Children's Care and Justice Bill - policy proposals: consultation

6. Secure Care

6.1 Background

Secure care - provided by a secure accommodation service, as defined in statute^[127] - is among the most intensive and restrictive form of child care available in Scotland, whereby children up to age 18 are placed in a locked care setting. This can occur through involvement of the children's hearings system or the criminal justice system and arises due to the level of concern about the risks, or actual significant harm, which parts of a child's behaviour pose to themselves and/or others.

In exceptional circumstances, the use of secure care is necessary and proportionate as the only means by which a child and / or others can be kept safe, having the potential to save a child's life, or change it for the better^[128]. Taking a child's liberty away is one of the most serious restrictions a state can impose on a child's rights. As such, children have the right to be protected from unlawful deprivation of liberty under a number of international human rights treaties^[129].

Children in secure care should experience nurturing, relationship-based, high quality care where their needs and rights are understood and met. Support should be therapeutic and trauma-informed, with effective interventions available to keep children safe, meet their needs, promote healing, and achieve the best possible outcomes^[130]. Children's rights must be upheld in secure care, ensuring children have access to all they need for health, including mental health, education, participation and relationships.

At the time of this consultation publishing, there were 84 secure places available in five secure care centres in Scotland excluding 7 additional emergency beds (only normally used if required and for the short-term )^[131]. Four of these centres - Rossie Secure Accommodation Services; Good Shepherd Centre; Kibble Education and Care Centre; and St. Mary's Kenmure - are provided by independent charitable organisations. Edinburgh Secure Service is run by Edinburgh City Council. All of Scotland's secure care centres offer an integrated model of delivery, caring for children who have been placed in secure care for their own protection or that of others.

In domestic legislation, for children in Scotland, there are various legal routes to secure care^[132]:

• An order made by the children's hearings system or a sheriff: A relevant order or warrant (CSO, ICSO, medical examination order, or a warrant to secure attendance) may include a secure accommodation authorisation^[133].
• Where a child is subject to a relevant order which does not include a secure accommodation authorisation; is being provided with accommodation by a local authority^[134]; or is subject to a permanence order they can be placed in secure accommodation in specific circumstances^[135]. These are sometimes referred to as "emergency placements" made by the Chief Social Work Officer (CSWO).
• Police Powers: Where a constable believes a person is under 16, or where a child is aged 16-17 and is subject to a CSO or ICSO, and requires to be kept in a place of safety until they can be brought to court^[136], the child can be placed in secure accommodation in certain, limited circumstances^[137].
• Court-Remand^[138]: Where a court remands a child under 16, it shall commit the child to the local authority care. The court can require this to either be in secure accommodation or a suitable place of safety chosen by the authority (which can include secure accommodation in certain circumstances^[139]). The same applies for children aged 16/17 and subject to a CSO or ICSO, who can also be remanded to a YOI. If the child is aged 16/17 and not subject to a CSO or ICSO, the court must commit them to a 'remand centre' where an appropriate facility is available or to YOI. As there are no remand centres in Scotland the only option is for the court to commit the child to a YOI.
• Sentence: Where a child in summary proceedings pleads guilty, or is found guilty of an offence to which section 44 of the Criminal Procedure (Scotland) Act 1995 applies, the court may order the child be detained in residential accommodation (including secure accommodation) which the local authority considers appropriate, for a period not exceeding one year, subject to conditions^[140].

For children under 16, or aged 16/17 and subject to a CSO, sentenced to detention having been convicted on indictment^[141] and all children under 18 who have been convicted of murder^[142], the place of detention shall be determined by Scottish Ministers. Where practicable and appropriate, the place of detention will be secure accommodation.

If a child is aged 16/17 and not subject to a CSO, if they are convicted of an offence which would carry a period of imprisonment for an adult, and if the court considers that no method of dealing with the child other than imposing detention is appropriate, it must commit the child to a YOI^[143].

Responsibilities for providing (either delivering or purchasing) secure care, managing and funding children's placement in secure care and associated costs vary depending on the route for placing a child. For Scottish children, local authorities are responsible in all cases, except for sentenced children (as detailed above) where Scottish Ministers are responsible. Local authorities are also currently responsible for funding the placement of children on remand in secure care, whereas there is no cost to the local authority if the child is placed in a YOI. This allocation of responsibility, and the current spot purchase model, could serve as barriers to achieving the aim of children not being remanded to YOIs.

The data tells us^[144]:

• In 2020, there were 194 admissions to secure care.
• In 2020 the average number of children in secure care was 82 - 53 from Scotland and 28 from out with Scotland.
• In 2020 the most common lengths of stay were 3 months to 6 months (22%), less than a month (21%) and 6 months to 1 year (20%).
• Almost half of children in secure care on 31 July 2020 were aged 16 years or older.
• 73 and 69 children respectively had secure accommodation authorisations as part of their ICSO or CSO in 2020-21^[145].
• In 2019-20 the legal reason for admission to secure care for 22 children was transfer in urgent necessity through the children's hearings system^[146], 17 as condition of CSO, 18 as ICSO, and 44 pending a decision by the Reporter^[147].
• In 2019-20 32 children were in secure care as a place of safety or having been remanded, with Police Scotland data highlighting that in 2020, 5 children were released to the care of social work to be placed in secure accommodation having been arrested, compared to 135 who were arrested and held on a child detention certificate in police custody^[148].
• In 2019-20 No children were placed in secure care having been sentenced on summary proceedings, and less than five under solemn proceedings^[149]. A further 57 placements were made on other legal orders.

6.1.1 Proposals

The regulatory landscape around secure care is complex. We consider it would be desirable to take the opportunity simplify and clarify this and to make procedures for approval and registration of secure accommodation services more transparent. We are also considering whether the current legislative definition of "secure accommodation"^[150] offers the required precision.

Current routes to secure care are complex. Whether a child can access secure care depends on their age and legally defined status. This has significant implications for the ability of all children, particularly those aged 16/17 years, to access these age-appropriate facilities. This position requires to be amended if Scotland is to Keep the Promise. The Scottish Government wants to ensure that all children aged under 18 have a legislative route to secure care when this is deemed necessary and appropriate.

Through increasing the maximum age of referral to the Principal Reporter, more children should be able to access secure care as part of relevant order or warrant with a secure accommodation authorisation. Moreover, while we want to move away from the use of secure care as an emergency placement, we want to ensure any child can be placed in secure care where this is necessary, proportionate and in their best interest. For children accessing secure care via police powers or through the criminal justice system who have been sentenced or remanded, we want to make legislative provision to enable all children aged under 18 to be placed in secure care.

It is important to ensure decisions as to where a child is placed are driven by the needs of the child as opposed to financial considerations and who is responsible for payment. To reduce any disincentives to the use of secure care as opposed to YOI when a child is being remanded, we are considering whether these costs should be covered by Scottish Ministers.

6.1.2 Questions

Question 14: Do you agree that the regulatory landscape relating to secure care needs to be simplified and clarified?

Yes / No

Please give reasons for your answers

• If yes, please provide details of how this could be achieved

Question 15: Do you feel that the current definition of "secure accommodation" meets Scotland's current and future needs?

Yes / No

Please give reasons for your answers

• If no, please provide details of how this could be changed

Question 16: Do you agree that all children under the age of 18 should be able to be placed in secure care where this has been deemed necessary, proportionate and in their best interest?

• Yes through all routes
• Yes but only through certain routes
• No

Please give reasons for your answer, including any positive or negative implications

Question 17: Should the costs of secure care placements for children placed on remand be met by Scottish Ministers?

Yes / No

Please give reasons for your answer

6.2 Current funding and placement arrangements

The Promise requires a fundamental rethink of the purpose, delivery and infrastructure of secure care. This echoes the previous findings of the Secure Care National Project^[151], which resulted in the development of the Secure Care Pathway and Standards for Scotland^[152] and the establishment of the Vision for Secure Care^[153], and by the previous Justice Committee. Significant work is currently underway across Scotland to address these findings and to drive forward the transformational change to improve the experiences and outcomes for children who are experiencing extreme vulnerabilities across the continuum of supports including secure care.

Secure care currently operates on a national contractual arrangement. The contract operates on a cost recovery basis for the independent centres, and is based on a break-even rate of 90% occupancy. This means that where a centre is below 90% occupied, it is not financially viable.

The demand and supply of secure care has consistently been recognised as a complex and shifting landscape. A spot purchase model operates, whereby local authorities and the Scottish Government directly approach individual centres in order to access secure care placements. Individual local authorities have generally been content with this approach given their limited or unpredictable usage of secure care^[154]. While the placement of children from outside Scotland into Scottish secure care centres is not new, the placement of children from outwith Scotland into vacancies within secure care (often called "cross-border" placements) to sustain Scottish secure care centres has become more significant in recent years as Scottish usage of secure care has fallen^[155]. This could however result in demand for placements outstripping supply, meaning Scottish children may not be able to access secure care where it has been assessed as being required immediately and all alternative measures have been attempted. A further issue is lack of choice, with placements often being driven by whichever centre has a vacancy, regardless of the child's individual needs and the particular 'offer' a centre can provide, as well as the geographical location of the centre^[156].

The Scottish Parliament's previous Justice Committee, concluded that the current funding model for secure care is not sustainable and called on the Scottish Government and COSLA to look at alternative models, such as national commissioning or the use of block funding of places. The Promise identified a lack of clarity about pathways through secure care and decision making driven by overly complex funding and procurement arrangements, as well as the detrimental impact of the current competitive contractual framework. Both stressed that planning and provision must reflect the needs of Scotland's children to ensure there are sufficient places for children who require to be placed in secure care: "It should never be the case that a child or young person is sent to HMP YOI Polmont when a secure care unit would be more appropriate to their needs".

6.2.1 Proposals

Discussions are underway with Social Work Scotland, COSLA, Scottish Government and secure care centres to explore different funding approaches to ensure that every child living in Scotland, who requires to be cared for in secure care, can be.

With a very small number of children needing secure care on an ongoing basis, but with unplanned emergency admissions sometimes required, and the occupancy position in secure units often very tight, the current arrangements do not work well for either providers or purchasers. There is no moderation between local authorities where more than one child may meet the secure criteria, but only one secure place is available.

For children placed on an emergency basis through the children's hearings system and in some cases through the criminal justice system, the CSWO has a significant decision making power. Local approaches to decision making can vary^[157], often utilising either formal local secure care screening groups or the CSWO bringing together the relevant professionals and the team around the child, to meet prior to making decisions. Research has highlighted the competing pressures and complex professional and ethical judgements facing those responsible for such decisions^[158]. These decisions are fundamentally linked to the availability of other local supports for children in the community or other parts of the system. At times, there have been reports of children being placed in secure care because there are no other appropriate local supports available. Efforts are underway across Scotland to address this^[159]. The recent investigation by the Children and Young People's Commissioner Scotland^[160] examined the powers and performance of statutory duties by CSWOs when children were placed in secure care on an emergency placement or through implementation of children's hearings system orders. The study identified in some cases a lack of evidence of compliance with legal duties and made various recommendations for change^[161]. Many local authorities have reported taking action to address these findings.

The secure care "head of unit" is defined as the person in charge of the residential establishment containing the secure accommodation in which the child is to be placed^[162]. In agreeing to a child's placement in secure care through any legislative route, the head of unit has similar duties to the CSWO^[163]. This includes considering the needs of the child, the suitability of the placement having regard to the establishment's statement of functions and objectives, and the needs of the other children residing in that unit. They will also consider available guidance and criteria for example as provided by the Care Inspectorate in respect of admissions and matching^[164]. Where a child is in secure accommodation it is the responsibility of the managers of the unit in consultation with the head of unit, to ensure, safeguard and promote the child's welfare^[165].

This means there is no placement commissioning mechanism or national oversight of placement decisions, demand for secure care or the needs of the children for whom secure care places are being sought. As a result, it is difficult to know whether the children currently placed in secure care are those who most require this service across Scotland. There are concerns around consistency of thresholds for decision making. There is also no cohesive and holistic overview of the impact, experiences and outcomes for children who are being considered for, are in, or are leaving secure care. The Promise calls for planning and provision to be based on understanding of need and data and the previous Justice Committee noted the lack of a centralised monitoring system for the number of places or referrals to secure care. Within current approaches, such monitoring and data provision is impossible.

In other jurisdictions there are different approaches to considering and securing a child's placement in secure care, albeit that the legal frameworks for, and routes to, secure accommodation vary, which can provide valuable learning. Different models include the Secure Welfare Coordination Unit in England and Wales^[166] and the national, independently chaired multi-agency admissions panel in Northern Ireland^[167].

Drawing on national and international evidence, the Scottish Government considers a national approach to considering the needs and circumstances of any child who might need to be placed in secure care should be explored.

6.2.2 Question

Question 18: Is a new national approach for considering the placement of children in secure care needed?

Yes / No

Please give reasons for your answer

• If yes, please provide details of what this approach should look like

6.3 Secure Transport

When a child is being transported either to secure care or transported to critical appointments while living in secure care (for example to a children's hearing, medical appointment, or court appearance), this is often done through the use of secure transport. Responsibility for the organisation and funding of secure transport varies. Scottish Ministers are responsible for children under the age of 16, or those between 16 and 18 who are subject to a CSO, and who have been convicted on indictment by the courts and sentenced to detention^[168]. Scottish Ministers are also responsible for children under 18 who are convicted of murder^[169]. Scottish Ministers have a contract in place with an organisation to provide secure transport. Local authorities are responsible for the transport of all other children placed in secure care through any route.

Where this responsibility lies with local authorities, the decision as to who will transport a child is made on a case-by-case basis, taking into account a range of factors including those specific to the child, the type of journey, risk assessment and the availability of transport. Transport can be provided by local authority staff, social care staff, by commissioning secure transport from private organisations or, in exceptional circumstances, by the police.

There are a range of challenges for local authorities associated with ensuring children who require secure transport can be provided with child-appropriate, timely, rights-based, trauma-informed services. These include the limited availability of Scottish based secure transport providers; the combination of planned and unplanned journeys; limited regulation; and the lack of standards, principles and for expectation of services. Secure transport is mentioned in other Standards^[170]and activity is underway via the Secure Care Group^[171] to support the identification of how these Standards can be achieved in practice and what requires to change. In legislation there is limited reference to secure transport, either for children who are being placed in secure care through the children's hearings system or the criminal justice system^[172].

6.3.1 Proposals

We propose to enable secure transport to be utilised when necessary and justifiable for the safety of the child or others. The decision on the type and level of security of the transport should continue to be made by those who are responsible for the child's placement (i.e. the local authority or Scottish Government). This decision should be based on an assessment of the child's needs, strengths, circumstances and risks, with the level of restriction proportionate to this assessment.

6.3.2 Questions

Question 19: Is provision needed to enable secure transport to be utilised when necessary and justifiable for the safety of the child or others?

Yes / No

Please give reasons for your answer

Question 20: Are there any other factors that you think need to be taken into account in making this provision for secure transport?

Yes / No

Please give reasons for your answer

• If yes, please provide details of these factors

6.4 Age thresholds

As things stand, the legal definition of "secure accommodation" means that children cannot currently remain in secure accommodation beyond their 18^th birthday, regardless of the needs, vulnerabilities or the best interests of the young person, or remaining sentence for young people turning 18 who were placed in secure care when they were sentenced^[173]. At present, the only option is for children under 16, or aged 16/17 who are subject to CSO, convicted on indictment and sentenced to detention^[174] to be released on licence on the recommendation of the Parole Board at any time^[175]. In other jurisdictions, for example England, albeit the provision of services differs, children can remain in secure children's houses or secure training centres (and YOIs) beyond their 18^th birthday if for example a child's sentence end is imminent or they are engaged in a programme or intervention that it would be detrimental to disrupt.

For children who are placed in secure care via the criminal justice system, at the age of 18 these children must automatically transfer to a YOI. Both the Promise and the previous Justice Committee have recommended that this stop: "…the Committee does not believe that current system, which sees the automatic transfer of a young person from care to HMP YOI Polmont, should be based solely on age… Any system of transition must be based on vulnerability assessments and not purely based on reaching a specific age".

International human rights instruments^[176] recognise that where a child is deprived of their liberty, they should not automatically transfer to an "adult facility" on reaching 18, if this is not in their best interests and also the child remaining is not contrary to the best interests of the other children in the facility. Moreover, the current approach is inconsistent with the current Youth Justice Vision's emphasis on moving away from age-related 'cliff edges'; the individualised approach encouraged by GIRFEC; and the ability to adopt a needs and developmentally led approach, to ensure that children are cared for in the best possible facilities that meet their needs. Transitions at 18 are also inconsistent with our understanding of brain development and maturation^[177] and of emerging adulthood.

In Scotland, children in secure care who are defined as a looked after child^[178] and who cease to be looked after on or after their 16^th birthday but are less than 26 years of age may be eligible for aftercare^[179]. A child who is looked after in foster, kinship or residential care on or after they turn 16 is eligible to remain in their current care placement until they turn 21 under continuing care^[180].

One exception to the duty on local authorities to provide continuing care is if the child was accommodated in secure care immediately before ceasing to be looked after, owing to secure care being a childcare facility^[181]. The philosophy underpinning continuing care is to enable continuity of care and consistent relationships, to provide young people with the support they need to develop the necessary skills to move on from their last placement when they are ready to do so with the option to return as necessary to secure a positive and sustained transition into adulthood^[182]. The Promise made various recommendations regarding transitions support including that "Any young person who is 'looked after' and is in Secure Care and turns 18, must retain social work support and be able to access throughcare and continuing care provisions upon leaving Secure Care".

6.4.1 Proposals

We propose to enable those young people who turn 18 to remain in secure care for a time limited period. The use of any such extension would be determined on a case by case basis, involving the full team around the young person, and only where this has been assessed as in their best interests based on their needs, strengths, risks and vulnerabilities. Any decision would also need to respect the young person's right under Article 5 ECHR not to be deprived of their liberty except where this is necessary, proportionate and prescribed by law. As such, we believe this change would need to be limited to children who are remanded or sentenced and whose liberty requires to be deprived on an ongoing basis. As matters stand, young people cannot remain subject to measures through the children's hearings system beyond their 18^th birthday. Given that deprivation of liberty must be for the shortest time possible, we do not consider that it would usually be appropriate to extend these measures to provide a legal basis for young people to remain in secure care on welfare grounds beyond their 18^th birthday. However, in-keeping with the wider move away from chronological ages being determinative of children's and young people's rights, we would welcome respondents' views on this issue.

Consideration of the child's relationships; supports in secure care; the needs of the other children in secure care; length of time the child/young person is likely to be deprived of their liberty; their views and those supporting them should all inform an assessment of the child's best interests. The roles of secure care staff and the Head of Unit are critical. Consideration would need to be made to children's rights to be separated from adults unless it is considered in a child's best interest not to do so^[183]. Consideration and preparation would also be required to ensure secure care can resource the necessary supports to ensure the wellbeing of all children that any over 18s remaining in secure care may affect.

In determining how long any such extension could last, this could be based on needs or development; based on the child's length of remand or sentence; or could apply in relation to a specified age range. We would welcome views on this. We are proposing that the ability of a young person to remain in secure care would be subject to early, and regular review.

6.4.2 Question

Question 21: Do you agree children should be able to remain in secure care beyond their 18^th birthday, where necessary and in their best interests?

• Yes / No

If yes, for all children or only those who are remanded or sentenced?

If yes, how long for?

• For as long as the child's needs require it
• To a maximum length of remand or sentence (and if so what should this be?)
• To a maximum age (and if so what should this be?)
• For another period (please specify)

Please give reasons for your answers