Family Law: The Age of Criminal Responsibility in Scotland and the UN Convention on the Rights of the Child

On Thursday 20^th November 2014 the United Nations Convention on the Rights of the Child (CRC) turned 25. 25 years ago the CRC was groundbreaking.  The CRC was the first of its kind to enshrine fundamental human rights for children.  It was and remains the most widely and rapidly ratified convention.  This is an encouraging indication that all those countries who are party to the CRC (only Somalia, South Sudan and the United States of America are not party to the CRC) are committed to safeguarding and promoting the welfare and well-being of their children.  It should be noted that the CRC applies to children aged 17 years or under. 

The United Kingdom was one of the first countries to sign and ratify the CRC.  It was signed on 19 April 1990, ratified on 16 December 1991 and came into force on 15 January 1992.  It is applicable to England, Scotland, Wales and Northern Ireland. 

The United Kingdom, and in particular Scotland, has long been criticised by the United Nations in relation to one aspect in particular, the age of criminal responsibility.

Until the coming into force of the Criminal Justice and Licensing (Scotland) Act 2010 the age of criminal responsibility in Scotland was 8 years old.  This allowed for children aged 8 and older to be prosecuted for criminal offences within the court system. The Criminal Justice and Licensing (Scotland) Act 2010 has increased the age of criminal responsibility in Scotland to 12 years of age.  This is compared to the age of 10 years in England, Wales and Northern Ireland.  Although Scotland has in some respects improved compared to our neighbours, we still fall short of the recommendations of the United Nations.  The United Kingdom as a whole still has the lowest age of criminal responsibility in Europe.  Our European cousins are slightly more liberal, in that their average age is 14 years.  

There is something that sets Scotland apart from its neighbours and European cousins and that is the existence of the Children's Hearing System.  The Children's Hearing System pre-dates the CRC, with the first Hearings taking place in 1971.  The Children's Hearing System deals with children referred to them after grounds have been established.  There are a set of fairly wide grounds enshrined in domestic legislation and these grounds include offence grounds.  The increase in the age of criminal responsibility now means that those children under the age of 12 can be dealt with through the more 'holistic' system, rather than the 'punitive' criminal justice system. 

The Committee on the Rights of the Children, which oversees and reports on the party states' compliance with the CRC, has long expressed appreciation for the work carried out in the Children's Hearing System in relation to promoting and safeguarding the welfare of children as its paramount consideration.  The Committee considers, however, that Scotland and the United Kingdom has some way to go before they can be satisfied that the aims of the CRC are being met.  Let's just wait and see the next 25 years of the CRC will bring!

Solicitors from Drummond Miller regularly represent clients involved in the Children's Hearing System.  If you require advice in that regard please don't hesitate to contact our Family Law solicitors in Bathgate, Dalkeith, Edinburgh and Musselburgh.