Secure Care Group minutes: October 2021

Attendees and apologies

Attendees

• Tom McNamara, Scottish Government (Chair)
• David Cotterell, Scottish Government (Secretariat)
• Alison Melville, Scottish Government
• Liz Murdoch, Scottish Government
• Janine McCullough, Education Scotland
• Mari Gali, CYPCS 
• Jacqueline Hardie, Scottish Government
• Melissa Hunt, SCRA
• Alison Gough, Good Shepard Centre
• Andy Sloan, Care Inspectorate
• Aileen Blower, Scottish Government
• Chris Wright, Care Inspectorate
• Daniel Clark, Police Scotland
• Debbie Nolan, CYCJ
• Ross Gibson, CYCJ
• Sinclair Soutar, Kibble
• Victoria McNulty, National Secure Adolescent Inpatient Service (Foxgrove)
• Zoe Brown, Scotland Excel
• Fiona McFarlane, the Promise
• Gill Robinson, SPS
• Mary Geaney, Rossie, Young People’s Trust

Apologies

• Ben Farrugia, SWS
• Eddie Follan, COSLA
• Jillian Gibson, COSLA
• Karen Ralston, St Mary’s 
• Helen Smith, National Secure Adolescent Inpatient Service
• Jane Donaldson, Police Scotland
• Colin Convery, Police Scotland

Items and actions

Welcome

Tom welcomed the group and agreed the note of the 8 September 2021 meeting. 

Outstanding action points from September 

Action

• Scottish Government to set up a meeting with CYPCS, SWS, COSLA and SG to discuss action to be taken

Carried forward

• a meeting has been arranged for 14 October

Action

• David to contact Fi to ask for a short written update from The Promise team

Cleared

• Fi provided a verbal update at the meeting, advising that the fifth meeting of the oversight board has now taken place and will publish a report early next year

The Promise are working on a data map to detail what is important to children. 

Investment

• work is ongoing to agree how better to spend funds

Fi advised she had positive engagement with Sheriff Mathews who is keen to be involved in the work of The Promise.

Fi encouraged the group to make contact with her out with the meeting should they have questions.

Cross border placements and deprivation of liberty order’s (DoL’s)

Tom opened the discussion by providing background to the issue of young people from other jurisdictions being deprived of their liberty in residential settings in Scotland.

It is clear that some of the settings providing this service are not run to the same standards or inspection regimes which approved secure accommodation services are required to provide.

The first Petition to the Nobile Officium jurisdiction of the Inner House of the Court of Session in Scotland was in 2019 and was made by Salford Council. Since then there have been 26 cases of which 13 are currently live. The numbers coming through the courts continue on an upward curve. This work imposes a burden on legal advisors and the Scottish Courts together with Scottish Government officials.

The Supreme Court heard the case known as In Re, T in October 2020, issuing its judgement in late July 2021 ruling that the use of the inherent jurisdiction to authorise deprivations of liberty in “non-secure” accommodation is lawful and not incompatible with article five of the ECHR. Whilst they reached this ruling the Supreme Court noted its dissatisfaction with the current state of affairs in terms of the lack of proper provision of this nature for children in England.

Scottish Government are clear that their strategic objective is to keep ‘The Promise’. Upholding children’s rights and ensuring their wellbeing is the priority consideration. At the very least such placements should be exceptional and only permissible where demonstrably in the best interests of the child.

In the context of the ongoing court actions, Scottish Ministers are being asked to articulate a forward policy position and to develop a legal mechanism to regulate these placements. The Government is considering various options including a legislative provision, in order to recognise, conditionally, such placements in Scotland. Options to resolve this matter have been explored by policy officials. These include potential arrangements involving further inspection through the Care Inspectorate, approval mechanisms for secure care ( distinguishing residential care) by ministers in line with Paragraph six, schedule 12 of the Public Services Reform (Scotland) Act 2010 and regulation 10(3) of the Social Care and Social Work Improvement Scotland (Requirements of Care Services), and legislative options recognising DoLS orders in secondary legislation through regulations enabled by section 190 of the Children’s Hearings (Scotland) Act 2011 in which Scottish Ministers may, by regulations, make provisions for a specified non-Scottish order which appears to them to correspond to a compulsory supervision order, to have effect as if it were such an order. This would require additional criteria built in. 

 The next court case on this matter is due to be heard on the 28 October and minsters are expected to provide a clear position before that case. 

It is likely ministers will want to discourage such placements and will require a number of safeguards to be in place before DoL orders can be made and to protect children and Scottish authorities while placements are live, including ensuring that the host Scottish local authority has appropriate notification and oversight of the placement and the young person has access to all the same rights a Scottish young person has when they are deprived of their liberty.

It is likely any legal remedies will be consulted on early in the New Year and implemented in spring 2022.

Scottish Government plan to consult with current secure care providers and the Care Inspectorate on the approval mechanisms for secure accommodation. This is not a new process however it will make it very clear what standards new applicants are required to meet to provide a secure service before approval can be considered.

The process will be based on the Scotland Excel contract, the Care Inspectorate Quality Framework the Secure Pathway and Standards and all relevant legislation. 

It is expected that this will not be an onerous process for those secure care providers already approved by ministers.

Ministers will want to ensure children living in Scotland are covered by GIRFEC and that rights extend to all children living in Scotland

In future it is likely cross border placements should be only be authorised in truly exceptional circumstances. The fundamentals of the issue will only be addressed fully through new primary legislation – likely via the planned Care and Justice Bill in late 2022.

Alison Gough said this was a good time to remind ourselves that consent was given by Scottish Parliament which ministers agreed to in 2016 to allow secure cross border placements. These issues could and should have been anticipated. Tom observed that the key concern here was that children were being deprived of their liberty in settings not planned for, nor scrutinised, to the same levels as secure care. In the time since 2017, The Promise has intervened, and Scottish Government policy has evolved accordingly.

Maria advised that the CYPCS is gravely concerned about these placements and the Commissioner has been given leave to intervene in the upcoming case on 28 October.

It was noted that the circumstances in 2016 which led to the legislative change were very different to those which we see today. The approval of secure accommodation cross border placements was agreed as a pragmatic approach due to the falling numbers in Scottish referrals. These residential DoL placements are very different from the regulated services specifically designed and set up to support young people in secure accommodation rather than in residential services.

There were a number of points raised by the group in the conversation including:

• concerns these young people do not have access to Scottish Lawyers with some lawyers refusing to represent English young people
• concerns around whether some of these young people would be more appropriately placed in units which support mental health
• young people may feel pressure to accept medication to attain their liberty, there has to be clear expectations on what a DoL can include
• the solution must have clear expectations around rights, health care and education

There must be clarity in future legislation. DoL’s can only be implemented in regulated secure services designed for that purpose.

Tom thanked the group for their comments and advised the group Ms Haughey has written to her UK counterpart to raise her concerns about these cases and the lack of provision in England and Wales.

Tom assured the group that Scottish Government policy and legal teams were dedicating huge resource to this issue to find a solution which protects the rights of the children involved and would be in their best interests. 

As more information becomes available this will be shared with the group.

National care service consultation

The group agreed there seems to be a lot at stake here particularly around the position of secure accommodation when so much work has already taken place discussing and scoping the future of secure accommodation in Scotland. 

Questions were asked around the purpose of the Independent Care Review and Promise if it is going to be consumed by the NCS.

It was also not clear where justice services will sit within the NCS.

Queries were raised around the evidence for including children’s services.

Chris Wright advised of a blog from Fiona Duncan at The Promise on this issue which he thought members would find interesting One question and one question only series

Due to timescales, discussion was curtailed. Members were asked to forward any questions or concerns they may have on to Scottish Government.

Action

• members to send any questions they have on the NCS to David Cotterell

CYCJ update including secure transport

Debbie advised the first meeting of the secure transport group met on 30 September the meeting was well attended and there was an appetite to find a solution. It was agreed a service specification sub group would meet to take this forward before the group meets again.

The STARR group meeting was still to be arranged.

Children, young people, relationships and families

Aileen Blower and Jacqueline Hardie advised they had taken up a post in the Scottish Government’s, Children, Young People, Relationships and Families team. Their role is to implement and consolidate the mental health strategy. 

This work has obvious and clear links to the Secure Care Pathway and Standards, around meeting the emotional needs of our young people. 

Aileen said she would be in contact with group members to ask about representation on the advisory group.

AOB and date of the next meeting

No other business was raised. The next meeting of the group is to be on 8 December.