Age of Criminal Responsibility (Scotland) Act 2019 - part 4 – Police Investigatory and Other Powers: statutory guidance on the use of a place of safety

2. Responsibilities and Procedures

Criteria for use of a place of safety

2.1 The criteria for taking a child under the age of 12 to a place of safety are set out in sections 28(1) and 28(2).

2.2 The power is designed as an emergency response to situations where a child under the age of 12 poses an immediate risk of significant harm or further such harm to another person.

2.3 Harmful behaviour can be physical, psychological or sexual in nature. Behaviour is harmful when it results in or is likely to result in unnecessary suffering and/or physical or psychological damage and/or impairment to health and development.

2.4 The extent to which harm is 'significant' relates to the severity or likely severity of suffering and/or physical or psychological damage and/or impairment to health and development.

2.5 It is a matter for professional judgement, based on the gathered evidence and context, as to whether the degree of harm to which the victim is believed to have been subjected, is suspected of having been subjected, or is likely to be subjected, is 'significant'.

2.6 It is essential that constables are able to articulate the impact that resulted in their use of powers and must cover the essential elements, namely:

• It is necessary to do so to protect any other person; and
• There is an immediate risk of significant harm or further such harm.

Identifying an appropriate place of safety

2.7 The need to safeguard and promote the wellbeing of the child being cared for in a place of safety is treated as a primary consideration in accordance with section 72(2) of the Act. At any time there may be a need to consider measures to protect the child, and child protection procedures must be followed.

2.8 Whilst the Act gives a constable the power to remove a child to a place of safety, local authorities are best placed to identify potential places that will best meet the needs of the child, taking into account the current circumstances. The police must notify the local authority of the need for a place of safety in circumstances where the child's home is not appropriate. Agreement should be sought as to the most suitable and available resource as quickly as possible.

2.9 Section 28 of the Act lists the categories of establishment which can be used as a place of safety. Provision within each local authority will vary but examples include:

2.10 Annex A includes the core principles to meet the standards for a place of safety and lists the components required to help identify local premises.

2.11 Following the use of this power, an inter-agency referral discussion (IRD) may be necessary to ensure a co-ordinated approach to next steps in collaborative safeguarding and protection of the child's wellbeing, depending on the situation. Inter-agency referral discussions (IRDs) are established mechanisms that allow a multi-agency approach for children and their needs.

2.12 At all stages, the parent^[3] or carer of the child must be involved and informed, unless doing so would place the child or someone else at immediate risk. This includes informing a parent or carer of the child that they have been taken to a place of safety and where that place is.

Use of a police station as a place of safety

2.13 Where there is an urgent need to remove a child under 12 and an appropriate place of safety cannot be identified immediately following consultation with social work, the Act permits a child to be taken to a police station.

2.14 Whilst a police station is included in the definition of a place of safety, it must only be used in exceptional circumstances. All other options must first be considered. The following conditions apply:

• A child may be kept in a place of safety that is a police station only if a constable of the rank of Inspector or above considers that it is not reasonably practicable to keep the child in a place of safety that is not a police station.

• A child must not be kept in a cell within a police station unless a constable of the rank of Inspector or above considers that it is not reasonably practicable for the child to be kept elsewhere within the police station. In making such decisions, the safety and wellbeing of the child remains a primary consideration alongside the safety of other persons.

• A child must not be in a cell for any longer than is considered necessary. If this is essential to prevent immediate harm, then alternatives must be sought and utilised as soon as possible. A child must never be left unsupervised in a cell.

Maximum period of use of a place of safety

2.15 The removal of a child to a place of safety raises issues in relation to the child's right to liberty (Article 37(b) UNCRC and Article 5 ECHR) and this power must only be used as a measure of last resort, in relation to an immediate risk of significant harm.

2.16 The child may only be kept in a place of safety for so long as is necessary to put in place arrangements for the care and protection of the child or for an order for the taking of intimate samples under section 63 of the Act to be obtained. In either case, the child must not be kept in the place of safety for longer than 24 hours. There is no power to keep the child in a place of safety after that time.

2.17 Child protection processes including an assessment of the context of the harm may need to be considered in managing the risks posed to and from the child, as focus solely on the family rather than wider relationships may not suffice in managing presenting behaviours.

2.18 The child must be returned home within 24 hours or earlier if safe to do so for the child and any potential victim. The provisions will cease to have effect from the point at which the child is left in the care of their parent or carer.

2.19 If a return home would be inappropriate or unsafe, alternative arrangements must be made for the care or protection of the child in line with child protection procedures, and as soon as possible within the 24 hour period.