Children and Young People in the Justice System (Scotland): 12 questions answered
In Scotland, children under 12 cannot be charged with a crime, and most children who offend are dealt with through the Children's Hearings System rather than the courts. Under-18s can no longer be sent to young offenders institutions, and since March 2026 cannot agree to a police interview without a solicitor.
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What is the age of criminal responsibility in Scotland?
The age of criminal responsibility in Scotland is 12. The Age of Criminal Responsibility (Scotland) Act 2019 raised it from eight, with effect from 17 December 2021. A child under 12 cannot be arrested, charged, prosecuted or given a criminal conviction for anything they do. Children aged 12 to 17 can be held responsible for offences, but most are dealt with through the Children's Hearings System or early intervention rather than the criminal courts. Serious harmful behaviour by a child under 12 is still investigated and dealt with through child protection and care processes.
What happens if a child under 12 does something seriously harmful?
A child under 12 cannot commit a crime, but the police can still investigate serious harmful behaviour. Under the Age of Criminal Responsibility (Scotland) Act 2019, police can take a child to a place of safety in an emergency, and can carry out an investigative interview in a child-centred way, which needs a sheriff's order if a parent does not agree. A specially trained child interview rights practitioner supports the child. The child may be referred to the Children's Reporter on care and protection grounds, not offence grounds. Information about the behaviour can only be disclosed after an independent review.
What is the Children's Hearings System?
The Children's Hearings System is Scotland's way of dealing with children and young people who need care and protection, or who have been involved in offending. It focuses on the child's welfare rather than punishment. A children's hearing is a legal meeting held in private with three trained volunteer panel members from Children's Hearings Scotland. The child, their parents or carers and relevant professionals usually attend. The panel can make a compulsory supervision order, which may require the child to live somewhere, attend school or work with a social worker, or it can discharge the referral if no order is needed.
What does the Children's Reporter do?
The Children's Reporter works for the Scottish Children's Reporter Administration (SCRA) and decides whether a child should be referred to a children's hearing. Anyone can refer a child to the Reporter if they are worried about them, but most referrals come from the police, social work, education or health services. The Reporter investigates and decides whether there is evidence of a ground for referral and whether a compulsory supervision order may be needed. If so, the case goes to a children's hearing. If not, the Reporter may take no further action or ask the local authority to offer voluntary support.
What are the grounds for referral to a children's hearing?
The grounds are set out in section 67 of the Children's Hearings (Scotland) Act 2011. They include that the child is likely to suffer from a lack of parental care, has been the victim of an offence, has a close connection with someone who has committed certain offences or carried out domestic abuse, misuses alcohol or drugs, is beyond the control of a parent or carer, is not attending school without a reasonable excuse, or has behaved in a way that is seriously harmful. The child having committed an offence is also a ground, but only if the child was 12 or over.
Can 16 and 17-year-olds be referred to a children's hearing?
Only in limited cases at present. A 16 or 17-year-old can generally only be dealt with by a children's hearing if they are already on a compulsory supervision order, were referred before turning 16, or have been sent to a hearing by a criminal court. The Children (Care and Justice) (Scotland) Act 2024 will allow any child under 18 to be referred to the Reporter, but at the time of writing that change is only in force for limited purposes, and full commencement is expected by June 2027. Until then, most 16 and 17-year-olds accused of offences are reported to the procurator fiscal.
Can a child be prosecuted in court in Scotland?
Yes, but only in limited circumstances. Under section 42 of the Criminal Procedure (Scotland) Act 1995, a child under 16 can only be prosecuted on the instructions of the Lord Advocate, and this is kept for the most serious offences. Lord Advocate's guidelines set out which cases the police must report jointly to the Children's Reporter and the procurator fiscal, who then decide together which system should deal with the case. Even when a child is prosecuted and found guilty, the court can ask a children's hearing for advice or send the case to a hearing to decide what should happen.
What rights does a child have if arrested by the police in Scotland?
Since 30 March 2026, anyone under 18 in police custody cannot agree to be interviewed without a solicitor present, because of changes made by the Children (Care and Justice) (Scotland) Act 2024. Previously this mainly covered under-16s. Legal advice at the police station is free. Like adults, children have the right to remain silent, and in Scotland there is no rule allowing a court to draw an adverse inference from silence at interview. Police must also tell a local authority when a child under 18 is in custody, and a child kept in custody before court should normally be held in a place of safety rather than a police cell.
Will parents be told if their child is arrested?
Usually, yes. If police believe a child in custody is under 16, they must tell a parent or carer where the child is, even if the child does not want them told, and must normally let a parent see the child. A 16 or 17-year-old can choose an adult to be told and can ask for that person to visit. Police can delay or restrict this only in limited circumstances, such as protecting the investigation or the child's wellbeing. Since 30 March 2026, police must also notify a parent when any child under 18 is to be brought before a court, and the court can require a parent to attend.
What is Early and Effective Intervention?
Early and Effective Intervention (EEI) is an approach used across Scotland to deal with minor offending by children and young people quickly and without formal proceedings. Instead of reporting the child to the Children's Reporter or the procurator fiscal, police pass the case to a local multi-agency group, which may arrange a police warning, restorative justice, diversion work, or support from social work, education or health services. The aim is to tackle the reasons behind the behaviour and keep young people out of the formal justice system. Parents are usually involved, and the child does not receive a criminal conviction.
Can a child be sent to prison or a young offenders institution in Scotland?
No. Since 28 August 2024, children under 18 who are remanded or sentenced by a court in Scotland can no longer be held in a young offenders institution or prison. Under the Children (Care and Justice) (Scotland) Act 2024, they must instead be placed in secure accommodation, which is a locked residential care setting focused on care, education and wellbeing. Children held in secure accommodation through the justice system are treated as looked after by the local authority, which gives them extra support. Young adults aged 18 and over can still be held in a young offenders institution, such as HMP YOI Polmont.
Will a child's offence show on a criminal record check?
Usually not on a basic check. A children's hearing outcome on offence grounds is spent immediately, and since 1 April 2025 most court convictions for offences committed under 18 are also spent immediately. This means they do not appear on a Level 1 disclosure and generally do not need to be declared to employers. They can only appear on a Level 2 or PVG disclosure if Disclosure Scotland decides, after an automatic review, that the information is relevant and ought to be disclosed, and the young person can make representations. Very serious cases, such as custodial sentences of over four years, are treated differently.
Official sources
Primary sources and official guidance on this topic, for anyone who wants to read the underlying rules directly.
- Children (Care and Justice) (Scotland) Act 2024
- Children (Care and Justice) (Scotland) Act 2024 (Commencement No. 3) Regulations 2025
- Criminal Justice (Scotland) Act 2016, section 33 (consent to interview without solicitor)
- Children's Hearings (Scotland) Act 2011, section 199 (meaning of child)
- COPFS: Referral to the Children's Reporter
- CYCJ: The Children (Care and Justice) (Scotland) Act 2024
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