 Rhaid i'n bosb ydyn nhw, ac i'n sgrifon o'r 21 ymgyrchaf ymgyrchaf ymgyrchaf yma yn 2018. Can we please ensure that all electronic devices are on silent mode? We've received apologies from Gail Ross. We wish her a speedy recovery. We're joined, instead, this morning by Linda Fabiani, who's her substitute on the committee. Can I also take this opportunity to thank our outgoing convener, Christina McKelvey? Cwestin has served the Equalities in Human Rights Committee with commitment and dignity, and we wish her very well in her new post as minister. Our first item of business today is our first oral evidence session on the age of criminal responsibility, the Scotland Bill. We have two panels of witnesses giving evidence to us this morning. In the first panel, I'd like to welcome Dr Susan McVe, who is chair of the Quantitative Criminology at the School of Law in Edinburgh University, Dr Clare McDermid, who is the deputy head of school of law at the University of Strathclyde and Malcolm Shaffer, who is head of practice and policy at the Scotland's Children's Reporter Administration. Welcome to you all. I'd like to start by asking the panel, who obviously have varying interests in the bill and the progress and the journey that we've been on to get to this point, what is your view of the bill and do you think it answers the requirements that were set out in the statement of intent by the Government? Let me start. We welcome the bill. We don't necessarily see it as an end to the debate, but we believe it sends out a strong message in terms of the ability to tackle difficult behaviour by children without criminalising them. We see this as being important and logical next step following the Parliament's earlier decision to raise the age of criminal prosecution, but we also think that there's further work that could be done in terms of looking at an even higher age, and we hope that the Government might commit to further work looking at raising the bar further to the age of 16. I think that there are separate complications in that, but I believe that that should be properly looked at. Thank you, Malcolm. Dr McDermid? Yes. I personally greatly welcome the bill. I think that rising the age of criminal responsibility is long overdue. I think there are advantages to raising it to 12. It accords with the way the civil law gives capacity to children in some areas. You can make a will, for example, when you're 12. It accords with the transition that they make physically from primary to secondary, and it meets just the international requirements set by the UN Committee on the Rights of the Child that 12 is the bare minimum. Like Malcolm, I think there are questions about raising it higher still. Much of that in recent years has come from emerging neuroscience, which suggests or gives evidence, in fact, for the fact that young people's brains develop such that their impulse control is not fully developed until they're in their early 20s. We've had developmental psychology for a long time suggesting that development is at different rates than different children, but the necessary intellectual development might not come through till the mid-teens, and other international obligations under the Beijing rules suggest that we should try to have the ages which confer some forms of adulthood clustered together. 12 is still quite a lot younger than, for example, the age at which you can marry, and perhaps more importantly the age at which you can sit on a jury, which is 18. Further, a possible option might be to raise the age to 12 and then look at having a criminal defence for children over that age who still lack the capacity to be found criminally responsible. Thank you, and finally, Dr Mayby. Yes, I would agree with my two colleagues that the bill is long overdue, and that raising the age of criminal responsibility to 12 is a good first step. Whether it represents a progressive commitment to international human rights standards, I would question. I think there are a number of reasons why we should be with urgency looking at increasing it even higher. We know that the UN Convention states that age 12 is the bare minimum. It still leaves Scotland trailing behind the vast majority of Europe and many other countries, both developed and developing, in terms of age of criminal responsibility. In terms of whether it will actually have any impact on children in Scotland, I think the evidence is fairly slim. The Criminal Justice Licensing Act 2010 already placed a presumption of no prosecution for under 12, so therefore that's already in place. De facto, we're already using a minimum age of criminal responsibility of 12. We know, looking at the evidence from Malcolm's office, that very few children under the age of 12 are actually referred on offence grounds, and certainly very, very few are referred on very serious offending. We know that retaining an age of criminal responsibility at 12 means that children who are still at a very vulnerable age—certainly in their mid-teenage years—go through a system that does not always have a positive outcome. For example, we know that those who end up in our criminal justice system disproportionately come from poorer backgrounds and a huge proportion of them come from either looked after backgrounds or youth justice backgrounds. We have a way to go in terms of having a progressive commitment to those international human rights standards that would put our children at the heart of a welfare system that would not damage them. Thank you very much, all of you. I'm now going to move to questions from colleagues, and I'd like to bring in Oliver Mundell to begin. Thank you, convener. I wondered if I could start by just going back a step and asking you why the current age was set at eight, if you could speak on that, and also why it's taken so long to look at changing it. In the midst of history of Scottish criminal law, it was set at seven. The institutional writers have a very developed system for deciding whether children could have criminal responsibility, but nobody in Scottish legal history has ever wanted anybody aged six or under to be criminally responsible. It was raised to eight in 1932, seemingly because there was a view that it should be raised, so it went up one year. My opinion on why it's taken so long to go any further is that there perhaps has been a tendency to say Scotland has the children's hearing system, so we're dealing with children on a welfare basis, so we don't need to worry about it. Of course, for some time up until the 2010 act, children aged eight could be prosecuted in cases of very serious offences, so I would agree that it has taken a long time. Yes, I had to go along with Claire. I think that the hearing system has been almost getting in the way of looking at the proper reform and lulling us into complacency and not recognising the criminalisation effects that an appearance at a hearing for committing an offence can have, particularly in terms of disclosure. Again, for that purpose, this reform is desperately needed. I know we're talking, Susan's right, we're talking about a very small amount of children. I think we had about 208 to 11 year olds referred to the reporter for committing an offence last year, so comparatively small number and of those very few would be a debt to children's hearing, but still the consequence is significant for those that do. Dr McVeade, do you have a view on this particular question? I have no knowledge of how it started, but I know that over the years it has been discussed and debated, and I think that one of the reasons that nothing has happened until now is that there's been no appetite within the Crown Office and Procurator of Fiscal Service to increase it, partly for the reasons that my colleagues have already set out. This committee has, sorry, Oliver, before bringing back in, we've heard in briefings over the summer and in other evidence sessions unrelated to this that one of the reasons the catalysts for making this change of equalising both the age of criminal prosecution and the age of criminal responsibility is that without that equalisation you still have the capacity, as you said, Malcolm, to get a criminal record that can impact on your disclosure. Do we have any metrics as to how many adults are currently affected by criminal records that were obtained before they were 12? I think probably the honest answer to that is no, but actually there may be quite significant numbers in terms of, you know, going back in history in particular, the system has evolved positively so that the number of children who are referred to the reporter for offending has dropped, particularly with the advent of the whole systems approach, but if I go back, I mean I started as a reporter in 1974 and you saw vastly more children appearing at hearings for having committed offences and it was 1974 that the rehabilitation of offenders act came in and were appearing for offences that would not, did not be even referred to the reporter today, but would subsequently be made on supervision and because of some of the rules found disclosure that record lasts for a significant period of time, 40 years in many cases. Do you sorry, Oliver? Do you want to come back? Yes, can I also ask, you know, obviously the prosecution age has gone up to 12 in the recent past. Why do you think that change was made but this wasn't changed at that point? An explanation for that seemed sensible that the age of criminal responsibility would go up. I think what it has allowed for however is a period when we've been able to see what would be the effect of a wholesale rise and when, as we know from the research done by the children's reporter administration, we're not referring very many children aged 8, 9, 10 or 11 on offence grounds. I think there may be one other positive factor that's the 2011 act, the Children's Hearing Scotland act, which introduced new grounds of referral, which gives us more ability to cover cases where children are showing difficult behaviour, do need compulsory intervention, but you don't want to use the offence ground. I think there are now more alternatives, particularly the one about impact of behaviour on self or others. I think that the introduction of the, excuse me, the introduction of getting it right for every child policies and the whole systems approach has reshaped the way that practitioners are working with young people and how they think about the potential effects of putting them into a system where it can be damaging. I suspect that some of the change in referrals to the children's reporter is that children are being seen more as children in need of help and support rather than children as offenders. There may have been some practitioner change around that, but we also know that there's been a widespread change in the way that children are behaving. That's not just in Scotland, we can see it right across the UK and in many other international countries as well. The number of young people who come to the attention of criminal justice agencies has been diminishing across many countries as part of a wider phenomenon called the crime drop, and the crime drop across Europe and the US and many other countries is predominantly a crime drop amongst young people. The reasons for that are complex but may be related in part to the change in the way that children spend their leisure time, which is far more online and far less on the street. However, the result of that is that a much smaller number of children are coming to the attention of the police and, as a result, the children's hearing system. We also know that the whole systems approach diverts children in a range of ways, which is very effective, so they're not requiring to come in for more intensive intervention. I know that you've all stated that you don't think this goes far enough and obviously you've referenced already the previous rise of a year. Do you think that there's a potential danger that, if this bill passes as proposed, this will be seen as the end of the debate around the age of criminal responsibility for another generation? I can only say that, and I hope that there would be further thinking. I think that we can do work within SCRA, as we did with 8 to 11-year-olds, in looking at comparing why children are being referred for offence grounds in, say, the age group 12 to 16, looking at the issues to see and to suspect to find out the similar background issues that we'd identify, but also that allows time to tease out what are the implications for the old age group of how it would be tackled if, say, you had a 15-year-old charged with a particularly significant and serious offence. How would that be dealt with in the legal system if there was no age of criminal responsibility? I believe that there are ways of doing that, and certainly my fundamental belief is that I hope that there will be further reform, but I think that those issues are, if you like, separate and more complex than the 8 to 11-year-olds and need some teasing out. Sorry, that it would be kept under review. I think if you look at it at all, your first question is yours, how did it remain at 8 for so long? There are answers, as you've heard, but perhaps not particularly effective answers. Having come this far and having a bill to raise it to 12, it's clearly on the agenda, and I would hope that it would stay there. I would agree. I come back to the words of the bill itself to reflect a progressive commitment to international human rights standards, and I think that if Scotland is a country that looks to its comparators to see what's happening elsewhere to reap the best of what's happening in other countries, and if you look not just at Europe internationally, the direction of travel for the age of criminal responsibility is upwards, so where it is being changed, it's certainly not coming down. There's a really great example in Denmark of a natural experiment, if you like, where following a particularly punitive period where there was a tough on crime policy agenda, the Danish government decided to reduce its age of criminal responsibility from 15 to 14. Researchers were then able to test the effect of that legislative change on the 14-year-olds who experienced the change and were subject to criminal justice policy, as opposed to the prior 14-year-olds who had escaped that attention, and what they found was that following the change, the rates of offending amongst 14-year-olds went up significantly, and they were still more likely to be offending 12 to 18 months later. They were also more likely to drop out of school at an early stage, and those who did stay in school achieved far less in terms of their educational attainment. That policy was changed back up to 15 within two years. If we want to look at evidence in other countries, the vast majority of European countries have 14 or 15 as their minimum age of criminal responsibility. Scotland is currently at the bottom of the pile. Moving it up to 12 puts it slightly higher up, but still at the bottom of the pile, next to other countries who are already considering moving the age up, for example the Netherlands that has an age of criminal responsibility currently of 12, but they are looking to 14 at the moment. I hope that this would very much stay on the agenda because it is on the agenda of many other countries. That is fascinating. I think that Fulton McGregor would like to come in. It is so much a supplementary convener through yourself. I just wondered whether Dr McVeigh would be able to make a study available to the committee. That would be a great season if you can lay us with clerks about... You are a paper that I can submit afterwards. Excellent. Here is one that we prepared earlier. I will look into that paper. You will like that. Fantastic. Mary Fee. Thank you, convener. I want you to follow on from the line of questioning that Oliver Mundell has been raising, because I am really interested in why the decision has been taken to raise it to 12. I know that you touched on it in your earlier answers, but I am really keen if you could perhaps expand a bit on where we sit with the rest of Europe. I mean, I know that there are only three other countries that have an age of 12, so we will still be very much on the floor, because 12 is the minimum that the UNCR said it should be raised to. I would also be keen on your views on how raising the age to 12 sits with the Government's agenda around GERFEC and the really good work that has been done around getting it right for every child, and do they all fit together so perhaps you could expand on your views on 12? 12, I think, as has been said earlier, was the easy one in terms of it fits with the age of prosecution. The evidence of offending referrals in that age group is much smaller, so, bluntly, it is an easy one to crack in terms of the legislative impact. As you go higher, where do you stop the bar? Do you stop it just at 14, or do you go on to 16, or even some would say 18? Each of those in more questions, which I believe can be answered, but need careful thought to ensure that we have a system that can still respond to the difficult behaviour of a child, no matter what that age, and offer proportionate measures that don't criminalise somebody for all life, which is one of big issues around the use of offending even within the hearing system, which allow rehabilitation, allow that getting it right for a child, and that's where it absolutely fits with the GERFEC agenda of working with a child in their best interest, taking account of their wellbeing, but ensuring that the work that is done there does not have an adverse impact on that child for the rest of their life. Perhaps we could come on to talk about behaviour and understanding in a minute, but I don't know if the rest of the panel have any further views on raising it to 12. I think it's hard to think of reasons why you wouldn't raise it to 12, so I agree with Malcolm that if you're going to raise it, it makes sense to go there, and we have the evidence base from the children's reporter administration that in fact may not make that much difference to raise it to 12. Children can still be referred on the ground of causing harm to themselves or others, which has come in from 2011. I think the issue of what goes with criminal responsibility, as opposed to just responsibility, because children's hearings have the ability to discuss with a child whatever age that child is referred to them responsibility for any behaviour, whether it's tuning from school or any of the other conduct grounds on which they've been referred, and to help them to take responsibility for that behaviour and move on from it. Criminal responsibility has, particularly at the moment, the issue of disclosure attached to it, but there will always be a particular stigma attached to having committed a criminal offence whichever forum deals with it, and if there is a way to raise the age and diminish that stigma attaching to young people, I think that that would be very helpful. Dr Mavie? Yes. I'm going to come back to the progressive commitment to international human rights standards yet again. The UN Convention states that a child is anyone under the age of 18, and it stipulates also that we should act in the best interests of the child, and within other areas of Scottish policy, I think we have been showing a very strong commitment to human rights. So policing, for example, the changes in policing, for example, even the changes in stop and search most recently shows a very strong commitment to human rights, and there's a very well-crafted section in the stop and search code practice around how children and young people and vulnerable people should be dealt with in terms of stopping and searching. GERFEC and the whole systems approach are very much founded on human rights principles, and through those policies what we've been trying to do is divert more young people away from formal interventions into more effective but less intrusive forms of intervention in terms of their behaviour. We're trying to retain more 16 and 17-year-olds within our youth justice system. All of that fits with an international standard of human rights, so for me the decision to set the age of criminal responsibility at 12 jars with all of those other things. In terms of how we sit within Europe, we're 10 years behind Belgium, who have an age of criminal responsibility of 18. We are well below most of our, we're certainly below our Nordic neighbours who we consider to be similarly progressive to us. They all have an age of criminal responsibility of 15. We're much lower than many other Latin American, Asian, African countries, and I think that it's interesting that one of the things it says in the bill is that it's not so much taking account of capacity, and yet the age of criminal responsibility is entirely about capacity, and we should be taking that into account. As Claire's already said, there is a growing body of neurological evidence that shows that brain formation does not end in the teenage years. Actually the frontal cortex, which is the area of the brain that controls behaviour, really doesn't become fully formed until the mid-twenties. There's a growing sociological literature that says that adolescence as a period of development is ageing. People are leaving home later, they are getting married later, they are having children later, they are entering the labour market later than ever before. So we see this sociological shift, we've got increasing information about neurological development and there's a broad criminological literature that's saying that children are not starting to offend until they're older. So I think that the evidence around shifting the age upwards is compelling. And if this is a start, moving it to 12 was the start of a journey and the age will be moved, do you think it would be helpful within the legislation to have a review clause to say, after two years we revisit this and if appropriate we raise it by two years for example or a year? I personally would very much support that, yes. Then you have a formal requirement to have it under review, I think that would be very helpful also. Yes absolutely and I think that would also give government a mandate to put in place. I know that they have an advisory group that has been very active in providing evidence for this particular bill but it would give that group a mandate to continue to look at the wider evidence in order to have a kind of more informed decision about what the correct age would be. Are you aware in countries where the age is higher what approaches they take to young people? Do they have similar welfare based approaches and interventions as we do? It's hugely and there's no one size fits all, youth justice system, some countries and there's no other country that's adopted a children's hearing system and I think it's still considered to be unique and is the envy of many countries. There are other countries that have a similar sort of welfareist structure but most other countries do have some form of youth courts which of course we've managed to avoid for the most part. I think it is worth saying though, I mean we've all talked about the age of criminal responsibility in other countries but it's a little bit more complicated than that because although some countries have a minimum age of criminal responsibility they may have other wider policies that shape the way in which young people are dealt with. So Russia for example the age of criminal responsibility is 16 but they have a kind of get-out clause that says that children who commit severe or grave offences can be prosecuted as young as 14. So there's a lot of different nuances in the way in which other justice systems operate that sometimes get around that problem. Oliver Mundell would like to brief up Llymitry on this point. Sorry, it just was exactly on this point because it suddenly come to me just whether it was common to have a different age of prosecution from criminal responsibility. Is that something you see elsewhere as well or are they aligned in these other countries? Most countries have an age of criminal responsibility and then they quite often have a graded set of ages for other things. Sometimes those graded ages are upwards so they'll have an age of criminal responsibility at 15 for example but they won't prosecute beyond 16 or 17. Some other countries go the other way so they have a minimum age of criminal responsibility but an effect of age of criminal responsibility that's younger than that. As I say there are many nuances around how justice systems operate which would mean that a period of further review would be very useful. Thank you Oliver. Mary you had one more question Two more questions. Apologies. Are you aware of any studies that have been done in any European countries of how high the age of criminal responsibility is and the level of adult offending? Is it the case where it's a higher age of minimum criminal responsibility there is a lower rate of adult offending? I'm thinking about the short answer is I haven't seen any such studies however I would say that those countries for example are Nordic comparators have lower rates of criminal conviction than we do here and I think the evidence around the impact of criminal justice contact in the early teenage years and its longer term impact in terms of a longer term criminal conviction career are compelling and that there is strong international evidence to show that the earlier and the more intense your systemic contact is and actually we did a comparison with Germany which has more of a punitive system in Scotland which has much more of a welfare system and we found very similar things that those children who had an earlier contact and more intensive contact were far more likely to end up in the criminal justice system and to have a longer term criminal career than those who were not drawn into that system even when those other young people were offending to similar extents. Now that's not to say I think we've got to be careful. I mean we we there practitioners do not go into youth justice services every day thinking that they're causing damage to young people and actually many young people come out of youth justice services and they have turned their lives around significantly but so we look at the average effect over time and the average effect does still suggest that on balance the negative consequences of early and intensive contact which essentially recycles young people around justice system for a long time and then throws them out into the adult criminal justice system is hugely damaging. Those labels that are attached to young people they they never come off. I was talking to someone at a Scottish prison service event yesterday who was talking about the fact that he had to move 300 miles away from his home, from his family in order to to lose that label and restart his life. We shouldn't have to make young people leave their homes in their communities in order to shift a label that is applied by a system. Any other views? Can I move on then to ask you about behaviour and understanding? Young people that are aware of the difference between right and wrong but are unable to understand the full consequences of their actions and if you use that as an argument for raising the age of criminal responsibility at what point do you raise it to at what point do you stop at what point do you say every young person fully understands the consequences of their actions and is there enough sorry this is a long question is there enough flexibility within the system to say that for example a young person of 13 that may commit a crime or a young person of 12 that commits a crime understands the difference slightly understands the consequences but but doesn't really fully understand the consequences and someone of 15 doing it because the development of young people is completely different you could pick a room of 20 young people and they have all developed differently so how do you get that medium that fits for everyone you've hit the nail on the head of using chronological age for any purpose that it draws a beautiful clear line that law likes very much but it doesn't tell you much about the person that it's related to there are possible ways of dealing with that by having an age of criminal responsibility and then looking at individual young people in England and Wales for for a thousand years in fact until 1994 they had the Dole Incapax presumption which presumed that children aged between 10 and 14 didn't have that understanding and the prosecution had to prove effectively that they did some academic commentators have suggested instead of that that you might have a test of criminal responsibility you could do that at a pre-trial stage to test the child's capacities in the areas in which you need them which are broader than just simply knowing the difference between right and wrong toddlers understand that simply because they're told not to do something but they don't have the kind of internalisation of the rules or another possibility which I suggested in my opening remarks might be to have a defence of developmental immaturity that those young people who simply it would be unfair to hold them criminally responsible could plead so the age will draw an arbitrary line and it is difficult to know where where that should be but but those are other possibilities around the edges of that because I'll move to I would just say that if you look at the neurological literature then it would say that full brain maturity doesn't occur till around age 25 now I can't see there being any appetite set age of criminal responsibility there but as Claire says having an arbitrary if we decide to use a legal threshold in an arbitrary age then we have to have other policies and allowances in place to take account that we are all different and that there are many adults that you could question whether they have the capacity to fully understand and very few people have the capacity to fully understand what the impact of criminal justice system contact will be on their later lives certainly this parliament has grappled with the issue of age of majority and a range of legislation in some legislation you have two ages of majority as well I think in terms of vulnerable adults and protection vulnerable groups um Fulton McGregor convener I wonder if Malcolm Chaffer would be kind enough to to explain what happens in the process when a child or a young person of any age not necessarily under 12 is referred one of any grounds if you can take us through that process because I think it would be quite helpful for the committee to have that on the record while you're here in this capacity sure if a child is referred to the reporter by the police for committing an offence then we've got to look at two different issues firstly have we got enough evidence to prove that the child has committed the offence and also if we have or haven't is there an alternative ground that might be more appropriate and secondly is this a child who's in need of compulsory measures of supervision because it's only the children who are in need of compulsion that should be referred to a children's hearing to help with that decision the reporter would try to gather together such information as is proportionate and necessary for um a conclusion so make contact with those agencies who might know the child school obviously um social work department perhaps perhaps medical authorities depending on the individual situation to try to draw together a whole picture of that child to look at that child's behaviour to look at the reasons behind that behaviour and it may be and certainly there was evidence of a number in the study we did of 8 to 11 that when you look at the child what's going on with the child you see that there are other more significant issues that are the cause of that behaviour which might relate to parental care at home parental control um or even particular associations the child's guard and the reporter might think well you know the whole purpose of our decision making should be about identifying the ground that signifies the problem in the child's life so we might decide even though the child had been referred for an offence that actually we would not proceed with that offence we would proceed with grounds of lack of parental care because this child's not getting appropriate supervision if the second test is made of um the need for compulsion so again we'd be looking um to the social work department school other agencies is the issue that the child's presented an ongoing problem is a one-off to what extent can it be dealt with in the family to what extent are other agencies there who can support the family on a voluntary basis without having to involve compulsion so only those children who have a enough evidence to demonstrate the need for a grant of referral and b our need of compulsion should end up at a children's hearing so overall we refer on last year's figures about 25% of children that are referred to us to a hearing and interestingly when it comes to children who commit an offence that figure drops to about eight ten percent and that may be partially because we use other grounds but partially because we think that there's other measures that can be involved without the need for compulsion or involvement in the system so that's the process of the reporter's decision making clearly if it goes the reporter refers the child to a hearing then um the child and parents would appear and be asked if they accept the grounds of referral or not and any denial or lack of understanding would be referred to the sheriff court to determine if the grounds are made out and if they are made out it comes back to another children's hearing for disposal and the hearing has the job of deciding the need for compulsion in that case so the last bit there if your explanation which I think was very good was actually where I wanted to get to and I should say I should have had an interest earlier as a register of social worker and I worked in child protection for three years so I wanted to actually explore that a wee bit more a child of any age when they actually go to children's hearing and those grounds are put to them can you expand on that a wee bit and tell the committee how that actually works and what rights the child has in that process in their family we would flag with the child the ability to get legal representation in certain circumstances particularly if there was any issue of secure of authorisation or if the child was coming from custody we would send out with the grounds a leaflet flagging that acceptance of grounds may have an impact on future employment prospects you may wish to speak to us a list prior to that by no means all families do get legal representation at the hearing itself the chair is under the duty to satisfy him or herself that there's a proper understanding of the grounds and that's because it's such an important part in terms of it's the threshold to the hearing system and to compulsory measures that they should not be proceeding further unless they are satisfied of acceptance and understanding both by child and parents I mean it always struck me even I was working in a particular area that and I don't know if it's the if it's the case across the country but perhaps I can ask you your experience on this of whether when a child in their family are put in that position which is already a quite stressful situation that the the desire to get it over with if you like is greater than any understanding that might be around about possible impact on future employment or life chances 10 15 years or less later for a number of reasons I really worry about a current disclosure provisions and the extent to which not only are they not understood by children no parents I'm not sure they understood by all professionals because they are so complicated I'm happy to leave that that question there I was going to be about what reports would bring out about other circumstances for children but I think you covered that in your initial response so thanks very much I think before I bring Linda in Mary's got a short supplementary on Fulton's landing question yeah can I just ask you if you could perhaps expand on the measures that you are able to take when a child comes before a hearing is there enough flexibility in the system that if a child appears before you and you need to take some action to to help that child because ultimately that's what you're doing you're helping young people that come can you tweak the system to use a bit of this and a bit of that or is it quite rigid and how often are the measures that you are allowed to use how often are they reviewed and either added to or changed you can imply any measure on a child within what's proportionate and what's legal that can and should first look at what is available to support the child within home but also can involve residential measures if necessary the issue of the availability of services is is a good question which can be partially a geographical accident and partially may be an issue that's at risk in terms of current public spending impacts on the wealth of say youth offending supports and skills that is available in each area um which at one point was quite significant but there seems to be a diminution of that now in terms of review i think that's probably one of the stronger points of the hearing system in so far as no child can be on supervision for longer than a year without having to come back for further hearing that child or parents can ask for review at any point after three months that a social worker can bring it back at any stage either because it's working and it's no longer needed or because it's no longer working and something else needs to be tried and in the extreme cases where child's behaviour is so significant that a child's placed in secure accommodation then that must be reviewed in the maximum of three months by further children's hearing that's very helpful thank you Linda Fabiani thank you convener can i say at the start that as a substitute in this committee i'm not as immersed in it as my colleagues are but i've jotted down a few things that i've heard that i would like a bit of information on the first thing i'd like to ask is when i read the papers it spoke about the current system where if someone's between 12 and 16 the lord advocate can decide to move to criminal charges or criminal proceedings and i just wondered how that might alter if we were to make the age of criminal responsibility 16 understand that from 12 to 16 it's been a sort of informal non-official thing from what you said earlier it's become practice rather than than law if it's 16 then the lord advocate would have no role because the charge cannot be charged with a criminal offence yeah so i think what was puzzling me there is what about if it was a really serious issue that perhaps a 15 year old i hesitate to use the word crime because if there's no criminal responsibility but if if something very very serious happened that was deemed to be the fault responsibility whatever of the 15 year old how would that be dealt with if the age of criminal responsibility was 16 that's when the decision about what age is set has to be based not just on kind of broad human rights standards but on the issue of capacity which i appreciate that the the bill has not taken so much account of but if we as a society agree that children under the age of 16 do not have the capacity to understand when they commit something that's very serious then we have to stand by those young people and we have to put in place every measure that would support that young person from committing a crime again and we have to put in place all measures possible to support the victim but if we're taking an ideological stance that's the age of criminal responsibility 16 then if a child younger than that age commits a crime then we would we can't bend the rules now when i say that there are some countries that do put in place caveats to the age of criminal responsibility i think that's a dangerous precedent to set because if you're going to put in place caveats why bother having a set age but if the principle is that we want to protect and support our young people we have to accept that sometimes they will do bad things even though that's relatively rare talk about the issue of relatively rare i think malcom you were able to talk about the number of 8 11 year olds but i think you said that there was more work not enough work done so far in relation to 12 to 16 15 year olds i think if you were setting a review date in two years one of the things we would offer to the Scottish Government and indeed already have is to do a similar study for 12 to 16 year olds as we did for 8 to 11 year olds to tease out particularly the nature of the offending that is being reported in that age group how that would be covered if the bar was set at 16 what alternative measures would be available and what the implications are of that reform that ties in with i think what all of you have said and i recognise is that this would have to sit amongst wider policies that you couldn't just unilaterally change that they'd have to be wider policies there whether it's support whether it's issue of disclosure which i was getting a view from you that disclosure was such an important part of this so there may well be wider policies that could look at the issue of disclosure tying in with raising any age and i wonder if i mean i'm always up for review clauses i think that often we don't study the effect of legislation enough but this strikes me as a very major issue with a lot of policy implications so i think i'm picking up that you'll agree with this legislation going forward do you think two years would be enough to really do this justice to use the word taking account of disclosure for instance there's already significant work started in terms of pvg review and management of offenders bill the work that we can do within scra would be easily achievable within that time period we need to tease through then the implications for any potential gaps and powers for instance the maximum bar for the hearing system which would be the alternative route for compulsory support is 18 and even that period between 16 and 18 is only covered if the child's own supervision so is there a case for looking at extending the powers of referral to the hearing system to cover children and young people who are not on supervision but in need of compulsion to at least 18 and to tease out some of the implications of that and just to think and tease out what the implications for somebody who commits a very serious and significant offence at 15 years 11 months and um if the powers in the hearing system only lasts to 18 what and there's still a need after that how is that support provided um i'm sure there are answers to that but i think that's the sort of example of what's needed to consider in greater detail the edinburgh study of youth transitions in crime which is a longitudinal study looked at a group of young people who were growing up in the late 1990s early 2000s and they followed those children up over a six-year period and collected significant information on their social work contact the children's hearing contact their criminal records and it showed that it showed a number of things it showed first of all the vast majority of children were getting involved in some bad behaviour it's a normal aspect of adolescent development um and the vast majority of those don't ever have any need for any kind of formal services and there are all sorts of informal social controls that operate within our communities that take care of many of those things so the children that come into the the system into the children's hearing system or to the attention of the police tend to be a kind of a smaller segment at the thin end of that wedge there are also the poorer end of that wedge it has to be said children from poor communities disadvantaged backgrounds are significantly more likely to come into our justice services so we need to bear that in mind in terms of resources we're not just talking about resources to deal with offending we're often talking about resources that are needed to deal with a multitude of quite complex needs and our research found that children who travelled through the the children's hearing system during the kind of mid teenage years some of them went on to have quite a chronic pathway of into convictions and and ended up in our criminal justice system and others actually didn't and when we looked at what the key factors were that decided whether they went on to have this chronic pathway or not we found that wasn't their serious offending that was behind it it was a series of other things it was continuous and increasing police contact it was increasing contact with the youth justice system to which which in in terms of its principles which are very much to set on the Kilbrand and principles are absolutely spot on in terms of welfareism and human rights but often it's the implementation of decisions made by that hearing system because the resources don't exist to put in place the services that those young people need but there was also school exclusion is a key factor in determining these young people's lives and the more we can keep children in school so it does cut across a range of policy areas and and that kind of integrated multi agency response i think is something that scotland has become very expert in the whole systems approach is predicated on a whole on a multi agency response so do we want to have a longer than two year period i would say let's stick with two years and see where we can get to in that time period otherwise if you make it longer than that there's a danger these things get kicked into the long grass but it gives you an opportunity to not just interrogate you know the impact that it would have within youth justice but also in terms of education health and all the other areas that actually are the systems that need to be put in place in a rounded way to help the children that come to our attention thank you very much for that can i just say convener that i i understand everything that's being said here and i understand the human rights implications but i do have concerns at unilaterally saying right in two years we'll have a review in two years time because two years in politics particularly let alone in life is a very short time and i feel that there is so much in there and that you know we should welcome the idea of making this initial change but not be prescriptive about how long it should take to be able to review whether we should go for that i'm just conscious we are coming perilously close towards the end of our time with you i'd like to sort of finish up by taking this back to children's rights and i should have said at the start of the meeting that i refer my fellow members to my register of interest in that i was past convener of together which is the scotland for children's rights and taking this back to children's rights the obviously this is in the context of the first minister's announcement in the programme for government of the intention of the Scottish government to bring the principles of the united nation convention on the rights of child into incorporation within scott's law and and so thinking about that in the context there are invariably tensions within the UNCRC where rights can sometimes compete with one another and i think to that there are tensions throughout various sections of this bill some are easy to rectify and some less so but looking specifically at section 23 which is about place of safety about the power of a police officer to remove a child from a situation and take them to a place of safety there are immediately tensions within that so for example the phrase in section 23 2 is that the constable may take the child to a place of safety and keep the child there if they are satisfied it's necessary to do so for a range of of quite severe reasons obviously that's an immediate tension between their protection rights and their participation rights if they say i don't want to be here and the constable said tough that their article 12 rights are impeded can the panel explore those tensions we've got three minutes they certainly exist and i think that's one of the in the the bill is extremely well thought through and much consideration has been given to minimizing the sort of criminal justice aspect of it but i think if you take away the link between the age of criminal responsibility and capacity you're then saying children under 12 are not criminal because we said they weren't rather than because they don't understand what they're doing and i think there's an issue in all of the other provisions about well how will that feel if you are a child and we could now be taking a seven-year-old child under those place of safety provisions or or the search provisions or indeed any of the other provisions and i think it's important to have an eye to that i have to say i read the bill thinking i wouldn't like any of these additional provisions at the end and that they are very well safeguarded i think in terms of the rights of the child to be protected but it would be important not to lose sight of the tension i think expanding on that further and i'll draw in our other panellists in a moment but but also in in terms of the actual place of safety the only place of safety that is referred to on the the face of the bill is police stations now albeit that saying as a last resort you can use a police station but obviously that and jars up against article 37 rights about not being held along with adult suspects and i just wonder do we need to do more to unpack that a perhaps to have a schedule of other places of safety constables should try first and if they have to have to be in a police station something on the face of the bills that never incels and and with other safeguards around that drawing the other two panellists perhaps as well on this but perhaps dr. mcdonald you clearly have a view i was just going to say i think that that would be helpful because if the legislation only gives one option even as the last resort there's a danger that that then becomes the first resort i think it is attention you're absolutely right i mean firstly we hope these are powers that will be seldom if ever used it's the first significant thing to say it is i know a lot of thoughts been given to it it and it's this balance of keeping the rights of that child within that process but it does retain a lot of the elements of the criminal justice feel and in terms of alternatives to police station well i did see one respondy talk about if we're developing the barnhouse model in terms of child protection is that's not the sort of resource which could also be used for interviews of young children to get it away completely from the police station get my brief back into the system and the feel of criminalisation which is the whole thing this reform is trying to get away from so i'd hope it would be a measure that can be given some further thought in terms of imagination and use of alternative resources to make this reform properly meaningful yeah i mean if if you've ever been in a situation where you have to remove a child in terms of a place of safety it is a hugely distressing event and i think no one should be under any illusions that a child who's removed under those circumstances would be in severe distress so taking them to a police station to me seems like one of the least humane things you could do notwithstanding the fact that we have fear and fear police stations of course so i think serious consideration should be given to again it comes down to a resource issue social work centres and family resource sensors are also in short supply but if we do want to take this seriously under human rights standard then we need to have humane places that we can take children to under those distressing circumstances i would certainly agree and i think that many of us would would not consider that a police station on a Friday night would necessarily be a place of safety in any situation just a final question because we do have to move on to the next panel also on rights and you mentioned stop and search which obviously this parliament has agonised over and i think that we have moved some considerable distance from where we were and i'm grateful for that but are you content that the provisions under section 25 about the power to search on suspicion of a crime about to be committed are sufficiently safeguarded by the work that underpins that act and should we happen on less than light in times that the legislation we introduce in this act or bill will not allow a slide back into just the the whole sale searching of innocent children on our streets on the contrary i think the legislation as it's framed is pretty tight around the circumstances in which stop and search can take place and i think police officers have have have adapted very well to the introduction of the code of practice which in addition to the legislation has given a fairly detailed set of circumstances around which it's expected stop and search takes place and there's the the 12 month review of the stop and search processes ongoing at the moment and recommendations will be made in that report i think for the cabinet secretary and i think some of those recommendations may be around slightly expanding the legislation again i think there's some confusion is a great area around the extent to which police officers can search in the circumstances of prevention of loss of life which is slightly perhaps there's a slight jarring within legislation that doesn't quite allow police officers the the security of mind to know that they can search in those circumstances but i think otherwise i think the current legislation is pretty tight and we've seen from the reduction in the numbers of stops and searches and in association with that the increase significant increase in detection rates that appears to be working well thank you very much and can i thank you all for your time this morning um certainly if there's anything that you you would like to have said that you didn't get the opportunity to um please do write back in and we'll certainly be meeting with you privately i'm sure just in our consideration of this bill but thank you very much for your time i suspend the committee to change panels on that welcome back everybody um thank you very much and now we move on to our second panel of witnesses today i'd like to welcome marion gill huley who is head of strategy and innovation at Includum claire light euler who is director of the centre for youth and criminal justice at the university of strath glide duncan dunlop chief executive at who cares scotland and lindsay handvidge who has care experience policy ambassador with who cares scotland and you are all very welcome just to say um you don't need to press the buttons to speak if you do terrible things happen so the mic will be switched on for you um so i'd really like to start in the same way i did with the first panel is just to go around the panel and ask their initial view of this draft bill and if it meets in their view our stated intention to move to the un sort of prescription of the minimum age of criminal responsibility lindsay can i start with you so i'm in agreement i would like this movement to pass in parliament but i would also like the consideration of the age to be changed i believe that right now at the age of 12 yes we have um age of criminal responsibility and where you can be convicted um but what are we doing moving it to 12 where are we advancing on this um yeah i think that's my stance on that that's really helpful thank you Duncan hello thanks for the opportunity to speak to date i mean i struggled to say this this just looks like a wee bit of housekeeping we're doing this isn't making this the best place in the world to grow up to be a child this is just about getting some of the power in the worst place in europe and the last panel is saying russia's the age of 14 and we might just get to 12 i really think this is shocking to be honest to me it's one of those i think it's been a slight embarrassment we've had at the age of eight for so long we just need to get this over the line of 12 but it's a time for i mean our parliament to show some real leadership initiative i think we don't need to wait two years to review whether it's the right thing we ought to go be far more bold with this i mean we speak very much for a care experience population we know the consequence of that and we'll talk more about it as the morning goes on no doubt but this should be at least 16 if not 18 because the consequences of involvement with the justice system is more involvement with the justice system which means more offences are being committed potentially later in life and then you end up with a more likely to be involved in it certainly is a young adult in the justice system it doesn't create safer communities and it doesn't do any good for those who potentially the victims of crime or those young people who go to this entire system we just have to look at it for the reality of what we know and not a populist mantra involvement of police and actually fact bizarrely and the justice system means people are more likely to continue offending so we really have to look at this as a different approach and i'd say seize the opportunity age of 12 is really nothing thank you marion and i would say that we welcome the fact that we are debating a bill at this stage and i would agree that the age of 12 is probably not is not far enough and it's the absolute bare minimum as suggested by United Nations committee on the rights of the child and so we would like to see it go further however i think that it's fair to say that the provisions in the draft bill or in the bill has introduced cover some very complex issues and i think that it's important to note that it's clear that a great deal of consideration has been given to those complex issues and i think that that does come across in the bill however criminalising children is in nobody's interest and the stigma that's attached to that identity is incredibly damaging for those children and also for all of us i think in our society i think that we need to be looking at the needs of children who display harmful behaviour and i think that the term harmful behaviour is much more helpful than thinking about offending and offending behaviour and i think we need to look much more at how we use that kind of terminology thank you and claire you're going to hear a very similar line of a response it's hard not to welcome this because as we were discussing in the previous panel it's been 20 years since it was recommended and it's a criminal way so the life of the parliament this has been taken away in the background as something that i think most commentators 96% of consultation respondents everybody given evidence that we've seen to your your committee in written and oral forms today have indicated support for the the the age of 12 so you know it's a moment it's an important moment it's an important statement on where scotland stands in responding to children experiencing distress and behaving in ways that harm others so it is important to acknowledge that and and to welcome that step but as others have said does it go far enough and what should that age be and how can we better respond to that distress and there's a lot of arguments around why why it matters that we we think about what's going on for children and the the truth is that a criminal response doesn't address the issues that children are experiencing we know that nearly all children that are involved in a pattern of offending behaviour have backgrounds that involve domestic violence they're being harmed by that by those around them themselves they're vulnerable they're victimised and it doesn't address those those issues so i suppose that's why this matters and it's why that framing of a criminal lens can be really harmful because the child starts to think that they're bad others around the child thinks that they're bad and we don't get to the the real issues underpinning and that thank you very much that's very useful and we're starting to get unanimity across this panel which is quite a rare thing but a good one i'd like to start with olyn mundell thank you can be there can i just pick up first of all and the point donken was making i went from the first panel we've heard from today i mean they seem to suggest that it was much more complicated to go beyond the age of 12 would you have us delay this legislation to to work through those issues or do you think it's better to to push ahead and sort of start the process well our aspiration is for it to be at least 16 it's a parliament's business about how quickly it can get there it should be up to 18 really in terms of what we expect for for young people and children but we just know from the care experience perspective what will happen the consequence i'm not sure the consequence of delaying this to move it to a different age and look at all the consequence of it potentially you can do it in parallel but i don't think you need two years to review whether it's the right thing it might be that's going to take you two three years to be able to implement it because the consequences are beyond policing it's in terms of how do we actually create different responses this will come back to a cultural issue around how we view young people and the provisions that people were mentioning before they're available for vulnerable children that are appropriate to meet their needs so we do need to be bolder with this we really do and it might be that this is something we're getting through in some of the provisions so we can talk about them later the good and the bad bits within them potentially those need development we we really require to have the ambition for this to be up to at least 16 or 18 and if we don't do it now it won't it won't happen again it's only 20 years it's not so we've had a parliament that's been against this for 20 years it just won't get an legislative agenda well it might do but it's quite a risk so i don't know that the technicalities are how you form the legislation but we have to have the ambition i think the recommendation from this that we need to be going much further okay thank you for that the other thing i wanted to ask about that came up in the first panel was the idea of introducing a criminal defence for children sort of over 12 but maybe below 16 or 18 do you think that that might satisfy some of your concerns in the meantime and that's sort of to to all the panel i guess to your first point first and say that if passing this bill gets us to a place where we start to look beyond the age of 12 sooner then that's what we should do that's the right thing to do and it may be that that is the case in terms of looking at a defence i think that that comes to a consideration of capacity and i think that that's a really complex issue and i agree with the members of the previous panel around the the problems that are introduced when we have a kind of flatline cutoff point but it's difficult to see how else you know in law we can have anything other than that so my view is that every individual case where we're considering a child who has displayed harmful behaviour needs to be considered as an individual case and the needs of that individual child need to be considered in making decisions around what happens beyond that and what support is put in place for that child but also for the victims of the impact of that harmful behaviour so for me it's very much around interpreting the law in a way that suits the needs of each individual to clear i understand that you touched on this in your written submission and would you like to speak to that yes i certainly would i mean the first thing i suppose is to think about if we're accepting UNCRC then children are those under 18 so regardless of the the minimum age chosen then if it's not 18 there needs to be some thought about those children and how we're responding to children between that minimum age and the age of 18 and there are also obviously particular protections for care-experiencing people up to 25 now and an acknowledgement of that older age range and the need for protections for that older age group so this doesn't cut off at any particular age you know so i really welcome the about how far we can go as a minimum and really teasing that out and testing that beyond the 12 but it's going to we're going to need to think about what do we do for those children particularly under 18 in terms of a response and yes what we suggested was looking a little bit more closely at other jurisdictions that have models like the German model where you've got tests about children's ability to understand and act on that understanding and that's a really important bit you've heard this morning a little bit about brain development another really important factor is those around the child if a child is growing up in a criminal family in a criminal community if they're specifically being exploited and serious organized crime groups do exploit vulnerable children do target them it's often that there is often a link between child sexual exploitation groups and serious and organized crime so a child can be being sexually exploited and then being used for a range of drug offences as well what are we doing when we're holding children that are in those circumstances criminally responsible so it's the ability to act and operate free will and independence if your family and if those around you are being criminal encouraging your criminal activity how can you say no as a child can you say no do you have that independence so it's not just about understanding um but the ability to exercise that free will and that's why I think some tests putting in place some can a can a child understand and can a child act on the basis of that that understanding could be a really useful addition to the bill and whatever minimum age is chosen if it's to be less than 18 if we do know that they care experienced and why they care experienced and maybe it'd be worth to bring in Lindsay at this point because I think it's really worth understanding that children aren't born bad they really not and what we do and how they grow up and nurtured um or how we parent them or as we bring them up as a society is we sometimes push them further away from being the best version of themselves and at some stages maybe potentially they can't get back to being the best version themselves but we already heard up to age of 25 there's a good chance you can really make quite significant changes in your life and then if we're looking at the age of 12 and let's say this thing that Lindsay can give a you know an example from when she was at the age of 13 and when you know you first interacted with the the justice system the first night I went into care was in may 2007 it was Friday night and I remember I was away to be a beset just along the straight from where my mum left and when I came home that night there was loads of police outside my the flat that we lived in and there was social work for there and when I went up the stairs they told me that myself my brother and my sister were getting taken away from my mum I remembered feeling angry feeling sad I didn't know what to do I didn't want to leave my mum they tried to force me the social workers tried to force me out the house and that didn't go down too well you can imagine being 13 you've got all these emotions building up and I kicked off a little bit and I told them I don't want to leave my mum my mum was going to be left herself and they took my behaviour as harmful behaviour as if I was just kicking off so that's how it felt to me that I was just kicking off for the sake of it and they put me in handcuffs in my mum's house in front of her in front of my brother and my sister I was 13 my sister was six my brother was 14 15 they took me out the house I wasn't even dressed properly I remember my mum will kill me for saying this but I remember having jammies on I had a hole in the back of them I didn't realise what ones I had put on but they still had me off at the front and forced the bully to remove me from my mum's house I got my first charge that night when I got to the bottom of the coast and they were being really pulling me about the place and I was quite a wee girl when I was 13 and I hit them but it was just I wanted them away I wanted to get back up the stairs and make sure my mum was okay and I get to the police station that night so this happened maybe about 10 11 o'clock at night and I wasn't picked up until about half seven the next morning I was back I was taken to a children's home where my brother and my sister were they had spent their first night in a children's home I spent my first night in here in a prison cell locked up I hadn't done anything wrong but I was feel I felt like I had done something wrong and that that was my first experience being charged or being involved with the police and that was them taking me to a place of safety didn't work out that way for me can I thank you on behalf of the committee for the candor of your statement there I think I don't think anyone can fail to have been moved by that so thank you for your bravery in sharing that and we will carry it with us throughout the deliberations here I'm very struck I think from that story and and from what we've heard in the unanimity across the panel in terms that 12 is the floor you know is the de minimis position set by the UNCRC that when I hear your story and I hear the Scottish Government's view that they've picked 12 because it's a nice fit because that's when people go to high school I'd like them to meet you I'd like them to hear your story and the reasons that that you were accused of offending behavior when you were doing what I think anybody in this room would have probably done in your circumstances so thank you so much I think before we come back to Oliver to see if you've got anything anything else in particular but I mean I would just quickly say I mean I think it's not just about age when you hear a story like that is also about the way that the criminal justice system decides to treat people and sometimes for a whole variety of reasons the way the system works that compassion doesn't always come come through and that's very frustrating and sad to hear it's dehumanised you don't feel like you're valued you don't feel like you are a human you're just another wee person that's causing trouble and that's what they do is they put you away and you're left there and then when you come out so I remember the next morning at half seven that I got a bowl of lentil soup and bread for my breakfast and nobody spoke about me being in the cells that night right I was just expected to deal with it and that was that I really went on but on my birthday but thank you for listening to mastodian sharing it I'm really struck by the fact that we are as a parliament coming to terms with an understanding of trauma and looking to all our working practices across public life and from a trauma informed perspective and what happened to you is the antithesis of that it's the complete reverse of that a trauma informed approach to what you are going through being separated from your mum should never have been to add additional horrendous trauma to that by putting you in the prison cell overnight and I think that this comes back to what both Claire and Marion were saying about looking to why young people are exhibiting harmful behaviour understanding what unresolved trauma attachment disorder and loss can do in terms of behaviour and meeting that with a more appropriate response can I just ask what you think a more appropriate response in terms of a trauma informed approach to dealing with harmful behaviour would look like and when we get this right across scotland this is what happens you know it's this is not linked to the age of criminal responsibility when we see the child we understand the context for their behaviour we challenge where appropriate why they're behaving in in in particular ways and we bring the professionals we need to around the child and what they need from across psychology social work but mainly those that have got a direct relationship with the child supported by by by that team of professionals and support so when we get this right you know that that can happen and does happen the issue about the criminal responsibility angle on it is that it encourages that sole responsibility for behaviour to be placed on a child and what they're externalising to be the focus so it means we can miss what is going on and everybody can miss at points because we're so focused on how they're harming others and that's absolutely important to keep that in mind but to really understand that rather than just attaching a criminal responsibility label um to allow us really to get under the surface and actually better um better spot that child but also reduce the risk for others as well and i think when as clear says when things work well it's when professionals work well together and always thinking about that child and what they need um and um service providers like Includum providing relationship based support that allows workers to get to know that child and to find out what their experience has been and to listen and hear what that experience has been um and then to start to help the child work through how that experience has influenced their behaviour and then think about the consequences of that behaviour and how to develop different ways of of coping um but all the while acknowledging what has happened and and understanding what has happened for that child which is really important to helping the child understand what's happened and crucially removing the inference that there is something that there is blame for their experience and that's something that we are passionate about great to add to that actually the other element of this is to keep the child included in various settings Susan McVie alluded to this in terms of school inclusion but also in terms of social activities groups youth groups and to try as much as possible wherever possible um to ensure that things are put in place to support the child to continue those things that going to help them step away from problematic and challenging behaviours so keep them included obviously sometimes that is very difficult to do and there needs to be care and protections around how that child can engage in certain circumstances when we're talking at the more serious end of offending but wherever we can to keep children included is a key factor in diminishing the likelihood that they will continue that pattern of behaviour Duncan yeah Lindsay's story isn't unusual i was with two young women last week both were just 20 and both of their first memories experiences of caring for first memory in one instance was the police removing them from their family and it's a really blunt instrument police are just there because it's the blunt tool we're currently using but we actually then know what goes on within the care experience people's involvement in the justice system at a minimum well formally it's gone record as 30 plus so third of the young people who are in polemont would be care experienced but that's done from a very crude statistic i remember going to them and Derek McGill was governor and he reckoned it would be 80 percent so you're looking huge proportion from a very small population because only one and a half percent of our young population are care experienced and yet they're really you know why they're ending up in the spaces and then if you look at the adult prison population it could be as high as 50 percent so we really have to look at this is not just oh that's just care experienced people when you extrapolate that out into the severity of what we see as offending behaviour when we're incarcerating people this support place should we really have to consider and potentially require special measures for okay wow thank you i'm moving on to mary fee i don't really want to leave this particular one your question but i think you're going to pick up on it on yes i am thank you convener i mean i think it's it's clear from the comments that have been made by the panel what your views are on raising the age to 12 so i won't ask you to comment any any further on that but i'd be interested initially on your views of where moving the age of criminal responsibility to 12 where that sits with the girfec approach that we take is the movement to 12 is that at odds with with girfec um or is it working in cooperation with girfec i'm kind of going to repeat myself in that um i think it's a starting point getting it right for every child is about the things that we've been talking about it's it's about not making judgments about children it's about keeping them at the centre and asking them for their views and and what they think and respecting their rights um so i think that as i've said this is a a start but it's not enough um and if we are going to take a getting it right for every child approach then we need to be thinking about how do we move forward if we get to 12 as as the age of criminal responsibility how do we then move to raise the age further now just interrupt you before i bring clear in i think it might be helpful to get on record the girfec approach what is the the maximal mage that the girfec approach applies to girfec considers a child to be a child up until the age of 18 so it's in line with u n c r c definition of a child okay thank you yeah and that's exactly what i was going to say i mean i think both u n c r c and girfec treats um children as children up to the age of 18 there is something that happens when children display harmful behaviors to others that means we struggle to keep hold of the fact that they are a child um and under 18 they are still a child so still require a range of protections of different types because of their status of children and also there's exciting opportunities because they are still children to really deal with with the behavior and change and help them to change and address the behavior and the issues underpinning it um so i think we as a society if we're honest have struggled to do that particularly when we talk about children that are involved in the more serious level of offending to remember that their children up to the age of 18 and keep that in mind at all points of the system becomes more and more difficult for people um and more and more difficult for different parts of the system but if we we we are to really truly get it right for every child then i would suggest we really do need to do that and keep in mind that they are a child that may be causing significant harm to others there may need to be things various interventions put in place and supports to minimise the risk and that child poses that they are still a child and we must always hold on to that okay thank you Duncan yeah i think again there's another really good example that lindsay had some someone she knew in uh from a care experience around really what happens if we see go for a child the better getting it right for them up to the age of 18 what happens when we don't and the consequences for later on i had a friend when i was young um i'd still considered him a friend he he would grow up in care all his life at the age of 13 he started displaying some harmful behaviour and running away he was sent to a residential school he ran from there too because he didn't feel safe and he started to cure care for running away but nobody ever asked him why he was running away or why his behaviour was the way it was um so went from secure care back into residential care back into secure care back into residential care well the way up until he was 16 he was let out of secure care a month before no a month after he's 16th birthday um and not even three months later he was in young offenders he's been in and out of young offenders for the last five years he's now in an adult prison he was out in license and he told me i'm going to do something silly lindsay i need to go back to jail and i was like why he's i can't do it out here i don't know how to live in outside world he was so institutionalised because nobody cared to understand why he was behaving in the way that he was um it was more about the behaviour that he was displaying so and i don't think um that reason it to 12 would be meeting perfect right now i think um it has to be that child centered approach if somebody had took the time to listen to my friend all the years ago his life could be so different he will face another 10 20 years i coming in and out of prison is that fair thank you again i mean the texture that you provide with the stories is invaluable and i think again uh is symptomatic of a lack of a trauma informed response to to these situations oh sorry yeah um thank you and can i thank you too um lindsay for your um honesty and your bravery in sharing those stories my next question was to be around um the long-term impacts of people or young people that are involved um in the criminal justice system at an early age and and their their level of offending and the level of disorder that quite often affects their whole lives um and obviously lindsay you are very clearly demonstrated that i don't know Duncan if there's anything else you wanted to add specifically in relation to to care experience young young children it does have the lifetime effect i think that's a really sad story that lindsay told again it's not on common to get used to the system that's how they know to perform in it um and remember when we did work with this committee in the last parliament and the raising the care leaving age and there's a particularly young man then Tony mcdonald to talk very candidly about the fact how he would he would get fevered up when he was leaving polemont and he went the whole way through the system spent six and a half years in prison after it but and he did he did manage to tell himself around so there's real evidence that age 23 and a half he's you know really sought himself on he's doing very well so i'm proud to say to this parliament uh but he would talk about getting fevered up when he was at the night before leaving and he said then you would leave prison and you wouldn't know what to do he had 20 30 quid wherever it was to get you back home i know he did you went and bought your bottle of vodka got on the train and by the time you were back home you're straight back to the cells said but in actual fact that's where you wanted to belong you knew how to work within the institution so but i mean the the thing that breaks it every time with any hope we see with young people and it's been said by others here is it's a relationship so we can use a very blunt instrument which is the justice system because that's what we need to do because the behaviour is being displayed why because normally within care there isn't the relationship that's giving them the lifetime love that they require to understand the world they're lashing out because they don't have our language or education or communication abilities said what is it you said i don't know how to speak i don't know how to communicate i have all of these feelings why is it it's a relationship solidity of a relationship around them that can give uh that stable loving structure around them that will enable them not to get engaged within this and whatever we do whatever service or intervention or justice sort of punishment we're bringing in you have to bring it back to the relationship so the opportunity within this is looking at a culture shift policing can certainly play that role if you look at it and it's maybe a slightly crude example the fire service did it stop putting out fires let's start preventing them there's a culture shift in the way that we could do this differently we're policing they have a key role there's certainly not alone in this because we use them it seems as a system when we don't know what else to do but that's actually symptomatic of a system that's not working which is why there is a care review going on but yes we know disproportionately care experience people get stuck in the system people don't bring them up as institutions and the cost you want to look at it financially you're an average 100 grand a year to bring a child up in care and then you're about 37 to 40 000 pounds a year when they're an adult justice system so we go beyond the moral issue that's what life is and I've met several young people who say I thought my life was either going to be I'll be doing a life sentence or I wouldn't have a life at all and I will say this and it's not an exaggeration we lose a care experience person normally under the age of 25 once a month on average in this country they die and that's the consequence most of them problem involved with the justice system and it's for let's say lower level offences but that's what's going on the actual consequence for getting this wrong it's horrendous and we do need to do a lot better at tracking these issues and statistics and everything else in society we are getting far more turned on to this the issues and where they really are needing to be addressed and we're doing this very much as Alex was saying there around the trauma informed approach understanding ACEs and the like but we therefore have to bring in the services we know the issue well what are we going to do to fix it one of them we know doesn't work is is policing and it's current guys sorry just before I bring in Claire and Marion culture change can take many years culture change doesn't happen overnight do you think Duncan that there is enough flexibility within the welfare based approach that we have to make tweaks and changes to help make things better while we are going through the longer process of culture change I think culture change needs leadership I think if you look at this country there's probably out there people would still back capital punishment if you did a you know we had a referendum on that but we don't back it as this parliament I think this parliament needs to start it can certainly show leadership we need to be much bolder to show we're actually going to move this issue and that's why looking at the issue seriously around ages 16 to 18 creates the space other solutions have to come in other cultures have to come in to populate it to work differently unless that happens you get a little bit incremental shift you won't get we've got to do things differently here so that's we need to create that space which then means people when we have the solutions out there to then can start to come to the to start to come to pass if you even look at policing around how they will look at very sensitive issues around how they will interview witnesses or victims of crime I talked about places of safety earlier there's a lot of ways in which we could address this differently even just for the police involvement but I don't think the solution is please they're brought in as a blunt instrument at the end of us not getting this right okay marion if I could say that our experience of supporting young people who have been involved in offending behavior is that one of the real difficulties is that their sense of belonging and their sense of inclusion is with their peer group who are often also involved in similar harmful behavior and one of the real challenges of supporting a young person to make changes in their life is about the requirement to support them to remove themselves from where they feel safe so that's a really big issue and if we come to that too late the chances of success are much lower so my view is I would agree with Duncan we need to be bold we need to have leadership demonstrated to us and we need the government to be brave about committing resources to the services and supports that we do have in Scotland but are often not resourced well enough to be able to provide the levels of support that we know that we could so earlier intervention whatever that means and I don't just mean early years early intervention when we know there's an issue that can be resolved we have organizations and we have local authorities who have staff who are trained and skilled and experienced to be able to provide support if only they had the capacity to do that clear yeah I completely agree this is a culture change and culture changes never end do they you know it's it's an ongoing process of improvement at a practice level as well as a policy level and that will always require attention but there's moments like this to send a real clear message as well as remove additional obstacles to children and being able to address their behavior that a criminal lens does so it's a really important marker but it needs to be part of a much broader range of actions and activities at all levels at all areas of practice places one but also residential childcare and I'm really struck by this Duncan and Lindsay have been talking about the relationship between the care experienced journeys and some contact with the justice system and whilst it's really important to acknowledge most care experienced young people do not go on to offend we really need to get that really clear of course they don't but for those children that are involved in offending very often they will have some level of contact with the care system or have some trauma and adversity in their background so both of those things are true at the same time so we can't stigmatize or identify all children experienced in adversity and just find find them and do work with them it's not as simple as that but when we see it on the other side in terms of children involved in offending there is much more we can do to understand why and what that what that comes from and it's really important to acknowledge also the the issues that the system adds to that mix this is not a child acting in isolation despite what might be going on in their family and communities and how that's playing a part the system also makes that can make their offending worse and that's particularly the case in for instance residential childcare when where we still hear horror stories of children being criminalized for throwing something at a member of staff or trashing the room or taking some food the police are then called at the situation then it exacerbates so the system by imposing that criminal lens we did some really interesting research with with staff in residential childcare about this because nobody sitting here in a committee room nobody thinks that that's the right response nobody thinks that actually that they will phone the police in that circumstance but when you're a lone worker there's a situation escalating that you don't know what to do about and you're frightened about that then absolutely without the right support and training and things around you you may well phone the police and that can then have these knock-on effects so it's really important that it's nuanced it's not about blame that we take people with us on that broader culture change okay thank you thank you Mary I think before I bring in Fulton McGregor just reflecting on that that idea that we need a culture change I worked with Duncan Dunlop very closely over the passage of the children young people bill that brought in the age of leaving care and one of the issues that we tried to push back on was this reality that when this devastating reality that when a young care experience person dies as they do every month that there is no formal mechanism for understanding that death or or the circumstances around it or what might have prevented it it's also symptomatic of the fact that we're not trying to understand the basis of trauma which leads to harmful harmful behaviour we need to get to that culture shift where we stop asking what's wrong with you and start asking what happened to you um Fulton same I mean I think that everybody that's going to contribute to this it would be a mess not to thank you for the the powerful stories and as I said in the previous panel it's a ex social worker myself I feel as well as an MSP now I feel you know a compulsion to apologise for that treatment that you received that day and I think that it is it because the discussions moved on since you initially spoke and spoke about the societal change that needs to be um that needs to take place and I think that professionals working with young people need to realise that you know the consequences in terms of criminal convictions that could take place as you outlined very well and I think that that's obviously why we're having this debate firstly to move it to 12 but even possibly further as has been mentioned by all panellists that we've had today what I wanted to explore though was around the children's healing system we explored a bit more in the last panel and realised it's not really come up to any great extent in this panel we've obviously got a a unique in in good system in place with children's healing system but how do you how do the panel think it could be made better in terms of how we deal with young people that come forward with offences or offence grounds should I say I think they shouldn't scrutinise the young person for their behaviours I think they should try and tease out where these behaviours are coming from because a young person isn't going to act out and display harmful behaviour for nothing there's going to be background there and if you don't understand that then you can help with that harmful behaviour so yeah I think that's it came up in the last last panel um we know that children accept offence grounds without having a clue what it means they just go through processes it's another process particularly when you're in the system you go through you see a lot of professions a lot of people with titles stuff happens to you and they accept it and we know also that they very rarely get legal representation it's 90% of the legal representation is for the parents within the hearing system that's not necessarily not necessarily for the offence grounds but we do know that the children don't understand it and we also doubt sometimes that the panel members understand that they can get criminal record that will be with them for life for accepting offence grounds within the hearing system so there's a real problem with voice and understanding what's going on we've talked about a long time in terms of campaigning for a greater representation of advocacy it's less than 3% of young people will actually have advocacy within the children's hearing system which is I think it really is unacceptable in this day and age they're about to improve that to to a limited degree but we have to look at it very differently in terms of if we're going to understand from the child's perspective and not just think to turn up to a room like this and not hearing isn't quite like this anymore how are they actually meant to represent themselves on their voice what's the best way and they do it via relationship they will trust and they will say this is what's actually going on with me this is what matters so regardless this is why I was doing what I was doing and this is the person or the things that will help me feel safe might be the school might be somebody in the school more likely might be just having a relationship with a granny or a brother or a sister or something that has to happen so it's really important that we start to understand this from that care experience perspective or the child's perspective and you won't get that on the day of the hearing in that moment with a stranger whatever title and intention they come to say right okay what's the issues here so we do have to look at it very differently in terms of what that will be but it is quite worrying I think within the structure of the children's hearing system how many people are therefore finding out that what they agreed to on their fence grounds is still lower in the 20s 30s 40s and I know that and it's not just that we'll come up on the PVGs whether you can do a job it can be other issues that are disclosed later on if you ever come in to involve with the justice system. I think that if we could just just stay on that we're saying I think that the whole context around the children's hearing system as well comes into play there because many young people will be told that if they deny the grounds then the matter goes to court and that can sound even more frightening and intimidating so I think there's a whole you know the whole aspect around it as you say. I would agree with Duncan that the hearing needs to find a way or panel members need to find a way of really hearing the voice of the child in that situation and I know that that's easy to say and much more complicated to achieve. I think that the move away from using a fence grounds and you know having other grounds to call the hearing is more appropriate. I agree that we need more advocacy and support for children and young people who are in the hearing system and going to hearing and I have a real concern around some of the provisions in the bill around advocacy in relation to interviewing a child in that if we are finding it almost impossible to provide advocacy in the hearing system what's going to be different in terms of providing the advocacy that's required by this bill so I think we need to look at that and then what happens after the hearing what supports are available to be put in place for that child beyond the hearing and I think that that's where we really need longer-term thinking around how we sustain supports and services and how we invest in those services in our communities and thinking about how we address the needs of children across Scotland. Something that works for a child in the central belt may not be available for a child who lives in the Highlands or in a remote area so we need to think about that and I think that that's quite complex. Just in addition to that children experiencing coming to contact with the children's hearing system as punishment so this will send a clear you know raising the age of criminal responsibility and taking those grounds off will help that but there's a whole range of other things that are to be done to change that and to some extent it may always be experienced as punishment because they may not want to voluntarily do the things that the hearing is recommending so that is the important balance and the place in which the hearing sometimes sits. I think that in addition to what Marianne Duncan and Lindsay have been saying around the importance of listening to voice and relationship I just want to throw a couple of other things in. Speech language and communication needs are enormous in the population that we're talking about here. We don't have research in Scotland but UK-wide research has indicated 70% of children that come into contact with the youth justice system have a speech language or communication need. I don't think we understand that properly. I certainly know that we don't assess for that and a lot of our services and practice doesn't account for the fact that children may not understand. They may answer in monosyllabic words, they may avoid eye contact because of those issues. All things in a justice context can make a child look very guilty so we've got to take account as well as the age and stage also speech language and communication needs in that hearing context. You mentioned in the earlier panel some discussion about 16 and 17 year olds and they're not necessarily unless they're on supervision they're not necessarily under the remit of the hearing system. I think a clear message in terms of GERFEC and UNCRC is children should be supported through the children's hearing system. We can then look at what needs to be in place and what improvements can be made within that hearing system because I'm always struck there are really important things to be done in improving what happens in the hearing system but in terms of the court and children going through the court system it's absolutely appalling in terms of the level of understanding. I remember even with changing the age of criminal responsibility to 12, 12 to 18 year olds will go through the court system potentially if the level of offence remits that. So we've got to really think about that aspect as well and really thinking about what we can do in the hearing system to account for those issues as well. Yeah, I think it's same. I've got one more point convener. I think it's a you know there's really quite compelling evidence that we've heard today in terms of raising the age even further and I think that's been presented by both panels and I'll just leave it for just now as it'll be interesting to see how the committee continues to gather evidence over the next few weeks and months and if that continues to be something that progresses. But I wonder if what the panel think, if there's an opportunity just now with the system that we have, the children's hearing system, to do things differently. We heard the reporter in the last session say that they are beginning to put in place and not always bringing forward offence grounds particularly for children under 12 but also over and I wonder whether there would be some merit in reporters being given guidance if you like that all offence grounds should be redirected if possible unless there's maybe a public interest in the nature of a specific offence. I know we're probably running out of time convener but I wonder if the panel could briefly address that. That approach might take us some way towards raising the age of criminal responsibility beyond the age of 12 and I think that if we are to be creative, if we are going to have 12 as the age of criminal responsibility then we need to look at how do we support and promote the well-being of those children who come into the hearing system and I think that that may be part of that. I mean that is in effect raising the age of criminal responsibility. I suppose what you've heard from us in parties around the statement that that can make, by making that clear to people in terms of some of those other cultural change and practice improvements, that that can be an additional lens by just stating that, where you fit the criminal responsibility lens. But in effect it is the same thing. It's a very bold statement about the sort of thing that we're saying is required to really help to move things, so I very much welcome that. I think we're almost out of time but I would like to come back, particularly with Lindsay on the panel, to the question of place of safety. It's very granular, detailed to be looking at when we should be really looking at the wider issues of the bill but I think your experience suggests that police stations can also be places of trauma rather than places of safety and I'm not sure how much you've read the detail of the bill but in terms of the way that this is going, I mean it's the only place named on the face of the bill. There are others obviously which are available but do you think that we should still have a police station as a last resort for somebody? No, a child should never enter a police station. You're traumatised a child by taking them into a police station and putting them in the cell. In the report that we submitted we spoke about a project that is on planning in Weston Bartonshire for a safe room for police to conduct interviews with young people. The safe room will be in a council ran building where they will have access to the building at any point in time. It's in amongst other services within that building so it's quite a child-friendly building I work there. The plan for the room is that it will be child-friendly, it won't have these big interview rooms and it'll be colourful, it'll be soundproof so nobody can hear. It needs to be a place where the child feels comfortable and they don't feel as if they've done something wrong. Even if they have displayed harmful behaviour you're never going to get to the root of that in a police station or at school or several places have been said to me that our young people wouldn't feel comfortable going to so I think it needs to be out with the justice system, like the police system. Absolutely and I think that's absolutely right and I share that view in terms of interviews but I think in terms of the spirit of the place of safety provisions within the act is talking about not for the sort of investigative interviews but when a young person needs to be removed from a situation because the police officer deems that they're harmed to themselves or others what do we do in that situation? What's a place of safety where if not a police station where would you like to see young people taken in that situation? Create a new space. We say that we are going to provide the best place for kids to grow up if we don't make that the child-centred focus and think of where would you want to be taken if you were a child? You wouldn't want to go to a police station that would just scare you even more. Some of our young folk have said like in the schools and whatever else but I'm not sure I'm going to pass it on to you. There's a couple of things one is you can design it with children. How do they do it? I've been with people you know been right through secure care right through the prison system and she said secure care was worse than the prison system because it actually had less freedom that was such an enclosed space. The whole point is well how do we create spaces to keep children safe? That'll be for very few children very few who are in the sense of significant harm to themselves and we need to understand why they're at significant harm. So it's slightly diverting but I do think there's something that Claire touched on earlier is I think we have to be seriously raising questions as the police are ever called to a residential house because the stigma that then comes with that in that community are that's with a police. Normally it's for issues around running away but why are the police involved and we ought to really put something back in residential care providers sense of why why are you using the police here? That should not be allowed to use a police in that environment. Some of the offences are frankly ridiculous and you can hear how within Lindsay's story through an issue being trauma you end up being suddenly having an offence for assaulting a police officer. So I do think there's that but the place safety I think we could quite easily design it we've done it for other issues around interviewing victims of crime and I think we could do that with young people and at the centre and I want to go to say Alex is to all of the committee there's many other young people who can give evidence in different formats and forums if you want to come and meet them who can help you go into deeper into some of these issues if you require. Like that we're welcoming that offer. Lindsay can I ask and you don't have to answer this question but do you have a criminal record for that night? I don't have anything that has showed up but on a PVG or a disclosure as of yet. My last charge was four days after my 16th birthday so it is possible depending on jobs that I apply for that they could look deeper in and they would see certain things that was a very long time ago and I know so many young people that I work with that have done things when they were teenagers and they're now in their 40s maybe they're 50s that smashing plates show up offences that are normal children so if I lived with my mum and I smashed a plate up she wouldn't phone the police on me but our kids are criminalised for that. Okay thank you again thank you for your honesty in that. We've probably got maybe two or three minutes if there are any sort of final remarks or any final questions that my colleagues have in respect to this. So just if there's anything you've not had the opportunity to say I think now is the time to do it but we will need to close in at about 20 past. For me this is also about justice and the injustice of holding children solely responsible for children that are in extreme distress and I think we shy away from discussions about justice because we think justice means punitive and it doesn't and these children don't get justice it's not appropriate to hold them solely responsible anyway and they're experienced a lot of distress and it's a wrong lens and that's not what justice looks like. Absolutely I agree completely with that I think that as a society we need to take a good look at how we treat children and how we think of children and holding children responsible at an early age for actions that are influenced by their experience of trauma, abuse, neglect, loss it is just frankly unfair and if we are a just society we need to do something about that. Thank you Duncan. Yeah I would just reiterate you know we do have a good way of operating I do believe in terms of this parliament and the way that we reach out as a towards our society and that's why people are also giving evidence here today I'd say we will give you any evidence you require to be bold and be leaders but the age of 12 is not bold it is frankly quite embarrassing and we really do have an expectation that you can take this further and we'll give you any evidence you require in order to support you to go much further with this and support you with that narrative as well so please take that in mind. Thank you Duncan. Lindsay you have the last word. I'd just like to share a little quote that is in this in our response remember that there are ways that some people might learn different from others but also you have the power here to make a radical change and to impact on so many young people's lives and I think as Duncan was saying we come and meet us and we will help you along that way. Well you have certainly helped us in our deliberations this morning and I thank you for that and so obviously we've come up again to start our time lock but just to say as I said at the first panel if there are other things that materialise or you forgot to say please do get in touch with the committee this is an ongoing process and I think we've all been very impressed by the depth of your knowledge so we'll be tapping that again but thank you very much and nice to spend the committee to go into private session.