Alternatives to secure care and custody: guidance

3. Legal Requirements

Where a young person (under 18) is subject to a supervision requirement through the Children's Hearings System and pleads or is found guilty in a sheriff court, the sheriff is required to request advice from the Children's Hearing. The Judge may request this advice if the young person is found or pleads guilty in the High Court. ¹¹

If a young person appearing on Indictment, who is subject to a supervision requirement through the Children's Hearing System, receives a custodial sentence, secure care can be considered as an option, and should be included within the social work court report. ¹²

If a young person is not subject to a supervision requirement but is under 17 years and 6 months, advice from and disposal by the Children's Hearing System remains an option to courts ¹³ . This could also include a secure order as an alternative to custody, if the requirements within section 70 of the Children (Scotland) Act 1995 are met ¹⁴ .

Alternatives to secure care and custody should always be considered and assessed as required under section 97 of the Children's Hearing (Scotland) Act 2011. The majority of young people can be managed within a community based setting and this should be a priority. Alternatives to consider include Intensive Support and Monitoring ( ISMS). ¹⁵

The report writer and court social worker should ensure that they are aware of what alternatives to custody are available to their local authority/the local authority for which they are writing the report. These options should always be explored and assessed as a priority within all reports.

If a young person who is subject to a supervision requirement through the Children's Hearings System is sentenced to or remanded in custody, either to a Young Offenders establishment or secure care, an emergency 72 hour Looked After Review should be held. ¹⁶

Supervision requirements should not automatically be terminated when a young person is sentenced in court. Remaining on a supervision requirement allows for the young person's care needs to continue to be met, family work to continue and could also result in any further offences (especially if committed whilst in secure care/custody) being dealt with through the Children's Hearings System.