Children and young people
1. Overview
The intention of this chapter is to provide judges with information that will be relevant on any occasion that you are dealing with a child, whether as an accused or as a witness. There are crossovers with other chapters, particularly vulnerable persons, but also perhaps others.
General considerations applying to a child in the criminal court
Criminal proceedings
• Presence in court by children and young people:
• Parent/guardian attendance needed:
• Need to prevent association between any child accused and an adult
• Need to have regard to the welfare of a child
• Remand and committal of children and young persons
• Summary proceedings against childrenChild as a witness – special measures.
Common law powers
Tribunals.
Statutory powers
• Special measures- criminal
• High court/solemn proceedings
• Sheriff court/some solemn/summary proceedings
Use of a prior statement in criminal proceedings: section 271M
Closed court: section 271H(1) and section 271HB
Changing special measures
Special measures- civilWhen a child is coming to court
Taking the evidence of a child.Press reporting in cases involving children.
Criminal
Civil
Civil procedure when making reporting restrictions
Children’s hearings
TribunalsThe views of children in civil proceedings and the Children (Scotland) Act 2020
2. Introduction
A child, young person (and/or vulnerable adult) is likely to be unfamiliar with a court environment and will find it daunting. However, this can vary. At one end you may be faced with a very apprehensive child, who cannot engage with the court due to their anxiety. At the other end you may have a resilient, confident young person who is unfazed, or even enthusiastic, about being at court. The job of the judge is to try to become attuned to individual reactions and to try to alleviate anxiety and maximise participation as much as possible. In general terms, a court or tribunal will have a duty to safeguard any child and to minimise delay in any proceedings involving children.[1]
There is recognition in the justice system that many children, young persons and vulnerable adults encountering it may be victims of trauma. The Scottish Government produced a Knowledge and Skills Framework for use by those working with victims and witnesses in May 2023 in acknowledgement of this. Childhood trauma may be caused by something that does not seem so serious to an adult. It can have a long-lasting effect on people’s lives.[2]
In this evolving area there is now recognition that the brain may not reach full maturity until the age of 25, or later in some. The Scottish Sentencing Council published a literature review headed: “The development of cognitive and emotional maturity in adolescents and its relevance in judicial contexts.” It concluded that the immaturity of cognitive regions of the brain along with over activation of emotion and reward-related regions contributes to adolescents finding it difficult to think rationally and critically before making complex decisions. The authors noted that brain development may not be complete until between approximately 25 and 30 years of age.
Adverse Childhood Experiences and their life-long impact are now becoming better understood and are the subject of judicial training. The British Journal of Criminology published an article about the relationship between ACEs and a range of negative outcomes, including offending, in September 2021, which makes interesting reading. It concludes that ACEs play a significant role in explaining involvement in childhood offending. See the Trauma Informed Judging Resource Kit and the sections on evidence from vulnerable witnesses and witness who may have experienced trauma.
3. Who does this chapter relate to?
“Child”
Different legislation defines a “child” in different ways. Most commonly, the Criminal Procedure (Scotland) Act 1995 section 307(1) refers to the definition at section 199 of the Children’s Hearings (Scotland) Act 2011. Broadly speaking this defines “child” as a person under 16 years of age, or a person under 18 years of age who is subject to a compulsory supervision order.
Readers should, however, note the terms of the Children (Care and Justice) Act 2024. This is due to amend section 199 of the 2011 Act so as to define “child” as a person under the age of 18; having the practical effect of treating all under 18s as children in the criminal justice system, including for the purposes of reporting restrictions. At the time of writing this amendment is NOT in force and is not anticipated to take effect til late 2025/ early 2026 (save as it relates to detention in a YOI- which came into force on 28 August 2024). Care requires to be taken about this as it is understood that some online resources are erroneously suggesting that this change is already in force.
By contrast, The Children (Scotland) Act 1995 defines “child” at section 1(2) as a person under 16 or, for the purposes of the parental responsibility of guidance, as a person under 18.
Age, in the context of being a vulnerable child witness, is dealt with at section 271 of the Criminal Procedure (Scotland) Act 1995, referring to a person under the age of 18 at the commencement of the proceedings. In the context of civil proceedings it is the same, by virtue of section 11(1) of the Vulnerable Witnesses (Scotland) Act 2004, as amended by section 22 of the Victims and Witnesses (Scotland) Act 2014.
Section 50 of the Criminal Procedure (Scotland) Act 1995 relates to children under 14 years of age and restricts their presence in court. It also requires certain steps to be taken, as outlined below.
The Sentencing Council guideline on the sentencing of young people, which came into force on 26 January 2022, applies to persons under the age of 25 when they pled or were found guilty.
4. Expedited time scales
One of the repeated themes, in both the civil and criminal sphere, and in tribunals, is the need to do everything possible to expedite time scales in cases involving children. Trial and case management powers should be exercised to their fullest extent where a child is involved. A trial, proof or hearing date involving a child witness should only be delayed in exceptional circumstances. The capacity of any witness to remember is likely to deteriorate if there is delay.[3]
5. The rights of the young to effective participation[4]
The United Nations Convention on the Rights of the Child sets out a number of key principles, including:
Article 3: The best interests of the child must be a primary consideration in all decisions and actions that affect children;
Article 12: Every child has the right to express their views, feelings and wishes in all matters affecting them, and to have their views considered and taken seriously.
This right applies at all times, for example during court proceedings, immigration proceedings, housing decisions or the child’s day-to-day home life.
Accommodating a young person’s needs (as required by case law and the UN Convention on the Rights of the Child) requires a court or tribunal to adopt a flexible approach in order to deal with cases justly.[5]
On 16 January 2024 the Scottish Parliament passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024. This aims to incorporate the rights and obligations set out in the UNCRC into Scots law. Following that, there are changes to the rules for children both as witnesses and as accused, dealt with below.
Child witnesses and accused have been shown to experience much higher levels of communication difficulty in the justice system than was previously recognised. It is estimated that about 60% of young people in court have communication needs, versus about 10% in the typical population.[6] Children and vulnerable adults under stress can function at a lower level, making it harder for them to remember accurately and think clearly. Stress can also affect their mental health.
These individuals may have an inability to understand or communicate well in court, and may also be keen to hide this in order to maintain bravado. It is suggested that judges and tribunals check understanding. It is not useful to do this by asking the question: “Do you understand?” This is likely to elicit a positive answer, which may well be false. Instead an individual should be asked to explain what they have understood in their own words; and then be given the time and support to do so.
There also is a strong case for a distinct approach to the treatment of young adults in the criminal justice system. The Scottish Government in its document, ‘Youth Justice – Early and Effective Intervention: Core Elements – Framework’, published in June 2021 suggested that a mechanism was required to support children who came to the attention of the police for offending.
6. Vulnerability of the adolescent
A 16 or 17 year old may look like an adult, talk like an adult and want to behave like an adult, but may nevertheless need the protection of the court and special consideration. By virtue of their age and resulting cognitive and emotional immaturity they may be vulnerable in the court setting (and indeed elsewhere). A calmer and less distressed adolescent will be better able to cope with their attendance at court.
Court can present as particularly alien and threatening to persons in this age range for various reasons:
The court appearance is likely to follow a negative experience, setting up anxious expectation;
It is likely to involve recounting or reconsidering a difficult or traumatic experience; or
It may involve having to give evidence about someone known to the adolescent and perhaps either loved or feared (or both) by them.
Individuals in this age group are very likely to have the communication difficulties outlined below.
Coping strategies for those in this age group are not as well developed as those in adults. Common coping strategies in this age group may include:
Avoidance: in which they become silent and refuse to engage. This may present as defiance. This may be part of an attempt to distance themselves from the emotion of the event and may present as a lack of emotion or upset, when in fact it is the opposite.
Oppositionality: in which they become belligerent and possibly rude in order to try to avoid questioning and regain some control. This is a particularly common coping strategy for children with a history of abuse or neglect.
Communication issues are likely to arise for any child witness. Reference is made to other sections of this book. There may be a specific tendency to overestimate the verbal ability of a young person in this age category due to their physical appearance; but the presence of mental health difficulties are being increasingly identified in this age range.[7] Adolescents can be particularly impacted by embarrassment and may be very reluctant to ask for clarification of questions or instructions. They may also be more suggestible than an adult and have less ability to store and retrieve memories than an adult.
7. General considerations applying to a child in the criminal court
Criminal proceedings
All proceedings involving children
In terms of Chapter 6 of the Act of Adjournal (Criminal Procedural Rules) 1996, there are now duties on the court in any proceedings involving children. Whenever a child is participating in proceedings, the court must keep the child informed as to what is happening in simple language suitable to the child’s understanding. If a child is unrepresented, a parent or guardian may assist the child in conducting their defence. Where a child appears as an accused on a summary complaint, there are obligations to explain the charge in simple language, and, if the court finds the offence has been committed, obligations to obtain information on the child (including listening to a parent, guardian or relative in some circumstances).
Presence in court by children and young people:
Section 50 of the Criminal Procedure (Scotland) Act 1995 relates to children under 14. It provides that no child should be present in court during proceedings against any other person, unless their presence is required as a witness or otherwise for the purposes of justice or if the court consents. There is an exemption for babies (“infant in arms”).
Parent?guardian attendance needed:
Section 42 of the same Act deals with the prosecution of children; and provides the requirement for their parent or guardian to attend court with them, subject to certain restrictions contained therein.
Need to prevent association between any child Accused and an adult
Section 42(9) is important and provides:
“Any child … being conveyed to or from any criminal court, or waiting before or after attendance in such court, shall be prevented from associating with an adult (not being a relative) who is charged with any offence other than an offence with which the child is jointly charged”.
It will be important for judges to ensure that court staff are alert to this and that thought is given to its implementation.
Need to have regard to the welfare of a child
Similarly, section 50(6) provides:
“Every court in dealing with a child who is brought before it as an offender shall have regard to the welfare of the child and shall in a proper case take steps for removing him from undesirable surroundings.”
This may mean that a child offender must be dealt with in a court “uncontaminated” by adult offenders (see reference to section 142 below), or perhaps in private, or at the beginning of the roll with the court closed. Certainly, no “child” should be dealt with without proper consideration being given to such matters.
Remand and committal of children and young persons
Different rules apply to the remand and sentencing of persons under 21 years of age in terms of section 51 of the 1995 Act, recently amended by the Children (Care and Justice) (Scotland) Act 2024. That section now provides that where a court remands or commits for trial a person under 18 then the court shall commit him to the local authority, which can be for detention in secure accommodation if required by the court, or any other place of safety if secure accommodation is not specified. Between the age of 18 and 21 they may be detained in prison or a YOI.
Judges will be aware of the shortage of secure places in Scotland and the rest of the UK. Under the previous statutory framework, that had resulted historically in some young people going to YOI rather than secure accommodation.
Summary proceedings against children
Section 142 of the 1995 Act requires the sheriff to sit either in a different building or room from normal or on a different day, except where a co-accused is not a child.
8. Child as a witness – special measures
Common law powers
Historically the court had common law powers to protect any vulnerable witness who would be disadvantaged by having to give evidence in the normal way (see Hampson v HMA [2003] SCCR 13).[8] These powers remain in as much as all courts and tribunals have a general duty to ensure a fair hearing, which will include making adjustments where necessary to assist a party or witness to give evidence, although they have largely been overtaken by statute.
Tribunals
The statutory powers mentioned below do not apply to tribunals. Each of the tribunals will have their own different practice and procedure and reference to individual guidance notes should be made. For example, the Additional Support Needs Tribunal in the Health and Education chamber has its own presidential guidance.
In employment tribunals there is Presidential Guidance in relation to vulnerable parties and witnesses (including children). The Guidance suggests ‘vulnerability’ could be defined as where someone is likely to suffer fear or distress in giving evidence because of their own circumstances or those relating to the case. The Guidance states that the tribunal and parties need to identify any party or witness who is a vulnerable person at the earliest possible stage of proceedings. They should also consider whether the quality of the evidence given by a party or witness is likely to be diminished by reason of vulnerability.[9]
Statutory powers
Special measures- criminal
Measures for child and vulnerable witnesses is an evolving area, with the Victims, Witnesses and Justice Reform (Scotland) Bill 2023 currently progressing through Parliament and due to make more innovations in this field. It is not the intention of this section to exhaustively cover special measures, as this could be a book in its own right. Reference should be made to the appropriate resources on the judicial hub.
Section 271A of the Criminal Procedure (Scotland) Act sets out the procedure to be followed by any party citing or intending to cite a child witness or deemed vulnerable witness. In usual circumstances these notices should have been dealt with at or in advance of the preliminary hearing or first diet in solemn proceedings, having been lodged 14 or 7 days before respectively and 14 days before a summary trial (section 271A(13A)).
The aspiration of the Scottish Government is that child witnesses in all criminal cases will have their evidence recorded as early as possible and will no longer have to attend court. But we are not there yet. The current position is that different types of proceedings are subject to different regimes.
The first statutory powers specifically relating to child witnesses were contained in the Vulnerable Witnesses (Scotland) Act 2004, which has been subsequently amended and expanded upon. It inserted section 271 and section 271A into the Criminal Procedure (Scotland) Act 1995. Children are automatically entitled to such measures.
Special measures (section 271H of the 1995 Act) are:
The use of a live TV link;
The use of screens;
The use of a supporter;
Taking of evidence by commissioner;
Giving evidence in chief in the form of a prior statement;
Excluding the public during the taking of the evidence;
Such other measures as may be prescribed by the Scottish Ministers in regulations.
Children under 12 at the date of commencement of proceedings, where they are witnesses in certain cases e.g. murder, were automatically entitled to further special provisions whereby their evidence shall generally be given from a remote location (section 271B). This has now been largely superseded- see below.
High court/solemn proceedings
The Vulnerable Witnesses (Criminal Evidence) (Scotland) Act 2019 came into force on 20 January 2020 and is incorporated into the Criminal Procedure (Scotland) Act 1995 as section 271BZA. This brought in additional special measures for all children in certain solemn cases requiring their evidence to be given in advance. In practice this will either be done by the Crown relying on their previously recorded police interview, or Joint Investigative Interview, or by a Commission taking place.
Note that the default position is that the court must enable all the child witness’s evidence to be given in advance of the hearing (unless the court is satisfied that an exception is justified under s271BZA(7) or (8)). This supersedes the previous provision, whereby they would have given their evidence from a remote location (section 271B).
The exception to this is if it is shown that this would significantly prejudice the fairness of the hearing or the interests of justice in the individual case, or that the child, who is over 12 years of age, wishes to give evidence in person and that would be in their best interests (section 271BZA(7) and (8)).
A link to the briefing paper for more details on the cases covered, procedure in such cases, ground rules hearings and commissions can be found here:
Briefing paper Vulnerable Witnesses (Criminal Evidence)(Scotland) Act 2019
Memo from the LP re non-attendance at the Commission of an Accused on bail;
Discussion paper by Lord Beckett: Taking Evidence by Commissioner in 2020: A Resource for Senators;
High Court of Justiciary Practice Note 1 of 2024: Taking the Evidence of a Vulnerable Witness by a Commissioner;
High Court of Justiciary Practice Note 1 of 2019: Vulnerable and Child Witnesses: written questions;
Paper: Commissions and Ground Rules Hearings by Sheriff A Cubie (as he then was);
English case digest on questioning of child witnesses by HHJ Angela Rafferty.
Sheriff court/some solemn/summary proceedings
There is to be a phased rollout of commission hearings until the stage is reached that all children in all solemn and summary trials will have their evidence taken in advance by commission, unless where not in the interests of justice. This roll out has been substantially delayed by the COVID pandemic. The most recent expectation is contained in the Vulnerable Witnesses (Criminal Evidence)(Scotland) Act 2019 implementation plan.
Meantime, the Crown will largely dictate what special measures are sought. For example, should there be a recorded interview of the child they may seek to proceed under section 271M (see below). In particularly sensitive matters they may seek a commission in a sheriff court case (see above for guidance on such hearings.)
Use of a prior statement in criminal proceedings: section 271M
Section 271M applies where the special measure to be used is giving evidence in chief in the form of a prior statement. Prior statements can be used as the witness’s evidence in chief in whole or part. A statement by a vulnerable witness is admissible as, or as part of, the witness’s evidence in chief, without the witness being requested to adopt or otherwise speak to it. Most frequently this will be done by a witness’s video recorded interview being played in court. This may cause a problem if the child witness is then to be cross-examined, as the interview may have been recorded some time before and the child may not have a good memory of it, or of events. The court may need to be addressed on whether the child should have an opportunity to hear or view the recording before being cross-examined, bearing in mind the potential for re-traumatisation.
Closed court: section 271H(1) and section 271HB
Section 271H(1)(ea) of the 1995 Act, allows an additional special measure of having a closed court (i.e. excluding the public during the taking of evidence from the vulnerable witness). Section 271HB details how this special measure is to operate.
Those not to be excluded are:
members or officers of the court;
parties to the court;
counsel or solicitors or other persons otherwise directly concerned in the case;
bona fide representatives of news gathering or reporting organisations;
or such other persons as the court may specially authorise to be present.
This special measure does not apply where the vulnerable witness is the accused (s271F(8)). In that event, where a child accused is called as a witness, the provisions of section 50(3) of the Criminal Procedure (Scotland) Act 1995 may be used to exclude a greater class of persons.
Changing special measures
Section 271D enables the court to change special measures at any stage of the proceedings, by ordering them, varying those already ordered or revoking them.
Special measures- civil
Children are deemed vulnerable witnesses in terms of section 11 of the Vulnerable Witnesses (Scotland) Act 2004. As such there are statutory provisions for special measures applying to them. These provisions are:
evidence on commission in accordance with section 19;
live TV link in accordance with section 20;
use of a screen in accordance with section 21;
use of a supporter in accordance with section 22;
giving evidence by use of prior statement in section 22A (for children’s referral proceedings only) and;
such other measures as Scottish Ministers may prescribe under section 18.
Any party seeking to bring a child witness to court in civil proceedings should alert the court to this well in advance and lodge the necessary notice in terms of section 12(2). Such an application may simply be granted if unopposed, or a hearing fixed on it (Rule 45.5(1)(c)). At any pre-proof or case management hearing the judge should seek to explore any method whereby the evidence of the child witness can be taken without attendance at court. If it is contended that a child wishes to come to court and give evidence without special measures this is something that the court should investigate, and if necessary, fix a hearing about (see M v B [2016] SLT (Sh Ct) 279)[10].
9. When a child is coming to court
If and when a child witness is required to come to court then an advance visit may assist. The Scottish Government has various guidance documents depending on whether the person is a child or a young person and depending on which type of proceedings they are involved in. SCRA has some information on its website. Some of the tribunals have information on their websites designed to be accessed by children and young people: for example the ASNT.
The party citing a child witness to court is responsible for arranging the court visit. The witness service may be able to assist both before and after the visit.[11]
Particular advance thought and attention should be given to ensure children are not exposed to any hostile persons or negative experiences on their way into court;
May they require to use a different entrance door?;
May they require to be met at the front door by a member of court staff?
Taking the evidence of a child
If a child is to give evidence either in the court building or from a remote site then special arrangements, such as the removal of wigs and gowns, should be canvassed in advance. Good communication with the witness must take place in advance in order to establish and assess the best provisions for the individual child. For example, some children may be expecting the lawyers and judge to have wigs and gowns, and be disappointed and unsettled if they don’t.
There should be no attempt to ascertain if a child understands the difference between truth and lies (section 24 of the Vulnerable Witnesses (Scotland) Act 2004). All the court has to do is to check that the child understands the physical procedure of taking an oath or affirmation in court to tell the truth. For example: “I am going to ask you to swear a promise to tell the truth. We do that by both of us raising our right hands and by you repeating the words that I say. Are you alright to do that?”[12] If the court is satisfied, the oath or affirmation may be administered. Otherwise the court has to obtain the child’s promise to tell the truth (Quinn v Lees, [1994] S.C.C.R. 159).[13]
Children aged 12 and over may be put on oath, but checking they understand the procedure may be necessary. Children aged 14 or over should normally be put on oath with no preliminary investigation. Children under 12 should not be placed on oath but should be asked to promise to tell the truth.[14]
Children often have difficulty projecting their voices, and judges and juries can become frustrated when they cannot hear the witness. Arrangements for electronic amplification can avoid or reduce this problem and should be considered in advance. Some courts offer “lapel” microphones, attached to the witness’s clothing. Some courts offer headsets for amplification of sound picked up by microphones.
If a child is giving evidence in court, the judge might consider coming down from the bench and sitting at the same level as the child. It may, however, be felt that the judge should remain on the bench to maintain an overview of proceedings generally; and to be able to observe the behaviour and demeanour of all concerned. In a criminal trial, a vulnerable child witness may be better located somewhere other than the witness box and thought should be given to this.
Judges should be aware of terms that might be used by young witnesses and children to describe their bodies: judges might find the Relationships, Sexual Health and Parenthood resource helpful. Whilst it has been criticised by some on some topics within it, it provides resources for schools in teaching the terms “penis, vulva, nipples and bottom” to children in early years of primary school.
10. Child accused
There is a very useful 2023 publication, Children and Young People in Conflict with the Law[15] by the Children and Young People’s Centre for Justice, that provides a great deal of useful information and analysis on this subject.
The court must have regard to the welfare of the child accused and to the question of whether they should be removed from undesirable surroundings [section 50(6) of the Criminal Procedure (Scotland) Act 1995]. In relation to this it may be appropriate to grant an application to have a child psychiatrist or child psychologist present in court to monitor the well-being of a child giving evidence.
Where a child is an accused in a criminal trial, there should be thought given as to what special arrangements should be made for the child. Such arrangements may be made whether or not there are adult co-accused. The child may be permitted to sit beside his or her lawyer, rather than in the dock, and may simply move to another position (still at floor level) when giving evidence.
In such a trial, some years ago now, in Glasgow High Court, a table was placed in front of the dock. The two accused aged under 16 years sat at the table, accompanied by their solicitors. The judge and jury had a clear view of the children. The children’s solicitors were able to help them to follow proceedings. The children’s counsel sat separately, at the bar of the court. All the child witnesses (including the two accused children) gave evidence seated at another table located in front of the jury box.
Frequent breaks are likely to be necessary and a child psychologist’s recommendation in this regard may be needed. Although not applicable in Scotland, a Practice Direction issued in England and Wales makes many useful suggestions where the accused is a child:
“6.4.2 Where one or more defendants is young or otherwise vulnerable consideration should be given to the following matters:
The need to sit in a court in which communication is more readily facilitated.
An opportunity for a vulnerable defendant to visit the courtroom, out of court hours, before the hearing so that they can familiarise themselves with it. Where an intermediary is being used to help the defendant communicate, the intermediary should accompany the defendant on any pre-trial visit.
If the defendant’s use of the live link is being considered, they should have an opportunity to have a practice session.
The opportunity (subject to security arrangements) for a young or otherwise vulnerable defendant to sit with family or other supporting adult in a place which permits easy, informal communication with their legal representatives. This is especially important where vulnerability arises by reason of age. The court should ensure that a suitable supporting adult is available throughout the course of the proceedings.
The need to timetable the case to accommodate the defendant’s ability to concentrate.
The impact on the non-vulnerable defendants in a multi-handed trial;
In the Crown Court, the judge should consider whether robes and wigs should be worn, and should take account of the wishes of both a vulnerable defendant and any vulnerable witnesses.
It is generally desirable that those responsible for the security of a vulnerable defendant who is in custody, especially if they are young, should not be in uniform, and that there should be no recognisable police presence in the courtroom save for good reason. [Based on English procedure rules: CrimPRC(23)90(b) 61]
Some cases against vulnerable defendants attract widespread public or media interest. In any such case, the assistance of the police should be enlisted to avoid the defendant being exposed to intimidation, vilification or abuse when attending the court. See further the Judicial College Guide on Press Reporting etc.
Where appropriate the defence will provide information about the defendant’s welfare.
Vulnerable defendant at trial
6.4.3 Consideration must be given to the need to ensure, by any appropriate means, that the defendant can comprehend and participate effectively in the trial process.
…. 6.4.5 The court should be prepared to consider restricting attendance by members of the public in the courtroom to a small number, perhaps limited to those with an immediate and direct interest in the outcome. The court should rule on any challenged claim to attend. However, facilities for reporting the proceedings (subject to any reporting restrictions) must be provided. The court may restrict the number of reporters attending in the courtroom to such number as is judged practicable and desirable. In ruling on any challenged claim to attend in the courtroom for the purpose of reporting, the court
should be mindful of the public’s general right to be informed about the administration of justice.
6.4.6 Where it has been decided to limit access to the courtroom, whether by reporters or generally, arrangements should be made for the proceedings to be relayed, audibly and if possible visually, to another room in the same court complex to which the media and the public have access if it appears that there will be a need for such additional facilities. Those making use of such a facility should be reminded that it is to be treated as an extension of the courtroom and that they are required to conduct themselves accordingly.”
If a child is an accused person, it will be advisable to arrange to have the case called over any Tannoy or public address system without using the name of the child accused, thus preserving anonymity.[16]
11. Child witnesses generally
It is the duty of the court to ensure a fair hearing, and to protect the interests of a child witness consistent with that duty. A court must ensure that children are questioned appropriately. The court must disallow questioning that
is irrelevant to the issue;
has no object other than to insult the witness;
is intended to or has the effect of harassing the witness;
has as its purpose the making of a comment rather than eliciting a fact; and
involves repetition of a question already answered. It is the duty of the practitioner appearing before the court to ensure that they treat everyone giving evidence with respect and courtesy.[17]
Practical tips:
Simple language and clear instructions will assist in putting a child witness at ease and everyone should use these;
A judge should be ready to explain procedural steps in simple words;
If an objection is taken in the course of evidence necessitating submissions outwith the presence of the jury or the child witness, and the child has to leave court (or remain in the CCTV link room with a blank TV screen), the child should not be made to feel at fault in any way. It should be explained that a break is going to be taken for something to be chatted about, that the child has not done anything wrong, and that the child will have to leave court (or wait in the CCTV link room) for a short time;
If, in the course of evidence, a child obviously does not understand a word or a question, yet seems too shy to admit it, the judge might wish to intervene with an explanation of the word, or an alternative phrase.
The extent to which a judge may personally intervene or offer reassurance to a child is a difficult and often contentious area. In Black v Ruxton [1998] S.C.C.R. 440[18] where a sheriff may have advised a distressed child witness when she returned to court (after having broken down) that he was there to protect her and would stop the defence solicitor asking any distressing questions, it was held inter alia that it is the duty of the court to protect witnesses against harassing questions, while at the same time allowing the defence properly to develop any appropriate line of cross-examination; that it was sometimes a fine line to draw, but that there was nothing wrong in the court telling a witness she would be protected in that way; and further, that, looking at the matter objectively, a reasonable observer would not take the view that the sheriff had pre-judged the issue in any way; and appeal refused.
In McKie v H.M. Advocate [1997] SCCR 30, where a sheriff comforted a tearful 9-year-old witness by going over to her, whispering to her and comforting her, before gesturing for her carer to intervene, the appeal court observed “… it is perhaps unfortunate that [the sheriff] had not gestured to the carer to intervene at the beginning instead of intervening himself…”.
12. Press reporting in cases involving children
Criminal
Section 47(1) of the Criminal Procedure (Scotland) Act 1995 prevents the press from identifying any child accused or witness, or from publishing particulars calculated to lead to their identification on any proceedings in a court. (See Frame v Aberdeen Journals Ltd [2006] JC 40).[19]
Despite the default position enunciated in section 47(1) in terms of section 47(3)(a), the restrictions do not actually apply where the child is concerned only as a witness and no accused is under 18. The court may, however, direct that the restrictions apply.
Section 47(3)(b) of the 1995 Act provides that the court may, at any stage of the proceedings, if satisfied that it is in the public interest to do so, dispense with the restrictions in whole or in part. If the court chooses to do so, the court must specify the child in respect of whom the direction is made. This should be done in open court, duly recorded in any record of proceedings, and authenticated by the clerk’s signature. This was done by Lord Matthews following an application by the BBC in respect of a child accused, Aaron Campbell, who had been found guilty of murder.[20] Careful consideration should be given at a full hearing before taking this step.
See also sections 4(2) and 11 of the Contempt of Court Act 1981, which also apply to criminal cases; and are dealt with below. These provisions deal more generally with restrictions on publication, rather than specifically with children involved in the proceedings.
Civil
It should be noted that the default position is for the existence of a ban on the identification of children involved in criminal proceedings as the accused or as a witness and for children involved in children’s referral proceedings. No such default position exists in ordinary civil matters, where an order in terms of one of the Acts stated must be made, or a child may be identified.
Section 46 of the Children and Young Persons (Scotland) Act 1937[21] as amended and extended (to television and radio broadcasts) by Schedule 20 to the Broadcasting Act 1990 provides that, if the court so directs, no newspaper, radio or television report should reveal the name, address or school or any particulars calculated to lead to the identification of a person under the age of seventeen years concerned in the proceedings; and that no picture shall be published of a person under the age of seventeen years so concerned in the proceedings; except insofar (if at all) as may be permitted by the direction of the court.
In terms of section 4(2) of the Contempt of Court Act 1981, the court may (in civil, but also in criminal cases):
“where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in [legal proceedings being held in public], or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose”.
It should be noted that this is an order for postponement, not for prohibition. The procedure for making such orders was considered in the judicial review case of BBC, Petitioners [2020] SLT 345,[22] which is important reading for any judge considering making such an order. The case wherein the reporting restriction had been made concerned proceedings brought by the grandparents of an infant child against the sole surviving parent. He was a convicted prisoner serving a lengthy sentence. The restriction had been made at the first hearing, but no reasons had been given. It was not an interim order, which it should have been. Lord Doherty said:
“[33]. If the first respondent’s concern was that the child should not be identified in media reports, it seems highly likely that there were less restrictive measures which he could have taken to achieve that outcome. For example, he could have made an order under section 46 of the Children and Young Persons (Scotland) Act 1937 prohibiting publication of any details which identified the child (the child is a person under the age of 17 “in respect of whom the proceedings are taken”); or he could have exercised the court’s inherent common law power to withhold the child’s name from the public in the proceedings and, ancillary to that, he could have given appropriate directions using the power conferred by s.11 of the Contempt of Court Act 1981.”
In terms of section 11 of the Contempt of Court Act 1981, the court may (in civil, but also in criminal cases):
“In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.”
An example of the latter order was that made in HMA v Alexander Salmond [2021] HCJ 1, which became the subject of consideration in HMA v Craig Murray [2021] HCJ 2.[23] It was also considered in The Spectator Magazine, Applicant [2021] SLT 271.[24] In that case the journal applied to vary an order made by the court at common law and under s11 in order to provide clarity as to whether the order applied to their reporting of evidence submitted to a Parliamentary Committee, which evidence may have allowed jigsaw identification of the complainers in the criminal case. The court makes some useful observations about the scope of such orders.
It is also worth noting that section 1 of the Judicial Proceedings (Regulation of Reports) Act 1926[25] provides for restrictions on the reporting of indecent material, medical details, and some particulars from family actions.
It should be noted that “open justice” is a significant principle. For more on this principle in this context see MH v Mental Health Tribunal for Scotland [2019] SC 432.[26]
Civil procedure when making reporting restrictions
Chapter 48 of the Sheriff Court Rules and chapter 102 of the Court of Session Rules concern reporting restrictions. Although not specifically relating to children or vulnerable persons they set out the procedure to be followed where the court is considering making a reporting restriction in terms of any of the above statutes.
The Lord President’s guidance issued in 2015 (on restricting and anonymising opinions) and in 2023 (on the making of reporting restrictions) should be referred to.
It should be noted that in the sheriff court, in terms of Rule 48.2, the sheriff must first make an interim order and state the reasons why they are considering making an order. The same provision exists in Rule 102.2 of the Court of Session Rules.
More guidance can be found in the Judicial Communications Guide, which should be referred to.
Judges should therefore note that, by making such an interim order, they are alerting the press to the case as the making of an interim order is intimated to them by publication on the SCTS website. As such, in a case where there is no existing press interest, or in a court where there is normally no press attendance, such an order may, in fact, be counterproductive in practice, although the making of an interim order or order may yet be the prudent course.
Children’s hearings
In terms of section 44(1) of the Children (Scotland) Act 1995 Act publication of children’s hearing matters, which is intended or likely to identify a child concerned in, or any other child connected (in any way) with, those proceedings or any address or school as being that of any such child is prohibited. Under section 44(2) it is an offence to publish such material.
Tribunals (reporting)
Each tribunal will have rules designed to protect vulnerable persons and children, for example rules 9 and 11 of the Mental Health Tribunal for Scotland (Practice and Procedure) (No 2) Rules 2005 were considered in MH ibid. Tribunal judges should also refer to any Presidential Guidance issued.
13. Appointment of curator ad Litem/safeguarder
A curator ad litem is a guardian appointed by the court to protect the interests of a party lacking full capacity in a litigation. Such an appointment may be made at the court’s discretion (see for example, Kirk v Scottish Gas Board [1968] S.C. 328[27] and Brianchon v Occidental Petroleum (Caledonia) Ltd [1990] S.L.T. 322)),[28] and may be made by the court of its own motion (Drummond’s Trs. v. Peel’s Trs [1929] S.C. 484, at p.518).
A safeguarder is a person, normally with a relevant professional background in law, social work or teaching, appointed by the court to safeguard the interests of a child in children’s referral proceedings. At present this is arranged through the organisation Children 1st.[29] This may result in a different individual dealing with a case at different stages of the process.
14. The views of children in civil proceedings and the Children (Scotland) Act 2020
The Children (Scotland) Act 2020 contained, in sections 1 to 3, flagship provisions for obtaining the views of children in residence, contact, or other section 11 applications about them. It removed the legal presumption that only children over 12 had the capability of expressing their views and replaced it with a presumption that applies to all children. It is not yet in force, but may already involve the views of many more children being sought by judges and on many more occasions over the duration of an action than is presently the practice. The timetable for its implementation has been substantially affected by the COVID pandemic and it is understood at the time of writing that it may not be until after 2025 that it applies.
Sections 4–8 of the Act create a new category of deemed vulnerable witnesses in children’s referral cases and section 11 applications, and insert a new section 11B into the Children (Scotland) Act 1995 authorising the court to order the use of special measures to reduce the distress to vulnerable parties that may be caused by attending or participating in hearings in relation to their children.
Section 18 of the Act inserts a new section 11E into the 1995 Act in relation to the privacy of information held about a child.
Section 20 introduces a new obligation to explain decisions to children, including interim decisions on a section 11 order, in a way the child can understand, unless the court is satisfied the child would not be capable of understanding the explanation or it is not in the child’s best interests to have an explanation or the location of the child is not known.
In relation both to obtaining the views of children and young people, and to explaining decisions to them, individual judges will have their own different approaches. It is suggested that, at minimum, thought be given to such arrangements. For example, where is a suitable place to meet a child? When? (It is likely that making sure they are not removed from school is important.) Will it be useful, for example, to have materials that they can draw with or play with while you talk? The primary objective is to put the child or young person at ease as much as possible and to obtain their views with as little distress and anxiety as possible being caused.
Although no longer recent (2008) and written prior to the conception of the 2020 Act, reference is made to two articles by former family law solicitor, now academic, Dr Lesley-Anne Barnes Macfarlane.[30] The latter of these gives views on inter alia how the views of a child may be taken. It also discusses the weight to give to a child’s view and the extent to which the views should be treated confidentially. A video by Sheriff Alan Miller, which gives guidance, is also available on the Judicial Hub.
15. Referral to SCRA in criminal and civil proceedings
Sections 48 and 49 of the Criminal Procedure (Scotland) Act 1995 apply to children and referral to SCRA.
In terms of section 48 the court has the power to refer a child who has been the victim of certain offences, or who is or who is likely to become a member of the same household as the convicted perpetrator, to the Principal Reporter and to certify that the offence is a ground established in terms of the Children’s Hearings (Scotland) Act 2011. These offences are those under section 21 of the Children and Young Persons (Scotland) Act 1937, those listed in Schedule 1 of the Criminal Procedure (Scotland) Act 1995 and incest.
In terms of section 49 of the 2011 Act, where a child who is not already subject to supervision pleads guilty or is found guilty of an offence, instead of sentencing the court may remit the case to the Principal Reporter for disposal by a children’s hearing, or may request the advice of the hearing. Where such a child is already subject to supervision the court shall request the Reporter to arrange a hearing in order that advice is provided – section 49(3).
Section 62 of the Children’s Hearings (Scotland) Act 2011 may mean that a civil court dealing with a family action (or an action listed therein) refers a child to the Principal Reporter. This applies where, in the course of such proceedings, a court considers that a ground of referral (other than an offence by the child) may apply.
In this event the court may refer the case to SCRA, and it is considered that it may well be good practice to do so. If the court does so it must give the Reporter a statement, as referred to in sections 67(3) and (4). It is suggested that this be appended to the relevant interlocutor referring the matter.
16. Care experienced children
In 2018, Who Cares? Scotland reported on the “Criminalisation of Care Experienced People” in Scotland. They referred to statistics from 2015 showing that care leavers are overrepresented in Young Offender’s Institutions, with a third of those surveyed in Polmont being care-experienced, despite being 0.5% of the general population.
In 2020 “the promise Scotland” was published. This came from findings of Scotland’s Independent Care Review, which found that corporate parenting was failing many children. It plans to reform the current care system in Scotland.
Care-experienced people may have a high mistrust of authority and the courts and may be under supported. Judges should ensure such individuals are helped to understand court decisions and processes.
17. Terminology when dealing with children
Judges may wish to carefully consider language when describing the behaviour of children. The NSPCC note that calling the behaviour of children ‘attention seeking’ is unhelpful when, in fact, the behaviour of the child is a way of the child expressing an unmet need. The NSPCC note that children may not have the language or opportunity to express what they need.
In addition, it is important to try to avoid terms that might be seen as negative or flippant, even if used by other professionals. For example the term “high tariff child”, can make it appear as if the child is a commodity. If others use such terms it can be helpful to ask them to define what they mean, and use that definition to describe the concept in a more respectful way. Similarly, “looked-after child” puts the focus on the people taking care of the child; “care-experienced” conveys what has happened to the child and may be preferred.