Children's hearings redesign - policy proposals: consultation

9. After a Children's Hearing

9.1 After the Hearing – the length of interim orders

Under section 86 of the 2011 Act, an interim compulsory supervision order has effect for the “relevant period” as defined in section 86(3). That is, if the order does not cease to have effect sooner, the cut-off is 22 days beginning with the order being made, or in the case of an extended order, 22 days beginning with the order having been extended.

Under the emergency Coronavirus (Scotland) Act 2020, the period for which an interim CSO could apply was temporarily extended to 44 days. This was essential for the continued safe operation of the children’s hearings system during the pandemic, and its introduction was only justifiable with reference to that emergency. However, the learning and feedback from the use of an extended time limit is instructive here, and it was broadly positive. Approximately 77% of all Interim Orders made from 7 April 2020 to 8 September 2021 made use of this extended time limit.^[34] It was applied flexibly but proportionately, and limits were only extended as much as they needed to be in the best interests of the child. This offers an important contribution to the evidence base for redesign.

The Hearings for Children report recommended in Chapter 5 that “… there should be full exploration of the making of interim orders for a specified time that is bespoke to a child’s needs .” The report states that “It may be helpful to consider retaining the limit as a default, with a discretion to extend the time period to suit the circumstances of the child and to meet the child’s best interests”.

The Scottish Government agrees that trust should be placed in decision makers to implement interim compulsory supervision orders for the appropriate time in the best interests of the child, taking into account appropriate and necessary considerations of ECHR rights and rights of appeal.

The Scottish Government is therefore interested in respondents’ views on how positive changes can be made with respect to the duration of interim orders, while safeguarding the rights of children and families.

Questions:

• What are the advantages and disadvantages of increasing the statutory 22-day time limit for the duration of interim compulsory supervision orders (ICSOs)?
• Do you feel that there should be more flexibility in the duration of these interim orders?
• If so, in what circumstances and what maximum duration do you consider appropriate?
• Could ICSO reviews be undertaken by lone children’s panel members? (See Chapter 8)

9.2 After the Hearing – the concept of a child’s exit plan

“The HSWG understands the concerns raised by children, families and care experienced adults with experience of the Children’s Hearings System that, at present, there is not a clear understanding about what needs to happen to ‘exit’ the system. As a result, children can remain subject to legal orders for long periods of time, sometimes longer than is necessary. All children and families and implementation authorities should understand what is expected of them and what needs to happen to ‘exit’ the Children’s Hearings System.”

“The concept of a child’s ‘exit plan’ out of the Children’s Hearings System, with clear targets and timescales, should be developed and tested in local areas.”

Hearings for Children report, Chapter 11

The Scottish Government’s response to the Hearings for Children report indicated support for the concept of an ‘exit’ plan to connect any compulsory measures with voluntary support for a child or young person.

Where a GIRFEC child’s plan is already in place, an exit plan could be incorporated into this plan to ensure that, where possible, there is one document which sets out the expectations from the hearing placed on the child or young person, their family and the implementation authority.

The Scottish Government notes that the policy-based GIRFEC plan is entirely voluntary, while the exit plan would link to compulsory measures. So, while the creation of a statutory “exit plan” could be explored, further consideration would be required around what that would contain and how that would link with a GIRFEC plan (where one exists) and the potential range of other statutory plans that could exist for a child. As outlined above, key aspects of this proposal could be explored in practice and policy rather than on a legislative basis, in line with the GIRFEC child’s plan constituting a non-statutory plan. However, the Scottish Government would welcome respondents’ views on proposals for a child’s exit plan from the children’s hearings system and the appropriate underpinning for this.

Questions:

• Do you support the proposal to create a child’s exit plan from the children’s hearings system?
  • what elements should be included in any child’s exit plan?

9.3 System Redesign Overall

• Do you have any other suggestions where you consider that new legislation is needed to deliver a successfully redesigned children’s hearings system?

9.4 Secure accommodation timescales for review

The Hearings for Children report states: The timescales for children living in Secure Care must be reviewed to ensure that they are appropriate and in their best interests. There must be no expectation or understanding that children should be living for long periods of time in Secure Care, but rather the presumption should be that it is a temporary measure.

9.5 Background

Secure accommodation is the most intensive and restrictive form of childcare available in Scotland, whereby children up to age 18 are placed in a locked setting, and receive high intensity, trauma-informed care, support and education. This normally occurs through involvement of the children’s hearings system or the criminal justice system, due to a level of concern around the risks, or actual significant harm, which parts of a child’s behaviour pose to themselves and/or others.

The use of secure accommodation should only happen in exceptional circumstances, where it is the only means by which a child and/or others can be kept safe. Depriving a child of their liberty is one of the most serious interferences a state can impose on a child’s rights, and this must be absolutely necessary and proportionate in all cases.

There are currently 78 secure places available in centres run by four secure accommodation services in Scotland - Rossie Secure Accommodation Services; Good Shepherd Centre; Kibble Education and Care Centre; and St Mary's Kenmure, all of which are independent charitable organisations. Scotland's secure accommodation centres offer therapeutic care, education and support, taking account of the trauma which the children may have experienced before being placed there.

9.6 Proposal

The Scottish Government is clear that children who require to be placed in secure accommodation should only be placed there for as short a period as necessary, when they meet the statutory criteria for being accommodated there.

The 2011 Act sets out criteria for a secure accommodation authorisation being imposed in a compulsory supervision order, an interim compulsory supervision order,

a medical examination order or a warrant to secure attendance (“a relevant order”).

These criteria will be amended by the Children (Care and Justice) (Scotland) Act 2024 (“the 2024 Act”) so that, in future, before a children’s hearing or sheriff imposes a secure accommodation authorisation in an order, they must be satisfied that it is necessary and that:

• the child has previously absconded and is likely to abscond again unless they are kept in secure accommodation, and, if they child were to abscond, it is likely that their health, safety or development would be at risk;
• the child is likely to engage in self-harming conduct unless they are kept in secure accommodation; or
• the child is likely to cause physical or psychological harm to another person unless they are kept in secure accommodation.

Criteria for implementing a secure accommodation authorisation will continue to apply under section 151 of the 2011 Act and the Scottish Government will consider any amendments required to secondary legislation to support implementation of the 2024 Act. As things stand, regulation 10 of the Children’s Hearings (Scotland) Act 2011 (Implementation of Secure Accommodation Authorisation) (Scotland) Regulations 2013 sets out arrangements for review of a child’s secure placement where they are subject to a relevant order with a secure accommodation authorisation. It requires that the relevant chief social work officer must review the placement from time to time and carry out the following mandatory reviews:

• a first review within 7 days of the placement,
• a second review within 1 month from the date of the first review, and
• thereafter, subsequent reviews within 1 month from the date of the previous review.

A review must also be carried out whenever the child or relevant person requests one.

The Scottish Government notes that in an emergency situation and subject to stringent conditions, a child in Scotland may need to be placed in secure accommodation without the authority of a children’s hearing or a sheriff. The Secure Accommodation (Scotland) Regulations 2013 specify the maximum period during which a child may be kept in secure accommodation in this scenario. The statutory limit is an aggregate of 72 hours (whether or not consecutive) in any period of 28 consecutive days, except in very limited circumstances in which a further period of 24 hours is available^[35].

The placement of children who are accommodated in secure accommodation via provisions of the Criminal Procedure (Scotland) Act 1995 must also be kept under regular review. Currently, the relevant local authority’s chief social work officer and the head of the secure unit must ensure that they make arrangements to review the child’s case—

• within 7 days of the placement being made,
• at such times as appear to them to be necessary or appropriate in light of the child's
• in any event, at least every 3 months^[36].

Following the review, the child may only be kept in secure accommodation where the chief social work officer and the head of unit are satisfied that this is in the child’s best interests.

The Scottish Government has carefully considered the existing timescales and believes that they are still appropriate to protect children’s rights.

Questions:

• Do you agree that the timescales for review of a child’s placement in secure accommodation in Scotland, as laid out in legislation, are still appropriate?