The United Nations Convention on the Rights of the Child is to be incorporated into Scots Law by 2021. But what needs to change to ensure it is fully adopted – and what opportunities could it offer to improve young people’s lives?
“The Convention applies to every child without discrimination, whatever their ethnicity, sex, religion, language, abilities or any other status, whatever they think or say, whatever their family background.”
Article 2, United Nations Convention on the Rights of the Child.
Scotland has run its own legal system for centuries but the key to a major and decisive change could stem from an international source.
Scotland is due to incorporate into its law the United Nations Convention on the Rights of the Child (UNCRC), which sets out the civil, political, economic, cultural and social rights of all children worldwide; it will be the first of the UK nations to take this measure.
The incorporation creates legal requirements but the University of Strathclyde-based Centre for Youth & Criminal Justice (CYCJ) sees it as an ideal opportunity to take stock of Scottish justice’s approach to children and to seek a fresh approach to dealing with the children who come into conflict with the law.
Scots law became even more distinctive in the 1970s, when the Children’s Hearing System was established following the recommendations of the Kilbrandon Report. The 1964 report concluded that there was “a basic similarity of underlying situation” among children appearing before juvenile courts; a “common need for special measures of education and training” as a result of something lacking in their upbringing.
The solution proved to be a unique framework of care and justice designed to ensure that children's "needs and deeds" are considered whenever formal legal proceedings related to care and justice arise.
Nearly half a century later, Scotland, in common with the rest of the world, has altered immeasurably and legal systems must adapt to reflect and take account of these changes. The Children’s Hearing System is not exempt from this; while the challenges which brought about its establishment have not gone away, the social context in which they occur is vastly changed, including the attitudes and expectations not only of wider society but also of those directly involved in the processes of Children’s Hearings.
The implications of the questions all this raises, and the importance of the answers, are such that CYCJ Director Dr Claire Lightowler took a year’s research leave to dedicate herself to exploring the complex and often emotive issues around offending by children.
In the course of the year, she reviewed literature and data to produce ‘Rights Respecting? Scotland’s approach to children in conflict with the law’, a report outlining how a new perspective on youth justice in Scotland could achieve improved results for the young people involved and for society as a whole.
The starting point for Dr Lightowler’s vision is that, above all else, their status and rights as children are considered and respected. Regardless of the offences they have committed, she states, they remain children, with all of the rights this entails, and this must govern how they are dealt with both during the judicial process and in their subsequent experiences.
To do so will require significant shifts in policy, practice and thinking. Among the main areas for improvement identified by Dr Lightowler are:
- defining children as being aged under 18
- strengthening the participation of children in conflict with the law
- upholding the rights of victims, with a particular focus on child victims
- stronger early intervention
- a shared responsibility approach of strengthening community and family support
- ensuring due process for all children
- respecting the rights of children who commit the most serious harms and wrongs.
The report is being published against the backdrop of the raising in 2019 of Scotland’s age of criminal responsibility from eight to 12 and calls for it to be raised further.
The report is to be launched on Thursday 30 January, to coincide with that day’s Kilbrandon Lecture. This lecture series, inaugurated in 1999, commemorates the work and legacy of Lord Kilbrandon and the inquiry he led which brought about the Children’s Hearing System. The lecture this year is to be given by Professor Manfred Nowak, human rights lawyer and former United Nations Special Rapporteur on Torture.
A new opportunity
The timing of publication for Dr Lightowler’s report is apt and not coincidental, as her report arose from CYCJ’s belief that youth justice in Scotland requires a reconfiguration on a scale not seen since Kilbrandon.
“We found that we kept coming across problems which were in relation to rights but not issues which had rights as a starting point,” she said. “We felt this was something important to reflect on and the forthcoming incorporation of UNCRC presents an opportunity for change.
“Youth justice has been characterised as involving a balance between welfare - responding to needs - and punishment - responding to deeds. Rights pose a challenge to our responses on the basis of both welfare and punishment, suggesting elements of our youth justice system need to change.
“More fundamentally, though, if we start by seeing children and their families as rights holders rather than challenged or challenging our approach to children in conflict with the law looks very different.
“If we are holding traumatised children solely responsible for their actions, putting them through processes they do not understand and putting barriers in the way of their loving and caring relationships, is this justice in the true meaning of the word? There is some truth in the focus on children as troubled, challenged, vulnerable and challenging, and it is often well-meaning, but it can have negative unintended consequences for the most disadvantaged children as it predicts negative futures for them, labels them and disempowers them. Seeing such children as rights holders encourages a very different focus and response”
The allegation that the rights of offenders are privileged over those of their victims is frequently heard but Dr Lightowler does not see the two groups as mutually exclusive; in fact, they often intersect.
“Rights are for everyone and there’s a lot of misunderstanding about rights,” she said. “There needs to be an informed discussion but it’s important that it’s not presented as children’s rights being different from communities’ rights. We respect the rights of all and there will now be a clearer legal requirement to respect children’s rights, so whilst people may want to advocate for a change to the law, unless there is such a change it is important to acknowledge that children’s rights are enshrined in law and so need to be upheld.
“Upholding the rights of children who are in conflict with the law and of the victims of the harm they cause are both important, and Scotland needs to improve both. The victims of offending by children are most often other children, and child victims rarely have meaningful opportunities to express their views and be heard in justice processes, or have all appropriate measures put in place to promote their recovery. We also often find that those who have offended are in some other way victims too; it is not helpful to see it as being about either/or.
“This is about protecting the status of a child. Until the age of 18, our children don’t have full rights and capacities to live an independent, autonomous life. Treating children as children is the foundation of all of this and requires us to think about the appropriate level of legal responsibility children should take, where responsibility is an inappropriate concept and where responsibility needs to be shared with families, communities and society.
“It took 20 years after devolution in Scotland for the age of criminal responsibility to be raised from eight to 12. In the consultation on this measure, 96% were in favour of it; we don’t always know what the public think but this may suggest that views do not always mirror what is often presumed.”
Part of the process
Dr Lightowler addresses in the report the participation of children in their legal processes, the obstacles they face in doing so and how they might be supported.
“We need more sophisticated mechanisms to support children who come into conflict with the justice system,” she said. “They can face challenges in speech, language and communication; there are estimates that around 70% of these children have problems with these, yet the support they receive often doesn’t take account of it.
“These children are already in a stressful, potentially re-traumatising, situation and it can be difficult enough for them to understand the process, let alone participate in it. When children go to court as young as 12, there needs to be recognition and acknowledgement that they are a child, specialist professionals in place to support their participation and amendments to processes to support their participation.”
The experiences of children in custody are a major theme of the report. Since 2009, two children have taken their own lives and 24 young people under the age of 25 have died pain-inducing restraint also continues to be used in Young Offenders’ Institutions.
“I don’t see how the deliberate infliction of pain to children can be compatible with children’s rights and we need to support professionals to have the tools and support they need to deescalate situations and respond to children’s behaviour without resorting to inflicting pain,” Dr Lightowler said.
“We are also concerned about the use of strip searching by the police, as in one year alone 788 children were strip searched and in 96% of cases nothing was found, suggesting that this is standard practice rather than intelligence based.
“This is not intended to be a criticism of any agency, individual or professional. They have a very complex, very difficult job and they may feel a need to intervene through a concern that the young people might harm themselves or others but we need to improve our policies, practice and legislation to ensure we uphold their rights.
“The incorporation of UNCRC into domestic law strengthens the opportunity to lead a cultural change, to get people thinking about rights and engaging with rights. There’s a real opportunity to approach and think about rights in a positive way, not just seeing them as a legal tool forcing change but as an opportunity to actively seek out changes to improve, what we do and how we do it, and be clearer about what youth justice is here for.”