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08 SPECIAL PROTECTION MEASURES

Articles: 10, 22, 30, 32-36, 37, 38-40

A) CHILDREN IN SITUATIONS OF EMERGENCY

Asylum seeker and refugee children

Articles 10, 20 and 22

545 Although immigration and asylum matters are reserved, Scotland has a long history of welcoming refugees and asylum seekers and their children. The UK government's dispersal policy, introduced in 1999, led to large numbers of asylum seekers and refugees settling in Scotland, particularly Glasgow. The Scottish Refugee Council estimates there are currently approximately 10,000 refugees and asylum seekers living in Scotland, mainly in Glasgow. There is a higher percentage of families with children in Glasgow compared to other dispersal areas in the UK, which has an impact on, for example, the issues involved with family removals, and on the planning and provision of services.

546 The Executive is responsible for devolved issues which relate to asylum seekers who are living in Scottish communities while their immigration application is being processed. The Executive has the same responsibilities for refugee children as it has for all children. This includes integration initiatives, such as English language classes and interpreting/translation assistance, and services such as health care, education and legal advice. Any change to that access eg in the removal of entitlement to these services for appeal rights exhausted families, is a reserved matter.

547 The Executive is committed to supporting the effective integration of refugees and asylum seekers into Scottish society. The Scottish Refugee Integration Forum ( SRIF) was established in January 2002 to allow Scotland's statutory and voluntary agencies to work in partnership to support refugees and asylum seekers more effectively. The Forum produced an Action Plan in 2003 which identified a number of key actions designed to make a real difference to the lives of asylum seekers and refugees in Scotland. These actions relate to improving access to services, translation and interpretation support and breaking down barriers to employment.

548 The Forum was reconvened in December 2005 to draw up a further set of actions to address any new and emerging issues affecting integration since the Action Plan was published. Six subgroups were set up to look specifically at housing, access to justice, employment and training, health and social care, community development and children's issues. The Children's Sub Group of the Scottish Refugee Integration Forum suggested a number of action points which will inform the development of an overarching national Strategy and Action Plan on Race Equality, to be published in draft later in 2007.

TABLE 69 Ethnicity of asylum seekers and refugees in schools, 2005-2006 ⁽¹⁾

(1) Does not include grant aided special schools.
Source: Pupil Census,2006

Discussions with the Home Office on family removals

549 In autumn 2005, significant public, political and Ministerial concern emerged in Scotland about the processes used by the Immigration and Nationality Directorate of the Home Office (now the Border and Immigration Agency ( BIA)) to remove failed asylum seekers - in particular the treatment of families with children. Concerns centred round the family removal process, for example early morning removals (so-called "dawn raids") were seen by many as unnecessary. There was concern about children and families being uprooted from communities where they had lived for many years while waiting for their cases to be concluded.

550 In the light of these concerns, Scottish Ministers undertook to explore with their Home Office counterparts what steps could be taken to ensure that the children of asylum seekers were properly supported while in Scotland and that when a removal was required it was carried out humanely. These discussions covered a wide-range of issues and led to the development of a significant package of measures, announced in March 2006. This package will help ensure that decisions about removals are made on the basis of all relevant information, that removals are carried out using proportionate and humane approaches which respect the interests of any children involved, and that the removals process is subject to independent scrutiny and review. Individual decisions about asylum, and about whether, when and how failed asylum seekers will be removed will continue to be made by BIA.

551 Agreement has been reached with BIA and Glasgow City Council for lead professional arrangements. The lead professional team will be based in Glasgow City Council. It will gather information (with the informed consent of families) about the health, welfare and education of the children of asylum seekers. This will be made available to BIA for consideration as part of its "case resolution" process - a review of all outstanding asylum cases (known as legacy cases) in Scotland. The case resolution process is expected to begin in September 2007 and take up to 4 years to complete.

552 The Executive asked HMIE to carry out an inspection of services provided (by local agencies) for the children of asylum seekers in Glasgow to help ensure the quality of the services provided. This Joint Inspection was carried out in autumn 2006 and the report was published in June 2007. Its findings were generally positive, of the ten quality indicators calculated in the inspection, six were good or very good with the remainder being adequate. In addition, there is legislation before the Westminster Parliament that if passed will establish an independent inspectorate for BIA. It is proposed that it will inspect BIA activity like the quality of asylum decision making and will inspect BIA enforcement work - including family removals. These inspection strands will address concerns that there has been no basis on which the removals process itself, or the support provided to families and children, was subject to independent scrutiny and public reporting, against clear standards.

553 Enhanced background checks on all BIA staff involved in family removals are being carried out to ensure it is appropriate for them to work with children. This will address concerns that staff involved in removals, who may have unsupervised access to children at times of considerable stress, have not been subjected to the same level of enhanced disclosure checking required for other staff working with children.

554 The appointment of a BIA Regional Director for Scotland has helped address concerns that communications between BIA and local agencies (for example schools) have been haphazard, and that there have not been good systems for ensuring good communications and routes to raise concerns with BIA.

555 There is widespread agreement that families opting to return of their own volition is preferable to forced removals. To that end, an enhanced package of financial and integration support is available for any asylum seekers opting for voluntary return. This provides a significant lump sum, and practical support. BIA is also committed to improving information for and communication with local communities to help them ensure asylum seeker families have the best possible advice and information needed to judge what is in their children's best interests. The Executive has undertaken to help take this forward in Scotland.

Provision for unaccompanied minors

Articles 1,10,20 and 22

556 On arrival in Scotland, Unaccompanied Asylum Seeking Children ( UASCs) are classed as "looked after" children and are supported by local authorities in keeping with their duty under the Children (Scotland) Act 1995 to provide for children in need. Currently, an individual UASC becomes the responsibility of a particular local authority for no other reason than it happens to cover the area where the person first arrived in Scotland or otherwise first came to attention as being in need of support. This is the case regardless of whether that authority is overstretched by the numbers it is already dealing with or lacks the necessary expertise and specialist infrastructure. The local authority in question then notifies the Home Office that it is supporting the individual and will receive additional funding to help provide that support. The child is looked after by the local authority until he or she turns 18 when their asylum case is heard.

557BIA does not consider these arrangements to be adequate to ensure the quality of care for these individuals - a view shared by local stakeholders in Scotland. BIA consulted in spring/summer 2007 on their proposals to reform the way that UASCs are supported while in the UK. If accepted, these reforms will result in all UASCs being transferred to a set number of "receiving" local authorities (in Scotland this is likely to be just Glasgow). This will allow the development of specialised services, and the availability of well trained and experienced staff, at local level to support these children. It will also ensure a consistent level of service for all UASCs in Scotland and better value for money.

Use of detention for asylum seekers in Scotland

558 Following the opening of a family detention centre in England (Yarl's Wood in Bedfordshire) the Home Office decided that failed asylum seekers with children awaiting removal from the UK would all be held there. As a result, children and families are no-longer held for more than 72 hours in the Dungavel detention centre, the only such centre in Scotland, other than in exceptional circumstances. Some families that have been detained prior to removal may be held at Dungavel for a short time prior to transportation to Yarl's Wood. In the unusual event of a family being held for 21 days or more there is an agreement between the Centre and South Lanarkshire Council that the authority will conduct a welfare assessment. Child protection issues are also notified to social work as and when they occur. The operation of Dungavel is the responsibility of the Home Office.

559 Unaccompanied children seeking asylum are not held in detention. As with all looked after children they are provided with the same levels of support and protection as any other child in these circumstances, including the provision of appropriate accommodation.

B) CHILDREN IN CONFLICT WITH THE LAW

Articles 1,12, 20-25,37-40

Developments in youth justice

560 Tackling youth offending is a key priority for the Executive. There have been a number of Ministerial initiatives aimed at building the necessary infrastructure to tackle youth offending effectively and to expand the range, capacity and quality of services designed to prevent children from offending and to work with those who are offending. Key amongst these were the 10-point Action Plan and National Standards for Scotland's Youth Justice Services, published in 2002 in order to achieve the national targets of reducing the number of persistent young offenders by 10% by 2006 and full implementation of the National Standards.

561 To support these initiatives the Executive has significantly increased funding for youth justice. Funding to specifically deal with youth offending (£3.5m per annum) first came on stream in 2000-01. This has steadily increased and now stands at £63m per annum. This funding has enabled the establishment of multi-agency youth justice teams in every local authority area and a significant increase in the number and range of services to support young people who are offending or at risk of offending. This includes a number of innovative new approaches such as the SSP (school, social work, and police) model which has worked well in Scandinavia and is now being trialled in a number of Scottish local authorities.

562 In July 2006 the Executive set out progress towards meeting the 10-point Action Plan and the National Standards. The report suggested that children's offending was being tackled more quickly and local agencies were getting a better grip on who the main offenders were - and that the new measures introduced by the Antisocial Behaviour etc (Scotland) Act 2004 have helped in concentrating and focusing local action. Some local authorities and agencies have achieved significant reductions in youth offending.

563 Since 2000, all local authorities in Scotland have developed restorative justice services as part of their youth justice provision. Restorative justice addresses the harm caused by the child responsible and provides an opportunity for those who have been harmed to have their needs met. The ethos behind restorative justice fits well with the principles of the UNCEC. Participation is voluntary and best practice guide lines ensure that children are treated with dignity and respect whether they have been harmed or have offended.

564 The Executive's target to reduce the number of persistent young offenders by 10% by 2006 was not met. This target has proved vital in identifying local successes, highlighting problem areas and improving outcomes for youngsters and communities across Scotland. The framework of National Standards, backed up by the major investment in local services has helped local agencies tackle youth offending, and the target has kept the focus firmly on results. A further target has been set - a further 10% reduction in persistent offender numbers by 2008.

565 The multi-agency Youth Justice Improvement Group, led by the then Minister for Justice was set up in 2005 to take forward development of the youth justice agenda. The group reaffirmed the principles of the Children's Hearings System and the welfare based approach to tackling offending in line with the Beijing rules and prevention of offending, in line with the Riyadh guidelines and as recommended by the 2002 Concluding Observations. There has been considerable focus on preventative approaches and working with families at an earlier stage to stop vulnerable children becoming involved in offending. The group also identified a need to work more effectively with those who are involved in offending, including more focus on evidence based approaches to work with young offenders and the quality and effectiveness of practice.

The Children's Hearings System

566 The Children's Hearings System, which has the best interests of children at its centre, is the primary forum for dealing with offending behaviour by children. Before referral to the Hearings System is made, consideration should be given to whether a voluntary or diversionary intervention would be an effective means of improving behaviour. When it is considered appropriate, a Children's Hearing may impose compulsory measures of supervision (a supervision requirement) setting out what a child should do or refrain from doing. This may include a requirement on the child to take up and co-operate with programmes and other support measures aimed at addressing their needs and behaviours.

567 If a child fails to comply with the terms of their supervision requirement they can be referred back to a Children's Hearing for further consideration of their circumstances and how to address them. A child cannot be referred to a court for not complying with their supervision requirement.

Children in Court

568 The 2002 Concluding Observations recommended that no child should be tried as an adult regardless of the circumstances of the offence. While this is not ruled out under Scots Law, the Criminal Procedure (Scotland) Act 1995 provides that no child under the age of 16 should be prosecuted in court except on the instructions of the Lord Advocate. The Children's Hearings System rather than the courts ordinarily deals with children who offend up to the age of 16 - in addition, those children who are subject to a supervision requirement when they turn 16 may continue to be dealt with by the Hearings System until they reach 18. The Lord Advocate has issued guidance to all Scottish police forces on the circumstances in which offences alleged to have been committed by under 16s are to be reported to the Procurator Fiscal (for prosecution) rather than to the Children's Reporter (for the Children's Hearings System). The categories of cases to be reported are:

• offences which require by law to be prosecuted on indictment or which are so serious as normally to give rise to solemn proceedings;
• offences committed by children aged 15 or over which in the event of conviction require or permit the court to order disqualification from driving;
• offences alleged to have been committed by children (as defined above) aged between 16 and 18; and
• breaches of Antisocial Behaviour Orders alleged against children aged 12-15.

569 In the circumstances above, the report is submitted by the police to both the Procurator Fiscal and the Children's Reporter. The Procurator Fiscal then decides, in consultation with the Reporter, whether the case should be dealt with by prosecution or by the Children's Hearings System. Internal guidance for Crown Office and Procurator Fiscal Service staff states that the presumption where the child is under 16 is that the case should be referred to the Reporter in all but the most serious cases; where the child is aged over 16, the presumption is that the case should be dealt with by prosecution.

570 The Executive has targeted 16 and 17 year olds as part of its roll-out of schemes designed to divert people from prosecution. Diversion schemes allow a Procurator Fiscal to refer an accused to social work or other agencies where formal criminal justice proceedings are not required. They permit persons accused of relatively minor offences (and where there is no overriding public interest for a prosecution) to be dealt with outwith the court.

571 Where diversion from prosecution is not considered appropriate, children aged 16 and 17 who offend would ordinarily be dealt with through the court, unless they are already subject to a supervision requirement. The Executive did, however, bring forward proposals as part of the Criminal Justice Bill in 2002 to introduce a pilot scheme whereby first time and minor offenders aged 16 and 17 would be dealt with by the Children's Hearings System. This proposal was withdrawn once it became clear that there it was not widely supported by the Parliament and had no chance of becoming law.

572 Section 49 of the Criminal Procedure (Scotland) Act 1995 gives the criminal court the power to refer a child to the Children's Hearings System for advice and/or disposal following a guilty plea or conviction. For a child under 16 and not subject to a supervision requirement, the court may remit for disposal by a Children's Hearing or may ask for the advice of the Hearing, and then either dispose of the case itself or remit to the Hearing for disposal. For a child up to 18 years, who is subject to a supervision requirement, the High Court may and other courts shall, ask for advice from a Children's Hearing, and then either dispose of the case itself or remit to the Hearing for disposal. For a young person between 16 years and 17 and a half years who is not subject to a supervision requirement, the court in summary proceedings only, can ask a Children's Hearing for advice and then either dispose of the case itself or remit to the Hearing for disposal.

573 The previous Executive undertake a pilot of a youth court dealing specifically with 16-17 year olds, who would otherwise have been dealt with through the adult court. Youth courts have specially designed disposals geared to the specific needs of 16-17 year olds otherwise the rules of procedure followed are broadly the same as for the adult court. The youth court model is designed to encourage a multi-agency approach to tackle repeat offending and the swiftness of the process not only reduces the opportunity for further offending in the period between charge and court appearance but also allows victims of crime to see a more speedy outcome. The Scottish Government will be reviewing whether the Youth court model offers effective means of dealing with this age group.

574 In 2005-06 a total of 7955 persons aged under 18 (including 135 under 16s) were convicted in Scottish courts. Of these, 807 resulted in a custodial sentence, including 23 for persons aged under 16.

Publicly-funded legal assistance for children

Article 40

575 Legal aid and advice and assistance are available to children in criminal and civil court proceedings. The budget for legal aid is not cash-limited, but payments are made subject to statutory tests on the basis of fees allowed by regulations. Children's legal aid fees for those in the Children's Hearings System of approximately £3.8m for approximately 3,400 cases were paid out of the Legal Aid Fund in 2005-06. In addition, more than 27,000 legal aid grants were made for under 18s in the criminal justice system. Changes to the legislative procedures involving children are constantly monitored and amendments can be made to legal aid regulations to ensure that publicly funded legal assistance can be provided. No changes have been made recently.

Giving Evidence in Court

576 The Vulnerable Witnesses (Scotland) Act 2004 contains special measures and other provisions specifically designed to help children give evidence in court. These measures and provisions are available to both prosecution and defence witnesses including accused persons in criminal proceedings and to witnesses for either party in civil proceedings and Children's Hearings court proceedings.

Sentencing of under 18s

Articles 25 and 37

577 Children under 18 cannot be sentenced to capital punishment or life imprisonment in Scotland. Section 207 of the Criminal Procedure (Scotland) Act 1995 provides that it is not competent for a court to impose imprisonment on any person under 21 years of age. Offenders aged between 16 and 21 who, without this provision, could have been imprisoned, can be detained in a young offenders' institution ( YOI). Section 207 also provides that a social enquiry report must be obtained before detention is imposed and that detention is only to be imposed where no other method of dealing with the offender is appropriate.

578 Section 205 of the Criminal Procedure Act provides an exception to the general rule of a mandatory life sentence for murder in respect of any under 18 who is convicted of murder. Instead, they can only be sentenced to detention without limit of time in such place and under such conditions as Scottish Ministers may direct.

Remand and under 18s

579 Internal guidance available to Procurators Fiscal on bail in cases involving child offenders makes reference to Article 37(b) of the UN Convention and accordingly states that a child offender should be released on bail or ordained to appear at court unless there are compelling reasons for having him detained pending trial. This section of the guidance was revised in February 2004. The Lord Advocate's guidance to Procurators Fiscal has the effect that prosecutors will only request that the court remands in custody a child offender if there are compelling reasons for doing so.

580 Where a child is remanded in custody pending trial, section 51 of the Criminal Procedure Act provides that children under 16 who are not certified as unruly or depraved should be committed to a local authority to be detained in secure accommodation or in a suitable place of safety. Children aged 16-18 and under local authority care may be dealt with in the same way as children under 16 or may be remanded in a YOI or a prison. Children aged between 14 and 16 and certified by the court as unruly and depraved are to be remanded in a YOI, a prison or in a remand centre.

581 Children certified as "unruly" are those whose behaviour is so challenging that the courts have decided that they are deemed to be a risk to everybody's safety including their own and special arrangements are required as it would be inappropriate to place them in local authority secure accommodation at that point in time.

582 Internal guidance for Procurators Fiscal provides that they should only seek to have a child detained as unruly or depraved in exceptional circumstances where, taking into account all available information from the police, the Children's Reporter and the local authority, it is considered that the child cannot be safely detained in local authority secure accommodation. The non-availability of secure accommodation does not lawfully justify unruly certification. Ultimately, the certification of a child as unruly or depraved is a matter for the court to decide.

583 Where a decision is made to remand these children to an adult prison they typically spend a very short time in a segregated area of the prison while arrangements are made to move them to a YOI. It is not Executive policy to hold children between the ages of 14 and 16 for any length of time in an adult prison. For those children aged 16-18 who are not under local authority care the situation is the same as for those who are in care. They can be detained in local authority secure accommodation or may be remanded in a prison or a YOI.

Age of criminal responsibility

Articles 1 and 3

584 The Executive has noted the recommendation of the UN Committee that the minimum age of criminal responsibility in Scotland should be raised considerably.

585 The position was last reviewed in 2001 and Ministers concluded that age 8 years continued to be an appropriate threshold, in the context that:

• more than 99% of children who offend are dealt with through the Children's Hearings System;
• the System is welfare based, i.e. when a child offends this is addressed in their own best interests - there is no punitive outcome; and
• for the small number of children prosecuted in the courts, referral to the Hearings System for advice and/or disposal is the normal outcome for all but a tiny minority.

586 Although other countries have a higher age of criminal responsibility, this may often be shifted depending on the seriousness of the offence. Many other countries also respond to children who may have offended through a process and with measures designed to be punitive in nature. In short, Scotland responds differently.

587 The table below sets out the age of children referred to the Children's Reporter. In contrast (as set out above), only 135 under 16s were convicted in Scottish courts in 2005-06: just 7 were aged 13 and under; 18 were aged 14 year; and 110 were aged 15.

TABLE 70 Children referred to the Children's Reporter on offence and non-offence grounds by age, 2005-06

Source: Scottish Children's Reporter Administration
Note: Age not recorded for 5 children

Privacy of children in conflict with the law

588 Paragraph 62(d) of the 2002 Concluding Observations recommended that the privacy of all children in conflict with the law is fully protected in line with Article 40(2)(b)(vii) of the Convention.

Children's Hearings

589 Section 43 of the Children (Scotland) Act 1995 provides that a Children's Hearing must be conducted in private and that members of the public are not allowed to attend. The only persons who would normally be present will be those who are necessary for a proper consideration of the child's case. Section 44 of the 1995 Act prohibits the publication of any matter anywhere in the UK that is either intended to or is likely to identify any child who is subject to proceedings at a Children's Hearing. This was extended by the Criminal Justice (Scotland) Act 2003 to protect the identity of child victims of youth crime, and any child connected in any way with the Hearing's proceedings.

Civil proceedings

590 The Children and Young Persons (Scotland) Act 1937, section 46 provides for the protection by the court of the identity of young persons. In any proceedings, the court may direct that no report may reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any person under the age of 17 years concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken or as being a witness and no picture may be published as being or including a picture of any such person. The Children (Scotland) Act provides for the protection of the identity of children before a Sheriff in relation to certain orders or on referral from Children's Hearings.

591 Proceedings under the Adoption Act 1978 must take place in private unless the court otherwise directs.

Criminal proceedings

592 Section 142 of the Criminal Procedure (Scotland) Act 1995 provides that no person shall be present at Summary criminal proceedings brought against a child, except officers of court, parties to the case and their solicitors, witnesses, bona fide members of the press and such other persons specially authorised by the court. A child in this case will be under 16, or under 18 and currently under a supervision requirement. The provisions do not apply where the child is charged jointly with an adult.

New legislative provisions

593 The 2002 Concluding Observations recommended a review of the new orders introduced by the Crime and Disorder Act 1998. Building on the experience of the 1998 Act, the Executive introduced a number of similar measures to tackle antisocial and offending behaviour, including by children, through the Antisocial Behaviour etc (Scotland) Act 2004.

594 Antisocial Behaviour Orders ( ASBOs) for 12-15 year olds are preventative orders intended to protect people in the community, including children, from further acts or conduct that would cause them alarm or distress. Like ASBOs for adults, they can be applied for by a local authority or a registered social landlord. Scottish Executive guidance on the use of ASBOs for under 16s makes clear that they should complement the Children's Hearings System which should continue to be the primary forum for dealing with offending behaviour by children. Indeed, breaches of ASBOs by 12-15 year olds will be jointly reported to the Procurator Fiscal and the Children's Reporter and the Fiscal has the discretion to pass such cases to the Reporter (for resolution within the Hearings System) where appropriate. ASBOs are only intended to deal with a small number of persistently antisocial children for whom alternatives are not working - and that is the way they are being used. The provisions have been implemented for almost two years and, so far, only a handful of ASBOs for under 16s have been sought. There is a presumption that court proceedings involving Antisocial Behaviour Orders ( ASBOs) for under 16s will be held in private.

595 While the ASBO provisions for under 16s are similar to those in England, there are important differences. ASBOs in Scotland can be applied to young people aged 12 and above, compared to 10 and above in England. The 2004 Act also specifically prohibits the use of imprisonment as a sanction for breach of an ASBO by an under 16.

596 The key role of the Children's Hearings System in relation to ASBOs makes the use of ASBOs very different in Scotland to the rest of the UK. Before granting an Interim ASBO the sheriff must take account of the views of the Children's Reporter. It is likely that the majority of children being considered for an ASBO will be well known to the Hearings System and the Reporter will be able to pass on a range of relevant information that will ensure the best interests of the child are taken into account, for example whether the child has any particular additional support needs or behavioural difficulties that might be contributing to their offending behaviour. Executive guidance is clear that ASBOs are not intended to address behaviour that is merely different or the result of a medical or developmental condition. Before granting a full ASBO, the sheriff must take account of advice from a Children's Hearing as to whether an ASBO is necessary to protect people from further antisocial behaviour. When an ASBO is granted against an under 16 the sheriff also has the power to refer the child to a Children's Hearing to consider whether they need help and support through a supervision requirement.

597 As well as the Hearings System, another means of early intervention is an Acceptable Behaviour Contract ( ABC). These are written agreements between an individual involved in antisocial behaviour and a relevant agency working to prevent such behaviour. They will outline the behaviour to be stopped and the support the individual can expect to receive from the agencies concerned to help them change their behaviour. They can also be used with parents who are not taking action to prevent the antisocial behaviour of their children. Although ABCs are voluntary and non-statutory, they can act as a strong deterrent when the individual knows that if they break the contract legal action may follow. Breach of an ABC or refusal to enter into one without reasonable excuse can be considered relevant evidence for an application for an ASBO. In the case of 12-15 year olds, use of an ABC should be considered on an interagency basis to ensure that the contract is reasonable and complements interventions currently in place or being considered by other agencies.

598 The 2004 Act amended the Criminal Procedure (Scotland) Act 1995 to allow for Restriction of Liberty Orders (ie the use of electronic monitoring) to be imposed on offenders under 16 who are dealt with by the court system. The 2004 Act also provides that a court cannot grant an RLO for an under 16 unless it is satisfied that the relevant local authority will provide appropriate services to support and rehabilitate the child whilst they are subject to it.

599 Intensive Support and Monitoring Services ( ISMS) (electronic tagging via the Children's Hearings system) were introduced by the 2004 Act in 7 local authorities. ISMS are a direct alternative to secure accommodation, and are made by Children's Hearings as conditions of supervision requirements. ISMS consists of a wrap around package of care and work with the child to change their behaviour, reduce risks and increase resilience, coupled with an electronic monitoring device which helps to provide structure and boundaries to a child's life.

600 Courts, in dealing with those persons aged 12 and above who have been convicted of an offence involving anti-social behaviour, have access, as a result of the 2004 Act, to a new disposal, the Community Reparation Order ( CRO). These orders, which are currently being piloted, require the offender to complete between 10 and 100 hours of unpaid work in the community. It is anticipated that very few if any CROs will be imposed on under 16s as the vast majority of such cases are dealt with through the Children's Hearings system.

601 A new power of dispersal was introduced by the 2004 Act to bring relief to communities and deal with antisocial behaviour in particular trouble-spots. A senior police officer must consult the local authority before designating an area where antisocial behaviour is a significant, persistent and serious problem. Police have power to disperse where groups are causing alarm or distress (by presence or behaviour) in the area. It is only an offence if instructions to disperse are not followed. Up to end September 2006, there had been 13 dispersal orders granted across Scotland.

602 There was concern expressed during the passage of the 2004 Act that the dispersal powers were targeted specifically at children. This was not and is still not the case. Dispersal orders, which are designated on an area rather than a specific group of people, are designed to give respite to communities that are suffering from serious antisocial behaviour, regardless of the age of the perpetrators. The powers are not intended to be used as a first resort or in isolation and there is certainly nothing in the provisions which would allow a police officer to disperse persons of any age who are merely gathering peacefully in the streets of their communities to meet and enjoy each other's company.

Children in detention

Article 37

603 As set out in paragraph 36 above, the Executive's policy is to avoid, wherever possible, depriving under 16s of their liberty under any circumstances and if it is necessary, it must be for the shortest appropriate period of time. Occasionally, there are circumstances under which detaining under 16s in a young offenders' institution ( YOI) (which in Scotland holds offenders under the age of 21) or an adult prison cannot be avoided. These circumstances are quite distinct:

• under 16s who must be detained can be held in a YOI for a very short time pending availability of a secure place;
• under 16s held in a YOI because it is judged that is more appropriate than a secure unit - and held under an 'unruly certificate' issued by the courts;
• in exceptional circumstances held in an adult prison for a very short period pending their transfer to a YOI; and
• in very rare cases where instructed by the court.

604 The majority of those children who are recorded as being held in YOIs are children whose behaviour is so challenging that the courts have certified them as "unruly".

605 The decision to detain a person under 18 convicted of an offence lies with the court. The Executive has however extended the range of statutory disposals available to courts beyond the traditional community sentences of probation and community service. The new disposals include, for example, Restriction of Liberty Orders, Drug Treatment and Testing Orders, and Community Reparation Orders. In addition, from September 2007 all courts will be required to impose a Supervised Attendance Order in dealing with those under 18 who have defaulted on a fine not exceeding £500 and who might otherwise have received a short custodial term. All under 18s held in a YOI are provided with health, education and welfare services provided by professionally qualified staff, for example social workers, teachers, doctors and nurses.

606 Retention in or transfer to a YOI from a secure unit will only be considered if a child's behaviour remains or becomes completely unmanageable within the current placement or where, for example, the child is convicted of further serious charges which suggest that the child would present an unacceptable risk to the safety of other residents or staff. Conversely, where a child makes suitable progress he or she will be considered for a move from a secure establishment to an open setting within the child care system. The policy is also to avoid wherever possible an under 16 being detained in police cells.

TABLE 71 Under 18s held in prison, by age

Source: Scottish Prison Service
Age is at time of first entry during the year or start of the year if already in custody
*There was a third person aged 14 but they are not counted here as they didn't spend a night in custody and were released the same day.

TABLE 72 Under 18s held in prison, 2005-06

Source: Scottish Prison Service
Notes: The remand and sentence figures do not add to the total because some served time both as a remand and a sentenced prisoner. The remand figure includes those who are convicted but are still awaiting sentence.

TABLE 73 Under 18s held in prison, continuous periods in custody, 2005-06

Source: Scottish Prison Service
Notes: The remand and sentence figures do not add to the total because some served time both as a remand and a sentenced prisoner and sometimes these periods would follow directly on from each other without the prisoner leaving custody. The remand figure includes those who are convicted but are still awaiting sentence.
*Some had more than one period of custody

607 The Executive has introduced a number of initiatives to help meet the policy aim of keeping children out of detention wherever possible:

• increasing the number of secure accommodation places provision to 125 by 2007 to avoid as far as possible placement of under 16s in YOIs;
• Intensive Support and Monitoring Services as a direct alternative to secure accommodation; and
• the Intensive Support Fund designed to improve the quality of community based supervision of children involved in offending. Projects aim to provide intensive support and structured care programmes and residential intensive support units.

Advocacy for children in detention

608 In line with the 2002 Concluding Observations, the Executive strongly supports the use of advocacy services for children in secure care. Independent advocacy and a representation service is available to all such children. It is a needs led service and children are able to attend the regular visits by Who Cares? Scotland advocacy staff or request extra meetings. Evaluation of the service is routinely collected through worker recording sheets which allows feedback from both the children and secure care staff who use the service.

609 All prison establishments have in place local authority social workers who prioritise advice to vulnerable children. There are around 65 social workers working in Scottish prisons. All prisons also have "Links Centres" where a variety of advice services are available from independent agencies to all prisoners, including under 18s. They also have access to a number of complaints routes: internal, confidential complaints procedure which is overseen by an independent complaints commissioner; and access to members of the Visiting Committee who are appointed by Scottish Ministers and independent from prisons and can investigate any complaints.

Recovery and social re-integration

610 Given the ethos of the youth justice system in Scotland, all of the funding made available to partners - £63m per annum - can be described as contributing towards the rehabilitation and integration of children into society.

611 Children's Hearings make decisions which are in the best interests of each child, taking their welfare needs into account at the same time as addressing their offending behaviour. This is a fundamental principle which underpins Scotland's system of youth justice and facilitates the physical and psychological recovery of children while making sure their offending behaviour is addressed. Objective 2 of the National Standards for Youth Justice is specifically concerned with improving the range and availability of programmes which would assist in rehabilitating children and ensuring they are integrated into society.

612 An exercise to map the range and availability of services carried out in 2003/04 showed that each local youth justice team had identified the number of places needed for children with particular needs. Details were collected on all projects, under 4 types of response - prevention, diversionary, intensive and restorative justice/services for victims.

TABLE 74 Provision of youth justice services, by category of response, 2003-04

Source: Summary Report Of Scottish Executive Youth Justice Mapping Exercise 2003-04

613 Access to programmes and other services, and the full and timely implementation of action plan and supervision requirements will continue to be the subject of joint inspection.

614 To support this work, with specific regard to reintegration of those who have been detained in a secure setting, the Children (Scotland) Act 1995 outlines the powers and duties that local authorities have to provide throughcare and aftercare for those children who are looked after by local authorities. The Executive also supports a number of related initiatives and projects:

• the provision of close support places for those leaving secure care;
• Intensive Support and Monitoring Services providing children with a supported method of reintegrating with their community;
• Scottish framework for throughcare and aftercare assessment and planning - Pathways produced in 2004; and
• the Intensive Support Fund - objective of improving the support available to those returning from secure care to their communities.

615 Specific projects to assist with rehabilitation and integration which are directly supported by the Executive, such as those funded by the Intensive Support Fund are independently evaluated. Services provided by local authorities and other partners are subject to their quality assurance procedures and will also be subject to the joint inspection of services for children in due course.

616 The Executive is providing secure units with resources for each child leaving secure care which will enable bespoke support services to be put in place in addition to those already provided in statute or regulations. This will help to smooth the transition back to the community, help them adjust to new surrounding and circumstances and improve outcomes. Two projects are also being funded to provide support to the most high risk children leaving secure care. These two projects, each covering a different geographical area but with the same client group, aim to assist with a small group of the most vulnerable and chaotic children leaving secure who will require a much more intensive level of aftercare support than either the local authorities or secure units can feasibly provide.

617 For children aged 16 and over who are dealt with through the adult criminal justice system, probation orders offer the most flexible of the available community disposals and are designed to address an individual's offending behaviour. To support the work provided for within a standard probation order a significant number of support programmes or interventions are funded to address the needs of specific groups such as young offenders.

618 The use by courts of community sentences, particularly probation orders continues on an upward trend: in 2005-06, 794 probation orders were imposed on offenders aged 16-17 and 675 Community Service Orders. Overall the number of probation orders increased by 7% in 2005-06 and community service orders by 17% over the previous year. The most recent national reconviction figures indicate a reconviction rate (for all offenders) over a 2 year period of 42% for Community Service Orders and 58% for Probation Orders compared with 60% for those discharged from custody.

Support for victims of crime

619 The Scottish Children's Reporter Administration introduced a Victim Information Service in February 2006. The Children's Reporter provides information about a case, in which an offence has allegedly been committed by a child, to victims and other specified interests. Evidence shows that the victims of crime committed by children are often children themselves. Work is also being undertaken to ensure that services for victims of youth crime are consistent with those offered to other victims and take other approaches such as restorative practices into account.

620 A range of initiatives are in place to support all victims of crime, for example funding for Victim Support Scotland, a voluntary organisation that provides emotional and practical support to victims of crime. Generally speaking, children over 14 have access to these support mechanisms in their own right, and parents and carers have access these services on behalf of children below the age of 14.

Data on children in conflict with the law

621 In 2005-06, 17,624 children and young people were referred to the Children's Reporter on offence grounds.

622 There is no specific data on recidivism rates of those in the Hearings System on offence grounds. In 2005-06, however, 1,388 of the 17,624 children referred to the Children's Reporter on offence grounds were identified as persistent young offenders (ie a child in the Children's Hearings System with 5 or more offending episodes within a 6 month period). This represents 8% of children referred to the Children's Reporter on offence grounds and 0.25% of the total Scottish child population aged 8-16.

623 Of those aged under 18 who were discharged from custody or given a non-custodial sentence in 2002-03, 60% were reconvicted within 2 years.

C) CHILDREN IN SITUATIONS OF EXPLOITATION

Articles 31 and 32

Children in employment

624 The Children (Protection at Work) (Scotland) Regulations came into force in April 2006 bringing legislation in Scotland into line with EU Directive 94/33 on the protection of children at work. The regulations limit to 12 hours per week the number that any child below 16 can work during term time. This is a reduction from the previous maxima of 17 hours per week for those under 15 and 20 hours per week for those aged 15.

625 The regulations reinforce the Executive's commitment to safeguard the educational opportunities and the health and physical wellbeing of children in employment by limiting the hours they work, while allowing them to continue to enjoy the rewards and experience of work. It is however apparent that monitoring and enforcement of the restrictions on the employment of children is inconsistent. Better monitoring is required and the Scottish Executive is committed to consulting on what a proportionate and effective system of monitoring might entail.

Extent of employment among under 16s

626 The Executive commissioned research into the extent of child employment, which was published in November 2006: www.scotland.gov.uk/Publications/2006/11/10143236/0. The researched found that for school pupils in Scotland, part-time work is a common experience. Well over half of pupils had experience of part-time employment: 59% were either currently in part-time work or had had a part-time job at some point in their secondary education. It is noticeable that older children were far more likely to have a part-time job than younger children.

TABLE 75 School pupils' part-time work status

Source: www.scotland.gov.uk/publications/2006/11/10143236/0

TABLE 76 School pupils' part-time work status by school year

Source: www.scotland.gov.uk/publications/2006/11/10143236/0

627 The research report contains a much wider range of information, including a breakdown of employment levels by ethnicity, disability, locality and parental occupation.

Sexual exploitation and sexual abuse

Articles 34 - 36

628 The Protection of Children (Scotland) Act 2003 takes forward the Executive's commitment to protecting children from risk or harm, including sexual exploitation. This provides for a list of those deemed unsuitable to work with children.

629 The Executive also brought forward the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 which strengthens the law protecting children from those who would sexually abuse or exploit them. It introduces a range of new offences including: paying for the sexual services of a child under 18; causing or inciting the provision of sexual services by a child under 18 or child pornography; arranging or facilitating the provision of sexual services by a child under 18 or child pornography; and grooming a child under 16 for the purposes of committing a sexual offence. The Act was widely supported by those working with vulnerable children as a useful tool to help reduce sexual exploitation and child prostitution.

630 The Executive also helped with the roll out of the Violent Offender and Sex Offender Register ( ViSOR) in Scotland. ViSOR is used to store and share information and intelligence on those individuals who have been identified as posing a risk of serious harm to the public. ViSOR was rolled out to the police in Scotland in early 2005, supported by funding from the Executive. Implementation across Scotland makes it easier for the police to share intelligence on sex offenders and violent offenders.

Sale, trafficking and abduction

631 The Executive and the Home Office recently published a joint UKAction Plan on Tackling Human Trafficking. The plan focuses on four key areas - prevention, enforcement and prosecution, victim support and child trafficking. The Action Plan outlines the specific actions which are being taken to combat child trafficking. The Action Plan can be viewed at http://www.homeoffice.gov.uk/documents/human-traffick-action-plan.

632 The Executive supports international efforts to tackle child sexual exploitation and abuse. The UK Government has recently indicated that it intends to ratify the UN Optional Protocol on the sale of children, child prostitution and child pornography. The Optional Protocol obliges State Parties to take necessary steps to combat the sale of children, child prostitution and child pornography, and where appropriate, to cooperate with other State Parties in doing so. The Executive's approach continues to be guided by the Agenda for Action and Global Commitment adopted by the 1996 and 2001 Congresses Against Commercial Sexual Exploitation of Children.

D) CHILDREN LIVING OR WORKING ON THE STREET

Articles 26, 27 and 34-36

633 The Rough Sleepers Initiative has been in operation since 1999. Local authorities receive funding to assess and provide for the accommodation and support needs of people sleeping rough or at risk of having to sleep rough. The Executive is not aware that families with young children are living on the street in Scotland. Some teenagers may sleep rough. Where that is the case these children would be assisted by projects funded by the Rough Sleepers Initiative but local authorities will also have duties to provide for them under the Children (Scotland) Act 1995 and the Housing (Scotland) Act 1987, as amended.

634 The Rough Sleepers Initiative provides outreach services that respond to the needs of children sleeping rough and offer some protection from exploitation, for example violence or sexual exploitation. The Executive does of course encourage children sleeping rough to come forward for assistance. Given their circumstances, those that do will be deemed as having a priority need for accommodation under homelessness legislation.

635 The Executive has provided funding support for a refuge for young runaways based in Glasgow. The refuge accommodates around 60-70 children each year, mainly aged 12-15. While it is primarily for children from the Glasgow and central belt areas, runaways who arrive in the city from elsewhere can also access the refuge. The refuge provides a safe base where children can get support and help from workers who put their needs first and listen to their concerns and fears. When a child is admitted, the police and local authority are notified so that family or carers can be reassured about his or her safety.

636 In addition, the Executive has recently commissioned Aberlour Child Care Trust in partnership with the Scottish Coalition for Young Runaways (a partnership of statutory and voluntary bodies with wide experience of working with runaways and other vulnerable children) and the Centre for Crime and Justice Research at the University of Stirling to lead on the delivery of a scoping study of services across Scotland for young runaways. The study will:

• explore the level of awareness of young runaways among local authorities and review the extent to which their needs are identified in Children's Services Plans;
• establish how many local authorities have adopted protocols for responding to runaways in line with the Executive's guidance and identify how any protocols are being utilised;
• consider the extent to which any protocols meet their objectives and the needs of young runaways;
• identify what action has been taken to provide services for young runaways either directly or in partnership with other agencies; and
• explore any existing plans to identify gaps and develop services.

637 It is expected that the study will inform development of an appropriate national response to the needs of young runaways.

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