Children (Care and Justice) (Scotland) Act 2024

Involvement of children in criminal proceedings: general

Section 12 - meaning of “child”

58. The meaning of “child” for the purposes of the 1995 Act is set out in section 307(1). At root, “child” is defined by reference to section 199 of the 2011 Act. So, as explained in paragraph 16 of these Notes in the context of the children’s hearings system, while all under 16s will be children for the purposes of the 1995 Act, some 16 and 17 year olds will also be children if already involved with the children’s hearing system. An exception to that is in section 46(3) and schedule 1 of the 1995 Act, which, among other things, make special provision about certain offences that are committed against or in respect of children under 17.

59. Section 12 amends the definition of “child” in section 307(1) of the 1995 Act both to reflect changes to the definition of “child” in the 2011 Act and to remove the references to section 46(3) and schedule 1 of the 1995 Act. Those references are no longer needed as a result of amendments made by section 13 (see paragraphs 61 to 63 of these Notes). But the definition of “child” will still be linked to the definition in the 2011 Act, meaning that “child” will generally mean the same in both the children’s hearings system and in the criminal justice system, namely a person under 18.(43)

60. Other provisions in the Act make further changes to the 1995 Act to reflect that all persons under 18 will now be children for the purpose of that Act. Most notably, see section 14 which deals with the prosecution of children over the age of criminal responsibility.(44)

Section 13 – offences against children to which special provisions apply

61. Schedule 1 of the 1995 Act contains a list of offences against children under the age of 17 in relation to which special provisions apply. Those provisions are in section 46 of the 1995 Act and include presumptions about the age of a child involved in criminal proceedings (either as the victim or as the offender) relating to offences under the Children and Young Persons (Scotland) Act 1937, those listed in schedule 1 of the 1995 Act and certain offences under the Criminal Law (Consolidation) (Scotland) Act 1995.

62. As all persons under 18 will now be regarded as children for the purposes of the 1995 Act, section 13 amends schedule 1 to remove references to children aged under 17. As a result, schedule 1 and section 46 will apply in relation to offences committed against all children under 18.

63. Section 13(3)(a) also repeals section 46(5)(b) as that paragraph is no longer needed, as whether a person was subject to a CSO is now irrelevant to the question of whether they are a child or not for the purposes of the 1995 Act.

43

In some circumstances, however, different provision is still made in the 1995 Act: see, for instance, section 227J(1) (unpaid work or other activity requirement: further provision) and section 234B(1) (drug treatment and testing order).

44

That age is 12 years old by virtue of section 41 of the 1995 Act.