2. Definitions and International Instruments
In Scotland, a child is defined differently in different legal contexts:
- Section 93(2)(a) and (b) of the Children (Scotland) Act 1995 defines a child in relation to the powers and duties of the local authority. Young people between the age of 16 and 18 who are still subject to a supervision requirement by a Children's Hearing can be viewed as a child. Young people over the age of 16 may still require intervention to protect them.
- With the introduction of the Adult Support and Protection (Scotland) Act 2007, an adult is defined as someone over the age of the 16.
- At the same time, the United Nations Convention on the Rights of the Child applies to all persons "below the age of 18 years of age" 8 . The UN Committee on the Rights of the Child took the opportunity, in General Comment No.10, to remind states parties that this meant all such young people came within the ambit of the Convention's juvenile justice provisions and urged states parties where 16 and 17 year olds were treated as adult criminals to:
"[C]hange their laws with a view to achieving a non-discriminatory full application of the juvenile justice rules to all persons under the age of 18". 9
- The European Rules for juvenile offenders subject to sanctions or measures (2008) 10 define a "juvenile offender" as any person below the age of 18 who is alleged to have or who has committed an offence.
Although the differing legal definitions of the age of a child can be confusing, the priority is to ensure that a vulnerable young person who is, or may be, at risk of significant harm is offered support and protection. The individual young person's circumstances and age will, by default, dictate what legal measures can be applied to protect that young person should they need it. This only further heightens the importance of local areas having very clear links between their Child and Adult Protection Committees and clear guidelines in place for the transition from child to adult services. Young people aged between 16 and 18 are potentially vulnerable to falling between the gaps and local services must ensure that staff offer ongoing support and protection, as required, via continuous single planning for the young person.
For the purposes of this guidance, a 'young person', whilst falling under the legal definition of a child, is taken to mean an older adolescent child (aged under 18 years).
Other terms used within this guidance are defined as follows:
Integration is defined by Oxford Dictionaries 11 as 'restore (elements regarded as disparate) to unity. The definition of 'transition' is 'passing or change from one place, state, condition etc to another' 12 .
In endorsing the Report of the Tripartite Group - made up of representatives from the then, Scottish Executive Justice Department, the Scottish Prison Service and the Association of Directors of Social Work - Justice Department Circular No SEJD 12/2002 defines throughcare as: "the provision of a range of social work and associated services to prisoners and their families from the point of sentence or remand, during the period of imprisonment and following release into the community 13 ." Aftercare is defined by the Children (Scotland) Act 1995 as support for young people who have previously been looked after by the local authority 14 .
As young people can be in both child and adult systems different language can be used to describe the same purpose and roles. Within this guidance, 'single plan' is the term used to describe the plan for the young person which would include an assessment of their risk and need and may be know in adult justice as case management or risk management plan. The lead professional is the term used to describe the lead worker/case manager for that young person. 15