Contents
- Part 1 Children’s hearings system
- Part 2 Criminal justice and procedure
- Part 3 Secure transportation
- Part 4 Residential and secure care
- Part 5 Antisocial behaviour orders, named person and child’s plan
- Part 6 UNCRC compatibility issues in criminal proceedings
- Part 7 Review of Act
- Part 8 Final provisions
- Schedule Minor and consequential modifications
Part 1 · Children’s hearings system
1Age of referral to children’s hearing#
(1)The Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”) is amended as follows.
(2)In section 199 (meaning of “child”)—
(a)in subsection (1)—
(i)for “16” substitute “18”,
(ii)for “subsections (2) to (9)” substitute “subsection (2)”,
(b)subsections (3) to (9) are repealed.
9Support for victims in the children’s hearings system#
(1)The 2011 Act is amended as follows.
(2)After section 179C (decision by Principal Reporter following request for information under section 179A) insert—“179D 1 The Scottish Ministers must, by regulations, make provision for or in connection with the provision of support services to the persons mentioned in subsection (2).2 Those persons are—a persons against whom an offence mentioned in section 179A(1)(a)(i) or (b) appears to have been committed,b persons who appear to have been harmed by the action or behaviour of a child as mentioned in section 179A(1)(a)(ii),c where persons mentioned in paragraph (a) or (b) are children, relevant persons in relation to those children,d any other persons or classes of person the Scottish Ministers may specify in the regulations (subject to any conditions specified in the regulations).3 Regulations under subsection (1) must, for the purposes of the provision of support services to persons mentioned in subsection (2), establish or specify a person as a single point of contact for those persons.4 Regulations under subsection (1) may in particular include provision about—a the support services that may be provided,b the training and qualifications of the person providing support services,c the provision of information (including relevant information) to and by the person providing support services, including that information is to be provided in a way that is accessible to the person receiving it,d the sharing of information with the person providing support services by other persons, including the National Convener, the Principal Reporter, CHS, SCRA, the chief constable of the Police Service of Scotland and local authorities,e the payment of expenses, fees and allowances to the person providing support services (including who is to be responsible for making such payments).5 Regulations under subsection (1) may also modify sections 179A to 179C to provide for—a information mentioned in section 179B(1) to be provided to persons mentioned in subsection (2) without the need for those persons to make a request under section 179A(3) (including the circumstances in which such persons may opt out of receiving such information),b such information to be given by the Principal Reporter to the person providing support services (either at the same time as, or instead of, to persons mentioned in subsection (2)),c the circumstances in which such information is to be provided to persons mentioned in subsection (2) by the person providing support services rather than by the Principal Reporter.6 Before laying a draft of a Scottish statutory instrument containing regulations under subsection (1) before the Scottish Parliament, the Scottish Ministers must consult—a the Principal Reporter,b the National Convener,c persons who are providing support services to persons in relation to offences perpetrated against or in respect of those persons,d such other persons as the Scottish Ministers consider appropriate.7 Regulations under subsection (1) are subject to the affirmative procedure.8 In this section—• “relevant information” includes—(a) information about—(a) the children’s hearings system (including about the interaction of that system with the criminal justice system),(b) the action that can be taken by a children’s hearing (including about the measures that can be included in a compulsory supervision order),(c) the process for reviewing actions taken by a children’s hearing (including the process for reviewing and enforcing compulsory supervision orders), and(b) where regulations under subsection (1) make provision mentioned in subsection (5)(b) or (c), information requested under section 179A(3),• “support services” (other than in subsection (6)(c)) includes the provision of relevant information to persons mentioned in subsection (2) and otherwise has the meaning given in regulations under subsection (1).”
Part 2 · Criminal justice and procedure
Involvement of children in criminal proceedings: general
Places where children can no longer be detained
21Meanings of “young offenders institution” and “young offender”#
(1)The Prisons (Scotland) Act 1989 (“the 1989 Act”) is amended as follows.
(2)In section 19 (remand centres and young offenders institutions), in subsection (1)(b), for second “offenders” to the end substitute “persons not less than 18 but under 21 years of age—“i sentenced to detention in a young offenders institution, orii remanded or committed in custody for trial or sentence,may be kept.”
(3)The Prisons and Young Offenders Institutions (Scotland) Rules 2011 (S.S.I. 2011/331) are amended as follows.
(4)In rule 2(1) (interpretation), in paragraph (a) of the definition of “young offender”, for “16” substitute “18”.
22Abolition of remand centres#
(1)The 1989 Act is amended as follows.
(2)In section 19 (remand centres and young offenders institutions)—
(a)in subsection (1), paragraph (a) and “and” immediately following it are repealed,
(b)subsection (2) is repealed,
(c)in subsection (4)—
(i)“remand centres,” is repealed,
(ii)“centres or” is repealed,
(d)in subsection (6), “remand centres,” is repealed,
(e)in the section title, for “Remand centres and young” substitute “Young”.
Remand, committal and detention of children
18Remand and committal of children before trial or sentence#
(1)The 1995 Act is amended as follows.
(2)In section 51 (remand and committal of children and young persons)—
(a)in subsection (1)—
(i)in paragraph (a), for “16” substitute “18”,
(ii)paragraph (aa) is repealed,
(b)in paragraph (b), for “16” to the end substitute “18 years, the court may commit the person to a young offenders institution,”,
(c)in subsection (4A), for “paragraphs (a) or (aa)” substitute “paragraph (a)”,
(d)subsection (5) is repealed,
(e)after that subsection insert—“6 The Scottish Ministers may by regulations make provision about the detention in secure accommodation of children who have been committed to a local authority under subsection (1)(a).7 Regulations under subsection (6) may, in particular, make provision about the circumstances in which such children may remain in secure accommodation despite attaining the age of 18 years (provided that no person may remain in such accommodation after attaining the age of 19 years).8 Regulations under subsection (6) are subject to the affirmative procedure.”
19Detention of children on conviction#
(1)The 1995 Act is amended as follows.
(2)In section 44 (detention of children)—
(a)in subsection (1)—
(i)for “residential accommodation provided under Part 2 of the Children (Scotland) Act 1995 by the appropriate local authority” substitute “a residential establishment”,
(ii)for “the local authority” substitute “the appropriate local authority”,
(b)in subsection (5), “made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament” is repealed,
(c)after that subsection insert—“5A Regulations under subsection (5) may, in particular, make provision about the circumstances in which such children may remain in secure accommodation despite attaining the age of 18 years (provided that no person may remain in such accommodation after attaining the age of 19 years).5B Regulations under subsection (5) are subject to the affirmative procedure.”
(d)in subsection (6), for “residential accommodation” substitute “a residential establishment”,
(e)in subsection (8)—
(i)for “accommodation provided by the authority which released him” substitute “establishment from which the child was released”,
(ii)for second “accommodation” substitute “establishment”,
(iii)for “accommodation provided by that” substitute “establishment chosen by the appropriate local”,
(f)in subsection (9)—
(i)for “residential accommodation provided” substitute “a residential establishment chosen”,
(ii)in each of paragraphs (a) and (b), for “residential accommodation” substitute “a residential establishment”,
(g)in subsection (11), for the definition of “secure accommodation” substitute—“• “residential establishment” and “secure accommodation” have the meanings given by section 202(1) of the Children’s Hearings (Scotland) Act 2011.”
(3)In section 205 (punishment for murder), in subsection (2)—
(a)for “under the age of 18 years” substitute “a child”,
(b)after “place” insert “(in any part of the United Kingdom)”,
(c)after “may” insert “, subject to section 208A,”.
(4)In section 207 (detention of young offenders), in subsection (2), for “16” substitute “18”.
(5)In section 208 (detention of children convicted on indictment), in subsection (1)—
(a)after “place” insert “(in any part of the United Kingdom)”,
(b)after second “may” insert “, subject to section 208A,”.
(6)After section 208 insert—“208A 1 This section applies where a child is sentenced—a to be detained without limit of time under section 205(2), orb to be detained under section 208(1).2 The Scottish Ministers may not direct under section 205(2) or, as the case may be, 208(1) that a child be detained in a prison or a young offenders institution.3 The Scottish Ministers may direct that a child be detained in secure accommodation.4 The Scottish Ministers may by regulations make provision about the detention in secure accommodation of children to whom this section applies.5 Regulations under subsection (4) may, in particular, make provision about the circumstances in which such children may remain in secure accommodation despite attaining the age of 18 years (provided that no person may remain in such accommodation after attaining the age of 19 years).6 Regulations under subsection (4) are subject to the affirmative procedure.7 In this section, “secure accommodation” has the meaning given by section 202(1) of the Children’s Hearings (Scotland) Act 2011.”
(7)In section 216 (fines: restriction on imprisonment for default), after subsection (7) insert—“8 The Scottish Ministers may by regulations make provision about the detention in secure accommodation of children to whom subsection (7) applies.9 Regulations under subsection (8) may, in particular, make provision about the circumstances in which such children may remain in secure accommodation despite attaining the age of 18 years (provided that no person may remain in such accommodation after attaining the age of 19 years).10 Regulations under subsection (8) are subject to the affirmative procedure.11 In this section, “secure accommodation” has the meaning given by section 202(1) of the Children’s Hearings (Scotland) Act 2011.”
Safeguards for children involved in criminal proceedings
15Custody of children before commencement of proceedings#
(1)The Criminal Justice (Scotland) Act 2016 (“the 2016 Act”) is amended as follows.
(2)In section 22 (under 18s to be kept in place of safety prior to court), in subsection (1), for paragraph (b) substitute—“b a constable believes the person is under 18 years of age.”
(3)In section 23 (notice to parent that under 18 to be brought before court)—
(a)in subsection (1), for “16 years of age or over and subject to a supervision order or under 16” substitute “under 18”,
(b)in subsection (4), the definition of “supervision order” is repealed.
(4)In section 24 (notice to local authority that under 18 to be brought before court)—
(a)in subsection (1), in paragraph (a), for “either subsection (2) or (3)” substitute “subsection (2)”,
(b)for subsection (2) substitute—“2 This subsection applies to a person who is under 18 years of age.”
(c)subsection (3) is repealed.
(5)In section 33 (consent to interview without solicitor)—
(a)in subsection (1), for “Subsections (2) and (3) apply” substitute “Subsection (2) applies”,
(b)in subsection (2)—
(i)in paragraph (a), for “16” substitute “18”,
(ii)paragraph (b) is repealed,
(iii)in paragraph (c), for “16” substitute “18”,
(c)subsections (3), (4) and (5) are repealed.
(6)In section 38 (right to have intimation sent to other person), in subsection (7)—
(a)the words from “to ascertain” to the end become paragraph (a),
(b)after that paragraph insert “, orb for a local authority to give advice by virtue of section 41(9).”
(7)In section 41 (social work involvement in relation to under 18s)—
(a)in subsection (1)—
(i)in paragraph (a), for “the person may be subject to a supervision order” substitute “person to be under 18 years of age”,
(ii)paragraph (b) and “or” immediately preceding it are repealed,
(b)after that subsection insert—“1A Intimation of the following facts must also be sent to a local authority—a where the person in custody declines to exercise the right to have intimation sent under section 38, that fact,b where the person in custody requests under section 39(3)(b) that the person to whom intimation is to be sent under section 38 is not asked to attend at the place where the person in custody is being held, that fact,c where the person in custody requests under section 39(6)(b) that no further attempt to send intimation under section 38 is made, that fact,d where the person to whom intimation is sent under section 38—i does not access the person in custody by virtue of the person in custody not wishing that person to have access by virtue of section 40(2), orii is refused access to the person in custody or has such access restricted by virtue of section 40(4),that fact.”
(c)in subsection (2)—
(i)in the opening words, after “subsection (1)” insert “or (1A)”,
(ii)paragraph (a) is repealed,
(iii)in paragraph (b)—
(A)sub-paragraph (i) and “and” following it are repealed,
(B)in sub-paragraph (ii), “(having regard to the effect of subsection (4)(a))” is repealed,
(d)in subsection (4), paragraph (a) and “and” following it are repealed,
(e)subsections (7) and (8) are repealed,
(f)in subsection (9), for “The local authority” substitute “A local authority sent intimation under subsection (1) or (1A)”,
(g)subsection (10) is repealed.
16Steps to safeguard welfare and safety of children in criminal proceedings#
(1)The 1995 Act is amended as follows.
(2)In section 50 (children and certain proceedings), after subsection (6) insert—“7 In complying with subsection (6) the court must, in particular, consider what steps might be taken to facilitate the participation of the child in the proceedings while safeguarding the child’s welfare and, where reasonably practicable, take those steps.”
(3)After section 70A insert—“70B 1 Where solemn proceedings are brought in respect of an offence alleged to have been committed by a child, the court may sit either in a different building or room from that in which it usually sits or on different days from those on which other courts in the building are engaged in criminal proceedings.2 Where solemn proceedings are brought in respect of an offence alleged to have been committed by a child, the court may direct that no person is to be present at any sitting for the purposes of such proceedings except—a members and officers of the court,b parties to the case before the court, their solicitors and counsel, jurors, witnesses and other persons directly concerned in that case,c bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings,d such other persons as the court may specially authorise to be present.3 A court sitting for the purpose of hearing a charge against, or an application relating to, a person who is believed to be a child may, if it thinks fit, proceed with the hearing and determination of the charge or application even though it is discovered that the person in question is not a child.4 Where solemn proceedings are brought in respect of an offence alleged to have been committed by a child who is charged jointly with a person who is not a child, the court must, in considering whether to take the steps mentioned in subsection (1) or to make a direction as mentioned in subsection (2), have regard to the rights of the person with whom the child is jointly charged to effectively participate in the proceedings.”
(4)In section 142 (summary proceedings against children), in subsection (5), at the end insert “: but see section 142A”.
(5)After that section insert—“142A 1 Where summary proceedings are brought in respect of an offence alleged to have been committed by a child who is charged jointly with a person who is not a child, the sheriff may sit either in a different building or room from that in which the sheriff usually sits or on different days from those on which other courts in the building are engaged in criminal proceedings.2 Where summary proceedings are brought in respect of an offence alleged to have been committed by a child who is charged jointly with a person who is not a child, the sheriff may direct that no person is to be present at any sitting for the purposes of such proceedings except—a members and officers of the court,b parties to the case before the court, their solicitors and counsel, and witnesses and other persons directly concerned in that case,c bona fide representatives of news gathering or reporting organisations present for the purpose of the preparation of contemporaneous reports of the proceedings,d such other persons as the sheriff may specially authorise to be present.3 A sheriff sitting summarily for the purpose of hearing a charge against, or an application relating to, a person who is believed to be a child may, if the sheriff thinks fit, proceed with the hearing and determination of the charge or application even though it is discovered that the person in question is not a child.4 Subsections (3) and (4) of section 142 apply to summary proceedings to which this section applies as they apply to such proceedings to which section 142 applies.5 The sheriff must, in considering whether to take the steps mentioned in subsection (1) or to make a direction as mentioned in subsection (2), have regard to the rights of the person with whom the child is jointly charged to effectively participate in the proceedings.”
Part 3 · Secure transportation
25Standards for provision of secure transportation#
(1)The Children and Young People (Scotland) Act 2014 is amended as follows.
(2)After section 90 insert—“90A 1 The Scottish Ministers must prepare and publish standards applicable to any service (a “secure transportation service”) which consists of or includes providing secure transportation—a for persons—i who have not attained the age of 19 years, andii in relation to whom the taking to or the placing, keeping or detention in secure accommodation is authorised or required under or by virtue of a relevant enactment, andb for the purpose of transporting those persons to or from secure accommodation.2 The standards—a must include the minimum standards to be met by a provider of a secure transportation service which may, in particular, relate to—i the manner in which, and the extent to which, the service provider is to have regard to the rights of the persons mentioned in subsection (1)(a) who require to be transported to or from secure accommodation,ii the establishment of measures and procedures to prevent or minimise a risk of a serious incident occurring,iii the establishment of measures and procedures to deal with, and prevent the recurrence of, a serious incident,iv the circumstances in which restraint or control of persons mentioned in subsection (1)(a) who require to be transported to or from secure accommodation may or may not be appropriate,v the provision of training and support to staff to ensure the safe transportation of the persons mentioned in subsection (1)(a) to or from secure accommodation,b may include such further provision in connection with the provision of a secure transportation service as the Scottish Ministers consider appropriate.3 The Scottish Ministers may make different provision for different kinds of secure transportation service.4 The Scottish Ministers—a must publish the first standards under subsection (1) no later than one year after the day on which section 25 of the Children (Care and Justice) (Scotland) Act 2024 comes into force,b must keep the standards published under subsection (1) under review,c may, under subsection (1), publish revised standards whenever they consider it appropriate to do so, andd must lay a copy of the first published standards, and any published revised standards, before the Scottish Parliament.5 Before publishing the standards or any revised standards under subsection (1), the Scottish Minsters must consult such persons as they consider appropriate.6 In this section—• “relevant enactment” means the following enactments—(a) the Children (Scotland) Act 1995,(b) the Criminal Procedure (Scotland) Act 1995,(c) the Adoption and Children (Scotland) Act 2007,(d) the Children’s Hearings (Scotland) Act 2011,• “secure accommodation” has the meaning given by section 202(1) of the Children’s Hearings (Scotland) Act 2011,• “secure transportation” means transportation which provides such additional security and support measures as are required to prevent or minimise a risk—(a) to the health, safety or welfare of a person mentioned in subsection (1)(a) who is being transported to or from secure accommodation,(b) which that person may pose to the safety of any other person,• “serious incident” includes an incident involving a person mentioned in subsection (1)(a)—(a) absconding or attempting to abscond,(b) suffering harm (including self-harm) or ill-health (whether physical or mental),(c) causing harm to another person, or(d) causing (whether directly or indirectly) damage to property,whilst being transported to or from secure accommodation.7 The Scottish Ministers may by regulations modify the definition of “relevant enactment” in subsection (6) by—a adding an enactment,b removing an enactment for the time being listed in it,c varying a reference to an enactment for the time being listed in it.90B 1 The provider of a secure transportation service must meet the applicable standards.2 The persons mentioned in subsection (3) must, when making arrangements with another person for the provision of a secure transportation service, ensure that the service meets the applicable standards.3 The persons are—a a local authority,b the Scottish Ministers.4 The Scottish Ministers may by regulations modify subsection (3) by—a adding a person or description of persons,b removing a person or description of persons for the time being listed in it,c varying a description of a person for the time being listed in it.5 In this section and in section 90C—• “applicable standards” means the standards, or (as the case may be) any revised standards, published under section 90A(1) which apply to the secure transportation service being provided,• “secure transportation service” has the meaning given by section 90A(1).90C 1 Subsection (2) applies where a relevant person has, during the reporting period—a provided a secure transportation service,b made arrangements with another person for the provision of a secure transportation service.2 The relevant person must, as soon as reasonably practicable (and in any event no later than 3 months) after the end of the reporting period—a prepare a report on—i how the relevant person monitored the secure transportation service provided or arranged by the relevant person to ensure that the service met the applicable standards during the reporting period,ii the extent to which the service met the applicable standards during the reporting period,b publish the report, andc send a copy of the report to the Scottish Ministers.3 Reports prepared under subsection (2) are to be published in such manner as the relevant person considers appropriate (and, in particular, reports may be published together with, or as part of, any other report or document).4 The Scottish Ministers must, as soon as reasonably practicable (and in any event no later than 6 months) after the end of the reporting period—a prepare a report (“the consolidated report”) on—i how the relevant persons to whom subsection (1) applies have ensured that the secure transportation services provided or arranged by those relevant persons have met the applicable standards during the reporting period,ii the extent to which those services met the applicable standards during the reporting period,b publish the consolidated report in such manner as the Scottish Ministers consider appropriate, andc lay a copy of the consolidated report before the Scottish Parliament.5 Where the Scottish Ministers have provided or made arrangements for the provision of a secure transportation service during the reporting period, the consolidated report must include a report on—a how the Scottish Ministers monitored the service to ensure it met the applicable standards during the reporting period,b the extent to which the service met the applicable standards during the reporting period.6 The consolidated report may include such other information as the Scottish Ministers consider appropriate.7 The Scottish Ministers may by regulations prescribe information that reports prepared under subsection (2) must contain.8 In this section—• “relevant person” means a local authority,• “reporting period” means—(a) the period of 3 years beginning with the day on which section 25 of the Children (Care and Justice) (Scotland) Act 2024 comes into force, and(b) each subsequent period of 3 years until a date specified in regulations made by the Scottish Ministers.9 The Scottish Ministers may by regulations modify the definition of “relevant person” in subsection (8) by—a adding a person or description of persons,b removing a person or description of persons for the time being mentioned in it,c varying a description of a person for the time being mentioned in it.”
(3)In section 99 (subordinate legislation)—
(a)in subsection (1), after “order” insert “or regulations”,
(b)in subsection (2)—
(i)after “order” insert “or (as the case may be) regulations”,
(ii)after “section 71(5)(b)” insert—“• section 90A(7)• section 90B(4)• section 90C(9)”
(c)in subsection (4), after “order” insert “or regulations”.
Part 4 · Residential and secure care
28Regulation of care services providing residential accommodation to children#
(1)The 2010 Act is amended as follows.
(2)In section 50 (standards and outcomes)—
(a)after subsection (1) insert—“1A The Scottish Ministers may also prepare and publish specific standards and outcomes applicable to the care services mentioned in subsection (1B) in so far as they consist of, or include, providing residential accommodation to children in accordance with arrangements made for cross-border placements.1B Those care services are—a care home services which are provided wholly or mainly to children,b school care accommodation services,c secure accommodation services.”
(b)in subsection (2), after “subsection (1)” insert “or (1A)”,
(c)in subsection (3), after “subsection (1)” insert “or (1A)”,
(d)in subsection (4), for “subsection (1)” substitute “subsections (1) and (1A)”,
(e)in subsection (5), for “subsection (1)” substitute “subsections (1) and (1A)”,
(f)at the end of subsection (7) insert “or (1A).”.
(3)After section 59 insert—“59A 1 This section applies to an application made under section 59(1) for registration of any of the following care services—a a care home service which is to be provided wholly or mainly to children,b a school care accommodation service,c a secure accommodation service.2 In addition to giving the information mentioned in section 59(2), the application must—a give such information as may be prescribed about matters relating to cross-border placements,b confirm that notice of the application has been given in the prescribed form to the persons mentioned in subsection (3), who are responsible for preparing a children’s services plan in accordance with Part 3 of the Children and Young People (Scotland) Act 2014 (“the 2014 Act”).3 Those persons are—a the local authority for each area in which the service is to be provided, andb the relevant health board (as defined by section 7(1) of the 2014 Act) for each such area.4 If an application does not include the confirmation required by subsection (2)(b), SCSWIS may not consider the application until such confirmation is given.”
(4)In section 78 (regulations: care services), after subsection (2) insert—“2A Regulations under subsection (2) may, in particular, impose specific requirements on any of the care services mentioned in subsection (2B) in so far as they consist of, or include, providing residential accommodation to children in accordance with arrangements made for cross-border placements.2B Those care services are—a care home services which are provided wholly or mainly to children,b school care accommodation services,c secure accommodation services.”
(5)In section 105 (interpretation of Part 5), in subsection (1)—
(a)in paragraph (c) of the definition of “child”, after “purposes of” insert “sections 50(1A) and (1B), 59A and 78(2A) and (2B) and”,
(b)after the definition of “condition notice” insert—“• “cross-border placement” means the placement of a child in a residential establishment in Scotland where—(a) the child was, immediately before the placement, resident in England, Wales or Northern Ireland, and(b) the placement is authorised under the law in England and Wales or, as the case may be, in Northern Ireland by virtue of—(a) an order made by a court in England and Wales or in Northern Ireland,(b) any provision made by or under an Act of Parliament, an Act of Senedd Cymru, or Northern Ireland legislation (as defined by section 98(1) of the Northern Ireland Act 1998), whenever passed or made;”
(c)after the definition of “relative” insert—“• “residential establishment” means an establishment (whether managed by a local authority, a voluntary organisation or any other person) which provides residential accommodation for children for the purposes of the Social Work (Scotland) Act 1968, the Children (Scotland) Act 1995, the Criminal Procedure (Scotland) Act 1995 or the Children’s Hearings (Scotland) Act 2011;”
29Cross-border placements: effect of orders made outwith Scotland#
(1)The 2011 Act is amended as follows.
(2)In section 190 (effect of orders made outwith Scotland)—
(a)in subsection (1), for “as if it were such an order” substitute “in Scotland”,
(b)for subsection (2) substitute—“2 Regulations under subsection (1) may in particular—a provide that a non-Scottish order is to have such effect only—i in specified circumstances,ii for specified purposes,iii subject to specified conditions,b provide that a non-Scottish order is—i to have effect as if it were a compulsory supervision order, orii to have such other effect as may be specified,c include provision—i requiring specified persons to provide or share specified information,ii requiring specified persons to provide, or make arrangements for the provision of, any services which are needed to support a child who is the subject of a non-Scottish order,iii requiring specified persons to meet the costs incurred in relation to, or as a consequence of, giving effect to a non-Scottish order in Scotland,iv in connection with the safeguarding and promotion of the welfare of a child who is the subject of a non-Scottish order,d make provision for or in connection with—i the monitoring of whether any condition specified by virtue of paragraph (a)(iii) is being met in relation to a non-Scottish order,ii the consequences of such a specified condition not being met,iii the monitoring of whether any requirement imposed is being complied with in relation to a non-Scottish order (where compliance with the requirement is not a condition specified by virtue of paragraph (a)(iii)),iv the consequences of failing to comply with such a requirement.2A Regulations under subsection (1)—a may modify any enactment in its application by virtue of the regulations to a non-Scottish order, including—i the Social Work (Scotland) Act 1968,ii the Children (Scotland) Act 1995,iii this Act,b are subject to the affirmative procedure.”
30Regulation of cross-border placements#
(1)The Children (Scotland) Act 1995 is amended as follows.
(2)After section 33 insert—“33A 1 The Scottish Ministers may by regulations make provision in relation to cross-border placements.2 Regulations under subsection (1) may in particular include provision—a requiring specified persons to provide or share specified information,b requiring specified persons to provide, or make arrangements for the provision of, any services which are needed to support a child who is the subject of a cross-border placement,c requiring specified persons to meet the costs incurred in relation to, or as a consequence of, a cross-border placement,d requiring a cross-border placement to be kept under review,e in connection with the safeguarding and promotion of the welfare of a child who is the subject of a cross-border placement.3 Regulations under subsection (1)—a may modify any enactment in its application by virtue of the regulations to a cross-border placement, including—i the Social Work (Scotland) Act 1968,ii this Act,b may make any incidental, supplementary, consequential, transitional, transitory or saving provision that the Scottish Ministers consider appropriate for the purposes of, in connection with or for giving full effect to the regulations,c are subject to the affirmative procedure.4 In this section, “cross-border placement” means the placement of a child in a residential establishment in Scotland where—a the child was, immediately before the placement, resident in England, Wales or Northern Ireland, andb the placement is authorised under the law in England and Wales or, as the case may be, in Northern Ireland by virtue of—i an order made by a court in England and Wales or in Northern Ireland,ii any provision made by or under an Act of Parliament, an Act of Senedd Cymru, or Northern Ireland legislation (as defined by section 98(1) of the Northern Ireland Act 1998), whenever passed or made.”
Part 5 · Antisocial behaviour orders, named person and child’s plan
Part 6 · UNCRC compatibility issues in criminal proceedings
33UNCRC compatibility issues in relation to decisions to prosecute children#
(1)The 1995 Act is amended as follows.
(2)After section 288B insert—“288BZA 1 This section applies where—a by virtue of section 7(1)(b) of the UNCRC Incorporation Act, a UNCRC compatibility issue has arisen—i in criminal proceedings brought against a person who is a child, or who was a child at the time the proceedings were brought,ii otherwise than in connection with an appeal against conviction or an appeal against both conviction and sentence,b in determining the UNCRC compatibility issue, a court finds that the prosecutor, by bringing criminal proceedings against the person, has acted in a way which is made unlawful by section 6(1) of the UNCRC Incorporation Act, andc by reason only of the finding mentioned in paragraph (b), a court is considering—i deserting the proceedings pro loco et tempore or simpliciter, orii dismissing the indictment or (as the case may be) the complaint or any part of it.2 Despite section 8(1) of the UNCRC Incorporation Act, a court—a may not—i desert the proceedings pro loco et tempore or simpliciter, except on the motion of the prosecutor, orii dismiss the indictment or (as the case may be) the complaint or any part of it, butb must instead—i give the prosecutor an opportunity to reconsider the bringing of criminal proceedings against the person in a way which is compatible with the UNCRC requirements,ii adjourn or continue the proceedings to another diet to allow such reconsideration, andiii following any such reconsideration, decide whether the bringing of criminal proceedings against the person is compatible with the UNCRC requirements.3 But a court is not required to act in accordance with subsection (2) if—a it considers that there is no reasonable prospect of the bringing of criminal proceedings against the person being reconsidered in a way which is compatible with the UNCRC requirements,b it considers that there are exceptional circumstances which justify not doing so, orc it decides under subsection (2)(b)(iii) that the bringing of criminal proceedings against the person is incompatible with the UNCRC requirements.4 Subsection (5) applies where—a the court adjourns or continues the proceedings in accordance with subsection (2)(b)(ii), orb by virtue of subsection (3), the court decides to desert the proceedings pro loco et tempore.5 Before adjourning or continuing the proceedings or (as the case may be) deserting the proceedings pro loco et tempore, the court must give the prosecutor an opportunity—a in solemn proceedings, to make an application under section 65(3) or (5) for an extension of any of the following periods which apply in respect of the proceedings—i the periods of 11 months and 12 months mentioned in section 65(1), including those periods as extended under section 65(3), on appeal under section 65(8) or under section 74(4)(c),ii the periods of 80 days, 110 days and 140 days mentioned in section 65(4), including those periods as extended under section 65(5) or on appeal under section 65(8),b in summary proceedings in respect of which the period of 40 days mentioned in section 147(1) applies, to make an application under section 147(2) for an extension of that period, including that period as extended under section 147(2) or on appeal under section 147(3).6 For the purposes of subsection (1)(a)(i), the proceedings are taken to be brought—a in solemn proceedings, on the date on which the indictment is served,b in summary proceedings—i in a case where a warrant to apprehend or cite the accused is granted, on the date on which the warrant is granted, orii in any other case, on the date on which the complaint is served.7 In this section—• “prosecutor” does not include a private prosecutor,• “the UNCRC requirements” has the meaning given in section 1(2) of the UNCRC Incorporation Act,• “UNCRC compatibility issue” means a question of the kind mentioned in section 288AB(1)(b),• “UNCRC Incorporation Act” means the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024.”
(3)The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 is amended as follows.
(4)In section 8 (judicial remedies), after subsection (5) insert—“6 Section 288BZA of the Criminal Procedure (Scotland) Act 1995 modifies the court’s power under subsection (1) in relation to certain UNCRC compatibility issues in criminal proceedings.”
Part 7 · Review of Act
34Review of Act#
(1)The Scottish Ministers must, as soon as reasonably practicable after the end of each review period—
(a)undertake a review of the operation of this Act, and
(b)prepare a report on that review.
(2)The report must, in particular, set out—
(a)whether sufficient resources are in place for the effective implementation of the Act,
(b)what steps (if any) the Scottish Ministers intend to take as a result of the findings of the review.
(3)The Scottish Ministers must, as soon as reasonably practicable after preparing the report—
(a)publish the report, and
(b)lay the report before the Scottish Parliament.
(4)For the purposes of this section, “review period” means—
(a)the period of one year beginning with the day of Royal Assent,
(b)each subsequent period of one year.
Part 8 · Final provisions
35Ancillary provision#
(1)The Scottish Ministers may by regulations make any incidental, supplementary, consequential, transitional, transitory or saving provision they consider appropriate for the purposes of, in connection with or for giving full effect to this Act.
(2)Regulations under subsection (1) may modify any enactment (including this Act).
(3)Regulations under subsection (1)—
(a)are subject to the affirmative procedure if they add to, replace or omit any part of the text of an Act (including this Act),
(b)otherwise, are subject to the negative procedure.
36Interpretation#
In this Act—• “1989 Act” means the Prisons (Scotland) Act 1989,• “1995 Act” means the Criminal Procedure (Scotland) Act 1995,• “2010 Act” means the Public Services Reform (Scotland) Act 2010,• “2011 Act” means the Children’s Hearings (Scotland) Act 2011,• “2016 Act” means the Criminal Justice (Scotland) Act 2016.
37Modification of enactments#
The schedule makes further modifications of enactments in consequence of this Act.
38Commencement#
(1)This section and sections 35, 36 and 39 come into force on the day after Royal Assent.
(2)Section 33 comes into force on whichever is the later of—
(a)the day after Royal Assent,
(b)16 July 2024.
(3)The other provisions of this Act come into force on such day as the Scottish Ministers may by regulations appoint.
(4)Regulations under subsection (3) may—
(a)include transitional, transitory or saving provision,
(b)make different provision for different purposes.
Schedule · Minor and consequential modifications
Part 1 · Children’s hearings system
Part 2 · Age of Criminal Responsibility
Part 3 · Offences against children to which special provisions apply
Part 4 · Remit to children’s hearing from criminal courts
Part 5 · Criminal procedure: miscellaneous modifications
(8)
(1)The Social Work (Scotland) Act 1968 is amended as follows.
(2)In section 27(1) (supervision and care of persons put on probation or released from prisons etc.), in paragraph (b)(vb), for “16” substitute “18”.
(9)
(1)The Prisoners and Criminal Proceedings (Scotland) Act 1993 is amended as follows.
(2)In section 7 (children detained in solemn proceedings)—
(a)in subsection (2A), “in a young offenders institution” is repealed,
(b)for subsection (2C) substitute—“2C In a case where subsection (2A) applies and the single term mentioned in that subsection is of four or more years, this Part applies to the person as if the single term were an equivalent sentence of detention or, as the case may be, imprisonment.”
(10)
(1)The 1995 Act is amended as follows.
(2)In section 205ZC (terrorism sentence with fixed licence period), in subsection (4), for “16” substitute “18”.
(3)In section 245A (restriction of liberty orders), in subsection (11A), for “under 16 years of age” substitute “a child”.
(4)In section 248D (extension of disqualification where sentence of imprisonment also imposed), in subsection (10), in the definition of “sentence of imprisonment”, for “residential accommodation” substitute “a residential establishment”.
(11)
(1)The Antisocial Behaviour etc. (Scotland) Act 2004 is amended as follows.
(2)In section 111 (restriction on reporting proceedings relating to parenting orders), in subsection (6), for “(1)(a)” substitute “(1A)(a)”.
Part 6 · Abolition of remand centres
(12)
(1)The Children and Young Persons (Scotland) Act 1937 is amended as follows.
(2)Section 62 (power of Secretary of State to send certain juvenile offenders to approved schools) is repealed.
(13)
(1)The Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 is amended as follows.
(2)In schedule 1 (ineligibility for and disqualification and excusal from jury service), in Group B of Part 1, in paragraph (o), “, remand centres” and “, borstal institutions” are repealed.
(14)
(1)The 1989 Act is amended as follows.
(2)In section 20 (temporary detention of persons liable to detention in young offenders institution or remand centre)—
(a)“or remand centre” is repealed,
(b)in the section title, “or remand centre” is repealed.
(3)In section 20A (transfer of young offenders to prison or remand centre)—
(a)in subsection (2)—
(i)“or remand centre” is repealed,
(ii)the words from“, but” to the end are repealed,
(b)in subsection (3), “or remand centre” is repealed,
(c)in the section title, “or remand centre” is repealed.
(4)In section 37 (discontinuance of prison), in subsection (2), “remand centre or” is repealed.
(5)In section 39 (rules for the management of prisons and other institutions), in subsection (1), “, remand centres” is repealed.
(6)In section 40 (arrest of and rules for absent prisoners)—
(a)in subsection (1), “or remand centre” is repealed,
(b)in subsection (2), “or remand centre” in each place is repealed.
(15)
(1)The Criminal Law (Consolidation) (Scotland) Act 1995 is amended as follows.
(2)In section 49C (offence of having offensive weapon etc. in prison), in subsection (7), paragraph (b) is repealed.
(16)
(1)The 1995 Act is amended as follows.
(2)In section 51 (remand and committal of children and young persons), subsection (2A) is repealed.
(3)In section 144 (procedure at first diet), in subsection (6), “, remand centre” is repealed.
(4)In section 285 (previous convictions: proof, general), in subsection (4), “or of a remand centre” is repealed.
(5)In section 307 (interpretation), in subsection (1), in the definition of “place of safety”, “, prison or remand centre,” is repealed.
(17)
(1)The Prisoners’ Earnings Act 1996 is amended as follows.
(2)In section 4 (interpretation), in subsection (3), in the definition of “prisoner”, “or remand centre” is repealed.
(18)
(1)The Housing (Scotland) Act 2006 is amended as follows.
(2)In section 126 (HMOs exempt from licensing requirement), in subsection (1), in paragraph (d), for “, a young offenders institution or a remand centre” substitute “or a young offenders institution”.
(19)
(1)The Protection of Vulnerable Groups (Scotland) Act 2007 is amended as follows.
(2)In schedule 2 (as substituted by section 74(3) and schedule 3 of the Disclosure (Scotland) Act 2020), paragraph 31, in the definition of “prison”, for “, young offenders institution or remand centre” substitute “or young offenders institution”.
(3)In schedule 3 (as substituted by section 74(4) and schedule 4 of the Disclosure (Scotland) Act 2020), in paragraph 24, in the definition of “prison”, for “, young offenders institution or remand centre” substitute “or young offenders institution”.
(20)
(1)The Community Justice (Scotland) Act 2016 is amended as follows.
(2)In section 37 (interpretation), in subsection (1), in the definition of “penal institution”, paragraph (b) is repealed.
(21)
(1)The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 is amended as follows.
(2)In section 2 (mandatory inquiries), in subsection (7), in the definition of “penal institution”, paragraph (b) is repealed.
Part 7 · Local authority duties in relation to detained children
(22)
(1)The Social Work (Scotland) Act 1968 is amended as follows.
(2)In section 5 (powers of Scottish Ministers), in subsection (1B)(f), for “section 51” substitute “sections 44, 51 and 216”.
(23)
(1)The 2010 Act is amended as follows.
(2)In schedule 13 (social work services functions: specified enactments), “Section 51 of the Criminal Procedure (Scotland) Act 1995 (c. 46)” is repealed.
Part 8 · Secure accommodation
(27)
(1)The Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 (S.S.I. 2022/225) are amended as follows.
(2)In each of the following paragraphs of regulation 13 (application and modifications of the Act), for “Children’s Hearings (Scotland) Act 2011 (Effect of Deprivation of Liberty Orders)” substitute “Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland)”—
(a)paragraph (3)(b),
(b)paragraph (4),
(c)paragraph (12)—
(i)sub-paragraph (a), in paragraph (a) of the definition of “implementation authority”,
(ii)sub-paragraph (c), in the definition of “receiving local authority”.
Part 9 · Named person and child’s plan
(28)
(1)The Human Trafficking and Exploitation (Scotland) Act 2015 is amended as follows.
(2)In section 12 (presumption of age), in subsection (3), paragraphs (d) and (e) are repealed.
(29)
(1)The 2016 Act is amended as follows.
(2)Sections 107 and 108 are repealed.
(30)
(1)The Public Bodies (Joint Working) (Prescribed Health Board Functions) (Scotland) Regulations 2014 (S.S.I. 2014/344) are amended as follows.
(2)In schedule 1 (functions prescribed for the purposes of section 1(6) of the Public Bodies (Joint Working) (Scotland) Act 2014), the entry relating to the Children and Young People (Scotland) Act 2014 (inserted by the Public Bodies (Joint Working) (Prescribed Health Board Functions) (Scotland) Amendment Regulations 2016 (S.S.I. 2016/15)) is revoked.
(31)The Public Bodies (Joint Working) (Prescribed Health Board Functions) (Scotland) Amendment Regulations 2016 (S.S.I. 2016/15) are revoked.
Contains public sector information licensed under the Open Government Licence v3.0.