Thanks to funding from The Promise Partnership’s ‘A Good Childhood’ fund, Clan Childlaw is undertaking a scoping study to better understand the legal needs of children and young people in conflict with the law. Clan Childlaw has commissioned Dr Claire Lightowler to lead this project, which began in April and will conclude in September 2022. The study involves engaging with children and young people, a range of professionals who support children and young people, and the team within Clan Childlaw.

At this stage we have engaged with professionals from across the disciplines of law, social work, justice, prisons and police. Critically though, we have not yet held engagement sessions with children and young people who have care and justice experience. There has been work conducted to co-design these sessions with children and young people, but the sessions themselves will take place over the summer. There are also further conversations to have, particularly with additional third sector organisations and criminal justice lawyers.

Despite these limitations, we thought it would be helpful to share what we are hearing as we go, to give people an opportunity to get in touch and share any views they might have. Here’s what we have heard so far.

What would good legal support look like?

We have heard that good legal support for children and young people in conflict with the law needs to focus on the individual and not the process. It needs to be fluid and responsive to the specific child or young person and their needs, communicating in a range of ways which best suit each person. A good legal service would be holistic and focus on helping the child or young person achieve what is important to them, providing support with the range of legal issues they might face - housing, benefits, care entitlements, advice on disclosing criminal records, preparing them for court, and so on. It should support and empower the child and young person with their legal needs, explaining things properly to ensure the child/young person has all the information they need to instruct their lawyer. It needs to be based on a common set of child-friendly justice values, be trauma informed and be based on a good understanding of child development and children’s rights.

Providing good legal support for children and young people means taking time to build a relationship, to support their understanding and to talk properly about what is important to them. It is important that such a legal service is aspirational for children and young people, it is knowledgeable and is not driven by metrics or targets which get in the way of taking time, building relationships and achieving what children and young people want. It is also important for children and young people’s lawyers to take the time to talk with the team around the child or young person, to be well connected to other professionals, and to break down professional boundaries where this helps achieve what matters to the child or young person. A legal service for children and young people in conflict with the law should also be available when they need it, and not limited to 9am-5pm.

Legal gaps and issues

There are a range of legal gaps and issues experienced by children and young people in conflict with the law where we have heard that they would benefit from improved support specifically designed and able to respond to their needs:

1. Legal rights of children and young people in Polmont Young Offenders Institution: further support with throughcare, housing rights, care entitlements, support with complaints
2. Disclosure of criminal records: there is a lack of understanding of criminal record implications and a need for support with the process of removing offences from records
3. Decision to refer a child to the Children’s Hearing System or Procurator Fiscal: there is a lack of transparency and children are not able to participate in the decision making about whether a child will go to the children’s hearing system or to court. There is also a need to ensure children’s rights are fully considered in this decision making process
4. Deprivation of liberty orders and cross border placements: There is a need to ensure that children’s rights are fully considered and fully met when children’s liberty is being deprived, paying particular attention to children who are placed far from home in unregulated care settings
5. Definition of “child”/ 16 and 17 year olds / age boundaries: Decision making about 16 and 17 year olds does not always fully acknowledge they have additional rights under UNCRC, particularly when in contact with the criminal justice system
6. Offence grounds: Children sometimes would benefit from support to challenge the appropriateness of referral to the Children’s Hearing System on “offence” grounds when there are underlying issues of care and protection
7. Children and young people on remand: Supporting children and young people who are at risk of remand and to challenge the length of time to be spent on remand
8. Police practice: The need for children and young people to be supported during their contact with the police, ensuring appropriate use of place of safety and challenging the necessity of practices such as strip searching.
9. Awareness of Rights: There continues to be a need for children and young people to be made aware of their rights and their implications, specifically where they come into contact with the justice system. In addition there is a need for other professionals to be supported to fully understand children and young people’s rights and their full implications.
10. Participation and voice: Ensuring that children and young people are supported and fully able to participate in all decisions which affect them, paying particular attention to criminal justice settings (especially court proceedings)

Suggested improvements

Through conversations with professionals a range of ideas have emerged about what might help better meet the legal gaps and needs identified. Suggestions include:

• Develop resources to raise awareness of the rights of children and young people in conflict with the law, to help people fully understand the implications of children’s rights, and to support lawyers to better meet children and young people’s needs
• Provide and support improvements in legal representation for children and young people in conflict with the law which takes the time needed to support and respond to their individual wants and needs
• Provide and encourage support and advocacy which is connected to legal support for children and young people in conflict with the law, developing a specific legal, support and advocacy service for those in Polmont YOI (a significant current gap in provision) which recognises there are times when children and young people need lawyers and supports their access to legal representation when this is needed
• Provide training and development opportunities to improve knowledge, understanding and practice across legal professionals supporting children and young people in conflict with the law
• Provide advice and support to improve knowledge and understanding about the law and about the role of lawyers amongst professionals, families and carers who support children in conflict with the law
• Engage with policy makers on structural barriers to respecting the rights of children in conflict with the law, on issues such as legal aid availability, ensuring lawyers representing children and young people are funded to spend the time needed with them
• Challenge decision making, and support others to challenge decisions which do not comply with legal requirements for children in conflict with the law

Next steps

So far, this scoping study has included limited engagement with children and young people. This is a key part of the process, and a series of engagement sessions will be taking place over the summer. Our early findings and ideas will change and develop following the conversations we will have with children and young people over the next few months. The scoping study will be finalised and published in September 2022.

Dr Claire Lightowler was the director of the Children and Young People’s Centre for Justice (CYCJ) from 2013-2021.