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Lord Selkirk of Douglas: I speak in support of what the noble and learned Lord, Lord Mackay of Drumadoon, has said. My understanding is that the peak age of offending is 15. In addition we have the compelling evidence of the Graham case, as the noble and learned Lord has outlined. My understanding is that the operation of the children's panel system recognises that there are cases when it is in the public's interest to remove children from the panel system and prosecute them. Such prosecutions are initiated against those who have demonstrated great violence and indeed have committed serious sexual offences. I believe that 70 per cent. of those who replied to the consultation supported the idea of antisocial behaviour orders for those under 16. I should be most grateful if the noble and learned Lord the Lord Advocate could take those points into account.
The Lord Advocate (Lord Hardie): I shall deal with the point raised by the noble and learned Lord, Lord Mackay of Drumadoon, in relation to the experience of the noble Earl, Lord Mar and Kellie. I assure the noble and learned Lord, as I assure the entire Committee, that I always listen to the noble Earl and give his observations due attention, as I do in the case of all Members of the Committee.
As regards the point made by the noble Lord, Lord Selkirk of Douglas, the children's panel system does admit exceptions--as the noble and learned Lord, Lord Mackay of Drumadoon, also observed--but they are truly exceptions. Before a child under the age of 16 can be prosecuted in the court, one requires the specific authority of the Lord Advocate. These requests, fortunately, are few and far between because in Scotland we are justifiably proud of the panel system where children are referred to the children's panel and the panel deals with them in imposing, as required, supervision orders which are either non-residential or residential.
As the noble Earl anticipated, the position of the Government is that in Scotland those under 16 are dealt with by the children's hearing system. We would not want to cut across that. As I have already observed, there may be exceptions to that in extreme cases which occur with the permission of the Lord Advocate. However, any child about whom there is concern--this does not simply involve the commission of an offence; it may apply if a child is unruly or even if a child is the subject of an offence, particularly one perpetrated by other members of his or her family--may be reported to the children's reporter who will consider whether there is a need for a hearing. At that stage the hearing can decide what measures are required and whether compulsory measures of intervention are required, in which case a supervision requirement will be imposed. A whole range of conditions may be attached to such a requirement. A breach of a supervision requirement would lead to the child being brought back to the panel system and the hearing would review the original decision and consider whether further conditions or more stringent measures should be imposed. The Committee will appreciate that the whole regime is quite different from that which is in place in England. Where there is a concern that a child poses a risk to the community and may commit a sexual offence, the children's hearing system already again provides a mechanism for monitoring the child and regulating his or her behaviour.
Once the child is 16, the existing provisions for sex offender orders would allow the police to apply for an order provided the child had received a conviction for a sex offence at some point in the past. Clearly that would require the authority of the Lord Advocate to proceed. The children's hearing system tackles antisocial behaviour with vigour. In addressing the needs of the child, it is conscious that it is in the child's best interests to face up to his or her antisocial behaviour and the impact that that behaviour has on communities. It may also restrict a child from having contact with specific individuals or groups of individuals. The Committee will appreciate that such contact is often the cause of much antisocial behaviour.
Even if antisocial behaviour orders were to extend to under-16s, however, it would not be appropriate for them to be made against the relevant parents, as the noble and learned Lord, Lord Mackay of Drumadoon, suggested.
It is a fundamental principle of Scots law considered in detail by the Kilbrandon Commission, which was the basis for setting up the children's panel system, that the parent should not be held responsible for the actions of his or her child. To require parents to ensure that a child complies with an antisocial behaviour order with a penalty of up to two years' imprisonment if it could be proved that they had not taken all reasonable steps to do so would run contrary to the principle underlying our system in Scotland.
I repeat that in the Scottish context antisocial behaviour of children should be dealt with by the children's panel system. That does not of course let parents entirely off the hook. Hearings seek to establish what lies behind a child's actions and the parents are
Amendment No. 93 would impose a restriction on divulging the name, address, school or any other information which could lead to identification of a person under 16 who is the subject of, or a witness to, any proceedings in the court in any press, television or radio report.
I assume that the amendment aims to protect the identity of children under 16 who may be the subject of an antisocial behaviour order or a sex offender order. But neither of those orders apply to children under 16; nor should they. So there is no need to include this type of protection. As for those under 16 who may be witnesses, Section 47 would already apply to reporting the details.
Amendment No. 94 would empower the sheriff to refer a child under 16, or any other children likely to live in the same house as that child and about whom there may be fears for their safety or wellbeing, to the principal reporter. That already happens. If there is concern about a child or anyone living with him or her in the family, it is possible for anyone having such concern to refer the matter to the principal reporter. Any child who commits an offence, or about whom the social work services or police have concerns, is automatically referred to the children's reporter. And any other children who are considered to be under threat from that child would also be similarly referred. Referrals can be made by anyone. There is therefore no need to make specific provision for referrals by the sheriff.
Perhaps I may say first to the noble Lord, Lord Monson, that I picked the age of 12 because it seemed to be the start of secondary schooling. Perhaps one should draw some distinction between primary and secondary schooling.
Mention has been made of parenting orders which are not being imposed in Scotland. I know of people who have already been sent by their individual children's hearings to parenting classes. This is already part of the set-up in Scotland. Much of the debate has revolved around parental responsibility; and so it should. Indeed, the example I gave of off-road motor cyclists could not be clearer on that. The noble and learned Lord, Lord Mackay of Drumadoon, referred to the Graham family. There is a need for what might be called a whole family antisocial behaviour order. We should consider that somewhere down the line.
The more I listen to discussions of the children's panel system, the more I wonder why Members of the Committee are going to great lengths to create a youth justice system when they need only look across the