Good morning, and welcome to the 10th meeting of the Education, Children and Young People Committee of 2023. The first item on our agenda this morning is to hear evidence on the Children, Care and Justice Scotland bill. We have two panels of witnesses joining us today, but can I welcome our first panel of witnesses, Alistair Hogg, head of practice and policy from the Scottish Children's Reporter Administration, Kenny Donnelly, Procurator Fiscal, Policy and Engagement from the Crown Office and Procurator Fiscal Service, and finally, Superintendent Claire Dobson from the Partnerships Prevention and Community Wellbeing Division of Police Scotland. We have a lot of ground to cover today, so we will move straight into members' questions. Can I go first to Stephen Kerr, please? Can we start with one of the principal things in this bill, I think, in the minds of many people? That is the definition of a child. Can I ask you to address what your thoughts are about the change that is proposed and what your experience is that leads you to conclude, one way or another, about the age of 18? Kenny? It is a welcome change in so far as it standardises the definition of a child for the criminal justice system. At the moment, there is a discrepancy between children being under 18 for the purposes of victims and witnesses, on vulnerable witness legislation, but 16 or 17 on supervision for those who are charged with offences. That does not make sense that you have two different sets of definitions. To the extent that it rationalises the age of a child for the criminal justice system, it is welcome. In terms of rationalising and standardising, based on your experience, why is it appropriate? That is a matter for Government, for yourself, to determine where the line should be drawn. Obviously, the Parliament recently enacted the United Nations Convention on the Rights of the Child Bill. I appreciate that that is still live before the Parliament after the Supreme Court decision, but that defines a child who has been under 18 years of age. That is a logical follow-on from the passing of the UNCRC Bill in standardising the age at 18, which seems to be the universal norm in relation to criminal justice. That is fair enough, but in terms of your own experience? My own experience? You have to draw the line somewhere, Mr Kerr. There are experiences that you can deal with those who are under 16. There are experiences that you can deal with those who are between 16 and 18, which are serious offending. Of course, that causes you to think that there has to be a criminal justice response, but I think that the Bill and the underlying policies allow that still to be the case. So there has to be, I think, properly a standard age. UNCRC, in terms of what that is, and we then need to have processes in place which allow us to appropriately and proportionately respond to that while still recognising that for those under 18, we deal with children and we have to deal with them as such. OK, thank you, Kenny. Ask the same set of questions, please. Thanks very much. I would agree with a lot of what Kenny's has said. You obviously have some guidance in relation to the definition of child under UNCRC, which is an age that has been arrived at through consideration of lots of evidence and understanding and experience over many years, decades and centuries, in fact. You also have other policy documents, like the sentencing guidelines, which were recently introduced in relation to young people and the courts approach to sentencing of young people. Actually, the question there is not so much about whether the definition of child should be 18, it should be whether it's beyond 18, when you look at development and particularly brain development and the ability to form decisions and to make good decisions, the evidence base is that it can take up to 25, 26 before the brain is fully mature and developed. In my view, 18 is at least the place that we should move the definition of child to. You were asking about experience. I have been a children's reporter for over 22 years now. As I'm sure you know, we already have 16 and 17-year-old children within the children's hearing system. In my view, it's an entirely appropriate response to young people of that age and to view them as children. They might not wish to be called children, of course. They may wish to be called young people or young adults, but in terms of how we should approach them as a society and through any legal response, in my view, they should be viewed as children, as it aligns with UNCRC. Thank you very much. Good morning. I would have to agree with other panel members that there are differences across all different legislations at the moment in relation to children and changing the age of a child to 18 would bring parity across the different systems. It would also mean that young people aged 16 and 17 would be all treated as a child under 18, so there would be parity of service in terms of how they would be dealt with by the criminal justice system, not only in relation to offences but also in relation to care and welfare as well. What it does is it obviously supports the rights of a child and makes sure that they're properly considered within that system. One of the aspects of the bill, the aim of the bill, is to improve the experience and the outcomes in terms of children coming into the justice system one way or another. What aspects of the bill, as it stands, do you feel will make a positive impact in relation to that objective? Maybe I could start with Claire. I think that what will make it positive, as I said, is that there will be parity in terms of where a child or a young person enters the criminal justice system as it were, in terms of particularly the rights of those 16 and 17-year-olds at the moment where they are not a cared for young person and they enter the criminal justice system as an adult. There is a change as you'll be aware or there is a difference at the moment in terms of how young people are dealt with. I think that that will certainly make improvements. Obviously, in order to do that, we need to make sure that the infrastructure is in place to support those changes and to make sure that we can adequately put provision in place for those young people to ensure that, for example, there is a place of safety available where it's decided that a young person potentially has to appear before a court, that actually we've got that infrastructure in place. I think that that's definitely some of the improvements that will be made and we are considering a more whole-system approach. There will be more discussion between the different organisations as well and more link-up. I do think that it's positive. Do you think that those items are likely to improve the chance of a child from re-offending sort of in their lives out, as it were, being able to get themselves back together again? I think that what it will do is it will put in the additional supports that aren't there at the moment for those 16 and 17-year-olds and it will, as I say, it will improve access and it will improve support to children who, at the moment, when they turn 16, essentially are treated as an adult, it will open up all sorts of avenues in terms of support and intervention that aren't near just now for older children. That's very clear. Thank you for that. I still would like to comment. Yes, thank you. Obviously, one of the most significant aspects of the bill is the raising the age at which you may be referred to the children's reporter and therefore may be referred to a children's hearing. If you start from the position that anyone under 18 is a child and recognise them as a child, then you have to consider that the best approach is the welfare-based approach through the children's hearing system. You have within your information packs and your research evidence base lots of research and evidence to demonstrate that taking that holistic welfare-based approach is the right one. It's the right one not just for the child but for society in general because it's more likely to lead to positive outcomes. We know from research that formal interaction with the criminal justice system actually may have the opposite effect from that. It may actually increase the likelihood of re-offending. The approach within the children's hearing system is to see children as children irrespective of the matter for which they are considered to be referred to a children's hearing. Often they are caring welfare grounds. The reason why we take the same approach in relation to children whose behaviour causes harm is because they are very often the same children. Often the reason why they have behaved in a particular way is because there are causal factors. We have numerous research documents. Within SCRA we have our own research team who recently concluded research into offending by 12 to 15 year olds. It's equally applicable to 16 and 17 year olds. When you look at the backgrounds, the circumstances in which those young people have lived their childhood and you can start to understand the causes of behaviour and address those causes. It doesn't mean that you ignore the behaviour. Of course you address the behaviour as well. That's part of helping and supporting the child to get to a better outcome. That's a big part of the bill for us, of course, and there are numerous other provisions that relate to interaction with the children's hearing system, but there's more obviously within this bill that there is incredibly helpful, positive and, in my view, progressive. That is that, as Kenny mentioned earlier, we do have to recognise that there will be situations where a criminal justice response might actually be required. If and when that is required, and hopefully only in exceptional circumstances, this expects there to be a different response from the criminal justice system to how young people and children are dealt with through that system. We know that young people who go through the criminal justice system now often have lots of challenges in interacting with that system, lots of learning difficulties, lots of speech and language and communication issues. They don't understand what's going on, so there's lots in here to enhance that. There are also progressive policies such as not having children in young offenders institutions any longer and recognising that secure accommodation is a much better response than a prisoner in a young offenders institution and the ability to keep them within those accommodations beyond 18 as well, so lots of very positive, progressive policies in here. I think that quite a few colleagues are going to come in and ask questions about a number of the issues that you've raised in relation to the contents of the bill. Have you anything to add, Kenny, to what your colleagues have said? Not a great deal to what Alistair has said. Sorry, I'm a bit confused. It was a private comment. It's fine. Carry on with your response, Kenny. I know there are other colleagues that are going to ask questions. Sorry. Not an awful lot to add to what Alistair and Clare have said. The benefits from a Crown perspective have already mentioned that consistency of age, so obviously it means consistency of opportunity for 16 or 17-year-olds and not just those who have been in contact with the reporter system in the earlier stage. Prosecution policies, I'm out of the Lord Advocate, but I think we've told you in the written evidence that prosecution policy already for 16 and 17-year-olds is a presumption against putting them into the core environment, and so having the option of our referral to the reporter and discussion with the Children's Reporter Administration is clearly a welcome step from our perspective in terms of that ability to give children a different opportunity to address their underlying issues rather than having to consider the criminal justice system. With the hope that there's a better outcome? Yes, indeed. Thank you. We've heard a lot there, specifically Clare, you mentioned about how the different ways that young people are dealt with. I was wondering if you could perhaps outline some of the current inconsistencies that exist for 16 and 17-year-olds depending on whether they go through the children's hearing or the criminal justice system. I understand that you can't talk about specifics, but if you can be as specific as possible given the restrictions that you have on those things, can I perhaps come to you first, Clare? Yes, of course. So from a policing perspective, there are differences at the moment between how a child is dealt with and how a 16 and 17-year-old young person is dealt with, specifically as they come through, if they were arrested and were to come through the process that way through custody. At the moment, for a young person who is under the age of 16, they'll be treated as a child. When they're arrested, the local authority will be notified that they're under arrest and that will be to allow them to come and visit in terms of welfare to make sure that the child is okay and secure. Additionally, they are unable to wave their right for a solicitor and solicitor advice at the moment. If it was deemed that a young person was required to appear before the court the following day, we would seek to look for a place of safety for them and that may be secure accommodation overnight because Police Scotland's view is that a young person shouldn't remain in a police cell overnight. That causes challenges at times in terms of availability of the secure accommodation. If that is not available, we would consider a child detention certificate because there is no other place in which the child would have to remain in a cell overnight. That would mean increased support and observations and access from the local authority. Equally, the child's parent or guardian would be notified as well and they would be afforded access unless there was a specific reason that they could not be given that access, whether it be a safeguarding reason, for example. Where a young person who is 16 or 17 years old and is subject of a compulsory supervision order, they are treated the same as a child would be under the age of 16. However, where a young person who is 16 or 17 is arrested, they themselves will be treated in the same way that an adult is. They are able to waive the right to a solicitor, however they must do that via a reasonably named person at the moment. There are no guidelines in terms of who that reasonably named person would be. It is just an individual who is over the age of 16 or 18 for them. They can then agree with the child that they can waive the right to a solicitor access. Equally, there is no consideration of a place of safety for the individual. The 16 or 17-year-old would remain in a cell overnight and be presented at court at the next opportunity. Those are the significant differences at the moment in terms of 16 and 17-year-old young people and how they are treated in relation to the discrepancies that we find ourselves in just now. Alasdair, would you like to add anything further? You remind me of your question specifically about... Some of the current inconsistencies that exist for 16 and 17-year-olds depending on whether they go through the children's hearing or the criminal justice system. Thank you. The question that is understandably clear has given you a response in relation to young people who might be arrested. This, of course, impacts on all young people. For 16 and 17-year-olds for whom there is a concern about their protection or their vulnerability, they will equally have the opportunity now of access to the children's hearing system. Only where appropriate, of course, and proportionate. The clear has outlined a lot of the differences in relation to how the police and the criminal justice system will interact currently with a 16 or 17-year-old who is not on a compulsory supervision order or who is not subject to a referral to the reporter at the time. You can see that the difference is quite stark. The difference that the bill will make is to view anyone under 18 as a child and so to be afforded all the same protections as a child would have. Anyone currently under 16 or if you happen to be 16 or 17 and already involved with the children's hearing system you will also get those protections. Currently, if you are not within the hearing system in 16 or 17, you will not get those protections and they are pretty significant protections. If you consider what Claire's just outlined in terms of that police processing and taking into custody and the adult orientated response to that, which is what the law currently requires. Within the submission that SCRA made in relation to the committee, we did outline some scenarios, some examples, which hopefully demonstrate some of the differences that exist at the moment and how those will be cured by this bill and to make it a much more equal position for all children. Thank you very much. Mr Donnelly, is there anything you want to add? Just a couple of examples, obviously. The 16-year-old who perhaps is reported to the Procurator Fiscal for a relatively minor offence, which may be a manifestation of an underlying issue, the issue for Procurator Fiscal is that if the child has previously been brought to the attention of the system and is on a supervision order from the children's hearing system, then the case can be referred to the hearing system to continue the work that they're doing. In that option it's not available to the child and they remain in the adult system, which seems inconsistent. It's open to the fiscal at that point to take alternatives and one alternative would be to divert from prosecution for those issues to be perhaps addressed through that, but it's a different model. The diversion from prosecution system that we operate generally speaking is what's called a deferred prosecution model. So a little bit carrot and stick that if the person doesn't complete the diversion programme, the alternative is that it would go to the adult court, unlike in the reportage administration, the children's hearing system, where it would go back to a hearing and further steps could be considered. So there are differences there. I think the other inconsistency is in relation to outcomes. So again looking at a case recently without getting into detail, but a 16-year-old who had not previously been in trouble but who was presenting significant public danger had to be remanded to Pullman because not having previously been in contact with the criminal justice system, not being in a supervision order, there weren't alternatives available. Thank you. I think that carrying on with this thread we'll move to Mr Day now please if that's okay. Before I move on to my question, can I just take you back slightly, Kenny Donnelly? Because isn't the biggest inconsistency at the moment a scenario where two young people of the same age commit the same offence? One is dealt with through the children's hearing system, one is referred to the criminal justice system. It could take up to two years because of court delays for the person who's going through that to be dealt with. By which time the other one has been dealt with, perhaps being rehabilitated and granted to a more positive outlook, is that not the greatest inconsistency here? That's a possibility. It's a possibility that can arise for a number of different circumstances, but if you're talking about two 16 or 17-year-olds, one of whom is on a supervision order and one who's not, then we would discuss the case with the reporter and decide for the one who's on supervision and decide who's best place to deal with that case, but for the one who is not, that option doesn't exist. So we would look at other options or we would still have our presumption against the prosecution and the adult courts. We would look at diversion or other possible alternatives to prosecution, but there is a possibility that that case could end up in the court. As you say, the courts aren't operating as efficiently as they did pre-pandemic and so there could be significant delays and we could have different outcomes for essentially the same circumstance. Totally agree. Okay, thank you. I just wanted to get that on the record. I wonder if the panel could outline for us how a reporter currently decides whether a child or a young person should be referred to the children's hearing system. Just give us a feel for what the thought process is around that and how, if in any way, that might change with this bill. So I don't think it will change in relation to the bill because there will still be the same principles and the same approach that will be taken because we will simply view any child or a young person referred to as a child and will apply the same principles and the same foundation principles that are contained within the Children's Hearing Scotland Act. How a reporter considers and investigates would take quite a while to answer your question, Mr Dave, but I'll try and make it as succinct as I can. So we receive referrals from all different sources. Most of our referrals do still come from our colleagues at the police, but that's not because of offending behaviour. Often that's because of care and welfare concerns for the child. Once we receive that, then our thought process is to consider what's in the best interest of the child who is referred to us and the best interest of the child referred to us is not just the principal concern, it's the paramount concern, as is defined in the act. That's an even higher test than is included in UNCRC. So that has to be within our vision the whole way through our investigation process. We would consider whether there was a justifiable reason to be concerned for the child. And in considering that, we would then, if our conclusion was that there was a justifiable concern, we would consider what would be the best approach to take in order to help and support that child to get to a better outcome. Sometimes that will be a referral to a children's hearing, often it will not, and often it will be that some kind of support, supervision can be provided on a voluntary basis. Sometimes, in fact, matters have been worked through already by the child and the family and there's no need for any further action to be taken. We do take a very robust approach to our investigation and decision making. We have a decision making framework which is available on our website, free for anybody to view. It's very structured, very structured and evidence based approach. So we would consider all of the circumstances of the child, all of what their living circumstances were, their relationships, what was happening in terms of any education, if they're of education age. We might obtain reports, we might investigate and obtain information from partners in social work, at school and health, other partners who may be involved with the child, all of which to identify what the child needs in order to support, sometimes to protect them and sometimes to help and support them. Our approach remains the same no matter whether the child is referred because of something, of them being the subject of the harm, as it is for them if they are the young person who has caused harm. We take the same approach and the same decision making framework is applied. There are specific aspects of the decision making framework which allow us to assess such things as the nature of any behaviour and the seriousness of any behaviour and the impact of that behaviour on others. That's part of the whole holistic picture that we take in relation to the child. But ultimately our conclusion has to be in order to refer to a children's hearing that compulsory measures of supervision are necessary for the child to be in a compulsory supervision order would be better than for them not to be in a compulsory supervision order. Unless we come to that conclusion we will not refer the child to a children's hearing. Even with that framework I guess the reality is that there's always a degree of subjectivity in the decision making that takes place in it. It must leave you open on occasions to accusations of a lack of consistency. Perhaps unfairly, given everything you've got to take account of. Obviously there is a level of subjectivity to any decision that we take and of course we're open to that allegation but what I would say is that we do have the decision making framework. That is substantiated by three days, three full days training in relation to that decision making framework. Any children's reporter who joins the service has to go through the professional development award for children's reporter practice and there are seven modules within that. It's been SQASS at master's level and they have two years within which to complete that otherwise they will not become a children's reporter. Decision making is one of the modules within that professional development award. What we also do is we have our own quality assurance so we do our own case sampling constantly and we interrogate and interpret whether we believe the right decision has been made based on the information that we have and our quality assurance case sampling exercises do indicate that we believe that we have made the right decision in over 90 per cent of the cases so we do have pretty robust procedures in that regard. My final question perhaps engages the other two panel members a bit more. There was a recent research by SCRA and the fiscal service and the children aged 12 to 15 involved in offending and referred to the reporter and the procreate of fiscal setups in Scotland so I wonder to what extent that has indicated a strong link between those children who come into conflict with a law and the degrees of adversity trauma, poverty and the loss that they have experienced and if we take into your experience personally in dealing with these things as well beyond the research do you want to go first? I think you could probably say there's absolutely a close correlation there in terms of children who come in conflict with a law in terms of different aspects that might affect one individual child whether it be trauma whether it be poverty whether it be medical conditions it could be a number of things so I think you absolutely could say in my experience that was the case and as Alasdair said from a Police Scotland perspective we do not only deal with and refer children to the reporter in relation to criminal cases but more often than not it is in relation to welfare and I think that's why this change is really really important it is about welfare, it's about values and it's about making sure that we can provide that continued support to a young person through their journey I know you specifically asked about 12 to 15 year olds but I do think it's important to really offer that additional support and put that in place for them I really agree exactly with what Claire said there you know it's not something that I've particularly been involved in research with but all the research would point to that being the case and I wonder if I might just pick up on one point from your previous question about subjectivity I actually think that's a strength it may sound like some to some like a cliche but every case is considered in its own facts in circumstances and that includes the circumstances of the offender it's not a formula we look at the personal circumstances in reaching decisions between ourselves as to whether or not it's a case that's appropriate for the reporters to deal with for the crowd and thereafter in assessing the appropriate outcome in the case so whilst everybody strives for consistency in decision making there has to be that element of solutivity absolutely I think that's a real good point that Kenny just made there and thank him for making it into the research obviously it was SCRA research and our colleagues at COPFS assisted us with that really compelling the outcomes from that research would it still be consistent if we applied that to 16 and 17 year olds I have no doubt about that from my experience my reaction when I first saw the report and I had lots of lead in because I managed the research team within SCRA so I had an idea of what was coming but when I read the report I found it utterly compelling but sadly not surprising because it just reflected everything that I've experienced as a children's reporter over those many years and some of the numbers and the figures that are contained within that research are really quite extraordinary deprivation in 63% of the young people social and economic deprivation a real critical factor neglect in 48% and that's just picking out a couple of the indicators there are many many more of the exposure to experiences in childhood that we would all hope that we would not experience trauma, abuse adverse childhood experiences and so I wasn't surprised to see it but it's really sad to see it as well Thank you very much for that Stephanie Callaghan, do you have a brief supplementary on this? Just double checking because you're online Yes, thank you chair I do Listen carefully to everything that's been said here and clearly you know there's that focus on the welfare, the values providing that continual support and just when I was looking through earlier we're talking about the cause of the victim being a child and their best interest being a primary consideration and being given appropriate weight and I'm wondering if the panel feel that they are actually given enough weight when you look at other relevant considerations or if the balance is right there Thanks Alistair, do you want to come in to respond to that one? So is this in relation to the young person who's referred to the system or sorry I didn't quite pick up the premise of the question Stephanie? So what I mean is we're talking about the best interests of the child and that's given appropriate weight that's the primary consideration or the paramount consideration as you said yourself I think there but there's also those other relevant considerations in assessing the public interest so I'm just wondering is that actually right or is that something that kind of needs to be looked at is it strong enough about the paramount Thanks In terms of the balance Alistair I think we'll be looking to some questions on that later on but if you can maybe answer the first point there specifically So there is always a balance but of course as I've just outlined as a children's reporter our function is to consider the child referred to us throughout their childhood as the paramount consideration and the use of that word paramount is really crucial here so in terms of a balance the balance is very much weighted towards the child who is referred to us that doesn't mean of course that we don't have consideration for others as well but the best interests of the child referred are the paramount consideration there are some circumstances where the paramount consideration can be reduced to the primary consideration they are outlined in section 26 of the Children's Hearing Scotland act 2011 and in certain circumstances and these are really exceptional circumstances it can be reduced to the primary consideration if there is a need to protect members of the public from serious harm whether physical or not so there is already a balance within the legislation and I would stress that that would be something fairly unusual and exceptional for that to be applied and that as a children's reporter and paramount members within a children's hearing the child before the hearing would be their paramount consideration that's not to the exclusion of everything else but that would outweigh most other factors what's in their best interests moving into the territory that Mr Rennie is looking to ask some questions so perhaps if I go to Mr Rennie then perhaps you can respond to that context there's a general feeling the feedback that I get from the families of and the victims the families of them as well is that they often feel in the dark they often have low confidence in the system because they just don't know and I understand all the information sharing criteria and some of the stuff that you've just talked about I'm just keen to understand the debate that goes on within the system about this and whether it is evolving or whether it is settled and if it's evolving where might it go because I would be keen to try and build a confidence of victims and their families Alistair, do you want to go first? Yeah, of course I mean that's what we would like to do is build confidence we would like there to be public confidence in the system the system has been in place now for over 50 years as you know and as I said earlier and as you know we already do have 16 and 17 year olds within the system but I understand that the concern is heightened by the fact that this bill enables any 16 and 17 year old to be referred to the children's hearing there's been a lot of discussion about this and within partnership forums there are task forces on the go there's the victims task force and there's also the group which is looking at the recommendations from the report from Lady Dorian in relation to management of sexual offending so there's a huge amount of work and activity going on in this area and in advance of this bill we put in place a cross-system group which was filled with partners who were involved in the children's hearing system and the criminal justice system to look at what might need to be put in place if this bill came to fruition if this proposal to raise your age of referral actually happened and there were a number of different aspects that we looked at was how you would deal with the situation of the people who have been harmed by behaviour by victims so there's different elements to this there's the issue which is about support all victims should have access to the support that they need and that should be no different whichever system the matter is going to be dealt with through you should have consistent and universal support for victims we already within SCRA we write to every identifiable victim of any child who is referred to us for an alleged offence and we offer them the opportunity to receive information the limited amount of information that we are allowed to provide in terms of the law but also within those letters that signpost them to victims support groups specifically victims support Scotland that signposting and arrangement of support really starts right at the beginning and I'm sure Clare will say something about that in relation to the first interaction with that victim by the police and that opportunity they are to offer them the potential of support as a victim that is so crucial here that first point of contact and it's so crucial for a number of different reasons firstly it's about offering that support but also it's about explaining very carefully and managing expectations around what's going to happen next so a lot of the time what we get is people who are very unhappy because a matter is being dealt with through the hearing system and not through the criminal justice system a lot of the time their frustration is because that has not been explained to them that they weren't expecting that to happen but also there has to be a bit of understanding and awareness around why we would take this approach why are we making this policy change and the reason is that it is based on evidence that we know that it does lead to better outcomes of course if you're the person who's been harmed you might have a different view about that and that would be understandable anyone who comes into contact with a victim or somebody who's been harmed needs to be trauma informed there's been a huge amount of work in relation to raising awareness around trauma and informing the workforce both paid and volunteer in relation to how they would interact with people in a trauma informed way I would also say that there needs to be much wider provision of such services such as restorative justice services which can often go a long way to helping the victim as much as helping to support the the bear's news caused harm so support is a key area and there is a huge amount of work that already does go on and will go on in his developing there's also issues around information which he touched on Mr Rennie as I said earlier we do right to all victims the bill makes this a responsibility of the principal reporter but in fact we already do that anyway and yes we do get we do get some feedback which is that people are often very unhappy at the decisions that we make because that decision is based on the basis of the referred child and might not necessarily accord with what they might think would be the right outcome but we also get a lot of feedback of welcoming the information and being very grateful for the interaction that we have with them and sometimes we can spend quite a lot of time talking to victims and meeting with them and explaining how the system works we can't of course explain the details and share any of the private information of the child but we can't explain the ethos the approach, the evidence base et cetera and they do very much appreciate that when we do that the only thing I would say is that we wrote last year over two and a half thousand letters and of those offers to receive information it's an opt-in service so you have to ask for the information if you want it and we only had about 13 or 14% who actually wanted the information now there could be a whole variety of reasons why they didn't respond to that letter but it's quite a low rate so for some people who have been harmed for some victims receiving that information is very important and it's often part of the healing process for them but for many for a variety of different reasons they don't actually want the information Does that not cause you concern that it's such a low rate and has there been research into why it's so low because it might be a reflection of people just giving up on the system It could be any number of reasons of course no we haven't done research but it is something that we should definitely consider doing so I can't answer the question there could be a whole number of reasons why they don't the third area sorry to take up so much time I know that Mr Donnelly has been responding to the previous question and I am also looking at the time here and I do need to just ask for more concise responses sorry Mr Hogg that's okay okay so the point that I wish to pick up in the last very quickly it's just to be clear that I don't want it bogged down in legal definition but the requirement of the parliament interests of the child is unique to the children's hearing act so that's in relation to children who have been referred to the system from a prosecutor's point of view we obviously the best interests of the child are a primary consideration but not the only consideration when we're considering the public interest and it may be dancing in the head of a pin a little bit it's a primary rather than paramount because obviously from a prosecution point of view we have to look at other wider interests including interests of victims impact of communities and such like because we're not coming at it purely from a welfare point of view from the child coming at it from a broader public interest point of view so it was just to clear that point up in relation to your question I wasn't sure if that was focused at the when you referred to the system specifically the children's hearing system so I don't think I can add anything to what Alice has said and Claire do you have anything else to add? I think ultimately I would say that we do and won't encourage victims and we do signpost to them at that early stage we work really closely with Victim Support Scotland and we are involved in a lot of the work across the agencies as well I do understand that it is a balance and we do work hard to balance those children that are harmed and those that are harmed and I recognise as well and actually we'd welcome the reparations made by the bill and the ability to actually go further than we can just now I do think that actually with the changes in relation to the bill we would really look for a strong communication strategy to help communities understand the changes, what the changes mean and why they're there so that if and when the changes are enacted that actually it's coupled with that support, it's coupled with that education for communities to help them understand what work is on-going and also to help them understand what we're trying to do in terms of creating parity across the system and allowing actually better or trying to promote better outcomes for young people and that does mean six sets in systems that it does mean putting it in a different light it also does mean that if we are considering this we also need to put in the right support in the community and we need to put in the right resource in and around that Can we move to some questions now from Ruth Maguire please Thank you convener, good morning panel I want to ask about compulsory supervision orders the bill makes several changes including broadening the criteria for MRCs to include consideration of harm rather than injury and also that the MRCs can be used where it's necessary to help the child to avoid causing physical or psychological harm to others we've received written evidence from the reporter around the use of fear alarm and distress and that being a subjective test so I'd be keen to hear panel members views on those proposed changes we've heard about the positive side of using subjective approaches but there's also risk in that as well and I'd be interested particularly in the point raised that there's a risk that children could be placed on MRCs or have their liberty and behaviour restricted for a far wider range of behaviours than might be the intention of the bill as it's your evidence I'm referring to Alistair I'll come to you first and then hear from the other panel members of course, thank you so there's quite a lot in the changes around MRCs so currently movement restriction conditions are obviously available within the hearing system they're not used very often at all and they are the test for a young person on a movement restriction condition is the same test as is for authorising secure accommodation so it's quite a high test so what the bill does is it decouples the test so it creates a different test for movement restriction conditions so my understanding of the reasons for that and actually in preparation for today's committee I went back and looked over the report from that cross-system working group that I referred to earlier and actually that was one of the recommendations from that group was to decouple from the secure test and part of it was about recognising the opportunity that such conditions can provide but they have to be seen through the lens of what they provide for the young person and that they must be seen as something which would support that young person in terms of their own welfare and if you look at it through that lens then you can see that opportunities might be expanded but I do understand that we've referred to that in our submission and I've seen other submissions in relation to this that there are concerns that there is made much wider and therefore might increase the number of movement restriction conditions I would say in relation to using movement restriction conditions as we've said and I think others have said what's much more important than the actual restriction itself which involves currently an electronic tag and a monitoring box technology might develop in relation to that it's the intensive support that you put in place and you can put in place that intensive support without a movement restriction condition and it's the intensive support that makes the big difference rather than the actual restriction of movement so you do have to be very careful about applying a movement restriction condition and that does undoubtedly widen the opportunity the test is definitely wider so there has to be proportionality in relation to its use so one would imagine that they will require to be significant thought about guidance in relation to the use of that and certainly in relation to those who are making the decisions to the panel members which might be a question that you may wish to ask of our colleagues at Children's Healing Scotland to recruit, train and support panel members but it definitely would require some consideration around robust guidance around that which might get around the subjectivity that you referred to okay thank you that's helpful does other panel members want to come in and clear on if you've got any comments really to be honest we've got very limited experience of it, our considerations really would be in around what Kenny's latter part of an answer was in terms of that intensive support in order for it to be an effective method to allow young people to remain within their communities or really would require to be intensive effective support in that community and that would be significantly resource intensive for local authorities okay thank you Kenny obviously it involves exclusively within the Children's Healing System there are parallels in the criminal justice system where bail conditions are imposed with curfews or electronic monitoring bail but it's coming at it from a different perspective in terms of public protection and it's an alternative to custody and remand so I'm not really qualified to add much to what Alistair's had said in there I know that all panel members are concerned with the rights of children so perhaps from a follow up that's on this topic I'd be interested to hear and that's whether the provisions and the bill go far enough offering support and rights to the children and young people with an MRC you've all mentioned the intensive support that's needed are there any protections that children don't have with an MRC I'll come to you first Alistair so extension of protection to children do you mean in relation to the application of an MRC I mean I know that there's obviously been some submissions in relation to whether at the point at which an MRC is being considered should the young person have legal representation so that's one area that you might consider looking at I would say that any young person who comes to a children's hearing has the opportunity to access legal support, legal representation I know that there is a means and merits test but I'd be really surprised if a child was ever refused legal aid on that basis they don't always engage a lawyer of course before coming to a hearing the hearing itself can consider that they do need legal representation and can recommend that they obtain that but I think that what is possibly being suggested in some of the other submissions is that in the same way as there is for a hearing which is considering secure accommodation authorisation that there should be an automatic legal aid and legal representation provided so that might be something that the committee may wish to consider there is also the right of advocacy support within the hearing system and every child young person is offered an advocacy worker for their hearing any child will have five or over and at the hearing itself the chair of the hearing must ensure that the child is aware of their right to advocacy worker and will be given the opportunity to get one if they wish one is that the kind of things you were thinking about? I don't know if anyone else has anything to add I think perhaps the representative from clan child law in the next session would be better placed to answer it from representing the child's point of view OK, continue Thank you very much, thanks panel for that and can I move to questions now from Corkab Stewart, thanks Thank you, convener, thank you panel I just wanted to ask about children in the criminal justice system so reading through the evidence I understand that the STCTS has taken steps to improve the experience of children in court proceedings like evidence weeks and things but we know that traditional court settings are not settings in which children's rights can be upheld or where they can be heard so would you agree with that statement and if so how will the provisions of the bill ensure that these rights will be upheld in appropriate settings for all children and that's whether as victims or as the accused so can I go for Kenny for that one please Yeah sure, I think I think that as a bold statement that's correct obviously the range of children who enter the criminal justice system whether as accused or as victims or witnesses is different and the range of maturity and from 17 to very young age attempt in the case of witnesses sometimes and the court will always try to take steps to mitigate the experience to make it less impactful than it would otherwise be the case and I think that's set out in the Scottish Courts and Tribunals Service evidence. We are constrained because a court is a court and so the provisions in the bill which allow the court perhaps to sit somewhere else is helpful we do take steps to particularly for victims and witnesses the child accused has to be part of that experience and has to be there we try and keep children out of the court as best we can in terms of pre-recorded evidence or evidence using other direct measures such as close circuit television links and all of that over the years that I've been a prosecutor I've helped to improve that experience but the child who's the accused the steps that have to be taken that are set out in the Scottish Courts evidence and the availability in the bill to sit somewhere other than the formal court setting I think help in that regard. Does the bill go far enough then? Could it go further? I noticed that in one of the submissions I think it was Clown Child Law there was reference to to just I try and remember the phrase they used but I used justice co-op setup. I'm hugely familiar with the availability of the children's hearing system and the adult system and it is perhaps maybe for further consideration by government but everything that we can do to make the experience as child friendly as possible has to be explored because obviously we're required to do that we shouldn't have to be required to do that but we are by UNCRC to have the best interests of the child as a primary consideration in everything we do should include the environment so I would have no difficulty in further exploring that. Can I just ask how do you know that it's effective the measures that you're putting in currently do you ask the witnesses or I'm not really able to answer that obviously my understanding is that that was based on previous research that the Wigs and gowns and the formality of the setting was off-putting and that those steps were taken but they're taken by the court and they tend to be taken by the court on a case-by-case basis depending on the age and maturity of the child the extent of the steps that are taken and introducing 16 and 17-year-olds into the definition of a child for that purpose will I think need further consideration for the court. We talked a little bit earlier this is for Claire I think about the proposed changes of the definition of a child and the relevant provisions in the bill have on-place Scotland's approach to dealing with children in custody so for example and it leads on from what Kenny said what would your approach be to dealing with children for instance a child who is 13 as compared to a child who is 17 so how would that be the difference in your approach? In terms of how we actually care for them while they're in custody so obviously each case needs to be looked at on an individual basis and as anyone comes through a custody system there are questions asked or risk assessments undertaken and we review it on an individual case-by-case basis the last thing that we want to do is put a child in a cell because of the environment that it is currently Police Scotland has one dedicated child custody facility in London Road which is a new facility which has a separate charge bar and has separately decorated cells it is brand new and it's under evaluation at the moment what we would do is we would obviously consider the age of the child the circumstances and where appropriate if it was a 13-year-old child for the period that they were in custody as we went through the process the likelihood is for a 13-year-old we would probably have them in a separate room with two officers with them at the time to make sure that we looked after we would make sure essentially the provisions at the moment mean that we would request a local authority to come and carry out a welfare check with the individual and give them access again we would request access to a parent or guardian for a 13-year-old at the moment that a 16 or 17-year-old wouldn't get however, increasing with the provisions of the bill that would ensure that support was opened up for older children as well because ultimately we have to view each case as Kenny had said on an individual case by case basis all circumstances can be very very different for a child so we need to make sure that it's tailored for the individual a final question for me and then my colleague will come in on the same area so in your evidence from Police Scotland you pointed out that you've got responsibility to both children who harm and those who have been harmed now obviously that's a very difficult balance isn't it we've alluded to a little bit earlier from questions so how is that balance currently achieved from Police Scotland's perspective and how could that be enhanced so ultimately we do have we do have the responsibility for both and it's about supporting and managing the individual who's harmed essentially making sure that they've accessed the right services it's also about supporting the individual and the victim or those who have been harmed and that can take very many guises whether it be support through Victim Support Scotland whether it be through referral to different agencies for support but we have to make sure that we balance both aspects of it it might be a specific tailored individual police response and these things are really quite bespoken and different in terms of how you do it we do review things on a case by case basis so it would really depend on the nature of the severity communication I think I said earlier on in my evidence I think one of the most important aspects about the changes and the improvements of this bill is going to be about a really strong communication strategy for our communities to let them understand the children's hearing system why people are referred to their support and actually the consideration for a child's rights and making sure that we're upholding values and we're supporting them in our community as well thank you thank you on that thread Claire you spoke there about having a communication strategy with communities to make them understand but in terms of Police Scotland what sort of culture change would be required within that organisation given that the officers are used to treating 16 and 17 year olds as adults well ultimately we are pushing forward we are a values based organisation and ultimately what we want to do is promote the rights of the child we have a lot of work on loan internally so we would work we would look at training obviously and supporting a communication strategy the right the child and supporting them is always going to be at the centre what we do ultimately regardless of what situation we're going to come across them in it would be we would work and build on approaches we already are working towards the provisions from UNCRC so we're already considering how we can enhance our engagement with young people and we'll include that in our own officers and staff and we'll build upon the work that we already carry out you wanted to come in on this I came in on a previous question of course you can, yes I'm just thinking that about 10 or so years ago there was a pilot of a youth court in Hamilton Sheriff Court now we're still within the Sheriff Court but the pilot never evolved into anything being rolled out but I have in my mind that there may now be a youth court set up in Glasgow Sheriff Court and it may be, I'm not fully sighted on that but what I will do is I'll find out a bit more information about that and write to you about it that's okay can be done thank you can I now move to questions from Michael Marra please about border placements obviously the bill seeks to regulate these I wonder if each organisation might speak to maybe some of the complexities and challenges that you have in terms of managing the processes around cross-border placements so essentially young people who have a dispensation in England or Wales and who end up allowing insecure accommodation or supported accommodation in Scotland it doesn't present any particular issues for COPFS we're very much based cases will come to us based on where a crime is committed rather than where the offender's residence is I think it's more likely to impact on Alistair and Claire I'll go to Alistair next has it potentially has an impact in terms of our service but probably wider there is just concern about the welfare of those young people who are placed in Scotland and often some considerable distance away from their home what's been put in place is an effort to try and manage that in terms of how that might interact and why the principal reporter might be concerned similar to what Kenny was saying if a young person is within our community then they are within our jurisdiction and if there are concerns around the welfare of that child and that might be related to the behaviour of that child then they may still be referred to the children's reporter even though they are on an order from perhaps an English or perhaps a Welsh court the children's reporter would need to consider that referral in the same way as we do other referrals but ultimately it's likely that we would conclude that there is already a protective order in place and that actually introduction to the children's hearing system may make that even more complex but there are circumstances in which a different decision might be made probably there are wider concerns around this which I'm sure will be picked up by people on your next panel today in relation to this but it's all in relation to trying to regulate the circumstances, the conditions where these young people are placed, where their accommodation is and making sure that that's properly monitored, regulated and that they have access to proper advice and support and representation which is absolutely crucial and it has been a concern up until now Clyde Dawgsell Welcome the changes proposed by the bill we often find that there can be young people placed cross borders and extremely far from their home address and we often find as well at times there isn't enough information provided to those private care providers where the young people are placed therefore essentially if a young person then becomes a missing person there's limited information available to us in terms of establishing them and caring for them and finding them in in terms of that danger so we we welcome any increase in terms of that ability to gain more information what you'll find as well often as with young people who are placed far away from their home they don't have any relationships they don't have any family support they don't have any infrastructure if you like in and around them and we often find that then they put themselves at increased risk of travelling hundreds of miles back to where where their home address is or where their parents and where those families and relationships can be Can I ask in terms of then as essential I put this not the clients of secure accommodation but one of the bodies that are involved in dispensation and making use of them do you have concerns about capacity in residential areas that may be impacted by cross-border placements so the number of bed spaces you're sending, involved in sending young people into these places is that something that concerns you as an organisation Kenny? Yes obviously when young people are presented to the criminal justice system and there's a need to have them secure accommodation the facility has to be available and so whilst I'm not sighted on what the current issues are in terms of whether cross-border placements are impacting on that it's one of the challenges that we face similar to dealing with people who present with mental health issues you're on the back foot trying to find somewhere that the person can safely be put and again the bill is helpful from that point of view because in the absence of a secure place the young offenders institution becomes the place where the young person would go so in terms of the co-op's ability to place someone within secure accommodation and that will increase with 17 to 18 year olds now being children and following within that definition irrespective of a supervision order that's going to have to be sufficient capacity for the court to be able to utilise it Aster Hog I think capacity will need to be looked at in the whole in relation to the impact of this bill because it's not just about cross-border placements it's also about some of the other provisions in the bill and particularly ensuring that there's no child who's kept in a young offenders institution and also the ability to keep a young person in secure accommodation rather than transferring them to a young offenders institution at the age of 18, the ability to keep them longer so those will all have capacity pressures on the secure providers insofar as cross-border placements are concerned I don't know how many there are which are using up secure accommodation capacity within Scotland. A bigger concern to date my understanding has been about the other accommodation provided for them which is not secure accommodation and has not been approved to secure accommodation but which has some restrictions within the accommodation that might be seen as something approaching secure or approaching deprivation of liberty so that's where a lot of the concerns have come but I don't know how many have used up secure accommodation Is there concerns within your organisations that some of those institutions may be becoming reliant on cross-border placements in terms of the financing of their organisations so as much as I think the picture of this committee in another area in other evidence has achieved that there is a situation south of the border that many people are critical of in terms of the regime and that we are concerned about and it's right that Scotland frankly is able that there may be a situation where the finances of those institutions is that something that's reflected on in your organisations, any concerns? It's probably not something I can fully comment on what I would say is that it is commented upon within the promise and concerned around the fact that some facilities are arranged for the purposes of and I think the promise does say that we should not be making any profit out of our young people in that regard so it is touched on there I believe that some of the accommodations that have been created to house young people from cross-border I believe some of them will be quite reliant upon those young people in fulfilling that accommodation so to that extent they would have some reliance My final question very briefly is the policy of the Scottish Government funding a last bed provision in secure accommodation in recent years Kenny Donnelly you referred to an issue about finding capacity I'm told that there's some debate as to whether that policy might be continued would that be a concern to organisations if that last bed capacity in order to find a place for person was not continued I'm not entirely familiar with the policy to which you refer but I think that ultimately as Alasdair has said the availability of capacity is going to have to be reviewed and ensured to enable the bill to be properly implemented and to be taken effect because if we are in a situation where someone requires to be in secure accommodation the bill removes the possibility of the young offenders institution being the alternative and therefore Government will and local authorities and other providers are going to have to find the capacity to enable us to properly and properly look after our young people who need to be remanded If there's any information that witnesses were able to share on that last bed issue My recollection is we've heard something quite different to the question that you've presented to the witnesses today Michael I think that we'll have to look back as to the evidence that we've been presented with previously before and then we can decide how we want to follow up on that line of questioning Is that okay? Mr Dars, do you want to come in on this? No, not on this Can I move? Ross Greer has got some questions Just following up on the theme of secure accommodation this might be a brief follow up Do any of your organisations have direct engagement and contact with transportation providers in relation to secure accommodation? If that's the case I've got some specific follow up questions but if not, there's no need Certainly I have contact with transport providers from from prisons and those establishments but I'm not quite sure how to transport from secure To elaborate on that you may have seen the evidence that's been submitted by the Hope Instead of Handcuffs campaign where they're raising specific concerns around private transport providers and essentially the lack of regulation the lack of reporting around transportation that, broadly, the direction of travel with secure accommodation has been towards raising standards, more reporting less use of inappropriate restraint for example, but they've got evidence of what they believe to be inappropriate use specifically of handcuffs but of restraint in general of young people by private transportation providers when they're moving between secure accommodation or between somewhere else and secure accommodation so the proposals that they've put to the committee and to Parliament are for greater regulation and greater reporting specifically in relation to transport I've been interested in your thoughts on if private transportation providers were required to, for example, report every instance where restraint was used but there's handcuffs or something else which body you think would be the appropriate body for that report to be submitted to for example, Alistair, should it be yourselves, should it be the caring spectra, should it be local authorities is it going to depend on the individual circumstance where they're being transported to and from I don't think it should be us because we do have obviously interaction with secure accommodation providers but only in so far as children are accommodated through the children's hearing system and that's only a proportion of those who are insecure accommodation as to who that should be I mean you could make an argument for those organisations that you've just referred to care inspector at local authorities who may be have a particular interest in that in terms of the wider issue the transportation is an issue that requires focus and requires a bespoke application you need to consider the needs of the young person in relation to that transportation and consider the best way best approach to do that so regulation is a matter obviously for yourselves I would say in our experience transportation is often unavailable and we have to transport potentially young people so we would welcome a service that was safe and secure but also has been able to provide that transport nationwide and out of ours and I think that's our general experience at the moment is there's that unavailability in terms of transport but in terms of your question as to who would regulate it that's a a question I'd probably consider and come back to the convener with at the moment I wouldn't give an opinion just now Can I just follow up on that brief at the point you make around the lack of capacity and often it's your officer so then you have to provide that transportation because at the moment in those circumstances what reporting would you follow if for example you end up in a situation where the young person being transported does need restrained in some ways what would the Police Scotland reporting mechanism for that be would you inform any of the partner organisations that you're working with that that took place during transportation I think ultimately each case would need to be looked at that's something I'd probably need to come back to you on in terms of equally where either an adult or a young person is going from our care into the care of another organisation or another establishment there'll be full discussions, considerations, handover et cetera I could get you more detail on that but it's something I'd probably come back to you with on That'd be useful, thanks Primary of interests are private providers sometimes they're not available so it'd be interesting to understand what your process would be in those circumstances Okay, thank you Can we move to question now from Mr Bob Doris Thanks, can we add just a couple of questions to finish what's quite a lead to the evidence session I know the briefing people have got for today's meeting suggest that provisions within the bill may impact on the joint reporting of offences committed by children by Police Scotland to the Procurator Fiscal and the principal reporter so I'd be quite keen to understand how that process currently operates and how it might have to be adapted in light of the changes and the definition of child's proposed within the bill so what currently happens and how might that have to change I think maybe clear the opposite of the best place because that is a Police Scotland reporting Eric Lamont So in terms of change of process there will not be a change of process as such but there will be an increase in terms of volume so at the moment we either report to the Procurator Fiscal or we report jointly to the reporter and to the Procurator Fiscal where officers are carrying out or where officers are preparing a joint report that time wise takes an additional roughly about 30 minutes per report per officer so that's where we will see an increase in demand is actually in the time of our officers because the processes themselves are actually in place Okay, can I just check on her to other witnesses there if you've got something on to reflect on in relation to that as well but obviously clear doubts and you quite rightly mentioned earlier we need to make sure there's not wider resource implications from the provisions in this bill have you or has Police Scotland done a little bit of work in relation to the additional officer time when you've given a kind of per case example but have you kind of done a modern work in relation to that that you could share with us whether today or maybe at a later date so I could share information at a later date, we do have information in relation to the number of children that come through the custody suites and we've broken that down in terms of different ages essentially and different outcomes so I could certainly provide you information at a later date the impacts for Police Scotland in terms of resource in our wider just in the reporting aspect as well and Police Scotland as Alasdair said earlier on and referred to we do refer a lot of children to the reporter not on a criminal matter but in relation to child protection so therefore where we we anticipate there will be increased resource implications for us as well is in the IRD process interagency referral discussion process we anticipate that there will be a significant amount more 16 and 17 year olds to that process which is a public protection child protection process and therefore we anticipate that is already a busy landscape and we anticipate that there will be resource implications for us there as well thank you IRD stood for but my colleague possibly didn't so thank you for for explaining that I've got one final question but does Mr Hoggar and Mr Dorn live anything additional to add in relation to that so cases involving children are reported all crimes that are detected by the police that are to be reported would or not will be reported to the Procurator Fiscal the Children's Hearings Act specifies that for any child that's been reported to the Procurator Fiscal a report also must be sent to the children's reporters administration so the Lord Advocate has issued guidelines to the police as to the types of cases that should be jointly reported and that results in many cases involving children currently for children under 16 those cases would not be reported jointly but instead would simply be referred to the reporter and that's a matter that the Lord Advocate issued guidelines on so there are certain categories of offence which are specified in the guidelines which I think you've been sent a copy of which should be jointly reported and at present for 16 and 17 year olds any child who's on a compulsory supervision order also requires to be jointly reported what the bill will mean is that every 16 and 17 year old who isn't currently jointly reported will need to be considered for that now what we will need to do and what we've started doing is to look at the Lord Advocate's guidelines to reflect the changes that the bill brings about and to update the guidelines to ensure that they're fit for purpose for the proper implementation of the bill it won't just be a case of replicating them because there'll be some nuances there'll be nuances around crime type and volume particularly around for it so just to give an example at 17 a child will legitimate will be able to drive a vehicle they'll have a licence and so we're going to have to give some thought as to what we're going to do with a 17 year old who's caught speeding or some other road traffic offence which would ordinarily result in a licence, ordinarily we dealt with by a fixed penalty but in terms of the legislation strictly speaking that child would have to be reported to the procreate fiscal would have to also be reported to the report I went to speak to the Lord Advocate's guidance it's going to be updated in due courses the Lord Advocate's guidance will be updated to reflect the bill similarly there's a joint agreement between COPFS and the Scottish Children's report to the administration as to how we will deal with certain cases will ordinarily go to the reporter and the others will be the subject of discussion there's a presumption in there at the moment for children aged 16 and 17 we should go to the reporters unless there are reasons not to and there's some guidance to our staff as to what that should look like that again will have to be updated and again we've started a discussion about how that may look in the climate of the post-bill so I'm not sure Mr Hull wants to come in but it leads on nice my final question anyway we just asked that just now Mr Hull can reflect on that as well we've got an initial private in relation to this one of the things that the committee grappled with and I checked again on the Government website 16 and 17 year olds who are currently not on supervision orders theoretically can still be referred to the children's reporter it's not a presumption there will be but the theoretically can be so it's just to confirm that that is currently I've got I checked the Scottish Government website just before I asked the question it does say that they can still be referred to the children's reporter there might be specific circumstances but they can still be referred of course they don't have the protections of not being kept in a cell not being able to waive the legal right to a lawyer safeguarding protections may not exist but I'm understanding that they can still be referred to a children's reporter it's interesting just when that does happen or am I just wrong Mr Blonlay in relation to that? Not entirely wrong but it can only happen following a conviction so the criminal proceedings would have to take place first and the court can then remit the case to the children's reporter and it applies to those who are 16 and up to 17 and a half I'm correct in saying so so it's technically possible but it means going through the criminal justice process first I don't think that was maybe I was a daffladi during the briefing session I don't think that was particularly clear to her so that's very helpful Mr Hobb do you want to add anything to that? Just to clarify if you're 16 or 17 currently you would only be able to be referred to the reporter if you were either on a compulsory supervision order or there was an outstanding referral still open with the reporter so if you're referred before your 16th birthday the reporter can make a decision half to your turn 16 that's still valid under the current ban Just to push on that slightly are you saying Mr Hobb and Mr Blonlay as well that that referral can still happen but you have to have direct interaction with the court system first before you're then put back to the reporter because otherwise I'm reading something very different on the Scottish Government website so for somebody who's 16 and 17 currently other than being on a CSO or having an open referral the only way that you can be referred to the children's hearing system is via the criminal court and that would be following conviction that's section 49 of the criminal procedure Scotland that's really helpful thank you Mr Hobb we have a very brief supplementary going back a bit earlier on in the panel from Graham Day thank you Mr Hoggan in earlier responses to Willie Rennie on the subject of victims you talked about early signposting to victim support but in a practical sense if you're referring to police officers dealing with very troubled and traumatic circumstances where people are very upset and they are doing so much else it's not really practical to assume that the cops can be that conduit for imparting that information at the end saying by the way you can go to victim support here's a card so how do you ensure that at that very early stage beyond the first police interaction that victims are signposted to that opportunity as far as the interaction with my agency is concerned as we don't have any involvement until a referral is made to us and then our responsibilities kick in but our responsibilities are about the provision of information not the provision of support but what we do is take on board a responsibility that we should alert victims to the fact that they can access that support it's a question that I can answer for you as to the police officers capacity to do that I understand the premise of your question but it is so important right at the very beginning that a victim is provided with that support if it's not going to come from the police officer then it needs to come from somebody else well it does and unless Surin Denwick Dobson is going to correct me here it's unrealistic to expect police officers everything else they're dealing with to be guaranteed to provide that information at the very outset so I would say that we do our very best our level best to support and to provide that sign posting and that can take forms that can take many different forms depending on the individual need in the case but you are right to identify that in certain circumstances where we are dealing with a situation it can often be a raw situation for individuals it can often be a fraught time I think it's fair to say that often when front-line police officers dealer interact with an individual at a moment of extreme crisis in their life and that's maybe not the priority at that time okay thank you thank you very much I'd like to thank everyone for their time this morning we're now going to have a suspension until 10.40 to allow for a change of witnesses welcome back we are now going to take evidence from our second panel today on the Children, Care and Justice Scotland Bill welcome to the meeting Megan Farre policy officer children and young people's commissioner Scotland Fiona Dyer director of children and young people's centre for justice and Katie Nesbit head of legal policy at clan child law we will move directly to questions from members and again the first set of questions is from Stephen Kerr yes it's still good morning thank you for being here so one of the fundamental aspects of this bill is the changing of the age definition of a child and I think it would be useful for the committee to hear your views on that change in definition what it does in terms of advantaging better outcomes and what your experience of that demographic is the significance of it Fiona thank you the view of the children and young people's centre for justice is we really welcome bringing the age up to 18 that all children are defined as 18 as recommended by the United Nations Convention on the Rights of the Child in Scotland we have a two-tier system at the moment where as you all have heard earlier some children are defined as children when they're 16 and 17 and some aren't purely because they're an open referral or with the children's hearing report administration but we know that all children under 18 have the same needs and the same risks and the same developmental issues and therefore bringing it in line with the UNCRC brings a fairer system and it brings a fairer justice system within Scotland and this is obviously we've got two legal systems that have been developed over the years and built upon and they aren't quite aligned with each other which results in some children being treated unfairly in their rights as children not being upheld within a criminal justice system that doesn't really take account of their age and stage of development whereas they have full access to a children's hearing system that is welfare based that can take account of their age and stage of development it'll be fairer in a true sense of justice can you just expand on welfare based and child based just to explain what that does the ethos of the children's hearing system with Kilbrandon that would look at the needs of the child and not their deeds and that goes back to evidence that we've still got today and the reasons why children are involved in conflict with the law and obviously it's not just for children who are involved in conflict with the law and the majority of children who are referred are on welfare grounds so it's for other reasons in their lives that they've got no control of so it's maybe their parents their circumstances they've been placed in vulnerabilities they've been placed in and that's contributing to the need for their support within a welfare based system and it's really looking at children as children as a whole and as adults taking responsibility for those children and helping to support them in the evidence of the difference that makes in terms of outcomes yes so the evidence we've got a plethora of evidence now on that so we've got the Edinburgh study from youth transitions and crime that gives us Scottish example of positive outcomes and just we've got outcomes from children who have went through an adult criminal justice system and our young offenders that can be more detrimental and then that cycle of offending whereas you've within a welfare based system where the needs and the underlying issues when they are being addressed there are more positive outcomes for the child and society through their stopping offending so less victims so that desistence process and you mentioned that Edinburgh University study and you contend that 18 is the right age I think obviously brain development and we know a lot of evidence now and our sentencing guidelines is up to 25 and the brain is not fully developed I think 18 is a good start I think for a child I think 18 probably is the right age although I do think children past 18 some children especially some children who have been subject to a lot of vulnerabilities they probably need additional support but I do think it's the right age there's a general age there's a lot of individual circumstances as you've heard Megan obviously from our point of view it's a matter of compliance with the UNCRC it defines a child quite clearly as a person under the age of 18 but I would say in terms of what Fiona said that 18 is probably the minimum acceptable rather than a maximum in this instance there's nothing in the UNCRC that prevents us doing more came across a quote yesterday which was from Dr Seuss which is a person as a person no matter how small I think you can equally say that a child is a child no matter how big so in terms of the UNCRC and in terms of Scots law when the incorporation bill becomes law a 16 or 17 year old is a child and they deserve the protections that being a child gives them Fiona's covered the evidence base really well I don't really have anything to add to that but it is in terms of the UNCRC and the Committee on the Rights of the Child are really clear that that we need to increase it to 18 okay thank you and Katie yes not much more to add to that as Megan says Fiona's covered that evidence base really well it's a really positive step that the age is now 18 compliance with the UNCRC being one of the main reasons for that but we should remember that although the age is being increased it's only the possibility of a referral into the children's hearing system and the joint referral guidelines will still be in use and not all children will go into the welfare system and we have the children's hearing system rather and we have continuing concerns about that not only in the way that those decisions are made but in the way that children will still be subject to the adult criminal justice system which despite the changes in the spell is still not an appropriate place for them to be why don't you take the opportunity to just expand a little bit on those concerns you have I'm sure they might come up later absolutely so at present there are 16 and 17 year olds obviously in the children's hearing system that have been referred on offence grounds so I've gone through the joint referral process and the decision has been made to keep them in the children's hearing system but that only relates to children who are currently on a CSO so all those children who were not on a CSO had no option they would go into the adult justice system so this change is important because it allows all children no matter what their involvement with the children's hearing system prior to the conflict with the law to have the opportunity to go to the children's hearing system but there is no suggestion that anything around the joint referral system is going to change and ultimately the decision there will be made by the procurator Fiscals or the Crown Office as to whether it's in the public interest to prosecute the child and if that is the case then they are in the adult justice system which is not suitable for them because the joint referral process and its self we have concerns about because although there is reference to the UNCRC and taking the child's view in relation to the decision making there there is no procedure outlined as to how that will happen the guidelines simply state that where possible the views are to be taken but as I say there's no procedure in place we can see them when we've had cases where a child we know is going through this procedure it's very difficult to know how to represent their views in that process so the transparency there I think is something that still requires to be looked at I mean overall no children should be in the adult justice system so and that is not something that's addressed by the bill despite this increase in age and as I say then concerns about the transparency of the joint referral process kind of compounds that you know once the children are in that adult process there's no review there's no of that decision or no automatic view that the sheriff doesn't have an opportunity to see how that decision was made nor does the child so I think there are improvements that could be made to that I know there'll be more questions on that later on and you'll be able to go into more detail with colleagues have you got anything else on this no I think the answer on the legal definition super complete thank you Stephen can we now move to questions from Ross Greer please just to follow up on that and if you want in particular what you were saying about the evidence around the impact on young people under the age of 18 who have gone through the criminal justice system would you or anybody else on the panel be able to just expand a little bit on what the effect often is on that young person and the rest of their life having gone through a criminal justice approach when they are still a child well I think the main or one of the main issues is that children don't understand the process so it's being done to them and as we know with the promise that we need to have children be able to meaningfully participate within the justice system but even as a professional going into a court it's really confusing about what's happening and it's hard to understand the language that has been used so for a child who is quite traumatic with the whole experience especially if they are potentially coming from custody and they've been in very loud cells with adults it's really quite a traumatic experience and they're not able to understand what's going on and even explaining it to them afterwards it's quite hard and having been there and went and seen children in cells to say they had been remand and they weren't even aware of that that's quite a massive impact for a child to go through and then when you're in a cycle of that where you've been to court before the chances are you'll go back to court be very unlikely once you've been to court that you might go to the children's hearing system because you're already now in the adult justice system and once you're in a system the evidence from the Edinburgh study again shows us that it can be more detrimental because you remain in it for longer and it can actually be more positive doing nothing with a child but when you bring them into a system they stay in a system longer and then there is that cycle of that revolving door where there's reoffences and they're back at court again and then the sentence increases and increases because there's like a tariffing system and the more you appear the harsher the outcome and that is perpetrating to the whole life circumstances for children what they tell us that the evidence is that it impacts their home life it impacts their relationships it impacts their prospects college education training so it impacts their whole future and I think the evidence from various different studies highlights that especially for children from specific areas of high deprivation and who have experienced that trauma and within their lives that seem to be more likely to end up and children who have been looked after by social work looked after and accommodated they're more likely to be criminalised in this system so again it's these children that can be very vulnerable and it's just perpetuated through an adult justice system that they don't understand and they can't meanfully participate in you mentioned the promise there I'm keen to pick up on that as well just before it do though would Megan or Katie want to follow up on anything there? I think I'd just follow up by bringing the committee's attention if I may to the general comment 24 from the committee on the rights of the child which came out in 2019 and also the council of Europe guidelines on child friendly justice and both of those advocate that children under the age of 18 should be dealt with through a child friendly justice system which children's hearings is actually a fairly good example internationally Thanks very much on the promise obviously this bill is only relevant to part of what's in the promise it goes much wider than that but insofar as it's relevant to what's in there do you think the bill goes far enough to fulfil the promise? I think in relation to courts it maybe doesn't go far enough because as my colleagues highlighted children can still be prosecuted in courts through the bill there is still the option for that to happen and when the independent care review which became the promise it did say that children's rights can't be upheld when they can't be heard and that's something that we know so it maybe doesn't it's trying to extend the children's hearing system for more 16 and 17 year olds but ultimately if children are still going to court the rights are not being upheld and under UNCRC it's not a juvenile justice process it's an adult justice process now we are looking at that in Scotland there are two youth courts there's ones in the Lanarkshire and one in Glasgow and we at CYCG are looking to support other local authorities with agreement with sheriff principles to look at maybe developing youth courts within Scotland but at the moment children are still going to adult courts so it doesn't go quite as far as it could Thanks Anybody else want to contribute on that? Just to say that I agree I agree with Fiona on that I do, thank you very much That's all from me for now, can we hear? Hearing about the youth courts from that was something that with the earlier panel weren't quite able to put their finger on that is helpful Can I now move to questions from Willie Rennie please? Yes, so I'm concerned about victims how information is shared with victims and how we can build the confidence of victims and their families Have we got the balance right? I understand the landscape of this but I'm interested in how the debate internally is developing and whether improvements could be made and if so, what should those improvements be? Fiona, do you want to go first? Yeah, I think I mean going through the court system I suppose one advantage for victims is through the children's hearing system it's a speedier process when children who have to have offended and there are victims and it can take sometimes two years or more we hear for children that that's victims sitting not knowing what's happening through that time so I know there's the issues and they were discussed at the earlier panel about the information given to victims and I appreciate that and it's getting a balance of upholding children's rights who have caused harm and upholding the rights of others who may have been harmed and it is trying to get that balance right I think the bill does go some way to improving that and achieving that balance I think as well it's recognising that we are victims themselves and victims first and foremost and most are known to services because of what's happened to them as children so again it's getting that balance right so it is a tricky balance but I do think it's one that the bill is going some way to achieve and improve Megan's way, we would like to come in there I'll let you finish Yeah, I think that there are some steps and particularly we welcome on improving anonymity for victims as well as for other children in the system in this bill we've said something in our written submission which I appreciate the deadline was Friday so you may not have had a chance to read yet but in terms of when that protection starts because that is not a lot of clarity on that but I think one of the disappointments in this bill is that in the consultation there were a number of proposals around support for victims single point of contact and other measures which I think would help victims, particularly child victims significantly now they may be being brought forward on a policy basis but they're not in this legislation and that's disappointing I think some of those could have made a big difference because the one thing that we've heard from young people when we spoke to them about this is that sometimes victims feel they're getting no support at all and that's a big issue so we're very much welcome further being done around ensuring that victims have easy access to support particularly child victims obviously given our remit so does that come down to resource or is that in terms of aspects of the bill? I mean how just talk a bit more about what that means so the proposal in the consultation was around the children's hearing system having a single point of contact for victims where they could go to signposting I think that that would be a good support to child victims and their families who are often left being having to try and access support themselves particularly if it's geared around supporting children and particularly where there's been significant trauma so I think that was a positive step that was proposed and it would be great to see it come forward and do you know the reasons as to why that didn't be included? Not aware of that I mean it may be that they're intending to take it forward on a policy basis and it doesn't require legislation I would be generous enough to give that as a possibility we can inquire Katie I don't have anything to add to what Megan said on that I mean it's a difficult balance information sharing for victims and for particularly where both are children because both have rights that need to be protected and the bill some way towards supporting that but yes there's clear improvements that could be made Michael Marra you want to carry on this thread so there's a fair amount of commentary there about communication and the rights to information particularly I'm concerned around in this area about child victims of child crime I wonder if you'd give reflections on the management of relationships victims will be living in the same communities as children who are the perpetrators of crimes continue perhaps to end up going to the same school living in the same street and sometimes the victims are very serious crimes just your reflections on how those processes are managed and whether there's more that could be done to try and achieve better outcomes so maybe start with Katie perhaps to pass on this question I don't have any information about the practicalities of how that works from our experience at Clan I'm afraid I don't know whether my colleagues might Fiona? That is managed very well by skilled social workers that is managed on a day to day basis across Scotland that's what we currently have children tend to offend against other children and it tends to be children that they know so we do have children in the same class and in the same families who offend and cause quite significant harm towards each other and that is managed through skilled risk assessment we've got processes in Scotland care and risk management processes that social worker follow outcomes at Cannesill obviously within a family situation potentially off a child having to be removed from a family if that has to manage the risk so it's very individualised and each child and it is managed through social work currently as I say on a day to day basis Okay, Megan Yeah, just that obviously the children's hearing are well placed to deal with some of those risks as well particularly where they involve serious harm in terms of the last point linked in about information to victims that's one of the reasons why there needs to be some cautious cause today with social media there's actually a risk that victims are going to inadvertently and unintentionally criminalise themselves by sharing information and that's got to be part of the risk assessment when that decision is made to share information about with a victim particularly when they're with their own community and to make sure that they're aware of the risks of them sharing that information further but as Fiona says it's managed already on a day to day basis by a really skilled workforce who have really good experience on this Yeah, and I suppose I would take some contention in terms that it's not managed well in every circumstance I mean I have dealt with I suppose we would say nothing can be there will be mistakes made or problems but I have dealt with constituency case work of very difficult very difficult situations where things have not been managed but essentially voluntary dispensations fallen between the cracks of local authorities that don't have the resource to carry this through I mean is there nothing that you think in this bill that we could do to further strengthen the support for managing those arrangements between victims and perpetrators where they are in the same community There's work underway in relation to things like restorative justice there's the Scottish Government restorative justice action plan that's being piloted at the moment in the rollout and looking at that and there's been work previously looking at restorative justice, we high risk cases for that sort of situation and the sort of family group conferencing and mediation in relation to that I mean as Megan said as well it is about having a skilled workforce it is about having appropriate resources and having a full resource skilled workforce and that that takes money to ensure that local authorities are fully resourced to be able to do that and to be able to support children in their communities to do that so if the bill was the resource attached to the bill to really look at that would go some way if there are issues with people or children falling through the cracks and things not being managed well but we have got new child protection procedures in Scotland as well that are followed and there's a lot of professionals you know involved around that around the child from a lot of different disciplines who go some way you know to support that but again it's the resources that are available across local authorities and it will be patchy across local authorities unfortunately there will be a bit of a postcode lottery about who has resources to specialise and specific like harmful sexual behaviour or violence so it is different across Scotland OK, that's useful Thank you, I've got Graeme Dey wanting a supplementary on this thread Many thanks, I fully recognise the balance that has to be struck in the circumstances and Megan Farre is right when she talks about the risk of imparting information that's then shared on social media however do you not recognise that there is a sense out there around some of these cases that a package of measures may be put around the alleged perpetrator in that kind of setting and the victim has left wondering well how can I be confident that my needs are being met and when MSPs picking up these cases for their constituents trying to get that information they're told we can't give you that because this is about measures that we've taken in relation to the alleged perpetrator and do you not accept that sometimes it appears that the victims are kind of forgotten in all of this Megan Farre I think we've been saying for quite a while now we definitely hear there is a gap around support services for victims, particularly child victims and there are some aspects around particularly the criminal justice system that actually act as a barrier to providing that support I think that's less of an issue with the children's hearing system but that's not a reason not to provide the support to the children who are accused of causing harm, as Fiona said most of them, if not the vast majority of them are also victims of crime and that's part of their background but also if we fail to provide those interventions and that support to these children when they're children there is a really very real risk that if they become further criminalised they will go on to offend there's an opportunity with children to change that behaviour so our view would be that there's a need for more resources for victim support, absolutely but not at the expense of support for children who are in conflict with the law and I don't disagree with that perhaps I'm only being myself queer you very often find that the victims and their families are looking for reassurance of what measures have been taken to protect them and it's impossible to get that information and the grounds that are provided is that these are matters that we are that pertain to the Welsh perpetrator and we can't share that information which just exacerbates that sense of concern about the victims and their families that's what I'm getting at here and I don't have the answer to it but I just wanted to get a sense that you recognise that this is an issue and I think one of the exceptions where it potentially is is an exception I mean generally speaking we would say that that information around outcomes should remain private and should remain private for life in terms of convictions but measures to keep the other children safe in order to allow them to adequately safety plan and there is scope for that to be shared and there's currently that is in the legal framework at the moment so it is an incredibly difficult balance and it would absolutely it's not something we can legislate for because it's a case by case decision around safety planning for individual children who are in communities and again that's where as fairness is the work done by social work comes up sticking on this thread a little bit I'm going to come to Stephanie Callaghan I think that she's got something that follows on from here Thank you Thanks very much, convener Just listening to your response to Graeme and keeping in mind that quite often these are the same children it's the same children who have been harmed and who cause harm I'm wondering, Megan, based on what you've said there is part of the problem the fact that you've kind of got people on one side or the other side of this that there's not enough cross-working so for example you've got parents who support children who've been harmed or that'll be coming through and on the other side of it you've got the reporter who's looking at the causes of harm and in addition to that as well I'm wondering what part does the accountability and responsibility play in the developing well-being of those children who are actually causing harm as well how important is that as part of their well-being and development? Are you able to come to that first, Megan? I can't bring you I was just frantically thinking The issue around accountability I think first of all accountability doesn't necessarily need to be something that results in a criminal conviction when it comes to children so their understanding that they've caused harm and that that has had consequences and that it has harmed another person doesn't need to have a life-long criminal conviction attached to it and that's part of the support package that Mr Day was talking about in terms of what goes around the child who's in conflict with the law. I think that systems do still too often treat this as two different groups of children rather than than a very much overlapping group of children there are victims out there who aren't in conflict with the law but it's very few children in conflict with the law who aren't victims in some form themselves it would be a very productive way of well not productive that's probably the wrong word but it would help us in addressing that if that was more widely understood and I think that's at a political and cultural level rather than individual children whether they be the child in conflict with the law or the child in who's a victim in any particular instance Fiora, would you like to? Yeah I think you're right I think it's sometimes it's the way our systems are set up and they could be better joined up and I think again it's probably some way of that the promise was looking at again about the whole family and supporting that whole family and looking at that so I think it is something that local authorities will be mindful of in how they do that but yeah, as Megan said it could be better joined up in how we do that we work in areas of work if you like so if you're working with a child because they have come to your attention through their behaviour and you're looking at that so that's what you're focusing on but I think if we take this whole family approach to looking at that then that would go some way to meeting that and improving those links Megan you want to come back? To bring back into the terms of this bill this is going to give us the opportunity some of those children who are 16 and 17 year old who will now be able to go into the children's hearing which is probably a system more capable of doing that rather than the criminal justice system which in terms of children can often end up the false dichotomy between different groups of children Okay Thanks, yes Megan just picked up my further question Thank you Now can we move to questions from Kate Please? Thanks very much I'm going to ask a couple of questions about cross-border placements the first two will probably be relevant for Fiona and Megan and then I'll bring Katie in so we know that existing regulations allow for cross-border placements into secure accommodation and we heard Evans on that this morning as well but also the Scottish Government has committed to implementing the promise who have highlighted the concerns for children on their human rights being removed from their family and support mechanisms for being away so in the light of that do the provisions in the bill go far enough to address those concerns so I think Katie will come in on that one so I'll turn my questions around the other way is that okay Katie could you go first with that one Thank you So cross-border placements covers such a wide variety of orders coming up from England so you're referring to children who have been placed on a secure care order in England who have been placed in a secure care accommodation in Scotland that's fairly highly regulated because secure care orders in general have a lot of safeguards around it and when children are placed into Scotland under those regulations there is far more oversight than in some of the other examples but that notwithstanding the very fact that children are placed so far away from their support networks their family et cetera is hugely detrimental to their wellbeing and contrary to article 8 rights there is also the question of what happens possibly less with secure but if you then just look at residential placements coming into Scotland there is legislation in place for long-term placements but that is predicated on the basis that the Scottish local authority will accept the child and take responsibility and then they go into the children's union system and if that were happening then again a lot of oversight in terms of protections and safeguards for those children would be available and happening in Scotland but as far as we are aware that isn't happening because surprisingly either local authorities in England don't know it's going to be a long-term placement and then it becomes long-term and it drifts or getting acceptance from all the local authorities that that's where the responsibilities should lie is also difficult when budgets are so stretched so you then have situations when children leave care so you've already separated them from their support network if they're up here long-term when they leave care there is real issues about who takes responsibility for their transition into adult life if you like in Scotland we have relatively good provision for after care and continuing care but if they are here on an English order that has never been accepted by a Scottish local authority then the English local authority is still the relevant local authority and it's very difficult to work out who has responsibility so there's a whole host of children that having been taken away from their support networks in England have maybe been placed in Scotland long-term have built relationships in Scotland want to stay in Scotland and then are being let down again when they leave care so that is a big issue you've then got the children from England who are placed in Scotland on deprivation of liberty orders so these are being used increasingly frequently in England because there is not enough secure care accommodation for the children who the High Court has to take a ruling on that ultimately it's in their best interest for them to be deprived of their liberty but not in a secure placement where as I say there are a lot of safeguards or more safeguards and protections in place through legislation the Scottish Government last year brought forward regulations to previously, if the child was placed into Scotland on the stall order to have that order recognised you had to go to the court of session and that was quite a laborious process expensive etc there are now regulations in place where those orders can be recognised in Scotland I'm sure the commissioner's office has a lot to say on that and we fully support their criticisms of that bill now regulations being placed into Scotland quite often in a wholly unsuitable accommodation the regulations do not provide oversight here and the regulations don't do enough to protect those children's human rights so in each of the categories if you like there's real prospects of firstly a two-tier rights system for children who are within the care of bodies in Scotland and there's huge issues in relation to human rights so initially the breaking away from family supports but there's also in relation to these deprivation of liberty orders in particular there's issues surrounding article 5 rights and things like that so at the time that those regulations were brought forward we were told that that bill would produce the final position and the final way of safeguarding range of safeguarding measures etc would all be outlined in this bill and that has not happened we are looking at framework provisions for regulations to be made at a later date and although we welcome in principle increased regulation from the care inspector there's not enough outline in this bill for us to know whether actually these children's rights are going to be safeguarded in any real way and in fact if you read the policy documentation and the bill the suggestion of the types of regulation provisions notification requirements sound very similar to what is in the current cross-border regulations that came out in 2022 which is wholly inadequate and if that is deemed to be what is going to be put in place for future cross-border placements then that is simply not adequate and it is not addressing the root problem of a huge under provision of secure accommodation in England so yeah I can see that you're very passionate and thank you for outlining a very complex issues that surround that and I do note from your written evidence that you were disappointed with the Scottish Government's response I'd just like to bring in Fiona and Megan if I can about that. We've covered issues of safeguarding, you've touched on that was there anything around safeguarding that you wish to add further and it's particularly views on safeguarding that are needed to ensure the welfare of the vulnerable children to ensure that they're protected and that's in the context of cross-border placements. Megan I think to start with we stepped slightly back from our initial view which is actually that this shouldn't be happening this isn't in children's best interests and I think the promise said that and I think that that should be the starting point. The Scottish Government actually say in the policy memorandum that these placements should be rare and only when there is a clear best interest case for the child to be placed in Scotland and that would be what we agree with and that would be something like a child to have had a parent in Scotland or another close family in Scotland and they were being placed here because that would provide them with that support link rather than what's happening which is as Katie says children are being taken away from any support in the community. In terms of welfare our first step would be we should be trying to stop this happening we should try to reduce it to the absolute minimum and that's difficult because it is a problem that is rooted in as Katie said the shortage of secure places in England but the other way to ensure the safeguarding and that their rights are respected is to make sure that these children have the same rights as children who are placed in secure care often of the liberties elsewhere and children can be deprived of the liberty outside if they're subject to even if they're not on an order that says that if they're subject to restrictions to such a degree that they can't they can't leave where they're being held at will but we can't see anything in this that's actually going to rectify that all of the concerns that my colleague expressed to you when the regulations were passed last year still exist it just retincates its system we were told it was going to be a permanent solution and this bill isn't but actually the permanent solution is to make this as rare as the Scottish Government have said it should be do you think that that's an indication of that it's always going to be exceptional circumstances and it's sort of to allow for that scenario? from our point of view I think we did feel that there could be circumstances but it would be exceptionally rare it would be that very very occasional child and what we're seeing isn't that we're seeing and I think Fiona probably has better detail on the numbers than I do we're seeing a significant proportion of the children in secure care in Scotland and not from Scotland and that's a problem because they're being moved away from their family supports into a different education system into a different culture into a situation which is very different from what they've grown up in and and that's not something we should be encouraging that's great can I bring in Fiona? yeah, I think Fiona's probably better on this yeah, Fiona yeah, I think the intention of the bill if it was rare and exceptional I think that goes some way to address the issue and to meet the promise but at the moment it isn't rare and exceptional and we did undertake we've done two secure care census and at one point there was over 50% of the secure care beds in Scotland had children from outside Scotland so cross border I think it reduced at one point to 30% but there is still a high percentage of the current children in secure care who are not from Scotland okay, thank you that's interesting the analysis of the harm and the benefit to young people about being located close to their community within their community to me sounds absolutely reasonable and sound I've drawn the expertise in that but I worry about some of the language about forced reduction it feels to me in those numbers I mean if these young people have nowhere else to go should we not be welcoming them here is your contention that by being less welcoming in a legislative framework we can force the UK Government to do better, I mean I wish they would do better but is that the contention because it feels to me that we're going to make it more difficult are we not putting more children at risk whether they're from south of the border or not Megan I think it was particularly your language I was concerned about I think the other side is we've had instances where children have entered up embalmment because there's been a lack of spaces in secure care in Scotland it's not a one-way risk so I accept that and we don't want that to happen particularly around these cross-border placements you can address that and that's where I agree it's a really difficult thing because the idea would be that it should be I think by making it harder for local authorities to place children in Scotland I think our hope would be that that would somewhat force the issue of providing more appropriate places in England but it's not something that Scotland can fix for England's sake but it shouldn't be an easy route out of the problem in England to send children to Scotland when it's not in their best interests it's potentially damaging their links with their support networks with family because these children will have family and support networks who are a positive part of their lives and they will end up hundreds of miles from them but yes it's a difficult thing that we can't fix the problem in England from Scotland and that's I think where the rare and exceptional comes in but it's become very much not rare and exceptional as far as evidence shows thank you clearly a topic of discussion there for us going forward can I move to some questions from Ross Greer now please thanks you maybe probably are familiar with the evidence that's been submitted by the hope instead of handcuffs campaign specifically in relation to transportation providers for young people moving whether it's between secure accommodation or from elsewhere into secure accommodation from secure accommodation elsewhere the contention of their campaign is that whilst we're broadly on a path towards higher standards, better regulation of secure accommodation providers there's a gap in relation to the transportation providers and they've provided evidence of inappropriate use of restraint specifically handcuffs thus the name of their campaign there's a question about whether we need to wait for this bill to deal with that there are other ways in which we can deal with it but I'd be interested in your thoughts on their proposals around reporting mechanisms in particular so in an instance where a transportation provider has had to restrain a child or young person they're proposing that there's mandatory reporting of instance like that and I'd be interested in your thoughts on their campaign more generally what they're asking for but specifically who those reports should go to should it be the care inspector for example that those are submitted to should they be submitted directly to Government where would be the appropriate place for those reports to be collated I think there's two parts to this one is that one of the other bits that was consulted on that isn't in this bill is around transportation that that isn't don't on the top of my head remember exactly what we said in our consultation response but it's in our consultation response and I'll be happy to provide a summary of that in writing before the end of the week to the committee if they wish but you've also touched there on restraint and that's one of our biggest concerns is that we've been commenting for a very long time we conducted our first ever investigation that's almost five years ago now was into restraint and seclusion in our case it was within schools but what we've heard since is that restraint and seclusion and the use of restrictive practices is an issue across a whole range of settings in which children find themselves it's an interest in schools both special schools and in mainstream schools it's an issue within secure care within residential care homes within mental health settings and as you say within transport one of the things that we've been calling for for a very long time is a consistent statutory framework that covers the use of restraint and seclusion on people and I think our colleagues in Scottish on learning disability would say also around adults on the use of restraint and seclusion to ensure that when restraint and seclusion is used it's safe it's done by someone who's adequately trained it is recorded and it is properly monitored and what our call is and it's in line with Beth Morrison's campaign around Callum's law is that that is done consistently to actually introduce that statutory guidance and we're really disappointed that they haven't done it on the broader issue of transport as I say I'm happy to provide a written update based on what we said in our consultation response I didn't include it in my notes because it's not in the bill Thanks We have been doing work for several years to look at secure care transport it's an issue that's been wrong because we know it's not adequate what's happening so there is a group with several partners including I think COSLA in the Scottish Government and others to look at how we can improve the situation in Scotland the last update I got from the group was we're getting there so in what that looks like we're looking at all options so looking at is it the secure care providers that would do that is it the private companies that are currently being used is it the ones through the Scottish Government so we are looking at all options and exploring that is it on our agenda and it has been an issue but for children to be restrained anywhere that is really traumatising really traumatising for children so of course that needs to be addressed it needs to be passed on when children need to be supported so their social worker needs to know about that and yes probably an agency like the Care Inspectorate somebody needs to be governed that because again these are children who we've got care for and we're transporting from you know, court to secure or secure to another secure or whatever so that is really important that that's been done and I would hate to think that children are being subjected to that and that's not being done at the moment so my understanding is there's new guidance or rules there's something new being produced primarily I presume that's coming from the group that just referenced there so the question for this committee and for Parliament is can we deal with that issue specifically through a non-legislative approach like that or should this be in this bill and I'd be interested in your thoughts on do you think what's coming will do the job that I think we all want it to do or should we be considering whether it's this bill or somewhere else should we be considering a legislative approach yeah I hope it can be done through policy and I presume that's why it's not made it into the bill from the consultation so yes hopefully it doesn't need to be legislated for and that we can we can achieve it and improve it and make sure we're upholding children's rights when they're being transported because the advantage to that is we can just go ahead and do it this bill will take some time whereas we could just do that in a matter of months hopefully I think with apologies to disagree with Fiona I think individual settings can be done through policy but I think the problem we have is achieving the consistency across the different settings so also in healthcare settings so I think that's part that's partly why our position is that it does need to be statutory at this point so whilst we really welcome the work that's been done particularly around transport through COSLA and there's some other work happening in education to ensure that consistency I think we also need it there is also a need for it to be put on a statutory basis and that's because of the breadth of settings in which we hear about children being being inappropriately restrained or restrained rather all the use of seclusion and restrictive practices in terms of why we think this is so important and why it is that there's obviously a risk of harm potentially a risk of fatal injury if unsafe practices ar