4. Children Who Cause Harm

4.1 Introduction

The age of criminal responsibility in Scotland is 12 (Age of Criminal Responsibility (Scotland) Act 2019)’ and the age for criminal prosecution is 12.

In Scotland there are different criminal procedure rules for children accused or found guilty of an offence. Those aged under 16 years are treated differently than those aged 16-17. Broadly:

  • Those under 16 as well as 16 and 17 year olds subject to a Compulsory Supervision Order1 will be reported to the Scottish Children’s Reporter Administration and be dealt with through the Children’s Hearing System. However, if an offence is sufficiently serious, the Crown Office and Procurator Fiscal Service will instigate criminal proceedings against accused aged between 12 and 15. 
  • 16 and17 year olds not subject to a Compulsory Supervision Order will be dealt with through the Crown Office and Procurator Fiscal and Court Service. 

A Whole System Approach2 to dealing with children involved in offending behaviour is embedded in Scotland. The Whole System Approach focusses on three main strands:

  • Early and Effective Intervention – aims to reduce referrals to the Children’s Reporter.
  • Diversion from Prosecution – aims to keep children away from criminal justice processes.
  • Re-integration and Transition – supports children in secure care or custody in planning for their re-integration into the community.

Evidence and experience tells us that this integrated, holistic approach is required – one which responds to behaviours whilst taking account of wider needs. 

“We know that, as far as possible, children should be kept out of the criminal justice system. Where offending does take place, effective and timely interventions are needed to address that behaviour and its causes.” 3

  1. ‘A compulsory supervision order is a legal document setting out specific measures that say where the child must live or other conditions which must be followed. 
  2. Scottish Government’s Whole System Approach aims, wherever possible, to prevent unnecessary use of custody and Secure Care for children who cause harm.
  3. Preventing Offending – Getting it Right for Children & Young People 2015 www.gov.scot/Resource/0047/00479251.pdf

4.2 Alternatives to prosecution

a) General information – Under 16s as well as 16 and 17 year olds subject to a Compulsory Supervision Order

Offences committed by those aged 12-17 can be reported to the Scottish Children’s Reporter Administration (SCRA) by the Police on offence related grounds. The Children’s Reporter is the person who will decide if a child needs to be referred to a Children’s Hearing. Children’s Reporters are trained professionals whose job it is to decide whether there are legal grounds (legal reasons) and whether a Compulsory Supervision Order is necessary. If so, the Children’s Reporter will arrange a Hearing. More information on the Children’s Hearing System can be found at: 

www.chscotland.gov.uk/about-chs/

Children’s Hearings Scotland
Area 2/1/1 Ladywell House
Ladywell Road
Edinburgh
EH12 7TB

Telephone
0131 244 3696

https://www.scra.gov.uk/children_articles/never-been-to-a-hearing/

What is a Children’s Hearing?

A Children’s Hearing or Children’s Panel is a legal meeting arranged to consider and make decisions about children who are having problems in their lives including those who have caused harm. The Panel listens to the child’s situation and then decides whether compulsory measures are needed and, if so, what they should be. 

The hearing can make a number of different decisions including:

  • A Compulsory Supervision Order.
  • Moving the child to Secure Care (where specific criteria are met).

b) Compulsory Supervision Order

What is a Compulsory Supervision Order?

A Compulsory Supervision Order is a legal document which sets out measures agreed by a Children’s Panel. The Order makes the Local Authority (referred to as the implementation authority) responsible for implementing the order and ensuring that the child and their family is getting the help that they need.

When is a Compulsory Supervision Order used?

There are often cases where a Children’s Panel may feel that certain compulsory measures of supervision and interventions are required to address certain behaviours, including offending. 

Why are Compulsory Supervision Orders used?

To ensure that the child and their family gets the help that they need to address their behaviour and its underlying causes.

c) Secure Care

What is Secure Care?

Secure Care is a form of residential care that restricts the liberty (i.e. they cannot leave) of young people under the age of 18 placed in their care.

When is Secure Care used?

For a very small number of children whose needs and risks, for a particular period in their lives, can only be managed in the controlled settings of secure care. This may be because:

  • The child has a history of running away from home and it seems likely that they will do it again; or
  • The child could hurt themselves or someone else.

Why is Secure Care used?

Some children are deemed to be a significant risk to themselves or others in the community.

d) Early and Effective Intervention

What is Early and Effective Intervention?

Early and Effective Intervention (EEI) is a way of working with children – 8-17 (although this can vary across Local Authorities) – whose concerning or harmful behaviour may have brought them to the attention of the Police. It is an intervention response to those behaviours – that for those aged 12 and above only – may in some cases, have resulted in a referral to the Children’s Reporter on offence related grounds. The action then taken might include referring the young person to an agency for support, providing direct interventions to address their behaviour, or co-ordinating a multi-agency discussion to make sure the best outcome is delivered.

When is Early and Effective Intervention used?

Early and Effective Intervention is a voluntary process. It is used when a child agrees to participate in whichever form of intervention is identified to meet their needs and address their concerning or harmful behaviour – which may (for over 12s only) include minor offending. Participation is not an admission of guilt. It will be used when Police are concerned about the child’s behaviour to the extent that they may have evidence to proceed with a case, or be sufficiently concerned that behaviours will escalate to that level without intervention.   

It is the responsibility of Police Scotland to identify potentially suitable cases, generally based on the level of concern – which for over 12s only – will also include consideration of the seriousness of the offence(s).

Why is Early and Effective Intervention used?

Early and Effective Intervention’s purpose is to divert children with concerning or harmful behaviour – including committing minor offences (for over 12s only) – away from statutory measures and respond to the concerns in a timely manner. Evidence suggests that unnecessary involvement in formal systems such as the Children’s Hearings System and Social Work can result in continued antisocial and harmful behaviour through labelling and stigmatisation.4

4. Centre for Youth & Criminal Justice: A Guide to Youth Justice in Scotland: policy, practice and legislation – Early & Effective Intervention, available at https://www.gov.scot/publications/early-effective-intervention-framework-core-elements/

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