Scotland needs to keep the promise of welfare based approach to youth justice - Fiona Duncan

Like many in the care community, I feel a constant impatience for the promise made in February 2020 to be kept, and for the life chances of care experienced children, young people and adults to improve.

One quarter of the way through a decade-long programme of change, the Children’s Care and Justice Bill is emerging on the horizon; and providing a little hope to temper my perpetual frustration at things not moving as fast as they should.

For generations, Scotland has sought to take a progressive and unique approach to young peoples’ criminal justice system. The Kilbrandon Report was a radically enlightened review that emphasised the needs of the child, and based the justice system for a children around a welfare rather than justice model. The process he outlined should consider not only what a child may have done, but what may have happened to them. It led to the establishment of the unique tribunal system of Children’s Hearings to focus on the “needs” rather than the “deeds” of children.

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However, despite the intention to ensure a welfare based approach, a significant number of children involved in offending behaviour are dealt with in Criminal Courts and have ended up in prison. The Independent Care Review, and others, established that children in care are over-policed, and over-criminalised. And the statistics tell Scotland that a disproportionate number of its prison population is care experienced.

Fiona Duncan is Chair of The Promise, the body responsible for ensuring the findings of the Independent Care Review are implemented, and CEO of Corra

The inclusion in the recently published Programme for Government of the Children’s Care and Justice Bill is a piece of legislation that significantly contributes to keeping the promise, to ensure all children benefit from a welfare based approach to youth justice. The Bill seeks to ensure that children stay within the Children’s Hearing system and away from criminal courts.

The Independent Care Review was also clear that being placed in prison-like settings is deeply inappropriate for children, and being consistent with the UNCRC, that includes 16 and 17 year-olds. This progressive bill will seek to ensure that 16 and 17 year-olds do not go into prison-like settings, with the focus on community based alternatives and Secure Care where restriction of liberty is required. This will require careful planning of Secure Care placements with continued concern about lack of provision in England that results in the scandal of cross border placements.

Overall this Bill provides Scotland with the opportunity to restate and recommit to the principles that underpinned Kilbrandon and ensure they are applied and understood across Scotland’s services. The work of the Hearings System Working Group, chaired by Sheriff Mackie is seeking to breathe new life into the principles of the Kilbrandon report and redesign its operation.

The Scottish Government’s Programme for Government focused – rightly – on measures to mitigate the impact on children and families of the cost of living crisis. Both the Bill and wider measures such as the Whole Family Wellbeing Fund must be part of the same broader process of reform. We cannot criminalise away our moral and broader legal responsibilities to the children of this country, ignoring that many of their lives are marked by trauma, loss and poverty.

If Scotland truly intends to #KeepThePromise – it must mean that compassion and understanding must underpin all of the approaches of systems, policy and practice – including criminal justice. This Bill is an important step in that direction. All parties signed up to the Independent Care Review’s conclusions first in 2020 and then again last year during the elections. Over the coming months, the care community will look to MSPs to honour their commitment, and approach their legislative task in a way that keeps the promise.

Fiona Duncan is Chair of The Promise, the body responsible for ensuring the findings of the Independent Care Review are implemented, and CEO of Corra



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