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A Report on the Consultation Responses to Putting Our Communities First: A Strategy for tackling Anti- Social Behaviour

Chapter Eight Theme Two: Preventing Anti-Social Behaviour- Children and Families

This chapter provides findings on the consultation responses to proposals relating to:

• Acceptable Behaviour Contracts (ABCs)
• Anti-Social Behaviour Orders (ASBOs) for Under-16s
• Greater use of reparation in the Children's Hearing System
• Electronic monitoring of Under-16s
• Extending restriction of Liberty Orders (RLOs) to Under-16s
• Parenting Orders
• Local Authority accountability

8.1 Acceptable Behaviour Contracts

Acceptable Behaviour Contracts (ABCs) are written agreements between an individual (child or adult) involved in anti-social behaviour and relevant agencies working to prevent anti-social behaviour. The contract sets out the behaviour that the person has agreed to stop and may also set out the support individuals can expect to receive in order to change their behaviour. The contract should specify that legal action may follow as a consequence of a breach of its terms. The Scottish Executive wishes to use ABCs more widely. Views were sought to the following questions:

8. Do you support the wider use of Acceptable Behaviour Contracts?

9. What are your views on the range of situations where ABCs would be appropriate? For example do you support use of ABCs in the Hearings system? In schools?

10. What are your views on the relationship between ABCs and legal options such as ASBOs or Parenting Orders? For example, should the court be required to consider the failure or refusal to participate in an ABC or a Parental Contract when considering an application for a Parenting Order?

8.1.1 Support for Acceptable Behaviour Contracts

8.1.1.1 The majority of responses were in favour of ABCs. They were particularly supported where they would be:

• Used as an early form of intervention for relatively minor acts of anti-social behaviour and as a means of diverting young people from the criminal justice system
• Based on the voluntary participation of offenders, in which offenders have been actively involved in establishing and agreeing to the conditions within the contract
• Based on a clear principle of recipocitry, in which the explicit support offenders, and their parents if appropriate, could expect to receive in changing their behaviour was detailed.
• Backed up by an adequate number of support mechanisms and take into account the full range of circumstances leading to the anti-social behaviour

Support also rested on ABCs:

• Clarifying the responsibilities of offenders, and in the case of children, their parents and provided a clear outline of the consequences of breaching such a contract
• Providing clear targets and time frames, with clear parameters
• Offering positive outcomes for successful completion
• Taking full account of the circumstances leading to problematic behaviour before they are issued (for example, truancy from school linked to bullying).

8.1.1.2 A small number of responses, including the Scottish Child Law Centre, Children First and Save the Children were opposed to ABCs. The Scottish Child Law Centre argued that they did not address the underlying cause of anti-social behaviour and were built on the false assumption that incentives by themselves could change the behaviour, which was caused by a complex series of circumstances. YMCA Scotland suggested that the Scottish Executive should pilot alternative measures such as the IPP and SMART programmes, which offer agreement-based voluntary approaches, which could be made disposals for the Children's Hearing System.

8.1.1.3 A number of responses were also concerned that ABCs were being introduced before a comprehensive evaluation of the current pilot schemes in Scotland has taken place.

8.1.1.4.The following points in relation to ABCs were also raised:

• It was highlighted that similar agreements already exist within the Children's Hearing System, schools and social landlords.
• It was unclear what 'legal action' meant. It was unclear what sanctions could be enforced in relation to breaches of an ABC. Although the contracts are intended to be voluntary, some respondents were unsure about how effective they would be without some sanctions for non-compliance.
• In relation to this point, several responses pointed out that there was a tension between a voluntary agreement being subject to punitive sanctions. This issue is further discussed below, but concerns were raised about the likely willingness of young people and parents to enter into agreements which may lead to legal consequences. In particular, it was suggested that young people may not seek help because of the fear of consequences for their parents. Similarly a number of local authorities were concerned about the impact of breaches of ABCs leading to a greater number of parents declaring their children to be outwith parental control.
• There was a need for effective monitoring and evaluation frameworks, and a standardised and consistent approach, particularly in relation to defining 'acceptable behaviour.' Shelter Scotland suggested that good practice guidelines, similar to those in use in England, should be developed.
• In order to be effective ABCs needed adequate support, which was very intensive and time consuming. It was argued that ABCs were most effective where more than one agency were involved, but there were doubts about the capacity of agencies to commit to ABCs given present resources. The current lack of social workers in Scotland was viewed as a particular problem in this regard
• Youthlink Scotland argued that there was a need for young people to have access to legal advice prior to agreeing to an ABC.

8.1.2 The Range of Situations where ABCs could be Applied

8.1.2.1 The majority of responses, including those from Children's Panel organisations, welcomed the use of ABCs within Children's Hearing Systems and schools. The point was raised again that similar agreements already operate in these areas already. Some respondents argued that this existence of acceptable behaviour agreements or Individual Education Programmes in schools precluded the need for further legislation. ABCs were seen as a useful option for Reporters to use as a diversion from the Children's Hearing System. ABCs were also suggested as potentially having a role in mediation initiatives and case conferences.

8.1.2.2 However, the issue of different interpretations of acceptable behaviour between agencies would need to be addressed.

8.1.2.3 A few responses felt there was an issue about, if breaches would lead to legal action, whether schools were appropriate bodies for determining breaches of ABCs.

8.1.2.4 It was highlighted that variations of ABCs already exist in some areas of social housing, and it was suggested that information on ABCs should be shared in the same way as ASBOs, as reported in chapter eight of this report. It was further suggested that ABCs could be used in conjunction with short SSTs. Several social landlords argued that ABCs should be used across tenures, and should not be solely funded through rental income.

8.1.2.5 Several responses from Children's Hearing organisations stated that they would welcome the provision of training for panel members about the use and implications of ABCs.

8.1.2.6 It was suggested that ABCs could be used in other circumstances, for example relating to the harassment of retailers, racial abuse or damage to community facilities.

8.1.3 Linking ABCs to Other Legal Options

8.1.3.1 Respondent's views were divided on this issue. The majority of respondents felt that there was a need for strong interdependence between breaches of ABCs and other legal options such as ASBOs and Parenting Orders. It was argued here that courts or Reporters should be able to take into account the failure to adhere to ABCs as part of a wider gathering of all the relevant factors in a specific case and that it should be up to Reporters or courts to decide what weight they gave to such breaches in considering further measures. The Association of Chief Police Officers in Scotland specifically welcomed this use of ABCs as precursors to ASBOs.

8.1.3.2 Those opposed to such linking argued that it was not appropriate for breaches of voluntary ABCs to lead to ASBOs or Parenting Orders. In particular, concerns were raised about breaches of ABCs leading to increasing tariffs on young offenders and their parents, who they argued would become unnecessarily 'criminalised' by such an approach.

8.1.3.3 It was strongly argued by a number of social landlords that ABCs should not be regarded as mini ASBOs. These landlords stated that there should not be a hierarchy of measures that needed to be implemented consequentially, and that a multi-level entry system should remain, so that ASBOs could still be applied for directly for serious acts of anti-social behaviour, without the courts taking the view that ABCs should have been implemented first.

8.2 Anti-Social Behaviour Orders (ASBOs) for under-16s

ASBOs for over 16s were introduced by Section 19 of the Crime and Disorder Act 1998 in Scotland, and can be applied for by local authorities and registered social landlords. The Scottish Executive proposes to extend ASBOs to young people aged 12-15. It is also suggested that a court should consider imposing a support order in conjunction with the ASBO. The consultation document states that breach of an ASBO for someone under-16 will be a criminal offence which will be reported to the Procurator Fiscal, who will determine, in consultation with the Reporter what action will be taken. The consultation document sets out the option of a breach of an ASBO for someone under-16 being referred to a youth court, which is being piloted in Hamilton and which presently deals with persistent offenders aged 15-17. The consultation document asked for views on the following:

11. How should ASBOs be extended to under-16s?

12. Do you support the introduction of individual support orders linked to ASBOs for under-16s?

13. Are there any implications for extending ASBOs to under-16s in relation to the power of RSLs to apply for ASBOs?

14. Do you agree that the Youth Court model, where this operates, should be amended to include young people under-16 years of age who are referred to the criminal justice system by the Procurator Fiscal for breach of an ASBO?

15. How should the applicant ensure that they take the full circumstances of the family into account?

8.2.1 Extending ASBOs to Under-16s

8.2.1.1 The majority of respondents supported the introduction of ASBOs for under-16s, but it was strongly argued that such orders were only likely to be applicable to a very small number of persistent offenders. It was widely believed that ASBOs should also be an action of last resort after all other available measures had been considered. Those supporting ASBOs felt it to be a useful measure amongst others, and that it may send a signal to those young people engaged in anti-social behaviour that action could be taken. A significant minority of respondents were opposed to extending ASBOs to under-16s.

8.2.1.2 There was very strong support for retaining the primacy of the Children's Hearing System in addressing the behaviour of under-16s, although the difficulties that the Children's Hearing System had faced in dealing with persistent offenders was acknowledged, including by those support organisations working with this small group of young people. The uniqueness of the Children's Hearing System was identified in Scotland, particularly in relation to differences in applying ASBOs between Scotland and England. Concern was expressed that making breaches a criminal offence and the involvement of the courts risked undermining the Children's Hearing System and the welfare, rather than criminal justice, ethos it was built upon.

8.2.1.3 There was widespread support for ensuring the involvement of Reporters in applications for ASBOs, including making an initial application for an ASBO grounds for a referral to the Children's Hearing System. There was also significant support for making ASBOs a disposal for the Children's Hearing System, including the option of being linked to compulsory supervision requirements, although it was acknowledged that this would have both resource and training implications for Children's Panels. Existing review processes within the Children's Hearing System could be used to monitor and evaluate ASBOs and support orders.

8.2.1.4 There were serious concerns that ASBOs in themselves, without substantial support packages, were unlikely to address the complex contributory factors underlying serious and persistent offending, and were therefore unlikely to result in significant changes in behaviour. It was also suggested that the rights and responsibilities of those under-16 to their communities may differ from adults, and it may not be appropriate to introduce similar measures such as ASBOs.

8.2.1.5 Several responses raised fears about breaches of ASBOs leading to the criminalisation of young people, with consequent implications for their future employment opportunities. Edinburgh Youth SIP argued that the practice on some local authorities in England who had publicised the name and images of individuals subject to ASBOs should be strongly resisted in relation to young people under-16. In addition, concerns were expressed about how breaches of ASBOs may impact upon the housing situation of families if such breaches resulted in the families of young people living in social housing being downgraded from a full Scottish Secure Tenancy (SST) to a short SST with a greater likelihood of eviction.

8.2.1.6 It was suggested that the legal basis for ASBOs needed to be clarified in relation

to the relevant legislation and guidance, including the Children (Scotland) Act 1995 (and the 'no order' principle in particular) the European Convention on Human Rights and the Lord Advocates Guidelines to Chief Constables on Reporting Child Offenders.

8.2.1.7 Clarification was sought about the behaviours likely to be covered by ASBOs.

8.2.1.8 The issue of developing parallel systems was raised by many respondents, and it was felt that there was a need for clear demarcation between the courts and the Children's Hearing System so that distinctions did not become confused.

8.2.1.9 Clarification was sought about whether ASBOs would be applied to from the court.

8.2.1.10 It was argued that breaches would need to be addressed in a structured manner. There was also some confusion about the cyclical element of ASBOs in that, if they became a grounds for referral to the Children's Hearing System, but were subsequently breached, the court may then refer the case back to the Children's Hearing System. It was also pointed out that the ultimate disposal of the Children's Hearing System was secure accommodation and it was unclear what further sanctions a court would have beyond this. It was therefore not clear why a court would be effective than a Children's Hearing order.

8.2.1.11 There were concerns that the resources of the Children's Hearing System, and other agencies, particularly social work, would need to be considerably increased.

8.2.1.12 Only three responses felt that ASBOs should be applicable to those aged under-12. These respondents felt that they should be applicable to those aged 8 and over.

8.2.1.13 Further recommendations included:

• Young people being more fully informed about ASBOs and what they entailed
• Clear guidance being developed for determining criteria for when it was appropriate to apply for an ASBO
• For ASBOs for under-16s to be piloted and evaluated
• For more time to be given to an evaluation of the fast-track Children's Hearing pilot
• For consideration to be given to a wider review of the youth justice system, including Children's Hearings
• That clarification be given about the role and responsibilities of parents in ensuring compliance with an ASBO

8.2.2 Individual Support Orders

8.2.2.1 There was widespread agreement that, if ASBOs were to be introduced for under-16s, then they should be accompanied by a comprehensive support package to the young people concerned and their families. In this light, individual support orders were broadly supported, with some responses arguing that they should be mandatory where ASBOs were applied for.

8.2.2.2 Many respondents expressed views about the form such individual support orders should take. There was a degree of consensus that such support orders should comprise diversionary activities for young people, along with educational provision and access to counselling and skills courses for young people and their parents. However, a minority of respondents argued that such measures should not be seen to reward young people for their problematic behaviour, and were therefore opposed to 'away days' or similar activities which they felt would cause resentment amongst young people's peers and the wider community. Several responses raised the possibility of reparation being included in these orders.

8.2.2.3 It was widely recognised that, in order for individual support orders to be effective, they would involve considerable resource implications in their delivery, supervision and monitoring, and that the shortage of social workers in particular would need to be addressed.

8.2.2.4 Clarification was sought about the responsibility for developing and delivering these individual support orders. It was highlighted that they appeared similar to existing individual support and supervision orders in the Children's Hearing System, and clarification was sought about how they would differ from such orders, to ensure that they did not potentially confuse and undermine individual supervision orders or care plans that were already in place with regard to individual young people. It was suggested that courts should seek the advice of the Children's Hearing System in the development of support orders. One mechanism for this would be ASBOs being granted as interim orders, which would be referred to the Children's Hearing System in relation to the support mechanisms that would be required.

8.2.2.5 Similar to the discussion about CROs, responses recognised the need for the active engagement of the young people and parents concerned, and fears were expressed that requirements for young people to undertake specific activities may lead to a negative response, increasing the risk of a breach.

8.2.3 Implications of Extending ASBOs to Under-16s in Relation to RSLs

8.2.3.1 A number of RSLs supported having the ability to apply for ASBOs for under-16s, stating that some of the anti-social behaviour impacting upon their organisations and tenants was perpetrated by young people in this age group.

8.2.3.2 However, a larger number of responses expressed concerns about RSLs being able to apply for ASBOs for under-16s. The major concern was that RSLs would not have the capacity to be engaged in a multi-agency approach and would therefore not be in a position to adequately appraise the full circumstances relating to the behaviour of an individual young person, and to take into account all the relevant factors before applying for an ASBO.

8.2.3.3 Concerns were also expressed about the potential for inconsistent approaches to applying for ASBOs, which may undermine the duties and responsibilities of local authorities. Several tenants groups supported this option because they argued that anti-social behaviour should not be seen as a sole problem of social housing.

8.2.3.4 For the reasons discussed above, it was argued that applying for ASBOs for under-16s should remain the remit of local authorities, to be implemented against a recognised national standard. A single route for applications, through referral to a Reporter was supported by the largest proportion of respondents.

8.2.3.5 If RSLs were granted the power to apply for ASBOs, it was argued, including by RSLs themselves, that they would have to consult the Reporter prior to any application being made, and that the involvement of the Children's Hearing System should occur at the earliest possible stage of proceedings. Several RSLs argued that such referrals or consultation with the Reporter should not lead to undue delay in the application for an ASBO being proceeded. It was recommended that if the power were to be extended to RSLs, that a similar process to that used by local authorities needed to be introduced to ensure consistency, and that RSLs should be fully engaged in the development of such procedures.

8.2.3.6 It was pointed out that there were considerable resource implications in extending this power to RSLs, both for RSLs themselves, and also for local authorities who would be required to provide relevant information. Issues relating to data protection would also require to be clarified.

8.2.4 Youth Court Option

(Youth courts are currently being piloted in Hamilton. These courts deal with 16 or 17 year olds with a history of offending more than three times within the previous six months, with flexibility to deal with 15-year old offenders)

8.2.4.1 The largest proportion of respondents to this question argued that such an option could not be fully considered until an evaluation of the Hamilton Youth Court pilot had been carried out.

8.2.4.2 Of those responses which offered an opinion, views were equally divided. Those in favour felt this option to be useful in facilitating changes in behaviour and would be preferable to any use of adult courts. Those responses which rejected this option were based on two grounds. Firstly, that breaches of ASBOs should remain within the Children's Hearing System, with breach of an ASBO being grounds for a referral. Secondly, that youth courts were established to deal with serious and persistent offending amongst 15-17 year olds, and were therefore not appropriate for addressing more minor offences, some of which would involve younger children aged 12-14.

8.2.5 Ensuring the Full Circumstances of the Family are Taken Into Account

8.2.5.1 The majority of respondents felt that ensuring the full circumstances of the family were taken into account could be best achieved by the full involvement of the Reporter and/or Children's Hearing panels in all stages of an application for an ASBO, regardless of whether the young person concerned was already subject to a supervision order. If ASBOs were applied for through Reporters, it was believed by several respondents that well- established procedures were already in place within the Children's Hearing System to ensure that all the relevant circumstance were taken into account.

8.2.5.2 It was believed that sheriffs and/or Children's Panels would expect an application for an ASBO to be accompanied by evidence that the full range of circumstances had been taken into account. One response argued that there should be a statutory requirement for background reports to be provided before applications for ASBOs could be made.

8.2.5.3 Issues were raised about the multi-agency approach required to ensure that the full circumstances were taken into account. It was suggested that social work assessments may provide the basis for information to be reported, and that there should be inputs from other agencies including the police and schools, with information being sought at case conference stages.

8.2.5.4 A significant number of respondents supported the further development of protocols to govern the exchange of information, and it was requested that guidance be developed and provided about how procedures for multi-agency inputs and the exchange of information relating to individual cases would operate in the preparation of an application for an ASBO or individual support order.

8.3 Greater Use of Reparation in the Children's Hearing System

The Scottish Executive proposes to encourage greater use of restorative justice measures, including reparation and to develop specific information and training for panel members on reparation as a condition of a supervision requirement. The consultation asked:

16. What are your views on our proposals to consider increasing the emphasis on reparation, both as an action that may be taken by the Reporter and as a condition of a supervision requirement made by the Children's Hearing?

8.3.1.1 There was widespread and strong support for the principles of restorative justice, including reparation. It was believed that there was strong evidence to suggest that such measures could have an impact on offending behaviour, if implemented at an early stage, particularly given that much offending behaviour by young people was compulsive, with little thought likely to have been given for longer term consequences.

8.3.1.2 The majority of responses supported increasing reparation as an action for the Reporter and as a condition of a supervision requirement made by the Children's Hearing. Four respondents, including a number of local authorities and SACRO who were already involved in reparation activities argued that reparation would be more effective where it was used by the Reporter as a diversion from the Children's Hearing System. One response argued that reparation should be a disposal of a Children's Hearing rather than the Reporter.

8.3.1.3 A large number of respondents were concerned about how any compulsory element of a disposal made by a Children's Hearing for reparation to form part of a supervision requirement would be compatible with the important basic principle of reparation being entered into on a voluntary basis.

8.3.1.4 There was support for reparation to be based on the following principles:

• That it formed part of a wider package of support measures for young people and their families and was not utilised in isolation from these other forms of support
• That emphasis was given to ensuring its acceptability as a measure in the wider community
• That its voluntary basis was understood and for it to be effective the offender would need to have genuine remorse and wish to make amends, and that such feelings cannot be forced
• That it should occur as soon as possible after the offence so that the particular behaviour being addressed and the need to make amends were adequately linked in the young person's understanding
• That it should always be delivered to a national standard established by the Scottish Executive, and involve trained professionals and experienced and expert organisations such as SACRO
• That a full account of the circumstances of both the victim and offender be taken into account, including a full risk assessment and an evaluation of the capacity of a young person to comprehend the requirements upon them and their likely ability to be able to adhere to any conditions. This was particularly important in the case of younger children. Such an assessment could be made a condition of any reparation requirements. It was also argued that legal aid should be available to parties involved in reparation.

8.3.1.5 The following implications of increasing reparation in the way proposed were identified:

• The need to adequately resource the intensive supervision, support and monitoring of reparation that would be required for it to be effective, including addressing the wider shortage of resources faced in carrying out disposals.
• The need for adequate training to be given to Children's Panel members and others in the use of reparation orders
• The need for further clarification of services to be involved and their particular roles and responsibilities.

8.3.1.6 Other issues raised in relation to reparation were related to the consequences of 'breaches' and the procedures if either offenders or victims withdrew from the process. More details about how breaches would be linked to further measures were also requested.

8.4 Electronic Monitoring of Children in the Hearings System

The consultation document proposes introducing electronic monitoring as an additional disposal for Children's Hearings in specific circumstances. It further proposes that breach of a monitoring requirement should be a new basis for entry to secure accommodation. The document sets out 2 options for introducing this measure. 1) To limit electronic monitoring to young people who would otherwise be in secure accommodation using existing secure authorisations. 2) To introduce electronic monitoring in support of serious intervention for welfare or offending reasons within the Hearings system with breach a new ground for secure accommodation. The consultation document asked:

17. What are your views on making electronic monitoring a disposal for the Children's Hearings system?

18. Do you think that the option of electronic monitoring should be available alongside disposals other than secure accommodation?

8.4.1.1 The responses recognised the very serious nature of this proposal and the various consequences it may have. In addition to the views outlined below, there was considerable support for a) More consideration to be given to the evaluation of electronic monitoring and the provision of evidence of its effectiveness before it was introduced. b) Electronic monitoring for under-16s to be introduced as a pilot rather than nationally applied.

8.4.1.2 Although a majority of responses supported the introduction of electronic monitoring as a disposal option for children's hearings, this support was based upon electronic monitoring being one of a range of measures, and was envisaged as being an extreme measure that would be applicable in a very small number of cases. A significant number of responses were opposed to electronic monitoring. The reasons for opposing electronic monitoring were to a large degree the same concerns shared by many of the respondents who, on balance, supported its introduction. These issues are discussed in turn.

8.4.1.3 Many responses pointed to existing evidence that electronic monitoring was less effective with younger age groups, and that those under-16 would be much less likely to comprehend the nature of the requirements imposed upon them and the consequences of any breach. This would make them much less likely to be able to adhere to the conditions of their restricted liberty. It was also claimed that existing evidence suggested electronic monitoring for younger age groups was only effective for short periods of time.

8.4.1.4 Issues about how electronic monitoring related to national and international law with regard to the rights of children were raised, and it was recommended that these be more fully investigated. Concern was also raised about the capacity of a younger child to be aware of the legal situation with regard to electronic monitoring.

8.4.1.5 It was strongly felt by the majority of respondents that, if electronic monitoring were to be introduced, that it should be more than a punitive method for restricting liberty. It was argued that it must primarily serve a welfare function, and that unless it were accompanied by a holistic range of support measures, it would by itself do nothing to address or change the behaviour of the young people involved. It was suggested that electronic monitoring should be accompanied by support orders, which considered the role of agencies, the child and the child's family.

8.4.1.6 Many respondents were concerned about the impacts of the visibility of electronically tagging young people in local communities. It was feared on the one hand that such tags could be considered as 'badges of honour' amongst young people, and would be counter-productive. On the other hand, it was argued that for other young people the opposite negative affect would occur, namely that it would increase their labelling and stigmatisation, with subsequent consequences for their self-esteem and future conduct.

8.4.1.7 It was suggested by many respondents that a full evaluation of family circumstances must be taken into account. There were concerns that placing young people in home environments where they might otherwise be in secure accommodation could have implications for the welfare and wellbeing of either young people at likely risk from their family situation, or other family members at risk from the young person's behaviour.

8.4.1.8 In terms of the two options outlined in the consultation report, opinion was very divided, and there seemed to be an anomaly between the options. One group of responses argued that because electronic monitoring was a very high tariff with serious implications, it should only be used as a method of last resort in a small number of extreme cases and should not be used as a sanction for more minor offences or breaches of other measures. This group of respondents therefore gave qualified support for electronic monitoring only as an alternative to secure accommodation. A second group of respondents argued that as secure accommodation was based on the welfare of the child, and in particular children at risk of harming themselves and others, they could not envisage circumstances in which electronic monitoring could offer an alternative to secure accommodation on welfare grounds. It was highlighted that the extent to which this dilemma is important is reflected in the high proportions of young people in secure accommodation who are at risk of harming themselves and others, and similarly high proportions of these young people would be at risk in their home environment. It was also queried whether educational provision would continue to be made for young people subject to electronic monitoring. As proportions of respondents were similar for these two positions, it is not possible to draw firm conclusions about which option is preferred.

8.4.1.9 It was argued that if secure accommodation was to become a sanction for breaches, then it would then serve two functions, both punitive and also welfare/educational. There were concerns about how these two functions could be reconciled.

8.4.1.10 Both supporters and opponents of electronic monitoring regarded the proposals as having considerable resource implications, both in providing the required levels of support within communities and in the likely impact on the demand for secure accommodation arising from breaches.

8.4.1.11 It was requested that consideration of electronic monitoring should form part of a wider review about the rationalisation and prioritisation of secure accommodation places.

8.4.1.12 It was suggested that greater use of street outreach services at risk times (evening and weekends) may offer an alternative to electronic monitoring in some cases

8.4.1.13 Further information was sought about the technical application of electronic monitoring. In particular, there was confusion about whether monitoring systems would enable the precise location of a young person to be tracked at any given time, which may have some welfare applications in certain circumstances, or whether the system would only enable notification that a young person was not in their prescribed location, which would allow a breach to be identified, but would have less welfare applications.

8.4.1.14 Given the serious reservations about electronic monitoring, including by those who support it, there was strong support for review periods to be no longer than the three months suggested in the consultation document.

8.5 Extending Restriction of Liberty Orders (RLOs) to Under-16s

In addition to extending the provision of electronic monitoring to Children's Hearings, the Scottish Executive proposes to extend the options available to the courts by providing electronic monitoring as an alternative to detention in some cases. Current legislation already provides for a court to impose a restriction of liberty order on offenders aged 16 and over, and these have been available across Scotland since May 2002. Electronic monitoring is used to monitor if offenders are complying with the terms of their orders. The Scottish Executive plans to extend the arrangements in place for the adult scheme to cover those young people under-16 in the courts. The consultation document sought views on:

19. Do RLOs for the under-16s in court require any additional support arrangements?

20. The period of restriction for an adult is 12 hours per day and/or from a place for 24 hours a day for a period up to 12 months. What should be the period of restriction for an RLO for those under-16s?

8.5.1 Additional Support Arrangements for RLOs for Under-16s

8.5.1.1 There was a majority view that RLOs could be an important measure in a small number of cases, including supporting a transition from secure accommodation back into the community. Although the punitive element of a RLO was recognised, many respondents argued that restricted time should be spent constructively, and that it should not equate, in the words of the National Youth Justice Co-ordinators Group, 'simply to house arrest.'

8.5.1.2 A small number of responses, including several children's charities, the Scottish Institute of Residential Childcare and the Scottish Child Law Centre indicated that they were opposed to RLOs for under-16s. These orders were regarded as being in contravention with children's rights legislation and their punitive basis was not, in these respondents' views, useful in addressing the problematic behaviour.

8.5.1.3 A number of respondents also stated that RLOs would be more effectively implemented as a disposal within the Children's Hearing System. Youthlink argued that diverting young people likely to be subject to a RLO into structured youth activity, within which their movements would be restricted, may offer a more effective disposal than RLOs for under-16s.

8.5.1.4 There was near unanimous agreement that RLOs applied to under-16s would require additional support arrangements. This included support to families. It was emphasised that although primarily conceptualised in the document as a punitive measure, RLOs would do little to address behaviour without extensive support arrangements. Such arrangements would have considerable resource implications for social work departments and education departments who were also envisaged as having a role to play in monitoring RLOs. There were also resource implications for the police in monitoring RLO conditions and responding to breaches. It was suggested that RLOs should be linked to individual support orders.

8.5.1.5 Responses suggested that there was a role for the Hearing system, social work, education, the police and youth agencies in the development of additional support arrangements. This holistic approach would enable the full circumstances relating to each young person to be taken into account. It was also believed by some respondents that a multi-agency approach, in which several organisations supported and monitored an individual may have more likelihood of facilitating the conditions of a RLO being met. On the other hand, the Scottish Youth Parliament reported that young people believed that having a dedicated 'personal' officer for each young person would be most effective.

8.5.1.6 It was noted that these support arrangements should take into account the educational needs of the young person involved, and also friendship ties, social networks and access to leisure. The requirements of parents and other family members should also be considered in support arrangements. CIH Scotland further argued that support arrangements should consider the needs of immediate neighbours. It was strongly argued by several responses that a full assessment of the needs of the young person, and their circumstances, including their home situation, in addition to a clear defining of the objectives of an order should be carried out prior to such an order being applied for.

8.5.1.7 Several responses noted that support arrangements would need to pay close regard for RLOs to increase tensions within what may be already fragile family relationships. Childline Scotland and some other respondents argued that regular reviews of the home situation should be carried out throughout an order as family circumstances could deteriorate, partly because of tensions arising from a RLO.

8.5.1.8 To be effective, it was agreed that RLOs would require the support of the young person and their parent(s) or guardians. There was widespread recognition that support would need to be provided to parents if they were to contribute to the requirements of a RLO being met. A small number of responses sought clarification about the extent to which RLOs could impact on other family members (for example in relation to having a holiday). The exact terms of breaches would also need consideration, with the example being given of a single parent household where that parent worked, or was called away on an emergency, potentially leaving a young person subject to an RLO unattended in the home. Further clarification was sought about the consequences of a breach, and whether this would be referred to the Children's Hearing System.

8.5.1.9 It was emphasised by a number of responses, including the Children's Panel Training Trusts, that the court should seek the advice of the Children's Hearing System before issuing a RLO.

8.5.1.10 Two responses, from the Scottish Children's Administration and Stirling Council, emphasised the point that RLOs should only be applied to offending behaviour that would otherwise be dealt with by the courts and several responses sought Scottish executive guidance on the use of RLOs for under-16s.

8.5.2 The Period of Restriction for RLOs for Under-16s

8.5.2.1 A relatively small number of respondents offered a particular view on this issue. Of those who did, a number of positions were given. The largest group, though not a majority of those answering this question, favoured similar periods of restrictions as for over-16s, both in daily hours and the length of time the RLO would exist for. However, many of these responses stressed that these same parameters should be the absolute maximum and would not apply in all cases. A smaller number of responses suggested that there should be a maximum of six months, because in the words of one respondent: "12 months will seem like a lifetime to someone under 16." One response also suggested that 10 hours a day should be the maximum imposition for a young person under-16. Another response also argued that particular consideration should be given to the maximum period of restricted liberty for those young people at the lower end of the age spectrum to which these orders would apply. Only three responses suggested that the limits of restriction should be greater than those currently applying to adults.

8.5.2.2 A large number of responses indicated that the exact periods of duration could be decided after all appropriate factors had been taken into account, and that there should therefore be a degree of flexibility. Related to this, a small number of respondents, including YMCA Scotland, suggested that flexibility should be built into RLOs to enable restrictions to be gradually reduced in response to positive behaviour, or to allow a sustained period of demonstrating the required behaviour to result in a cessation of the order. One responding organisation, who wished to retain confidentiality, suggested that the daily/weekly length of time of restrictions should be gradually reduced over the course of the order, subject to positive behaviour, because a sudden ending of the orders had proved to be problematic in similar existing schemes.

8.5.2.3 It was argued by a number of respondents that RLOs were more likely to be effective over a short period of time, and with older children (it was stated that evidence suggests that breaches were more likely to occur after three months and with younger children). Perth City Centre Safety Partnership suggested that RLOs be introduced for a short period of time, but that their implementation was fast tracked so that orders were more closely linked to the problematic behaviour.

8.5.2.4 There was universal agreement that RLOs for under-16s should be subject to regular review processes, with no more than three-month intervals. One response suggested monthly reviews and several responses suggested similar review periods to those used in the monitoring of secure accommodation orders (21 days and then every three months).

8.5.2.5 In relation to the spatial dimensions of a RLO, YMCA Scotland and West Lothian Council argued that restrictions should only apply to premises or locations where the young person concerned had demonstrated consistent and routine offending behaviour, particularly where this was of an aggressive nature. Several responses were concerned that RLOs should not interfere with access to educational opportunities. As one respondent put it, 'complete exclusion from a particular place should be decided after consideration of various factors including family contact, education, and the views of the young person and agencies involved.'

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