A child who is in the justice system and has been remanded or sentenced to secure care or custody, or sentenced to a community-based disposal may also be subject to a range of other orders.
Compulsory Supervision Orders (CSOs)
A child may be subject to a CSO through the Children’s Hearings System (CHS) under the Children’s Hearings (Scotland) Act 2011 (section 83).
Responsibilities to children subject to CSOs
While subject to a CSO, the child is ‘looked after’ by the local authority.
A child who ceases to be ‘looked after’ on or after their 16th birthday is a care leaver (this can include young people who were subject to a supervision requirement under section 70 of the Children (Scotland) Act 1995).
Certain duties must be fulfilled towards children subject to a CSO:
- Allocate a social worker (usually the Lead Professional)
- Ensure the child is seen by a social worker within a certain time and at specified frequencies (which vary by placement type)
- Ensure the child has a plan that is reviewed at specified intervals
- Review the CSO at least annually (or every three months if the CSO includes secure accommodation authorisation).
Part nine of the Children and Young People (Scotland) Act 2014 details the responsibilities of corporate parents to all “looked after” children and care leavers up to the age of 25.
Young Offenders Institutions and Secure Care
Children entering a YOI or secure care may remain subject to a CSO.
When a child subject to a CSO enters secure care or custody, either having been sentenced or on remand, the initial review meeting should be held within 72 hours and referred to as a looked after review.
Terminating a CSO
While a CSO may be continued until a child reaches the age of 18, when CSOs are terminated prematurely and a child has outstanding wellbeing needs, this can bring a raft of negative implications (CYCJ, 2020). A position statement from Social Work Scotland and partners (Position Statement by Social Work Scotland: Children aged between 15 and 17 in the Children’s Hearings System) specifies that children should continue to be supported on a CSO between the ages of 16 and 18 years, when this is in their best interests. It is not appropriate to base a recommendation of termination of a CSO solely on the following:
- If the child has outstanding offences. This will likely lead to them being fast tracked into the criminal justice system and often into the prison system
- On the basis of the age of the child (unless approaching 18 years) in line with current legislation and the United Nations Convention on the Rights of the Child (UNCRC)
- Because of failure to engage with services assessed as necessary for the child’s safety and wellbeing. Difficulties in sustaining positive engagement with the child and their family can identify increased risk and vulnerability and due regard should be given to ensuring the continued support and protection of childcare legislation rather than a reason for termination
- When the child is in the criminal justice system or has been sentenced to be deprived of their liberty, maintaining a CSO ensures their legal position as a child, which can provide the additional support they require. Remaining on a CSO holds their position as a child and responses to their needs within a systemic, developmental and trauma informed lens
This is reiterated in Children’s Hearings Scotland Practice and Procedure Manual.
Any decision to terminate a CSO should be based on a full assessment of need and risk and should also consider (Children and Young People’s Centre for Justice, 2020):
- The duration of the sentence
- The child’s wider care needs
- The scope for further offences being dealt with through the CHS if the child remains subject to a CSO (remittal from court would be the only subsequent route into the CHS for children aged over 16 if a CSO is terminated).
- The potential role of a CSO in transition from secure care or custody.
This is further reiterated in Scottish Government (2021) Standards for those working with children in conflict with the law.
Ultimately the decision to terminate a CSO will be made by Children’s Hearings panel members but this should be informed with as full and considered information as possible.
Convictions through the Children’s Hearings System (CHS)
Grounds for referral to the CHS that involve the committal of an offence and have either been accepted by the child or proven in court are classed as a criminal conviction. While the amendments made under Part 2 of the Management of Offenders (Scotland) Act 2019 reduced the disclosure periods for cases discharged by the CHS or where the child was made subject to a CSO to zero, meaning these become immediately spent, there are still certain circumstances when this information can require to be disclosed by the individual or be disclosed by the state on a disclosure certificate.
The arrangements surrounding disclosure are complex and further information is available in the resources section. Children are encouraged to gain legal advice as necessary.
Community Payback Orders (CPOs)
A child may already be subject to a CPO at the time of their placement in a Young Offenders Institution (YOI) or secure care. The further offence that results in the child entering a YOI or secure care is not necessarily a breach of the CPO but it may impact upon the child’s ability to complete any existing CPO and requirements within the appropriate timescale. Either the responsible officer, the worker completing the Criminal Justice Social Work Report or the child may request a revocation or variation of the order depending on the period they will be deprived of their liberty. There are no specific circumstances in which a revocation, variation or early discharge may be sought. As a broad principle, such applications are appropriate where circumstances have arisen since the CPO was imposed, which suggest that it would be in the interests of justice for the court to consider amendment or revocation.
See also Community-based disposals.
Mental health orders
On the rare occasion that mental health legislation and orders apply to children in the justice system advice should be sought from medical and legal professionals.
Criminal Procedure (Scotland) Act 1995 Part VI Mental Disorder
Provisions under Part VI of the Criminal Procedure (Scotland) Act 1995 help the court to decide what should be done in a case where the individual appears mentally unwell. This may include:
- While awaiting trial
- If it is decided the trial cannot start or must stop, or
- If convicted and the punishment is custody
Mental Health (Care and Treatment) (Scotland) Act 2003
This Act may apply to people of any age (although for under 18s the welfare of the child must be paramount). The Act:
- Enables medical professionals to treat and detain people against their will on grounds of mental disorder
- Provides a right to independent advocacy and places duties on health boards and local authorities to ensure this is available
- Established the Mental Health Tribunal for Scotland and Mental Welfare Commission for Scotland to provide safeguards
- May apply to children subject to a community-based disposal or while detained in custody or secure care
- Makes provisions for the transfer of people in custody for treatment for mental disorder
Mental Health (Scotland) Act 2015
The Mental Health (Scotland) Act 2015 made provisions under:
- Part 1 is about the operation of the Mental Health (Care and Treatment) (Scotland) Act 2003, which included the removal of provisions for the appointment of named persons by default (unless aged under 16); builds on the right to independent advocacy; and extends certain provisions relating to cross-border placements.
- Part 2 amends the Criminal Procedure (Scotland) Act 1995 in relation to the treatment of “mentally disordered offenders”, including the timescales for assessment and treatment orders and provides for variations of certain orders.
- Part 3 creates a new notification scheme for victims of some “mentally disordered offenders”
Civil orders are designed to minimise the risk of sexual harm to the public and can be imposed on a person who has never been found guilty of an offence and for behaviour that is not criminal. However, breach of the order becomes a criminal offence.
The four main types of civil orders are:
Sexual Offences Prevention Orders (SOPOs)
- SOPOs require an individual aged over 12 to do or stop doing something specified in the order. Compliance with Sexual Offender Notification Requirements (SONR) is also required while the order is in effect, meaning the individual will also be subject to MAPPA.
- Application can be made by a Chief Constable to a Sheriff Court under Sexual Offences Act 2003 (section 104); by the court if the individual has been dealt with in respect of an offence listed in paragraphs 36 to 60 of Schedule 3 to the 2003 Act via the amendments by the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005; or by the Crown Office and Procurator Fiscal Service at the point of conviction via the Criminal Justice and Licensing (Scotland) Act 2010 (section 100).
- Duration - minimum five years
- Breach can result in maximum five years imprisonment
Risk of Sexual Harm Orders (RSHOs)
- RSHOs place restrictions or obligations on an individual, whose behaviour suggests that they pose a risk of sexual harm to a particular child or to children under Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (sections 2-8).
- The aim of a RoSHO is to prevent sexual harm to either a specific child (under 16 years) or children in general (under 16 years) from aspects of an individual’s behaviour
- Application can be made by a Chief Constable to a Sheriff Court for individuals of any age in specific circumstances and particular considerations should be made if a RoSHO is being sought in relation to a child (CYCJ, 2021)
- Duration - minimum two years, however, where the police assess no further risk to be posed they should return to court seeking the discharge of the order
- Interim RoSHOs can be applied for where a RoSHO has been sought regarding an individual but no decision has yet been made
- When someone becomes subject to a RoSHO they do not become subject Sexual Offender Notification Requirements (SONR), nor are they subject to MAPPA. However, breaching a RoSHO/Interim RoSHO is a criminal offence and if convicted would result in the individual becoming subject to SONR and MAPPA and if on summary complaint they may receive up to six months imprisonment and/or a fine up to £5000. If they are convicted on indictment (solemn matters) they can receive a maximum of five years imprisonment and/or fine.
- RoSHOs will be replaced with Sexual Risk Orders (RSOs) when the provisions within the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 are commenced. These new orders provide the police with wider grounds for application, will allow for the protection of adults as well as children and have an increased range of conditions that can be implemented including foreign travel restrictions.
- Requires an individual who has been convicted of a sexual offence overseas and is deported to the UK on release from prison; or a foreign citizen who the police know has been convicted of a sex offence abroad and who comes to the UK, to be subject to SONR under Part 2 Sexual Offences Act 2003.
- Applications can be made under section 97 Sexual Offences Act 2003 by the Chief Constable to the courts
Foreign Travel Orders (FTO)
- Prevents individuals who have been convicted of certain sexual offences against a child under 18 from travelling abroad under Sexual Offences Act 2003 (section 114) and requires they surrender their passport
- Applications can be made by the chief constable to the courts
Resources for this page
Compulsory Supervision Orders (CSOs)
- Children (Scotland) Act 1995
- Disclosure Scotland
- The Looked After Children (Scotland) Regulations 2009
- Guidance on Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007
- Children’s Hearings (Scotland) Act 2011
- Children and Young People (Scotland) Act 2014
- Children’s Hearings Scotland
- Management of Offenders (Scotland) Act 2019
- Protecting Vulnerable Groups Scheme
- Rehabilitation of Offenders Act 1974
- Scotland Works for You
- Scottish Children’s Reporter Administration
- CELCIS. (2014). Inform: Children and Young People Act (Aftercare and Continuing Care). CELCIS: Glasgow.
- CELCIS (2014). Inform: The Children and Young People (Scotland) Act 2014 Part 9 (Corporate Parenting). CELCIS: Glasgow.
- Centre for Youth & Criminal Justice (CYCJ). (2020). A Guide to Youth Justice in Scotland: Reintegration and Transitions: Youth justice practice at the interface of the Children’s Hearings System and the Criminal Justice System. Glasgow: CYCJ.
- Children’s Hearings Scotland (2020). Practice and Procedure Manual. Edinburgh: Children’s Hearings Scotland.
- Scottish Government. (2011). Reintegration and Transitions - Guidance for Local Authorities, Community Planning Partnerships and Service Providers. Edinburgh: Scottish Government.
- Scottish Government. (2015). Statutory Guidance on Part 9 (Corporate Parenting) of the Children and Young People (Scotland) Act 2014. Edinburgh: Scottish Government.
- Scottish Government. (2016). Children and Young People (Scotland) Act 2014: Guidance on Part 10: Aftercare. Edinburgh: Scottish Government.
- Scottish Government. (2021). Standards for those working with children in conflict with the law. Edinburgh: Scottish Government.
- Scottish Office. (1997).Scotland’s Children: The Children (Scotland) Act 1995, Regulations and Guidance Volume 2 Children Looked After by Local Authorities. Edinburgh: Scottish Office.
- Social Work Scotland. (2019). Position Statement by Social Work Scotland: Children aged between 15 and 17 in the Children’s Hearings System. Edinburgh: Social Work Scotland.
Community Payback Orders
- Scottish Government. (2019). Community Payback Orders Practice Guidance. Edinburgh: Scottish Government.
Mental health orders
- Criminal Procedure (Scotland) Act 1995
- Mental Health (Scotland) Act 2015
- Mental Health (Care and Treatment) (Scotland) Act 2003
- Mental Welfare Commission for Scotland
- Mental Welfare Commission for Scotland Mental Health Act
- Abusive Behaviour and Sexual Harm (Scotland) Act 2016
- Criminal Justice and Licensing (Scotland) Act 2010
- Families Outside Information About the Sex Offender Register Information Sheet
- Families Outside When someone is convicted of a serious/sex offence
- Multi-Agency Public Protection Arrangements (MAPPA)
- Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005
- Scottish Sentencing Council Orders
- Sexual Offences Act 2003
- Children and Young People's Centre for Justice (CYCJ). (2021). Risk of Sexual Harm Orders Scotland (RoSHOs). Glasgow: CYCJ.
- Scottish Government. (2014). Multi Agency Public Protection (MAPPA) National Guidance. Edinburgh: Scottish Government.
- Scottish Government. (2016). Multi Agency Public Protection (MAPPA) National Guidance. Edinburgh: Scottish Government.