COPFS policy on UNCRC and prosecutorial decision-making involving children

The Crown Office and Procurator Fiscal Service (COPFS) is committed to upholding the rights of all children in accordance with the United Nations Convention on the Rights of the Child (UNCRC), which has been incorporated into Scots law by the UNCRC (Incorporation) (Scotland) Act 2024.

This policy compliments existing COPFS guidance, including the Prosecution Code, and sets out how prosecutorial decisions that impact children, directly or indirectly, are made in full compliance with the UNCRC.

This policy applies to all prosecutorial decisions that directly or indirectly affect:

• Children accused of crime
• Children who are victims or witnesses
• Children affected by the prosecution of a parent or carer.

A child is any person under the age of 18.

In all decisions involving children, prosecutors will:

• Ensure every child has equal access to their rights without discrimination of any kind (Article 2).
• Treat the best interests of the child as a primary consideration in all decisions directly or indirectly impacting upon them (Article 3.1).
• Recognise the child’s right to life, survival, and development (Article 6).
• Respect the child’s right not to be separated from their parent(s) against their will unless it is in their best interests (Article 9).
• Enable children to express their views freely in all matters affecting them, with due weight given according to their age and maturity (Article 12).
• Ensure decisions reflect the principle that detention or imprisonment is used only as a last resort and for the shortest appropriate period (Article 37).
• Uphold the rights of children in conflict with the law to a fair and timely process, with privacy safeguarded (Article 40).
• Treat children accused of crime in a manner that promotes their sense of dignity and respect and facilitates their reintegration into society (Article 40).

Children accused of crime

• Prosecutors apply a rebuttable presumption against prosecuting children in court. Alternatives such as referral to the Children’s Reporter and diversion must be considered first and offered where appropriate.
• Prosecution is pursued only when necessary, proportionate, and in the public interest. Any decision to prosecute must be supported by clear reasoning that reflects the child’s best interests as a primary consideration and takes into account any known views expressed by the child, whether through the police, legal representative, or other means.
• The child’s age, maturity, and personal circumstances are considered at every stage.
• The child’s right to privacy and a fair, timely process is respected throughout proceedings.
• The best interests of the child accused are identified and taken into account as a primary consideration in decision-making but are not determinative of the prosecutorial decision.
• In cases where both the accused and the victim/witness are children, prosecutors must carefully balance the rights and best interests of each child without prioritising one over the other. Competing interests are weighed alongside the public interest, in accordance with the Prosecution Code.
• Prosecutors must take into account any relevant information and discussions with other agencies, including the Children’s Reporter or the child’s representatives.
• Detention or imprisonment will only be used as a measure of last resort and for the shortest appropriate period. Children accused of crime should be ordained to appear or released on bail unless there are compelling reasons to justify custody pending trial.
• The rationale for any decision must clearly demonstrate that the child’s rights have been explicitly considered and explain how those rights have been respected.
• Prosecutors must remain open to reviewing decisions in light of new information or changes in the child’s circumstances that may affect the assessment of their best interests.

Child victims and witnesses

• COPFS is committed to treating child victims and witnesses with dignity and respect, upholding their rights throughout the criminal justice process.
• The approach taken by COPFS is grounded in the principles of the UNCRC and aims to protect children from further harm while enabling their meaningful participation in proceedings.
• Communication is tailored to the child’s individual needs and preferences, which will be discussed with the child and/or their parent or guardian at the earliest opportunity.
• The child’s views will be sought, recorded and given due weight in accordance with their age and maturity, where appropriate. Their views can also be provided by a parent, guardian or other representative.
• The best interests of each child victim or witness must be identified and considered as a primary factor in decision-making, alongside the interests of any child accused. Where both the accused and the victim or witness are children, prosecutors must balance their respective rights and interests without prioritising one over the other.
• Prosecutors must consider any relevant information and discussions with other agencies or the child’s parent or representatives.
• Decisions that affect child victims and witnesses are informed by an assessment of their best interests as a primary consideration, and their views.
• The rationale for any decision must clearly demonstrate that the child’s rights were explicitly considered and respected.

Children affected by the prosecution of a parent

• COPFS recognises the impact of prosecuting a parent or carer, especially where they are the main or sole caregiver.
• COPFS recognises that children may be indirectly affected by the prosecution of a parent or carer, particularly when the parent or carer is the child’s main or sole caregiver.
• A careful and proportionate approach is adopted when making decisions that may impact a child’s family life (Article 3).
• COPFS acknowledges that preservation of the family environment and maintaining relationships with a parent or caregiver is important to the best interests of a child.
• COPFS recognises that separation from a parent or carer due to remand or bail conditions can have a profound emotional and practical impact on a child, especially where the parent is the primary carer.
• Prosecutors will assess the child’s best interests as a primary consideration and take into account any known views when making bail decisions that may affect a child’s contact with the accused. These considerations must be balanced against the public interest in the effective prosecution of crime.
• Decisions must be made in a way that seeks to minimise disruption and harm to the child, while also upholding the interests of justice.

• All prosecutorial decisions involving children must be clearly recorded, including the factors considered, the child’s views (where known), and how the best interests of the child were weighed against other considerations.
• This ensures transparency, accountability, and compliance with legal obligations.

COPFS is committed to improving how it handles cases involving children and enhancing their experience within the criminal justice system. To achieve this, COPFS will:

• Transform the way it works, with continuous improvement as a central pillar of its delivery of service to the public.  
• Improve the experiences of victims and witnesses within the criminal justice system.
• Regularly review and update policies and procedures to reflect evolving legal standards and emerging best practices.
• Provide ongoing training to staff on children’s rights and trauma-informed practice, equipping them to respond appropriately and sensitively to the needs of children.
• Engage with stakeholders to ensure its approach remains responsive, respectful and child centred.