The Children and Young People’s Centre for Justice (CYCJ) has published a report calling for a “radical re-shaping” of Scotland’s justice system to ensure that it is child-friendly, fair and just for both victims and children who have offended.
‘Use and impact of bail and remand with children in Scotland’ shares findings from a small nationwide study undertaken by CYCJ on the use of bail and remand with children in Scotland. It draws upon the experience of children, families and professionals, including Procurator Fiscals and Sheriffs.
The report describes the complexity involved in decision-making about the use of bail and remand for children, with a multitude of factors to be balanced and deliberated, often hindered by a lack of available information and short time-frames.
It argues that the positive, yet incremental, changes that have been observed in the adult justice system are no longer sufficient to ensure procedural justice for children in conflict with the law, and propose that a more radical shake up of the system is needed.
Nina Vaswani, one of the report’s authors and CYCJ’s Research Lead, said:
“We can continue to tinker round the edges of our adult justice system, but this is no longer sufficient to ensure procedural justice for children in conflict with the law. Until all under 18s are legally defined as a child, and have the same access to the Children’s Hearings System, there will continue to be differences in how children are treated in pursuit of justice. This requires a more radical re-shaping of our justice system, which engages and co-designs with children, young people, victims and professional stakeholders.
“Ultimately, we need a justice system that is modelled on participation, procedural fairness and equity.”
While the professionals involved expressed a desire to adopt a more nuanced, flexible and child-friendly approach for children under 18, the testimonies of children and families directly affected by the decision-making revealed a system which they did not understand and could not participate in. This in turn affected both their perceptions of procedural fairness and their ability to comply.
As a result, many felt that the system was stacked against them and they were destined to fail, raising questions about whether justice can be achieved for anyone in this context.
Despite attempts to accommodate the status of the accused as a child, this seemed to be constrained by court processes and structures, as well as the weight of tradition. There appeared to be a lack of alignment and flexibility between the needs of the court and the needs of children, and upholding their rights within these processes, which meaningfully facilitates every child’s participation and engagement.
The ability of children to comply with bail conditions was acknowledged as a particular area for concern. Children are still developing the ability to plan, make reasoned decisions and consider the longer-term consequences over immediate gratification and reward. Adhering to conditions can become challenging and results in breaches of bail, especially over the months or years it can take for justice processes to conclude.
There was strong agreement that support to aid children in navigating their court journey – particularly where bail conditions are in place – is required. The authors suggest that remand should only be used if there is no other way to keep people safe, and both bail and remand should be used for the “shortest possible time.”
To effectively address and resolve these issues, the report calls for a justice system that is a ‘just’ system for children, one that takes into account their age, maturity and development and offers them the support they need to desist from future offending. This system should include:
- All children under age 18 being referred to the Children’s Hearing System, and only the most serious cases being referred to the Procurator Fiscal
- For the most serious offences, children should go to a specialist child-friendly justice arena that has the same standing as the formal court; however, its design and implementation upholds children’s rights, reduces the barriers to their understanding and inclusion and enhances the sense of legitimacy paramount to adhering to the law.
- Professionals should all have additional training, to ensure the needs, experiences, maturity and development of the child are considered; and that all
age-appropriate disposals are discussed and available, to encourage desistance and rehabilitation. - The disposals open to these child-friendly justice arenas would include the child receiving timely and appropriate supports
- Where possible, to improve communication and easy access to support, professionals and services should be co-located
The report also makes recommendations for interim changes that can be made to the current system.
This work builds on CYCJ’s previous research into children’s rights in the justice system.