Comment: Despite the increase in age of criminal responsibility we are still failing our children

Three decades ago the UK ratified the United Nations Convention on the Rights of the Child, and Scotland continues to progress plans to incorporate it into domestic law.

However, at just eight years old, our age of criminal responsibility is still the lowest in the world.

Tomorrow, it will legally change to 12 years old, but that isn’t a cause for celebration. How can we celebrate a law that is still two years below the minimum international standard and is still failing children?

The Scottish Government has identified the change to mean “primary school-aged children will no longer be stigmatised from being labelled as offenders at such a young age, which will improve their life chances and wellbeing”. But, at 12 years old, we are still talking about children.

The UNCRC defines a child as up to 18. When did 12 become the age at which we stopped caring about stigmatising children, their life chances and wellbeing, or their rights?

Using the criminal law to address harmful behaviour by children is wrong. We know that maturity and the capacity for abstract reasoning is still evolving in children and rapid brain development affects risk-taking, decision-making and the ability to control impulses.

International evidence has found that early involvement in the criminal justice system increases the likelihood of a child continuing to engage in harmful behaviour. The best way to address this behaviour is early intervention, supporting families in crisis and children at risk.

Many children in conflict with the law have complex or traumatic childhood experiences, so we need community-based, early intervention services.

A low age of criminal responsibility does not keep us safer, nor does it provide an effective remedy for those affected by the behaviour of children.

But how can we celebrate when additional police powers in the law further undermine children’s rights?

In fact, the new law risks undermining children’s rights in relation to disclosure, police powers and information sharing.

It may have unintended consequences as police can hold information on the behaviour of all children under 12, not just those aged eight to 11 as before, without many of the checks and protections that currently exist.  We know that this can have a life-long impact on children.

We also need to remain cautious about provisions in the law on information sharing and children’s rights to privacy. It is understandable that those who are harmed by children’s behaviour may wish to know what has happened to that child. However, this is not proportionate.

And where does early criminalisation lead? How can we celebrate when we still imprison children under 18, sometimes simply because there isn’t a place in a secure unit available, in circumstances that breach their rights and can have tragic results. This is evidenced by recent work by Her Majesty’s Inspectorate of Prisons for Scotland (HMIPS).

All this shows we are so far from the type of rights-respecting child justice system we committed to three decades ago.

And it’s not just children in conflict with the law who are being left behind. Covid has disproportionally affected children whose rights were already most at risk, including children living in poverty, disabled children, care experienced children, black and minority ethnic children, young carers, and children of prisoners. More children are in poverty, in need of mental health support and suffering bereavement.

As we mark 30 years of the UNCRC, we should be celebrating the commencement of the UNCRC law unanimously passed by the Scottish Parliament in March. A law which was fought for by children and young people to ensure rights are respected, protected and fulfilled. Yet ten weeks after the UK Supreme Court ruled that changes were required, we are still waiting for the Scottish Government to produce those amendments.

Every delay is another day that children don’t have their rights properly protected.

We spoke to the Scottish Government just last month and urged them to act. The government’s lack of transparency and continued delays raises some serious questions.

For 30 years children have been waiting, and they are still waiting. That’s nothing to celebrate.

Bruce Adamson is the Children and Young People’s Commissioner Scotland

The Age of Criminal Responsibility (Scotland) Act 2019 will officially come into force on Friday 17 December, 2021 raising the minimum age of criminal responsibility in Scotland to 12 years old. 

The Commissioner has long been critical of Scotland’s approach to the age of  criminal responsibility. Click here to read the full position statement