  The Child’s Plan remains with the child throughout their journey, including if they enter or leave secure care or custody and should be reviewed regularly to consider changes in the child’s development needs. The child is also likely to have a Lead Professional, often a social worker. The roles of the Lead Professional are detailed in A Guide to Youth Justice in Scotland: Background, Policy and Legislation.

Child protection

Children who come into conflict with the law are first and foremost, children. Their welfare, protection and best interests must be the paramount concern for all agencies involved with the child and their family to ensure children’s rights to the above are upheld (United Nations Convention on the Rights of the Child). As detailed in the Framework for Risk Assessment Management and Evaluation (Scottish Government, 2014a, p.2) “work with children and young people who offend needs to consider and prioritise their protection as well as tackling behaviours that have an impact on others”.

Experiences of children

“A young person involved in offending behaviour is often a young person in need of care and protection” (Scottish Government, 2014b, p.113).

There is a growing body of evidence which shows that children who come into conflict with the law, and particularly those involved in a pattern of offending behaviour, or who are involved in more serious offences, are almost always our most vulnerable, victimised and traumatised young people (CYCJ, 2016a). The link between vulnerability and offending is retrospective not predictive, in that most children who experience adverse childhood experiences and trauma do not go on to seriously offend, but children who are involved in serious offending or frequent offending almost always have experienced trauma and adversity (CYCJ, 2016a; 2020a). Children who come into conflict with the law are more likely than the general population to have experienced child abuse and to experience additional support needs, including speech, language and communication needs (CYCJ, 2020a). They are also found to have experienced a higher rate of childhood bereavement than the adolescent population and importantly, to have experienced multiple and traumatic deaths (CYCJ, 2020a). Research consistently highlights that care leavers are more likely to be involved with the criminal justice system (Scottish Care Leavers Covenant, 2015) and the behaviours of children with care experience (especially those looked after away from home) “…are more likely to have been reported to police - and therefore to attract a criminalising state response - than Scotland’s child population in general” (Scottish Government, 2018, p.13). This is despite there being no evidence that care experienced children engage in more offending behaviour than their peers (Independent Care Review, 2020).

Contextual Safeguarding

As children grow older and start to socialise independently out with the home, the harm that they can experience out with the family home needs to be given greater consideration. For example, harm that can occur between peers or within shared social spaces such as schools, parks, youth clubs, public transport or on the streets. At times relationships formed with peers and adults in the community can lead to children being exploited criminally and sexually within the community and online. When children are safe at home but are facing abuse and harm in extra-familial settings, a contextual safeguarding approach to child protection can be helpful in keeping them safe and reducing harm.

Contextual Safeguarding is described as: “an approach to understanding, and responding to, young people’s experiences of significant harm beyond their families. It recognises that the different relationships that young people form in their neighbourhoods, schools and online can feature violence and abuse. Parents and carers have little influence over these contexts and young people’s experiences of extra-familial abuse can undermine parent-child relationships” (Firmin, 2017, p.3). 

It is more than seeing children in contexts, it is an approach for working with those contexts including peers, school and communities and involves developing plans to address the contexts (Firmin, 2017).

Roles and responsibilities in child protection

Professionals must:

• Develop holistic assessments of children’s circumstances and needs including offending behaviour, in determining whether a child is at risk of significant harm and therefore in need of child protection measures
• Refer to local child protection procedures and national guidance (Scotland’s guidance is currently being updated) and be trained in their agency’s procedures
• Understand their duties and responsibilities in responding to children as children and for child protection, regardless of whether they are based in child or adult services, or third sector providers of commissioned support services
• Provide information and help children to understand child protection procedures
• Engage with and listen to children and support their active participation in such processes
• Explain outcomes, decisions and their reasons to children and their parents/carers in a language and format which they can understand
• Support access to advocacy and any other advice, as well as any rights to complain and appeal
• Develop cooperative working relationships with parents
• Work together as multi-agency partners to safeguard children in all contexts

The National Risk Framework to Support the Assessment of Children and Young People provides guidance on risk identification, assessment, analysis and management.

Children where parts of their behaviour present a risk of serious harm to others

For the few children where parts of their behaviour may present a risk of serious harm to others, the immediate consideration is whether to take action under child protection procedures or whether other action that promotes positive risk practice which is developmentally, systemically and trauma-informed is necessary.

Under the Standards for those working with children in conflict with the law:

“Risk assessment and formulation is a crucial step to identify which children require services, the type and intensity of service provision required and in guiding appropriate care planning. Undertaking proportionate assessment to understand and reduce the risk of harm posed by aspects of a child’s behaviour is essential and must actively include the child and their views” (Standard 7 Assessing, reducing and managing the risk of harm, Scottish Government, 2021a, p.14).

“Behaviour which poses a risk of harm to others must be assessed, managed and reviewed following the Framework for Risk Assessment Management and Evaluation (FRAME) for local authorities and partners - for children aged 12-17 years. The Guidance and Operational standards for risk practice with children aged 12-17 years must be followed, of which Care and Risk Management (CARM) is an Example” (Standard 3.5, Scottish Government, 2021a, p.11)

The Framework for Risk Assessment Management and Evaluation (FRAME) with children aged 12-17 aims to bring consistency and proportionality to the way agencies assess, manage and evaluate risk of harm presented by aspects of a child's behaviour which may also bring them into conflict with the law. FRAME must underpin practice when assessing, managing, reducing and evaluating the risk of harm which may be posed by aspects of a child’s behaviour (Scottish Government, 2021a). FRAME outlines proportionate risk practice which recognises children’s rights and their inclusion as critical to reduce the risk of harm and support them to realise their potential (Scottish Government, 2021a). Any formal risk management process must adhere to the guidance and operational standards of risk practice with children 12-17 years of which Care and Risk Management (CARM) is an example.

CARM is a best practice example of a formal risk management process, which must be underpinned by the principles of risk practice through a child centric lens. CARM aims to promote child centred practice in the risk assessment and risk management of the few children where parts of their behaviour may present a risk of serious harm to others within the context of GIRFEC and the Whole System Approach. Practitioners should know how and when to implement local CARM processes.

Further information can be found in Standard 7 of Standards for those working with children in conflict with the law.

Restorative Justice

Restorative justice is a process of independent, facilitated contact between those who have experienced harm and those responsible for that harm. The key to restorative justice is that it allows those with a stake in the outcome of a crime related intervention or conflict to communicate in a safe and structured way. This communication allows all parties to collaborate on a means to deal with the aftermath of an offence or conflict and its implications for the future. Restorative justice can be accessed at various and appropriate points of the justice process. It could be after the case has been dealt with at court, or before or after the person who has harmed leaves prison. Restorative justice will only take place after a full assessment, if it is safe and everyone involved agrees and feels ready to take part.

The Scottish Government Restorative Justice Action Plan seeks to ensure that restorative justice is available across Scotland to all those who wish to access it, and at a time that is appropriate to the people and case involved, by 2023. Approaches taken must be consistent, evidence-led,
trauma-informed and of a high standard.

The Delivery of Restorative Justice in Scotland: Guidance outlines key principles of restorative justice and provides guidance for service providers and facilitators.

Children as parents

Where children in conflict with the law are also parents, parts of their behaviour may result in their children being deemed at risk of significant harm. The policy framework outlined above may be relevant in such cases. Particular attention should also be paid to the needs and rights of children if their parent is being considered for remand or sentence to secure care or custody.

Adult support and protection

The Adult Support and Protection (Scotland) Act 2007 may be relevant to children in conflict with the law, either if they are defined as an adult at risk and are at risk of harm, or because parts of their behaviours are placing another adult at risk of harm.

Definitions

Under section three, adults at risk are adults who:

“are unable to safeguard their own well-being, property, rights or other interests, are at risk of harm, and because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected”.

An adult is at risk of harm if:

“another person’s conduct is causing (or is likely to cause) the adult to be harmed”,

Or…

“the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm”.

Under section 53 an adult is defined as a person aged 16 or over.

Roles and responsibilities

• All public bodies must report the circumstances of any adult they believe may be at risk of harm
• Local authority social work services have lead responsibility for undertaking inquiries into the circumstances of such individuals
• Other agencies have a duty to cooperate and a responsibility to involve themselves with the Act by making referrals, assisting inquiries and providing services to adults at risk of harm
• Practitioners should be familiar with their own agency’s adult support and protection procedures
• The Act specifies a range of protection orders to safeguard an adult deemed to be at risk of serious harm, including assessment orders, removal orders and banning orders

Children’s rights

International human rights law places governments under a legal obligation to respect, to protect and to fulfil human rights, including children’s human rights. The UK and Scottish Governments have signed up to a range of international agreements to guide how we will treat our children, including children in conflict with the law. The Scottish Government has also committed to incorporating the main children’s rights instrument, the United Nations Convention on the Rights of the Child (UNCRC), into domestic law in Scotland. A rights-based approach ensures that legislation, policy and practice are all anchored in a system through which rights-holders (such as children and young people) can claim their rights and duty-bearers (such as national or local government) are given corresponding obligations (CYCJ, 2020a). It is an approach that empowers people (as rights-holders) to take part in developing legislation, policy and practice, whilst also holding the government to account (as duty-bearer) in meeting the obligation to respect, protect and fulfil human rights (CYCJ, 2020).

As noted by the Scottish Human Rights Commission (2013) essential elements of an approach which upholds rights are:

• Participation: People should be involved in decisions that affect their rights
• Accountability: There should be monitoring of how people’s rights are being affected, as well as remedies when things go wrong
• Non-Discrimination and Equality: All forms of discrimination must be prohibited, prevented and eliminated. People who face the biggest barriers to realising their rights should be prioritised
• Empowerment: Everyone should understand their rights and be fully supported to take part in developing policy and practices which affect their lives
• Legality: Approaches should be grounded in the legal rights that are set out in domestic and international laws

A rights-based approach to children in conflict with the law

Children in conflict with the law, like all children, are rights-holders (CYCJ, 2020). They are entitled to their rights and should have their rights upheld. Children’s rights are not optional. A rights-based approach to children in conflict with the law seeks to ensure that children are not unduly criminalised or stigmatised as a result of parts of their behaviour, but instead supported to have their needs met, to address their behaviour and to rehabilitate. It recognises that children in conflict with the law often have significant underlying needs, and a failure to address these needs is a violation of their human rights. A rights-based approach also considers the need to ensure public protection, and to acknowledge the harm that can sometimes be caused to others by a child’s behaviour.

However, ‘Rights Respecting? Scotland's approach to children in conflict with the law’ concluded that many children who are in conflict with the law in Scotland do not experience ‘justice’ in the true meaning of the word and identifies areas for improvement.

Participation

As Scotland moves towards compliance with, and incorporation of, the UNCRC, children and young people’s right to participate in the decision-making processes which affect their lives becomes of even greater importance. 

The voices of those who have experience of the justice system are often overlooked, and seldom provided with the opportunity to influence and shape the world around them. A truly rights-respecting nation must change that, and seek to provide the platform, support and audience that will enable the expertise and insights of those with lived experience to influence the various systems and services that respond to those in conflict with the law. Children’s rights to participate must be upheld during the child’s journey through the justice system. This includes opportunities to engage with individual, group, and collective participation activities and movements, as well the chance to shape service provision. 

As the Independent Care Review showed, the voice of the child can successfully be incorporated into large scale endeavours. This requires particular expertise and skills, and participation must be seen as a right, not simply be thought of as an optional extra. Under A Rights-Respecting Approach to Justice for Children and Young People: Scotland’s Vision and Priorities significant attention is given to ensuring children’s rights are upheld, children and families are supported to know and understand their rights, and they can meaningfully participate in justice processes. Indeed, the first Standard in the Standards for those working with children in conflict with the law is on children’s rights and participation.

Multi-Agency Public Protection Arrangements (MAPPA)

Multi-Agency Public Protection Arrangements were introduced in Scotland under sections 10 and 11 of the Management of Offenders etc. (Scotland) Act 2005.

Definitions

‘Responsible authorities’ (as defined in the Act) have a duty to jointly establish arrangements for assessing and managing the risk posed by:

1. Registered sex offenders
   1. Convicted of an offence under Schedule 3 Sexual Offences Act 2003
   2. Subject to a Sexual Offences Prevention Order
   3. Convicted of breaching a Risk of Sexual Harm Order
   The notification periods of 10, 7, and 5 years are halved for those under 18 when convicted (under section 82(2) Sexual Offences Act 2003), and the court can direct a person with parental responsibilities for a young person under 16 to comply with the notification requirements on their child’s behalf (section 89)
2. Mentally Disordered Restricted Patients
3. Other Risk of Serious Harm Offenders who do not fit into the above categories; who by reason of their conviction are subject to supervision in the community by any enactment, order or license; are assessed by the responsible authorities as posing a high or very high risk of serious harm to the public, which requires active multi-agency management at MAPPA level 2 or 3.

Roles and responsibilities

Individuals subject to MAPPA are assessed on the short-to-medium-term risk of serious harm and the manageability of the risk. There are three risk management levels:

• Level 1: Routine risk management
• Level 2: Multi-Agency risk management
• Level 3: Multi-Agency Public Protection Panels (MAPPP)

The Multi-Agency Public Protection (MAPPA) National Guidance 2016 sets out the responsibilities of agencies charged with implementing MAPPA.

The Management of Offenders etc. (Scotland) Act 2005 (Specification of Persons) Order 2007 specifies the persons or bodies with duty to cooperate.

A number of third sector organisations are involved in MAPPA, through supporting risk assessment, risk management, and via the provision of intensive support packages.

Children and MAPPA

The majority of children displaying harmful behaviour do not require to be registered for MAPPA (Rigby, Whyte and Schinkel, 2014). Research by Rigby et al. (2014) found in 2011, 21 children and young people in Scotland were being supervised under MAPPA arrangements - less than 1% of all people on MAPPA. If this is the case, age-appropriate risk assessment tools, which take account of the child’s age and stage of development, should be used - it is not appropriate to use adult tools for children. Where the child has previously or is currently being managed under Care and Risk Management (CARM) procedures, the CARM chair and MAPPA Coordinator should liaise to agree on matters including the most appropriate local arrangements by which to manage safely the risk of harm presented by aspects of the child’s behaviour and the process for managing a child’s transition from the CARM process to MAPPA (Scottish Government, 2021). The child should also have a Child’s Plan and within MAPPA meetings, where possible, there should be representatives from childcare/youth justice agencies present to ensure that processes adopted are suited to the child in terms of managing the risk of harm posed by parts of their behaviour and meeting their needs (CYCJ, 2017). This includes:

• Explaining processes in language the child understands on an ongoing basis throughout the MAPPA process
• Ensuring that meetings understand children’s development and treat them differently from adults
• Risk management strategies should be systemic and involve others such as families/carers until the child is able to self-manage given their age and stage of development
• Leveraging the child’s strengths and reducing their vulnerabilities by building the skills and capacities they need to meet their needs through less harmful and more pro-social ways
• Restrictions/conditions should be necessary and proportionate to manage the risk presented
• Restrictions/conditions should be reviewed when adhered to successfully, so the child sees progress and continues to adhere to conditions
• Consistency in worker to support the child where possible

Involvement of families

The families of people subject to MAPPA are not automatically informed. While it may not be appropriate for family members to attend MAPPA case conferences, they can provide valuable support and information about a child’s history.

The Good Practice Guidance for the Support of Families Affected by Imprisonment suggests that families should be:

• Included in discussions or at least consulted for their input to risk assessment and management
• Given information about relevant policies and processes such as the Sex Offender Register and any requirements and restrictions for supervision
• Given clear verbal and written information, including about to whom they can speak and where they can get help

Diversity

Children who come into conflict with the law are not a homogenous group. As each person will have different needs, it is essential to take into account factors such as race, ethnicity, gender, sexuality, identity, class, and disability or other support needs.

Stigma

Children may have already experienced discrimination, which can be compounded by labels such as “young offender” or “ex-prisoner”, and through system involvement. Practitioners must be aware of the impact of such labelling and discrimination and ensure they practice in an anti-discriminatory manner. In addition to the labelling and stigma caused by a child’s involvement in the justice systems, their individual characteristics may lead to them being excluded from their peer group through discrimination and prejudice (CYCJ, 2020). It is also particularly important that these children are recognised as children first and foremost and that the rights they have as children are promoted and upheld (Case and Haines, 2014).

Diverse Groups

Children who come into conflict with the law are from every section of society; however, across the UK some groups are disproportionately represented within penal institutions and community-based supervision, and practitioners report they are less familiar and confident in supporting children from minority groups (Gleeson et al., 2019).

Various factors contribute to children coming into conflict with the law. As a practitioner it is therefore important to consider the role that structural, direct and indirect discrimination and exclusion may have played in this pathway, whilst remaining mindful that for some children this will have played no part in their behaviours (CYCJ, 2020).

Approaches

Responding to diverse populations of children require diverse approaches which must be tailored to the individual child in question based on their presenting needs, vulnerabilities and risks (Adler et al., 2016). To do so, consideration should be given to using services that specialise in meeting the specific needs of the child such as involvement of voluntary and third sector organisations, which may have a greater degree of specialist knowledge in responding to the particular needs of the child in question and challenging the stigma and exclusion they encounter. In some cases, this may mean involving practitioners of a particular gender, or those who have undertaken training that enables them to respond to the particular features of the child.

Practitioners who wish to refine their ability to support children and young people from diverse backgrounds may also wish to consider specialist training that can be provided in these fields, as well as examining recent literature which, unfortunately, is often sparse.

More specific examples of the different approaches to supporting children from diverse groups can be found in the Diversity section of the CYCJ Practice Guide.