When a child has been found guilty, or pleads guilty, the judge, sheriff or Justice of the Peace (JP) will decide what sentence is appropriate. They may defer sentencing for days or weeks, during which the child may be:

Sentencing Guidelines

When sentencing, a judge, sheriff or JP must have regard to any relevant sentencing guidelines in relation to the case. The first sentencing guideline sets out principles and purposes of sentencing for all offences. The guideline states that the core principle of sentencing is "fairness and proportionality", and that this requires a number of supporting principles. It also sets out some of the purposes which sentencing may seek to achieve, such as rehabilitation, protection of the public, and punishment. If judges decide not to follow the guidelines, they must state their reasons for not doing so. In addition, a judge, sheriff or JP must decide which sentencing factors presented to the court are relevant and should be considered, as well as how much weight to give each one. These factors will be unique to each case and include individual factors pertaining to the accused, factors related to the offence, aggravators, mitigating factors and opportunities for rehabilitation. Guidelines specific to sentencing children and young people are in development.

Criminal Justice Social Work Report (CJSWR)

The court may request a CJSWR to assist with the sentencing decision. In completing a CJSWR for a child:


For children aged under 17 years six months, the report should always comment on the option of remittal back to the Children’s Hearings System (CHS) and “be clear that remittal is being considered with a view to work being undertaken” (Scottish Government, 2010, p.52). This should be detailed in the Child’s Plan and the use of remittal is imperative if we are to maximise the potential of the Children’s Hearings System and the ability to have young people supported through this welfare-based system (Dyer, 2016). To be remitted the child does not need to be subject to a Compulsory Supervision Order (CSO) or have been previously known to the CHS. The rules on remittal, including when the court may and must seek advice, are set out in section 49 Criminal Procedure (Scotland) Act 1995.

Remittal can be either for:

Sentence: Non-custodial

All alternatives to secure care and custody should be explored (see before court and community based disposals for more information).

Before the child leaves court, the dedicated court support workers or court social work staff and the defence agents (e.g. solicitor) should:

Sentence: Depriving a child of their liberty

Depriving a child of their liberty has significant impacts and Under Article 37 of the UNCRC “…The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”. Where such measures are deemed necessary, the potential for harms as a result of a child’s liberty being deprived and for violation of their rights should be recognised and mitigated wherever possible (Lightowler, 2020). Where depriving a child of their liberty is deemed necessary, secure care should be used wherever possible as an alternative to Young Offender Institutions (YOIs). This is consistent with the Whole System Approach and the significant concerns raised about the suitability of YOIs for children (Independent Care Review, 2020; Lightowler, 2020; HMIPS, 2019). GIRFEC principles should apply to all supports with children in secure care or custody; Standards 5 and 6 of the Standards for those working with children in conflict with the law should be implemented; and for children in secure care, the Secure Care Pathway and Standards Scotland should be implemented and achieved.

The Criminal Justice and Licensing (Scotland) Act 2010 specified the presumption against sentences under three months, which was extended to 12 months in the Presumption Against Short Periods of Imprisonment (Scotland) Order 2019. The presumption is not a ban, and courts are still able to impose prison sentences of 12 months or less, but there is a presumption against doing so.

In rare circumstances, a child who has committed a serious offence (usually of a violent or sexual nature), and who is assessed as presenting an ongoing risk of harm to others, may be made subject to an Order for Lifelong Restriction (OLR). The court will impose a minimum period of detention in custody (called the ‘punishment part’) but the child or young person will not be released until the Parole Board decides that the risk of harm aspects of their behaviour poses can be safely managed in the community. Such measures should only be used in exceptional circumstances.

Where a child is sentenced to be deprived of their liberty, options can also include an extended sentence or Supervised Release Order.

Scottish Ministers

Scottish Ministers are responsible for placing and managing the sentences of:

Further information on arrangements, roles and responsibilities can be found at Scottish Government (2018). In the above cases, where practicable and appropriate, children will normally be placed in secure accommodation as near to their home as possible. Where a child as detailed above is likely to be or has been remanded or sentenced, contact should be made by the child’s social worker with the CYP Placement Manager at the earliest opportunity.

Procedure following sentence to secure care or custody

The child will be taken to the cell area in the court building until transport is available. On reaching this area, their belongings should be bagged to be transported to the secure unit or YOI with the child.

The child should be interviewed by the dedicated court support workers or court social work staff (Scottish Government, September 2011a; 2010; CYCJ, 2020a) who will:

The court social worker should also:

Children going to or held in secure care or YOI or appearing from police custody must be transported to and from Court using transport which is appropriate for children, minimises delays and does not put them in contact with adult prisoners or accused (Standard 5 Scottish Government, 2021).

All relevant information must be sent to the secure care provider or YOI the day the child enters (Scottish Government, 2021). All children who enter secure care or custody via court will be supported at the earliest opportunity to start planning for their transition back to the community (Scottish Government, 2021). Throughcare “refers to a range of social work and other support services to prisoners from the point of sentence or remand, during their period of imprisonment and subsequent release into the community” (Scottish Government, 2011b, p.9).

Information sharing and support to children and their families

Sentences must be fully explained to children and their families in a way they understand and as much information and support should be provided as possible (Gough, 2016; Nolan, Dyer and Vaswani, 2018). This is particularly important where a child receives a sentence that may affect caring arrangements, housing, finance and the physical and mental health of the whole family.

Useful information is contained in Families Outside information sheets Preparing for a Prison Sentence and “At Court” Information for families when a relative or friend has been sent to prison, and on how families can be supported in the Framework for the support of families affected by the Criminal Justice System.


Resources for this page