Changes to the law on behaviour in childhood and criminal record checks

November 30th 2020

Legal Policy Officer Millie Harris explains how new laws are changing the ways that childhood offending behaviour is shared with (‘disclosed to’) potential employers, educators, and other services.

What has changed?

Three important pieces of law are changing the rules around disclosure of criminal records acquired in childhood. They improve we how protect people’s right to move on from past behaviour, which is your right as part of the human right to a private and family life (article 8 of the European Convention on Human Rights).

Part 2 of the Management of Offenders (Scotland) Act 2019 came into force on 30th November 2020, cutting the length of time childhood convictions are disclosed on basic checks. Part 2 of the Age of Criminal Responsibility (Scotland) Act 2019 also came into force on 30th November 2020, limiting when behaviour of a child aged under 12 can be disclosed. Finally, the Disclosure (Scotland) Act 2020 was passed by the Scottish Parliament in June 2020, but has not yet taken effect. It reduces disclosure on criminal record checks for behaviour of a child aged 12-17.

We gave our views on the legislation and what it should say as it progressed through Parliament – you can read more about the changes coming in and our work here.

What does this mean for children and young people?

These new reforms are a big step forward for children and young people. The changes mean it’s much less likely you will to have information about childhood offences or children’s hearings’ outcomes disclosed when you are applying for jobs, courses, or volunteer work. You will also be able to ask for an independent review of any decision to disclose information about you. As part of that, you’ll be given the chance to explain what else was happening at the time of the conviction or behaviour.

Why are the changes so important?

We know that employers, colleges and universities, and other services can sometimes shut out people with criminal records. We also know that when young people have criminal records, they often worry about these records being shared. This fear stops some young people applying for jobs or courses where their experience might be very valuable.

What does Clan Childlaw think about the changes?

Here at Clan Childlaw, we are very pleased that the Scottish Government and Scottish Parliament have recognised the need to protect children’s rights by changing the criminal records system. Children should not spend their whole lives being discriminated against and missing out on opportunities because of childhood behaviour. Especially when that behaviour often happens because adults have failed to meet the child’s welfare needs. 

Whilst the changes are very welcome, we do think they could have gone further. We are disappointed that offences established in the children’s hearings system may still be shared in some situations. Children’s hearings should be about welfare and we think that disclosing this kind of information undermines that purpose.

What happens next?

We hope that once all the changes come into force, they will make a real difference for children and young people, in particular care experienced young people. The important thing now will be making sure that children and young people understand the changes and feel more confident about their future.

More Information

Although one of the aims of the new legislation was to simplify the system that determines when information is disclosed, it is still complicated and unfortunately it won’t always be possible to know if you can expect information to be disclosed in the future or not.

If you need legal information or advice for yourself or a young person you are supporting, Clan Childlaw can help – please call 0808 129 0522, email, or reach us through Facebook messenger to speak to one of our lawyers.

We have written more detailed information to help you to understand when, once the changes are fully brought in, childhood encounters with the police and courts might be disclosed: