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

This consultation covers potential legislative reforms to promote and advance the rights of children in the care and justice systems and people who have been harmed. 

7. Residential Care and Cross-Border Placements

7.1 Cross-border placements

Children and young people should be provided with a nurturing and loving environment, ideally in the family home. However, where this is not possible, then alternative provision must be available for children living in Scotland.

Children and young people can be placed in residential care settings in Scotland from other UK jurisdictions. These placements are known as cross-border placements. In Scotland we have 334 residential services, which at any one time can accommodate over 100 children on a cross-border placement. There are various legal orders which may apply to children who are placed across borders, including care orders made under section 31(1)(a) of the Children Act 1989[184], orders made under section 25 of that Act authorising a placement into secure care and Deprivation of Liberty (DOL) orders.

Some residential care services with resources in Scotland are receiving cross-border placements of children and young people subject to DOL orders. These are granted by courts in England and Wales to allow a child to be deprived of their liberty in a residential care setting, rather than a secure care setting, in Scotland. As of February 2022 there are 15 DOL order placements into residential care settings in Scotland. The total number since 2019 is 35. Of these, 34, have been from England and 1 child has been placed from Wales.

7.1.1 The Promise and cross-border placements

The Promise was clear that the commercial practice regarding cross-border care placements must end. It is established that such placements can result in children and young people being separated and distanced from their families, peers, community support networks and services. This impacts on planning for the child and on their ability to maintain meaningful relationships. There are also concerns that this may impact on their human rights.

Therefore cross-border placements should only occur in exceptional circumstances where the placement is in the best interests of an individual child. Until the lack of provision for secure and residential care, particularly in England, is addressed, the practice of cross-border placements into Scotland will continue. The Scottish Government continues to seek assurance from the UK Government that prompt and effective action is being taken to find a solution to capacity issues.

It is clear that cross-border placements impact on Scottish services, having consequential resource implications. The Promise recognises there are challenges in the management of places in care and the sustainability of settings of care. It is clear that strategic planning must reflect only the needs of children in Scotland's local authorities and that it is desirable to improve notification and scrutiny arrangements for cross-border childcare placements in Scotland.

Views are sought on a potential national approach to considering the placement of children in secure care in Scotland and to reduce reliance on cross-border placements, except in exceptional circumstances where it is in the best interests of the child.

7.1.2 Cross-border placements under deprivation of liberty orders

The Scottish Government believes that in all circumstances where it is considered to be in the child's best interest to move cross-border into a Scottish residential or secure care establishment, the child should receive the highest possible standard of care, with appropriate safeguards in place.

Cross-border placements of children into secure accommodation in Scotland are governed by section 25 of the Children Act 1989, as amended in 2017. It is not proposed to make changes to this provision. There are currently safeguards in place for these placements which are covered by the secure care standards and pathways[185] which must be followed by all secure care providers in Scotland. There are also conditions in place within an agreed Memorandum of Understanding (MoU) between the Scottish and UK Governments. This is a signed agreement from both parties to support appropriate use of cross-border placements into secure accommodation from England into Scotland and vice versa. The MoU ensures that all other suitable placements in the child's own country have been explored before a child is placed in Scotland. Information must also be provided to the Scottish secure accommodation provider by the placing authority in advance of a placement being made, to ensure that the provider can meet the child's needs. This includes information such as the dates of regular reviews, anticipated length of stay in the placement and that notification has been given to appropriate authorities in both jurisdictions.

It is established that some residential care services with resources in Scotland are receiving cross-border placements of children and young people subject to DOL orders. The experiences of these children are of particular and immediate concern. They are often the children and young people with the most complex needs, in the most vulnerable of situations, who require specialist care and support.

DOL orders for children and young people are authorised by the High Court in England and Wales under its "inherent jurisdiction". This practice is due to there being no statutory provision which authorises deprivation of liberty in residential care settings. In January 2022 the Scottish Government sought views on draft regulations[186] to be laid in Parliament in Spring 2022 under section 190 of the Children's Hearings (Scotland) Act 2011 as a temporary measure to legally recognise DOL orders in Scotland.

It is clear from the responses received that there are concerns around DOL order placements continuing in residential settings. It is suggested that provisions are needed to support a future reduction of such placements, whilst also reducing any unintended consequences, such as ensuring that as residential placements decrease, we do not see a parallel increase in the number of cross-border placements into secure care.

Many of the young people from other UK jurisdictions are being placed in residential homes under DOL orders and are being deprived of their liberty under circumstances which would be akin to those living in secure accommodation. It is useful to consider restrictions imposed upon a person's activities as a spectrum ranging from no interference with liberty, escalating to measures of restriction and ultimately to deprivation of liberty.

The question of whether or not a child is being deprived of their liberty relates to the "degree or intensity" of measures they are subject to. Factors to be considered include the physical environment of the setting and the extant regime, the extent to which the child is prevented from leaving the placement and efforts to return them if they leave; the nature and level of supervision and monitoring of the child; the degree of restriction of mobile phones and other methods of communication; and the degree of access to the local community (and how this is supervised).

7.1.3 Proposals

As noted above, it is clear from our targeted stakeholder engagement in January 2022 in response to the proposals for interim measures to regulate cross-border DOL placements, that concerns extend to all other cross-border placements continuing in residential settings, as well as DOL order placements.

Currently, the Care Inspectorate plays a role in ensuring that children and young people experiencing care in Scotland get the best quality of care that meets their needs, respects their choices and protects their rights. This is through registration, assessment and inspection processes. We anticipate a future increased role for the Care Inspectorate which ensures that through the registration criteria, notifications systems and inspection processes that there are explicit references to cross-border placements.

We recognise that numbers of residential accommodation settings in Scotland over recent years have increased and that in some circumstances, this has led to increased capacity to provide care for children and young people from outside of Scotland. We consider that, going forward, it may be appropriate that approval of any new residential childcare provision should be considered in the context of local need as identified through the joint strategic needs assessment undertaken to inform each area's Children's Services Plan. We propose that as a prerequisite to applying for registration with the Care Inspectorate, providers should demonstrate that robust discussion has taken place with their local Children's Services Planning Partnership and that any proposed provision meets identified service provision needs. Where provision is proposed which relates to restricting or depriving children of their liberty it is proposed that oversight and scrutiny is more stringent as the restriction increases.

It is unlikely that cross-border placements will cease completely in the future - as some young people may require such a placement as it will be in their best interest. Therefore it is felt that provision is required to ensure that such placements are better regulated.

The Scottish Government's view is that deprivation of liberty for children should be as a last resort, and should ordinarily only occur in secure care. We recognise that for some children and young people being placed across the border, this will not be in their best interest and that a non-secure, enhanced setting may be more appropriate. To ensure that in these circumstances, the complexity of children's needs is appropriately matched to the care environment and provision they live in, we propose to introduce pathways and standards for residential care for children and to explore linking these to registration with the Care Inspectorate. This could potentially include a requirement that settings hosting children and young people subject to DOL orders must obtain special approval and/or registration.

We firmly believe that children and young people should be cared for within their local community where this is safe and appropriate to do so. Where a move cross-border is considered to be in the child's best interest, we must ensure that their rights are upheld in the community they are resident in. Independent advocacy can support affected children to provide their views about how their experience aligns with their care plan; and how their welfare is being protected. We propose to introduce measures to ensure that those children and young people from outside of Scotland who are subject to DOL orders will be offered an advocate locally. We further propose that this should extend to all children and young people living in cross-border residential and secure care placements, where they do not already have access to Scottish advocacy provision.

7.1.4 Questions

Question 22: Do you agree with the introduction of pathways and standards for residential care for children and young people in Scotland?

Yes / No

Please give reasons for your answer

  • If yes, please provide details of what measures and provisions are needed and how you think this should operate in practice

Question 23: Do you agree that local strategic needs assessment should be required prior to approval of any new residential childcare provision?

Yes / No

Please give reasons for your answer

  • If yes, please provide details of what measures and provisions are needed and how you think this should operate in practice

Question 24: Do you agree that there should be an increased role for the Care Inspectorate?

Yes / No

Please give reasons for your answer

  • If yes, please provide details of what measures and provisions are needed and how you think this should operate in practice

Question 25: Do you agree that all children and young people living in cross-border residential and secure care placements should be offered an advocate locally?

Yes / No

  • If yes, please provide details of how you think this should operate in practice

7.2 Use of restraint in care settings for children

Legislation specifies that a care provider must ensure that no service user (in this case no child) is subject to restraint, unless it is the only practicable means of securing the welfare and safety of that or any other service user and there are exceptional circumstances[187].

In practice, the use of restraint is often complex, difficult and emotive for everyone involved. Each secure care and residential setting will have their own techniques, methodologies and training for staff on approaches to physical restraint and their own policy and procedures based on legislative requirements, contractual obligations and the national Holding Safely[188] guidance published in 2005 and updated in 2013.

Holding Safely gives guidance in relation to physically restraining a child and defines physical restraint of a child as "an intervention in which staff hold a child to restrict his or her movement" and it stresses that "restraining a child should only be used to prevent harm". A child should only be restrained when this is necessary and justified and there must be exceptional circumstances.

The restraint must be reasonable and proportionate in the circumstances, using the minimum force, in the least restrictive manner for the shortest time needed to prevent harm. At all times, children's rights must be upheld.

Where restraint is carried out in circumstances other than this:

  • It may amount to the offence of assault. This could lead to prosecution of the person who carried out the restraint.
  • It could also amount to a breach of the child's rights under the Human Rights Act 1998[189] or the UNCRC.

Holding Safely specifies that any approach to restraint must be approved by the employer and the staff member appropriately trained in the approach used. Appropriate monitoring and recording documentation should be completed after each physical restraint[190]. The guidance also states that after any incident of restraint, the child should be supported and given the opportunity to discuss the restraint, all staff should be de-briefed and managers should monitor the use of restraint.

The Scotland Excel contract for secure care highlights the above standards and also states that secure care providers must ensure staff are fully trained in de-escalation techniques and alternatives to restraint and should use trauma-informed management of children's behaviours.

Currently data on the use of restraint in secure care is not publically available but during inspections by the Care Inspectorate, policies and procedures, information on all incidents, and reviews of selected cases provide information on restraint. All services are required to keep a record of all restraint incidences and these should contain details of the form of restraint, reasons, risk and benefit assessment, name of the person authorising it, discussions with key partners, family and friends and arrangements for monitoring and ongoing assessment.

The Promise heard about children's experiences of restraint and the complexity surrounding this. It concluded "Scotland must strive to become a nation that does not restrain its children". To achieve this, the Promise recognised that various factors needed to be addressed including the supporting and nurturing of Scotland's workforce; ensuring caring, relational and trauma-informed responses to difficult situations; staff are equipped with preventative and de-escalation interventions; environmental and cultural change; and leadership. The Promise Scotland Plan 21‑24 states that by 2024 "Restraint will always be pain free, will be used rarely, and only when required to keep a child safe. There will be well communicated and understood guidance in place that upholds children's rights and reflects equal protection legislation. The workforce will feel supported to respond to behaviour in a trauma informed way that reflects a deep understanding of the children in their care".

Significant work has already been carried out by secure care providers to reduce the use of restraint, through working groups along with the introduction in some centres of restraint reduction plans which are co-produced with young people and which follow the Restraint Reduction Network Standards (2019)[191]. The standards encourage an increased focus on restraint reduction across the UK. There is a growing recognition that whilst the use of restraint may on rare occasions be necessary to keep people safe, it is also traumatic and must be minimised in therapeutic settings.

Work is also underway across secure care and residential child care to respond to the findings of the Promise in respect of restraint. This includes the work of the Scottish Physical Restraint Action Group. This multi-agency group is committed to "Working towards making coercive forms of holding less or even unnecessary, and when children are restrained, it is carried out relationally and with care". Activity has included working with the Care Inspectorate in updating notification of restraint guidance; piloting a self-evaluation tool for care services in respect of restraint as part of continuous improvement; and completing research including with children and young people.

In addition, the Secure Care Pathway and Standards Scotland were published in 2020. The standards reiterate that restraint should only be used when absolutely necessary to prevent harm, should be undertaken in the least restrictive way possible for the shortest time, during which time the child must be treated with respect, dignity and compassion. The standards also stress that following any incidence of restraint, the child should always be well supported afterwards. As detailed elsewhere consideration of similar standards for residential childcare, which would likely include standards in respect of restraint, are currently being consulted on.

7.2.1 Proposals

As noted above, there are standards and guidance to be followed around the use of restraint in care settings. It should be recognised that there has been lots of positive work carried out across the residential and secure care sector over the years to ensure that the position as outlined above (that restraint is only ever used in exceptional circumstances and to prevent serious harm), is followed. We are however keen to gain views on whether any change is needed to existing law and guidance on the use of restraint in residential and secure care settings.

7.2.2 Question

Question 26: Whilst there are standards and procedures to follow to ensure restraint of children in care settings is carried out appropriately, do you think guidance and the law should be made clearer around this matter?

Yes / No

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


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