David's Scenario

David is 14 years old and has been on a Compulsory Supervision Order for 2 years. He lives in a residential unit in Glasgow.  David’s risk-taking behaviours have been escalating over recent weeks. He has been absconding regularly, becoming intoxicated, and getting into fights with other young people in the community. You receive a call from David’s social worker to tell you that he was placed in secure accommodation last night.

Can David be moved to secure accommodation before a children's hearing takes place?

When will a children's hearing take place?

Should David get a lawyer?

What will the panel have to think about?

What is a movement restriction condition? 

What is the effect of a measure authorising secure accommodation? 

How long will David be in secure accommodation? 

Anything else I should know? 

Can David be moved to secure accommodation before a children's hearing takes place? 

Yes. The chief social worker of the relevant local authority for David can make the decision to move him to secure accommodation urgently if they are satisfied that David meets the secure criteria (discussed below), and that it is in David’s bests interests to be placed in secure care. Young people are often moved to secure accommodation in an emergency situation. This is usually due to an escalation in their behaviour or actions that means that they are no longer being kept safe in their current placement. If the chief social worker places the child in secure accommodation, they must notify the Children’s Reporter and any Relevant Persons immediately. A Children’s Hearing will then be arranged (see below).

In non-urgent situations, the social work department can request a review of the CSO. This will result in a Children’s Hearing being arranged to consider whether to authorise the placing of the young person in secure accommodation.

When will a children's hearing take place? 

A Children’s Hearing must take place within 72 hours of David being moved to secure accommodation. The panel will have to review David’s CSO and decide whether to give authorisation to him being placed in secure accommodation (where he has been moved to) or if he should be returned to his previous residential unit or another placement.

As this hearing is arranged on an emergency basis following an urgent move, it is unlikely that the panel, David and any relevant persons will have received full papers for the Hearing (including an up-to-date social work report). They will also not have had much time to fully digest any papers that they do receive. This means that the panel are usually going to defer making a long-term decision and will therefore only be considering whether to make an Interim Variation to the existing CSO for David. In other words, they must decide whether they should make a short-term change to the CSO authorising David to reside in secure accommodation. This decision will have effect for 22 days (44 days at present due to the Covid-19 legislation). Another Children’s Hearing will be arranged before the end of the 22-day (or 44 day) period. By then, full and up to date papers should be available and the panel can make a substantive decision.

Should David get a lawyer? 

Yes. As the Children’s Hearing are going to consider secure authorisation, David is entitled to legal representation. If David already has a lawyer then he should contact them as soon as possible to let them know that he needs representation at the upcoming Children’s Hearing. If David does not already have a lawyer, then the Scottish Legal Aid Board will appoint a lawyer to him through their Children’s duty scheme. Legal aid will be made available automatically to ensure that David is able to obtain legal advice and representation.

What will the panel have to think about? 

1. Overarching Principles

Just like any other Children’s Hearing, the panel must have regard to the overarching principles of the Children’s Hearing. The first overarching principle is the duty to consider the child’s welfare as the paramount consideration. However, where there is a serious risk of physical or other harm to members of the public (including members of the child’s household or those they have a close connection to), then the welfare principle becomes a primary consideration rather than the paramount consideration. This means that the child’s best interests remains a very important matter for the panel to consider, but it does not override all other matters before the panel. 

The other two overarching principles apply as normal – firstly, to take into account the views of the child, and secondly to only make a CSO when it is better for the child to have the order in place than not. 

2. Secure Criteria

There are other tests that the panel must apply in addition to the overarching principles.

For the panel to authorise secure accommodation, one or more of the following conditions must be met:

  • That the child has previously absconded and is likely to abscond again and, if the child were to abscond, it is likely that the child’s physical, mental or moral welfare would be at risk
  • That the child is likely to engage in self-harming conduct 
  • That the child is likely to cause injury to another person.  

These are commonly known as the ‘secure criteria’. Only one of these needs to be met, however in David’s situation all three of these are met. If none of these are met, then the young person cannot be placed in secure accommodation.

3. Necessity and Proportionality

The placement of a child or young person in secure accommodation results in a serious deprivation of their liberty. This means that they should only be placed in secure care as a measure of last resort. Therefore, even if one or more of the secure criteria are met, this does not automatically mean that David should be placed in secure accommodation. There are additional tests that the panel must consider – the decision to place a child in secure accommodation must be necessary and proportionate. In other words, the panel must be satisfied that no other, less intrusive, option is available which would be capable of addressing the issues or concerns that are being raised in relation to the child. The panel have a duty to consider the other options available and must be satisfied that these will not be effective. It is only then that it can be shown that secure authorisation is necessary.

In particular, the panel must consider the alternative of a Movement Restriction Condition (more on this below).

What is a movement restriction condition? 

The law makes clear that before authorising secure accommodation, the panel must consider the alternative of a Movement Restriction Condition (MRC). This applies a curfew preventing the child from leaving a certain place between certain times, for up to 12 hours in any one day. The curfew is monitored by the child wearing an electronic tag, commonly known as ‘being on a tag’.

If the panel are satisfied that the risk could be managed by use of a MRC then the hearing cannot authorise secure accommodation (even if the secure criteria are met). If the Panel decide that there should be a MRC, they must specify a period for how long it should last. It cannot be in place for longer than 6 months.

If the panel decide to authorise that David is placed in secure care, but they fail to consider a MRC, this could be appealed by David.

What is the effect of a measure authorising secure accommodation? 

The panel only have the power to authorise the placing of David in secure care. The decision to actually place David in secure accommodation is made by the chief social worker.

The panel must also name a non-secure accommodation in the order. This is often the same place as the secure accommodation as most secure accommodation providers also have non-secure accommodation on the same premises. The reason non-secure accommodation must also be named is to prevent a situation whereby a child may leave secure care without anywhere to go. David must be moved out of secure accommodation on the decision of the chief social work officer if the secure criteria are no longer met or if they believe that keeping David there is no longer necessary. This can happen before the next Children’s Hearing.

Please note that the requirement to name both secure and non-secure accommodation does not apply to interim orders, and therefore the panel only have to do this when making a substantive decision to make or vary a CSO.

How long will David be in secure accommodation? 

As mentioned above, the chief social worker must move David out of secure accommodation if the secure criteria are no longer met or if they believe that keeping David there is no longer necessary. If the chief social worker does this, David will be moved to the non-secure alternative named on his CSO.

If David is not removed from secure accommodation beforehand, the Children’s Reporter must arrange a review hearing within 3 months of the hearing which authorised secure. A further secure authorisation can be issued by the panel only if the same criteria are met and it remains necessary and proportionate for David to remain in secure accommodation. Again, the panel must be satisfied that no other alternative placements or supports will manage the issues David is facing, including a Movement Restriction Condition.

Anything else I should know? 

The Secure Care Pathway and Standards Scotland have recently been developed with input from children, young people and adults with current and past experience of secure care. They set out what standards should apply for every child in or on the edges of secure care. The standards can be found here.