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

The Children’s Care and Justice Bill consultation was published on 30 March 2022 seeking views and feedback on policy proposals to inform the development of the Bill. 106 responses were received from a broad range of stakeholders. This document provides full analysis of those responses.

6. Pillar Four: Residential Care and Cross-Border Placements

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

Statistical overview

  • This question received widespread support, with 92% of respondents agreeing that pathways and standards should be introduced for residential care
  • Only five respondents disagreed, of which three were individuals, one was a Local Government/Social Work organisation and one an organisation classified as 'Other'

Main Themes

Responses emphasised that the introduction of pathways and standards for residential care would allow children - both from within and outwith Scotland - to benefit from a high level of support, whilst also having their rights respected. It was noted that this would promote consistency of practice, and align strongly with the vision and ambitions of The Promise, and is more akin to the practice for secure care.

"Pathways and standards will reinforce strong rights based practice."

[Case 12, Local Government/ Social Work]

"Young people have already told us what needs to change through the Independent Care Review and The Promise. At [XXXXX], we want the proposed Children's Care and Justice Bill to be used to help strengthen ongoing culture change in residential care across Scotland […] staff felt that the development of new standards and pathways for residential care for children and young people could potentially be beneficial, but only if these are used as a mechanism to help bring the principles of The Promise (and future United Nations Convention on the Rights of the Child – UNCRC requirements) into practice quickly..."

[Case 24, Third Sector]

"…we set out our position that current practice creates a "second class" of looked after children in care in Scotland, who are not subject to the full oversight, support, and human rights protections of the Scottish statutory systems […] It is vital that no child in Scotland is deprived of their liberty except in accommodation which is authorised, regulated, and approved to the highest Scots law and human rights standards."

[Case 39, Children and Young People's Commissioner for Scotland]

The importance of children's input and a co-production methodology underpinning any development of pathways and standards for residential care was highlighted within a number of responses. These responses often cited the recent design and implementation of the secure care standards. This process was understood to have positively and meaningfully involved children and young people, which the production of any pathways and standards for residential care should seek to replicate.

"Any pathways and standards must be rights-focused and take a human rights-based approach in how they are developed. This would include carefully developing the resource alongside Care Experienced people across Scotland."

[Case 64, Who Cares? Scotland]

Respondents provided some examples of what measures and provisions are needed, including: robust and timely health assessments; appropriate level and diversity of supports available; agreements for sharing information about a child's health across borders; support for educational attainment; standards that specify staff ratios and training requirements and standards for transitions. Other responses did, however, highlight that there would need to be careful consideration of the resource, workforce and training implications of introducing new standards and pathways in this area. Three respondents highlighted that health and social care standards already exist, and that the focus should be on implementing these, rather than complicating the landscape with new standards:

"Developing new pathways and standards risks being an unnecessary distraction from focussing on sustained implementation of current standards and guidelines to ensure all children in residential care receive high quality care attuned to their needs and in line with the aspirations of The Promise."

[Case 71, CELCIS]

A small number of respondents also questioned whether pathways and standards would bring about the necessary change to improve the quality of care provided in residential care. These responses stressed the need for wider culture change within residential settings and 'values-led' practice:

"Pathways and standards can be useful for ensuring a minimum quality of care and support that children and young people can and should expect when they are unable to live with their family. However, we believe it is important to consider whether new pathways and standards will in and of themselves guarantee the quality of relationships that children and young people have with the adults who support them in residential settings. The children and young people who live with us in our Sycamore cluster of children's houses tell us they feel the requirements of regulation and inspection as they currently are make their homes feel more like work places. Making sure we provide nurturing homes and loving environments for our most vulnerable children and young people will only happen as a result of ensuring a confident workforce which feels empowered to provide care and support which is focused on consistent values of compassion, empathy and love."

[Case 74, Aberlour]

Young people

Five young people supported the introduction of pathways and standards for residential care and two did not. There was differing views across respondents about the appropriateness of cross border placements. Some emphasised that removing children far from their communities should never be allowed, whilst others highlighted that at time this might be in the best interest of the child, and where they are needing care and protection Scotland should be open to providing this:

Cross border placements shouldn't be allowed; it's damaging for the child to be away from home. I've witnessed first hand how children from other countries come to residential care in Scotland and not coped.

[Case 90, Individual Young Person]

If a child from another country like England is in danger then they should get to come to Scotland right away to be safe. I think it would be hard for some children to leave their families behind in England but for other children, they might be glad to get away from their families. Every case is different and any changes that take place need to take that into consideration.

[Case 96, Individual Young Person]

If the practice of cross border placements is to continue, it was felt that standards and pathways would help ensure consistent, high-quality care for all those placed in residential settings. Two respondents highlighted that these must be written in a way that is easy for young people to understand, whilst another proposed that these be co-designed with children and young people.

"STARR recommends introducing co-produced pathways and standards for residential care. Evidence from the Secure Care Pathway and Standards shows that this can be effective in influencing change at both policy and practice levels, it adheres to Article 12 of the UNCRC, and ultimately could change outcomes for children and young people experiencing residential care."

[Case 102, STARR]

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

Statistical overview

  • A significant number of respondents did not answer this question. Of those that did, 90% supported local strategic needs assessments
  • Only five respondents disagreed with this proposal, including three individuals, one Children's Hearings Systems-related organisation and one Third Sector organisation.

Main Themes

Most respondents believed that a local strategic needs assessment should be required prior to approval of any new residential childcare provision, and that decisions should be based upon localised need, rather than financial incentives or motivations (particularly as regards to attracting cross-border placements). This was especially stressed by Local Government/Social Work respondents, who sought greater involvement and oversight of decisions to open new residential centres, with two respondents highlighting that in the past provisions have been opened without local practitioners being notified. Additionally, it was emphasised that this could also allow for careful planning in respect of the availability of local universal resources to be accessed by children located in these settings.

"A local strategic needs assessment would enable discussions prior to setting up a residential provision. This needs to consider the impact on the host LA area's universal services as well as more targeted services. Most importantly it would consider the needs and support requirements of children potentially living in that provision. This would also seek to address, reduce and stop cross border placements where children are far removed from their families and communities unless this is exceptional and in the child's best interests.

[Case 81, Local Government / Social Work]

"Currently providers can offer placements which do not necessarily reflect local need. A local strategic needs assessment prior to the provider setting up placements would help mitigate this, and would allow local authorities to have a say in the creation of any new provision. Planning decisions should take into account capacity of all local resources, for example CAMHS and supports for children with complex needs."

[Case 50, Local Government / Social Work]

In Stirling there are a large number of residential homes with them often being set up with no discussion with local social work management. Leads to a drain on local resources. Control over this would mean that they were set up if needed and not on a profit basis.

[Case 15, Stirling Council]

A number of respondents also referenced the importance of geographical considerations in respect of any local strategic needs assessment relating to the approval of residential childcare provision.

"Vital that some, particularly rural authorities, do not become overloaded with private providers. A need not to overload what is possible to provide in relation to specialist support or indeed universal services. Currently local young people are potentially being displaced due to the extreme level of need being displayed by those placed in private establishments."

[Case 6, Local Government / Social Work]

"We submit that there will be a greater need for new residential childcare provision in areas of higher population density, however we contend that it would be unjustifiable to relocate children from rural areas away from family purely for financial and expediency reasons. We contend that consideration should be given to the creation of a few small, localised units that have an ability to share their services with larger more centralised units. We are of the view that this would allow a child to move to another unit for a specific period to complete a course or activity."

[Case 47, Legal]

Similarly, it was noted however, that the interplay between both local and national dimensions required further consideration.

"Small local authority areas will often rely on neighbouring authorities, or work in partnership with them for certain provision. Placements across local authority boundaries are often more local for a child than those within authority boundaries. Where particular needs such as disability or specialist provision are concerned, or where a level of deprivation of liberty may be indicated, a national needs assessment is required, and often more national provision is the only manageable way to meet those limited but significant needs. This would not be provided, with implications for Scottish children if we rely on local needs assessments. We suggest thought is given to a way of understanding need at both local and national level to inform any registration."

[Case 25, Social Work Scotland]

Young People

Three young people agreed with this proposal and one disagreed. Two respondents were surprised that this was not already in place, and one felt that there should be a dedicated team in each local authority to manage this. A separate response argued that local needs assessments would be useful, and that whilst Scotland should offer cross-border placement if there is space, children in Scotland should be provided for first.

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

Statistical overview

  • A significant number of respondents supported this proposal, with 88% agreeing and only 12% disagreeing. This percentage split was the same for both organisations and individuals
  • All Influencer, Hybrid and Representative Organisations responded yes, compared to 82% of Delivery Organisations
  • Of these Delivery Organisations, three were Local Government/Social Work organisations, and two were Secure Care Centre respondents. All other sector groupings supported this at 100%.

Main Themes

Most respondents believed that there should be an increased role for the Care Inspectorate, with several responses highlighting that greater scrutiny would be beneficial in respect of Deprivation of Liberty Orders (DOLOs) and cross border placements into residential care settings, whilst also commenting that greater frequency of inspections was required. However, a small number of Local Government/Social Work respondents and one Secure Care Centre respondent expressed concerns around whether the proposal would result in increased levels of bureaucracy and paperwork, aimed at measuring outcomes that may not appropriately encapsulate the level of care being provided.

"Inspection regimes are already overly complex, with too much bureaucracy and focus on policies and procedures. The paperwork expected detracts from the relationships that are so vital. It is a punitive set up with grades and failings based on measurements that do not focus on the outcomes considered important by children, young people, their families and the workforce. It is not an accurate depiction of the care delivered. Increasing the role as the regulation landscape currently is will only further oppress the ability for regulated services to flourish and care. Instead of increasing the role, there should be a complete overhaul of the regulation and scrutiny to ensure it is fit for purpose."

[Case 42, Local Government / Social Work]

Several responses felt that the Care Inspectorate already had sufficient or very high degrees of regulatory authority, whilst a number of other responses felt that further detail was required concerning the proposal and what an augmented role for the Care Inspectorate would involve.

Young people

Four young people agreed that there should be an increased role for the Care Inspectorate and two disagreed. It was felt that the Care Inspectorate should regularly inspect centres and consult with children as part of these inspections to ensure their views are included. Two respondents expressed that the independence of the Care Inspectorate was key.

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

Statistical overview

  • This proposal received one of the highest levels of support across the consultation, with 97% of respondents agreeing that children and young people living in cross-border care placements should be offered a local advocate
  • Only two respondents disagreed with this proposal, including one Local Government/Social Work respondent and one Children's Hearings Systems-related organisation. All other sector groupings and individuals supported this at 100%.

Main Themes

Almost all respondents agreed that all children and young people living in cross-border residential and secure care placements should be offered an advocate locally. A number of responses explicitly referenced Who Cares? Scotland as an organisation that could carry out this function. However, some respondents cautioned that even when accounting for the introduction of a local advocate, there would still be a need for children to have access to appropriate legal assistance and supports.

"…we do not think that advocacy support alone would be sufficient and are of the view that additional legal supports may be required. Our view is that these should also be funded by a placing authority."

[Case 82, Children's Hearings Systems-related]

"We therefore consider that any future Bill, in addition to independent advocacy, must provide access to state funded legal advice and representation in relation to the child's legal and human rights, the relevant Scottish public authorities' statutory duties and the child's rights to access to justice and effective remedies under Scots Law."

[Case 39, Children and Young People's Commissioner for Scotland]

Several responses also highlighted cost implications associated with a local advocate, with a number believing that the cost should lie with the placing authority.

"it is important to address how the advocacy provision is funded. Currently, increasing numbers of children from other parts of the UK are being placed in secure care in Scotland; this presents a challenge for the receiving local authority as it is very resource intensive and difficult, in some cases impossible, to get costs reimbursed from the referring local authority."

[Case 35, Justice Services for Children, Young People and Adults, City of Edinburgh Council]

The significance of understanding children's views and gaining their input in respect of the role and function of a local advocate was also emphasised in responses.

"We highlight to the Scottish Government our response to the consultations on the Children (Scotland) Act 2020 […] where we shared concerns about multiple different policies and legislative approaches with good intentions appointing various different support and advocacy workers in different systems often for the same children. As we know, children have repeatedly told us that it distresses them to re-tell their story to multiple different professionals. Any consideration of additional advocacy support must draw from the extensively shared views of children and young people about the importance of relationship-based support and the importance of a trusted support rather than multiple different professionals with different roles designed to help them."

[Case 52, Children 1st]

A small number of respondents did believe that further consideration was needed prior to the taking forward of this proposal.

"While we have answered 'yes' to this question, as an opportunity to express views and assistance to do so is crucial, we would ask that further consideration is given before progressing this proposal, with particular thought to what this might look like, whether local provision is necessary and how it would be funded."

[Case 25, Social Work Scotland]

The two responses which disagreed with local advocates stressed that children should receive advocates from their placing authority, as this is the jurisdiction they would be subjected to, and Scottish advocates would not have the necessary legal or system knowledge to effectively support them. One of these responses did, however, stress that if the child begins to access or be subjected to Scottish legal systems, then a local advocate should be provided.

Young people

Nine young people agreed that a local advocate should be available to cross border placements, and none disagreed. Whilst some stressed that they did not agree that cross border placements should be happening at all, they felt that if this practice were to continue then local advocacy was essential to support the child. Local advocates were seen as crucial for helping children know what was happening to them, to explain their rights and as someone to talk to and confide in when feeling isolated from family/friends. One young person suggested that there should be a national bank of advocates specifically trained in Scots and English (or other) law, whilst another suggested that this role could fall on local social workers. One young person also expressed that there should be scope for the child to raise concerns about their local advocacy if they feel this is not working for them.

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

Statistical overview

  • 90% of respondents felt guidance and the law should be made clearer around the restraint of children in care settings
  • Only six respondents disagreed, including five individuals and one Secure Care Centre respondent

Main Themes

Whilst 90% agreed with this proposal, qualitative answers provided a more mixed response, with many stressing the distinction between changing legislation and changing guidance. Many respondents, in referencing the Promise, emphasised their support that Scotland strive to become a country that does not restrain its children, however most caveated this support with an acknowledgement that in some rare circumstances restraint might be necessary if this is the only way to protect the child and/or those around them. A small number of respondents also explicitly argued against any change to legislation that sought to ban restraint in residential childcare settings, highlighting that this may have unintended consequences:

"Prohibiting physical restraint would create a 'gap' by the removal of a practice used to prevent harm to children that could result in:

  • children (and staff) being hurt or harmed;
  • increased 'placement' moves or breakdowns where a service is unable to keep a child safe;
  • exposure to harm for staff leading to increased staff turnover, impacting on children's access to consistent relationships;
  • increased fear from staff of litigation if they physically intervene, and fear in terms of their physical interactions with children, particularly if this leads to 'no-touch' policies, which have been widely criticised ; and
  • increased police involvement and risk of children being criminalised, where residential care services are unable to intervene to ensure safety so are left with no option but to contact the police"

[Case 71, CELCIS]

Whilst many respondents felt that restraining children still needed to be an option for staff in residential settings, there was significant concern about how it was currently used. Respondents expressed that restraint practices were inconsistent across contexts and providers, and were often used to achieve behavioural compliance, rather than solely for the purpose of keeping the child and/or those around them safe. This was seen as a particularly pressing, given the physical and psychological pain that can be experienced by children and young people who have been restrained. Several respondents felt that current legislation was unclear on this matter, and needed to be amended to ensure all involved, including practitioners, children and young people, and their families, understood when and how restraint practices should be used:

The current legislation and guidance on restraint is not explicit enough on how restraint can be used and creates ambiguity in practice.

[Case 64, Who Cares? Scotland]

Many other respondents, however, stressed that current legislation was adequate and argued against any amendment to this. Instead, they felt that current inconsistencies were a result of implementation gaps and differential interpretations of current guidance. This, several respondents proposed, would be best resolved through producing updated national practice guidance on the use of restraint, informed by the views of children and young people who have been restrained. This could be accompanied by a requirement for practitioners to undergo regular training:

SPRAG members are not convinced there would be positive gains from amendments to the law in relation to restraint at this time […] Members strongly advocate for the development of co-produced, updated practice guidance in relation to restraint and restrictive practice, and propose that, rather than a standalone document, guidance should comprise of a suite of resources and tools subject to regular review

[Case 18, SPRAG]

Nationally approved de-escalation and restraint training and approaches. Staff accredited to do this

[Case 40, Local Government/ Social Work]

Workers need regular training and development in understanding trauma and confidence in their ability to practice in a trauma informed way

[Case 81, Local Government/ Social Work]

In addition, several respondents emphasised the need for joined-up working across different sectors, to ensure a consistent approach to the use of restraint across residential care, secure care, secure transport, schools, health settings and YOIs. Several respondents also noted that any updated guidance should align with findings from the current Scottish Government consultation on physical restraint and seclusion in schools, to establish a national approach that would apply across these settings:

The outcomes of the planned consultation on physical restraint and seclusion in schools, and outcomes of this consultation, must be aligned to ensure that the expectations and experiences of children and young people and those who care for them are consistent across environments.

[Case 50, Local Government/ Social Work]

Moreover, many respondents also highlighted the need for any updated guidance to clarify the definition of restraint and related terminology, to ensure there is limited scope for differential interpretations:

"SPRAG considered the use of the word 'pain' in the consultation (page 58). Examples from direct practice advise that the experience of restraint can, despite all efforts to avoid this, result in physical and/ or emotional pain to both the young person and the adult. This can complicate the emotional pain that often underlies the lead up to the restraint in the first place. Restraint is a highly emotive situation and experience, and to state that this must always be 'pain free' is not possible and could potentially lead to challenges in referencing and measuring physical and emotional pain. Instead SPRAG recommends a clear statement establishing the deliberate use of pain as unacceptable. SPRAG suggest that the wording and guidance around 'last resort' and the thresholds for this are made clearer, while also acknowledging the related complexities of assessing this in practice. […] Further terms that the group believed would benefit from clear definition and explanation include 'harm', 'necessary', 'justified', 'exceptional circumstances', 'reasonable' and 'proportionate'. The complexity and nuance required to consider and define these terms should be a full part of the development of guidance materials..."

[Case 18, SPRAG]

In addition, several respondents highlighted the lack of robust data in relation to the use of restraint, and stressed the need for mandatory reporting and monitoring of incidents to allow a better understanding of how this is used across Scotland:

"We agree with The Promise Oversight Board that the lack of progress on further regulation and exploration of the use of restraint in care is deeply concerning […] All restraints and use of seclusion must be recorded and reported by residential care homes, secure care settings, Young Offenders Institutions and health and education settings so that progress towards the cessation of the practice can be monitored nationally."

[Case, 64, Who Cares? Scotland]

Young People

Six young people agreed that legislation and guidance on restraint should be clearer and three disagreed. Amongst these responses, young people stressed that guidance needed to be clearer to limit inconsistencies across practice whilst emphasising that restraint should only be used as a last resort. Several respondents also highlighted that current restraint practices can be traumatising and disproportionate and can lead to an escalation of the situation if the young person reacts to being restrained. It was proposed that guidance and practice should be amended, so that staff are explaining to young people as they are being restrained what is happening and why, and what their rights are during this process. Two respondents highlighted that restraint should still be an option, as it was often necessary for staff safety and rarely used unless it was really needed.


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