Blog: Should the age of referral to the Children's Reporter be raised?
We can answer this question with an emphatic YES.
Why? First and foremost because we recognise Article 1 of the UNCRC which defines a child as anyone under the age of 18 and therefore they should be offered the full protection of their rights.
The fundamental principles of our unique Children’s Hearing System are that the welfare of the child is paramount and for the measures to be effective, the child must be viewed in the context of their family, regardless of the cause for concern which brought them before a Hearing. As far back as 1964, Lord Kilbrandon recognised that punishing young people for their behaviour which resulted from failures in their own care and upbringing, was not the right response. More than fifty years later, these principles remain unaltered and for that reason we support the raising of the age of referral.
For many years, the practices of referring young people to the Children’s Reporter have differed from this definition. Currently, if a child is not on a Compulsory Supervision Order (CSO) by age 16 and need state support, they enter the adult system with often significant lifelong consequences.
It follows that children in need of care and protection and those who come into conflict with the law have a right to the same protections. There should be no distinction made based on age or behaviour. One of the parents we support said, “My son is still a wee boy and it's not fair at 15/16yrs old to be treated as an adult. 18yrs old would be fair age. We are dragging our children up too fast.”
We should be proud of our Children’s Hearing System. However, the current referral criteria which excludes some 16- and 17-year olds does not uphold children’s rights and creates a disparity. These children could be the same age and engaged in the same activity but dealt with differently by virtue of whether they are already in the system or not. We know that entering the adult criminal justice system immediately increases the likelihood of further conflict with the law. We need to do everything we can to stop this happening.
Caitlin was not placed on a CSO despite her behaviour and conflict with the law. She was referred to the children's panel, but no further action was taken. This was despite having experiences which put her at a greater risk of continuing to offend. This is what she said about how a CSO would have made a difference in her life:
“My mum was murdered in front of me when I was 12. But it was like it didn't affect me for ages. It wasn't ‘til I was 14 that it hit me, that I went off the rails. I started drinking and picking up charges. Nobody clicked onto it, nobody offered me help when I was that age."
"I think if you commit a crime at that age, you're obviously not old enough to understand, your brain isn't old enough. Maybe we shouldn't be punished, maybe we should be taught and supported. Not everyone knows what’s right and wrong at that age. I know people who were punished at that age who then turned out really bad, and maybe they wouldn’t have if they hadn’t been punished like that.
“I am now dealing with the offences through the adult system from when I was 16yrs old. A CSO would have steered me in the right direction… all I wanted to do when adults told me what to do is rebel against them. I didn't realise that they were trying to help me. At 14, 15 I didn't understand but its only now that I’m starting to understand my actions having consequences and I'm starting to sort myself out.”
We know that raising the age of referral is not enough to protect the rights of Scotland’s children.
We recognise that raising the age of referral will result in more young people being placed on CSO’s and in need of a Children and Families Social Worker (at a time when these services are already stretched). Likewise, it is expected that fewer 16- and 17-year olds will be involved in the adult criminal justice system. Includem would expect that there will be a realignment by Local Authorities of funds and resources from adult services to children and families to meet this changing need. This is not enough. The Scottish Government recently committed £4 million to The Promise for family support. Again, we do not consider this is enough.
After years of austerity, Local Authorities are stretched thin resulting in many families often only receiving a service from Social Work during a crisis. Many Social Work departments report long waiting lists and are unable to do preventative work. Within these constraints there is a significant risk that an unintended consequence of raising the age of referral will be young people placed on a CSO to receive support.
Likewise, third sector organisations - like Includem - are competing for smaller and smaller pots of money and are constantly being expected to do more with less. The recent lockdown showed that families need and want third sector support which is demonstrated by a significant increase in calls to helplines and support agencies.
To truly realise Lord Kilbrandon’s vision, the Scottish Government and Local Authorities must commit to ensuring the third sector is fully resourced and are able to provide their expertise in holistic family support. In doing so, we can prevent those children and young people at risk and with increased needs, from being referred to the Children’s Reporter, regardless of their age. This would ensure that young people like Caitlin get the help they need when they need it, with or without a CSO.