Above board

In J v Children's Reporter for Stirling [2010] CSIH 85 the Inner House decided unanimously that the existing provisions of the Children (Scotland) Act 1995 relative to the procedure for placing and keeping a child in secure accommodation are Convention compliant. The decision is worthy of noting to practitioners in the area of child law, as is the new legislation in this area: the Children’s Hearings (Scotland) Act 2011 received royal assent on 6 January.

In J, a children’s hearing at Stirling on 16 February 2009 found a girl aged 15 liable to detention in secure accommodation for the maximum period of three months. An appeal against the detention at Stirling Sheriff Court was unsuccessful. Following her release a devolution minute was lodged, averring that the detention was in breach of the ECHR, of which articles 5 and 6 were engaged. Article 37(b) of the United Nations Convention on the Rights of the Child was also considered.

The background

J had had a troubled childhood, suffering from suspected abuse and a lack of parental care. Her placement in a residential school had broken down. She had previously been placed in secure accommodation. J felt that no one was listening to her and that to get attention she needed to behave badly. Her own views were given weight by panel members at the hearing in light of her age. She and her legal representative argued for a placement in a close support unit, which would have provided an opportunity for intensive specialised support.

The panel felt that the situation should be monitored closely and if J’s behaviour improved, this should be an incentive for earlier release from the secure environment. If she were placed in a close support unit she would not be deprived of her liberty and would be free to come and go at the unit.

J’s position was that after a time her behaviour did improve. She instructed her solicitor to write to the chief social work officer and the person in charge of the secure accommodation when they did not decide to release her. The letters met with no clear response. Her liberty continued to be restricted. There was no right of appeal.

It was considered that judicial review might not have proved an efficient or quick process and the obtaining of legal aid would take time.

Applying the 1995 Act

Section 70(9A)(a) of the Children (Scotland) Act 1995 provides the principal route under which children can be placed in secure accommodation, by providing to panel members the authority to specify in a supervision requirement “that the child shall be liable to be placed and kept in secure accommodation in a residential establishment specified…, during such period as the person in charge of that establishment, with the agreement of the chief social work officer of the relevant local authority, considers necessary”.

Thus a children’s hearing can only order that a child is liable to be so placed, and the actual decision whether and when a child should be placed and kept is made by two officials. In relation to that decision it was argued for J in the Inner House that there is no right to be heard, no right of appeal and no transparency.

Having attended children’s hearings where such decisions are made, I can confirm that the discussions are often lengthy and emotionally charged. Panel members are mindful that secure accommodation should be exercised as an option of last resort when all efforts to support the child in the community have failed.

Also as a practitioner in this area I consider that there is a misconception conveyed to many young people that they have been given a “three month order”. Panel members are not in a position to say whether a child will meet the secure criteria for that duration. Once a child has been afforded the positive and intensive support of the secure accommodation’s professional staff for a period of weeks, there can be marked changes in their attitude and behaviour. Panel members can ask for an early review under s 70(7) of the 1995 Act. In terms of the legislation there must be a review in any event after three months under s 73(8).

Article 37(b) of the United Nations Convention on the Rights of the Child provides: “No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.

Before the Inner House

In J’s case the reporter and the Lord Advocate conceded that there was a devolution issue but argued that the fact that new legislation was being contemplated did not mean the existing legislation violated the ECHR. The Extra Division decided unanimously that the existing legislation was ECHR compliant for a number of reasons given by Lady Paton in her opinion.

The hearing in this case had considered J’s views, heard from her solicitor, read reports, considered all relevant information and decided to attach a secure authorisation to her supervision requirement. On appeal the sheriff agreed that the decision of three panel members could not be said to be unjustified in all the circumstances of the case.

Lady Paton’s opinion is a worthwhile read for practitioners in this area. Her Ladyship considered that the officials could only place or keep J in secure accommodation with the authorisation of the children’s hearing. Their discretion was “to not so place or to remove” from such accommodation. Their continued review of J’s case and her progress in the secure accommodation enabled her to be released shortly prior to the date for review of her case fixed by the children’s hearing.

While the case made its way to the Inner House the child’s situation moved on. The case was argued after her supervision requirement had been terminated altogether. Lady Paton considered matters with the benefit of hindsight.

Clearer limits

The Children’s Hearings (Scotland) Act 2011 provides a new ministerial power to prescribe the procedure which the social work officials have to follow in applying their discretion to place a young person in secure care, and for the right of appeal against their decisions.

The policy memorandum to the bill stated: “We recognise the important role that secure care has to play in providing the intensive support and safe boundaries that enable these highly vulnerable young people to re-engage and move forward positively in their communities”.

Further: “from a policy and practice perspective, there is a concern that [the officials’] discretion, while valuable, is not applied consistently, and not always based on the best interests of the child… In exploring these concerns it has become clear that the process of decision making is insufficiently transparent”.

Section 83(2)(e) of the new Act provides that a compulsory supervision order may include secure accommodation authorisation. The conditions, under s 83(6), are (a) that the child has previously absconded and is likely to abscond again and, if the child were to abscond, it is highly likely that the child’s physical, mental or moral welfare would be at risk; (b) that the child is likely to engage in self-harming conduct; or (c) that the child is likely to cause injury to another person.

Section 151 of the Act outlines the procedure. Subsection (3) states that the chief social work officer may implement the authorisation only with the consent of the person in charge of the residential establishment containing the secure accommodation in which the child is to be placed. To explain, the residential establishment where J was placed is one complex. There are areas within which comprise secure accommodation. The complex also houses the close support unit.

Section 151(4) provides that the chief social work officer must remove the child from secure accommodation if (a) the officer considers it unnecessary for the child to be kept there, or (b) the officer is required to do so by virtue of regulations made under subs (6).

Section 151(7) provides for regulations to be made by ministers specifying the time within which a decision must be made, the procedure to be followed, the criteria to be applied, the matters to be taken into account or disregarded, persons who must be consulted, and persons who must consent before a decision has effect. The regulations may make provision about the notification of decisions, the giving of reasons for decisions, the review of decisions, and review of the order or warrant containing the secure accommodation where the head of unit in the residential establishment does not consent.

Appeal right

For solicitors advising young persons in the future on the decision making behind their continued detention there should then be greater transparency of the process. This will be relevant in providing guidance on whether there are grounds of appeal of the decision. A new appeal right is created in s 162(3) in relation to the officials’ decision. The decision to implement, or not to implement, the authorisation, and the decision to remove the child from secure accommodation, can all be appealed.

Professor Kenneth Norrie commented some years ago in his text Children's Hearings in Scotland: "“If after procedurally correct and factually justified authorisation is granted by a hearing, the actual decision to place the child in secure accommodation is made for malign or unjustified reasons it would seem that there is no appeal and this would be contrary to both Articles 5 and 6.”

There is now an appeal right and a body of new legislation for child law practitioners to grasp, to properly advise young people on their rights when their detention in secure accommodation is being considered.