by Claire Lightowler and Fiona Dyer (Children and Young People’s Centre for Justice – CYCJ)

The incorporation of the UNCRC into Scots Law represents an important moment to reflect on our children in the justice system, and think about how compliant our policies and practices are with it. Article 37 of the UNCRC specifies that children should only be detained of their liberty as a last resort, and if so for the shortest period possible. Article 40 sets out that children should be presumed to be innocent until proven guilty according to the law, that those who are accused or guilty of breaking the law should be treated in a way which promotes their reintegration into society.

It is, therefore, of great concern that children aged 16 and 17 year olds in Scotland continue to be detained of their liberty in Young Offenders Institutions (YOIs), and occasionally in prisons. It has been acknowledged that these settings are not appropriate for children; in both the Independent Care Review in ‘The Promise’ and in the Expert Review of Mental Health Services at HMP YOI Polmont, both of which the Scottish Government has agreed to implement. Whilst we have seen significant reductions in the number of children held in prison or YOIs over the past five years or so, the proportion of children held there on remand has escalated (for further information see journal article about these trends). Children on remand are either untried or have been tried but not yet convicted, either way they either have not been found guilty of a crime or have not been sentenced to time in custody. Throughout February 2021 84% of children in prison/YOI were on remand, with the proportion on remand escalating recently due to court delays associated with the pandemic (for up to date data see CYCJ website).

Children on remand haven’t had a trial so no offence specific work can be done with them during this time, which would imply guilt. There are also restrictions on those who have been found guilty and sentenced mixing with children presumed innocent, this means in practice that children on remand have less opportunities to access activities available in prison/YOI. Time on remand is therefore often referred to as wasted time, with children spending over 22 hours in their cells, often experiencing significant anxiety about what is going to happen to them and when their court case might be. The risks of self-harm, suicide, bullying and mental distress in YOIs and prisons, especially for those so young, is well known and well documented, so there can be no doubt that we should do all we can to avoid this situation where we possibly can.

Pre-trial detention has been highlighted as a global concern for children, with estimates that about 75% of children deprived of their liberty for the administration of justice are in pre-trial detention (Global Study on Children Deprived of Liberty). It is a serious concern that the proportion of children on remand in Scotland is significantly higher than this global average (which is presented as a concern not as a benchmark!). Similarly, the proportion of children on remand in Scotland is significantly higher than the adult population, around 26% of adults (over 18 year olds) in prison/YOIs are there on remand, considerably less than the 84% of children (see Scottish Prison Service daily population data). Similarly, data from England and Wales suggests that around 28% of their children in prison custody were there on remand.

There are complex reasons why children end up on remand, in research with decision makers it has been found that there are key issues about children’s vulnerability as well as the risk they pose. It can be difficult for sheriffs to put children on bail in the community rather than on remand in custody due to the lack of stability children experience at home, as well as a lack of intensive foster care placements or supervised bail services (see research about bail and remand). Data published by the Scottish Government highlights that on average the children who are placed in a YOI/prison are there for 2 months (see table D3). The fact they are only in custody for 2 months highlights that most children are not in custody due to committing the most serious offences. It also suggests that children yoyo in and out of YOI/prison, implying that we could do something else, something better. Of course there some children for whom the deprivation of liberty is the only way of keeping them and others safe, and there is therefore a need to ensure our secure care provision is of the best possible standard for these children (see Secure Care Pathways and Standards for details of work to ensure this).  However, rather than two months in a YOI/prison, we could do much better for these children, their families and communities, and all of us, if we properly resourced and supported community-based opportunities which really address these children’s needs and their risks of future offending.

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