In keeping with the Whole System Approach (WSA), where it is deemed necessary to deprive a child of their liberty, secure care should be utilised wherever possible as opposed to custody. This has been strengthened with the Independent Care Review (2020, p.91) concluding that “Young Offenders Institutions are not appropriate places for children and only serve to perpetuate the pain that many of them have experienced. There are times where it is right for children to have their liberty restricted, but that must only be done when other options have been fully explored and for the shortest time possible and in small, secure, safe, trauma informed environments that uphold the totality of their rights”. Similarly, while the HM Inspectorate of Prisons for Scotland (2019a) of HMP&YOI Polmont identified a range of positive factors, including relationships between staff and young people; the range of evidence-based opportunities available; and partnerships with the community, it concluded that the establishment has the architecture and staffing appropriate to an adult prison and that best practice in child-centred thinking argues for a different approach. Likewise, the Scottish Parliament Justice Committee (2019, p. 37) inquiry into secure care and prison places for children and young people in Scotland recommended that “…unless there is strong evidence to the contrary, no young person under the age of 18 should be placed in HMP&YOI Polmont when a place in a secure care unit would be more suitable”. As a result, under A Rights-Respecting Approach to Justice for Children and Young People: Scotland’s Vision and Priorities to the extent possible, no under-18s should be detained in YOI, including on remand. Secure care and intensive residential and community-based alternatives should be used instead (Scottish Government, 2021).
The SPS Vision for Young People in Custody (2021, p.2) recognises “…that experience of custody can adversely affect a young person’s development and mental health, their relationships, their housing and their education, training and work. For some young people, however, their time in custody may represent a chance—a rare chance—for them to engage in learning and find someone who can help to point them to a better future. The approach therefore seeks to mitigate the negative aspects of custody and, importantly, to use the period of custody to prepare actively for a positive future”.
Young Offenders Institutions (YOIs) provide custodial facilities for 16-21 year olds (or older in exceptional circumstances with the Governor of the establishment’s agreement):
- HMP&YOI Polmont is the main establishment for boys, girls and young people (male and female)
- HMP&YOI Cornton Vale has limited availability for certain girls and young women (namely those within the Mother and Baby Unit, those who are pregnant or who present complex mental health needs)
- HMP&YOI Grampian has limited availability for girls and young women
On occasion children are also held in other prisons.
Children in custody are some of our most vulnerable, disadvantaged, distressed and excluded in society (CYCJ, 2020a). These young people will often have already faced multiple adverse experiences, including abuse (sexual; physical and emotional); neglect (physical and emotional); household dysfunction (familial substance abuse; familial mental illness; domestic violence in the home; incarceration of a household member); moves of home and school; community violence; and associated trauma (Smith, Dyer, & Connelly, 2014; Youth Justice Improvement Board, 2017; CYCJ, 2020a). These pre-existing vulnerabilities and disadvantage can often be exacerbated with the additional experiences of being deprived of their liberty (Armstrong & McGhee, 2019; End Child Imprisonment, 2019; Vaswani & Paul, 2019). People with experience of being in care and care leavers are overrepresented in custody, with the 2019 Prisoner Survey finding a quarter reporting having been in care, 60% of whom reported being in care at the age of sixteen, mainly in residential care and a third reported having been in secure care.
Sixteen and 17 year olds are generally held separately from older people in custody in accordance with the UNCRC Article 37(c) unless this is not in the child’s best interests (mitigating circumstances might include risk to the child or young person’s safety). Children on remand and those who have been sentenced may be held together. In HMP&YOI Polmont this is in Monro House 2 for young males or Monro House 4 for young males who have committed certain offences; and Blair House 1 for young women.
Facilities vary by establishment. Children can share a cell with another individual and generally will have a workspace area and either ensuite facilities or nearby access. Children can access areas for activities, education, family visits and to make phone calls.
Partnership working with the child, family members, and all relevant professionals throughout their time in custody is fundamental to ensure positive outcomes and successful reintegration.
Under Article 37 of the United Nation Convention on the Rights of the Child (UNCRC) “…no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child ….shall be used only as a measure of last resort and for the shortest appropriate period of time”. Depriving a child of their liberty has significant impacts and implications for children’s rights (Lightowler, 2020). Whilst a child is deprived of their liberty, their needs and age must be respected; their rights upheld; they must have access to legal and other assistance and be able to challenge their detention; and have a right to family contact. Children have the right to be treated in a manner that is consistent with their sense of dignity and worth, requiring the use of institutions specifically applicable to children and that promote the child’s reintegration and assuming of a constructive role in society, thus enshrining a focus on reintegration support and throughcare (Article 40). In addition, services and supports should be made available to fulfil children’s rights to health and healthcare (Article 24); education (Article 28 and 29); leisure (Article 31); and to promote physical and psychological recovery and social reintegration of children who are the victims of neglect, exploitation, abuse, torture or any other form of cruel, inhumane or degrading treatment, in an environment which fosters the health, self-respect and dignity of the child, be this in the community, secure care or custody (Article 39).
The establishments, services and facilities responsible for the care or protection of children, must conform to the standards established by competent authorities, particularly in respect of safety, health, in the number and suitability of their staff, and competent supervision (Article 3). Children’s rights to express their views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child, and the opportunity to be heard in any judicial and administrative proceedings affecting the child must also be upheld (Article 12). Children detained in custody should be able to maintain contact with their families except in exceptional circumstances (Article 37). The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (The Havana Rules) and The Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) further reiterate and extend the above.
The following sections apply to all children. Where there are different arrangements for children depending on whether they are remanded or sentenced these are highlighted within the following sections.
Prior to admission to YOI
The child must have a court warrant naming the establishment to which he/she is to be admitted.
Resources for this page
- Criminal Procedure (Scotland) Act 1995
- The Prisons and Young Offenders Institutions (Scotland) Rules 2006
- The Prisons and Young Offenders Institutions (Scotland) Rules 2011
- Children’s Hearings (Scotland) Act 2011
- United Nation Convention on the Rights of the Child
- United Nations Rules for the Protection of Juveniles Deprived of their Liberty
- United Nations Standard Minimum Rules for the Administration of Juvenile Justice
- Families Outside Time in Custody Information Sheet
- Families Outside What to Expect when Starting a Prison Sentence Information Sheet
- Her Majesty's Inspectorate of Prisons for Scotland
- Navigating Scotland’s Justice System
- Scottish Prison Service (SPS)
- SPS Families
- SPS Strategy Framework for the Management of Women Offenders in Custody
- SPS/Capability Scotland A Guide to the Prisons and Young Offenders Institutions (Scotland) Rules 2011
- Armstrong, S., & McGhee, J. (2019). Mental Health and Wellbeing of Young People in Custody: Evidence Review. SCCJR: Glasgow.
- Broderick, R. and Carnie, J. (2020). Prisoner Survey 2019. Edinburgh: SPS.
- Children and Young People’s Centre for Justice (CYCJ). (2020a). A Guide to Youth Justice in Scotland: policy, practice and legislation: Reintegration and Transitions. Glasgow: CYCJ.
- CYCJ. (2020). A Guide to Youth Justice in Scotland: policy, practice and legislation. Glasgow: CYCJ.
- End Child Imprisonment. (2019). Principles and minimum expectations for children deprived of their liberty. London: End Child Imprisonment.
- HM Inspectorate of Prisons for Scotland. (2019a). Report on Full Inspection of HMP YOI Polmont - 29 October to 2 November 2018. Edinburgh: HMIPS.
- HM Inspectorate of Prisons for Scotland. (2019). Report on an expert review of the provision of mental health services for young people entering and in custody at HMP YOI Polmont. Edinburgh: HMIPS.
- Independent Care Review. (2020). The Promise. Glasgow: Independent Care Review.
- Lightowler, C. (2020). Rights Respecting? Scotland’s approach to children in conflict with the law. Glasgow: CYCJ.
- Scottish Government. (2021). A Rights-Respecting Approach to Justice for Children and Young People: Scotland’s Vision and Priorities. Edinburgh: Scottish Government.
- Scottish Parliament Justice Committee (2019). Secure Care and Prison Places for Children and Young People in Scotland. Edinburgh: Scottish Parliament.
- Smith, S., Dyer, F. and Connelly, G. (2014). Young Men in Custody: A report on the pathways into and out of prison of young men aged 16 and 17. CYCJ: Glasgow.
- SPS. (2013). Report of the Scottish Prison Service Organisational Review - Unlocking Potential, Transforming Lives. Edinburgh: SPS.
- SPS. (2021). SPS Vision for Young People in Custody. Edinburgh: SPS.
- Vaswani, N., & Paul, S. (2019). 'It's knowing the right things to say and do': Challenges and Opportunities for Trauma-informed Practice in the Prison Context. The Howard Journal of Criminal Justice, 58(4), 1-22.
- Youth Justice Improvement Board. (2019). Improving the life chances of children who offend - A summary of common factors. Glasgow: CYCJ.