We’ve heard that children and young people in Scotland may be being deprived of a basic right – the right to not be deprived of their liberty without due process of law. If that’s true, then that needs to change as a matter of urgency.
That’s why we're undertaking an investigation into the use of secure accommodation in Scotland, and whether local authorities are following the laws around it.
What do we mean by investigation?
The Commissioner has the legal power to investigate in some cases where he thinks rights promises to children and young people aren’t being kept in Scotland. It’s a way that our office can hold people in power to account and demand they make changes when they’re failing to follow the law around children’s human rights.
What’s this investigation about?
It’s about children in secure accommodation.
Secure accommodation is a place where you live when you are deprived of your liberty. This means you aren’t allowed to leave without permission.
In Scotland, the law says that children can only be placed in secure accommodation as a last resort if:
- they cannot live safely anywhere else, and
- they need 24-hour care and protection.
When a children’s hearing decides that a child should live in secure accommodation, there are laws that the local authority has to follow to make sure they’re respecting that child’s human rights:
- They have to talk to the child and take their views into account before they make the final decision to put that child into secure accommodation.
- Once they decide to put a child into secure accommodation, they have to tell the child within 72 hours (that’s exactly three days.) They have to tell the child in writing and give the reasons why they’ve made that decision, and they have to tell the child they have the right to appeal the decision or to ask for it to be reviewed.
We’re worried these laws might not be being followed across Scotland.
Why are we investigating?
To be placed in secure accommodation is to be deprived of your liberty. And depriving a human being of their liberty – regardless of their age – is one of the most serious ways in which a State can interfere with the human rights of an individual.
The European Convention on Human Rights – which has legal force in Scotland’s courts – says deprivation of liberty should only happen in limited circumstances, and that the way in which it happens should be set out in the law.
In Scotland, the main way a child would be placed in secure accommodation is like this:
- first, a children’s hearing would authorise placing that child in secure accommodation,
- then a local authority’s Chief Social Work Officer would decide to put this authorisation into effect, along with the person in charge of the secure accommodation.
It’s the Chief Social Work Officer who has to follow the laws which we’re investigating.
But we’ve been told that these laws are not routinely followed by local authorities in Scotland. That’s important, because if a child isn’t sent notification of deprivation of liberty within 72 hours, the law says that should be treated as if the Chief Social Work Officer has decided not to put that child into secure accommodation.
If that child is kept in secure accommodation anyway, then that’s against the law.
That would mean children and young people in secure accommodation right now hadn’t had their voices heard when it was decided they should be there. That they weren’t aware of their rights to appeal or review that decision.
And that they might be being unlawfully deprived of their liberty.
Those would be serious violations of human rights, so the Commissioner wants to establish if they’re happening as a matter of urgency.
Download the terms of reference of our investigation.
Access the terms of reference on a mobile-friendly webpage.
What’s the human rights background to the investigation?
Rights relevant to this investigation are outlined in articles of the European Convention of Human Rights including:
- Article 5, which covers rights around deprivation of liberty, and
- Article 6, the right to a fair trial before the law.
And articles of the UN Convention on the Rights of the Child including:
- Article 3 , that a child’s best interests should always be considered in decisions that affect them,
- Article 9 , which says that if a child is separated from their parents then this needs to be in accordance with relevant laws and procedures,
- Article 12 , that a child’s views and opinions around matters that affect them should be heard and taken seriously,
- Article 20 , that children in care should have special protection in the law, an
- Article 40 , which says that children have the right to fair trial before the law.