All children deserve equal justice

As the Scottish Government launches its consultation on whether the law should be changed so that all children aged under 18 can attend a Children’s Hearing, Ross Gibson reflects on why the time to stop treating 16 and 17 year olds as ‘adults’ is well overdue.

There has rightly been a lot of discussion over the past few years over the age of criminal responsibility, leading to it being raised from eight to 12 and with the United Nations now calling for an international minimum standard of 14. What has received less attention, however, has been the anomaly that sees 16 and 17 year old children treated as de facto adults, whilst some of their peers receive the support and protection of the Children’s Hearing System. Marie has shown in her excellent blog exactly how this can impact upon children as they become adults, and how they can feel over looked. Thankfully, the Scottish Government has opened up a consultation on this exact issue.

It is a strange blip in our Children’s Hearing System that doesn’t seem to make sense. Imagine this scenario. Wee Jimmy lives next door to wee Johnny. They are pals, play football together and are even in the same school class as each other. Jimmy and Johnny do something daft. Not driving to test your eyesight is working level of daft, but something that when caught, led to the two of them being charged by the police.

Jimmy is 15. He is referred to the Reporter. He gets support from a social worker and ultimately the Reporter decides not to call a Hearing due to the support that is now available. Jimmy lives happily ever after.

Johnny is 16. He is referred to the Procurator Fiscal. He is on bail for nine months, is prosecuted, pleads guilty and gets a 12 month Community Payback Order and 100 hours of Unpaid Work. He has a criminal record, missed several college interviews due to Unpaid Work and Offender Supervision appointments, is understandably aggrieved at the inequity of his situation compared to Jimmy, and now faces the stigma of it all.

The same issues arise for children in other spheres such as acute mental illness, homelessness, addiction, child sexual exploitation and many other risks and vulnerabilities. When these issues impact upon a 15 year old child, a referral to the Reporter is a perfectly legitimate response for people to make. Why should that be different when the individual turns 16? There is nothing that happens upon the stroke of midnight that magically imbibes the child with greater resilience that reduces the risk they encounter or changes the circumstances they find themselves in. SCRA data shows that 41% of current referrals are for 12-15 year olds. Do these issues miraculously disappear as soon as you can buy a lottery ticket?

Existing legislation means that once you have turned 16, you are unable to access the support and protection offered by the Children’s Hearing System unless there are grounds for sitting before a Reporter then. Yes, technically Johnny could have been referred to the Children’s Hearing System by the Sheriff dealing with the case, but we know that this is extremely rare, and still means waiting a substantial length of time to get to that stage. Time which – when you’re 16 – is precious, formative and seems like forever. As Marie showed, whether the contact with the social work department is voluntary or statutory, children and families, youth justice or adult justice, it is not as important as getting the help they need at the time. These technicalities are irrelevant to the child. It’s the support that matters, and delays caused by arbitrary cut off dates that are entirely man made seem to be getting in the way.

I’m sure there will be opponents to a proposal such as this. Their protestations will sound eerily familiar to what we heard when civic debate focussed on the Age of Criminal Responsibility, or voting rights for 16 year olds, or Named Person, or other areas where children’s rights, parental rights and society’s duty to protect vulnerable children are touched upon. But amending existing legislation to ensure that all children have access to the Hearings System is not as radical as it sounds; there are already hundreds of 16 and 17 year olds who are subject to Compulsory Supervision Orders, and often stay on them until close to their 18th birthday. Opponents to this change have remained moot on that point for years, and haven’t fought to end that provision.

Article 1 – yes…. number one – the very first Article – of the UNCRC states “a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”. The Promise made a similar statement. A child is a child is a child. So why are we continuing with arbitrary cut off dates? Why are we separating the deserving children from the non-deserving children? Why are we assuming that a child suddenly and magically acquires new skills and attributes upon the chiming of a bell?

I think it is linked to Scotland’s view of a childhood being defined by a chronological age, a remnant from industrialisation and introduction of compulsory schooling. We have a notion of 16 being the age when we become an adult, gain independence and enter the next stage of life. I reckon that’s an outdated, and misguided position to take. Children stay in education and training for longer, live at home for longer and take part in traditionally ‘adult’ rites such as marriage, parenthood and having their own home at far later stages than was the case when our current system was envisioned. So whilst 18 is merely another arbitrary cut off point, it does better reflect our contemporary understanding of brain development, maturity and the change in the way children transition into adulthood in 2020.

CYCJ is looking at how we can support the changes that are required so that all children have equal justice in a system that is designed for them, rather than falling through the cracks between children’s services and the adult world. We know that this isn’t just about children who come into conflict with the law though. Children in homeless accommodation, in mental health settings, experiencing abuse at home or a million other situations could benefit from the treatment and support and protection that is available to their peers. If Scotland is going to continue to make headway towards being the best place for children to grow up, extending these benefits to all children seems like something we must do.

About our blogger

Ross Gibson is Practice Development Advisor for CYCJ. His focus of work includes young people’s participation in youth justice services, community alternatives to custody and secure care, youth justice input within higher and further education and identifying examples of creative practice.

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