February 2022. We responded to the Scottish Government’s policy proposals for legislative amendments on the cross-border placement and deprivation of liberty of children and young people.[2]

Summary

While we agree with the Scottish Government’s policy intention to limit the use of these placements to the most exceptional circumstances, and where they are in the best interests of the child, these proposals are not compatible with the UNCRC and the European Convention on Human Rights (ECHR). We consider that the current practice provides some level of judicial scrutiny of the deprivation of liberty, subject to additional protections which the Commissioner proposed in the Court of Session’s decision in City of Wolverhampton Council[3]. We have set out recommendations below to ensure that current practice is compatible with the international human rights framework.

Key Concerns and Recommendations

Introduction

While the Commissioner’s office welcomes the opportunity to respond to the Scottish Government’s policy proposal, we are deeply concerned that only three weeks has been given to respond. The legal issues arising out of both current practice and the Scottish Government’s proposal are complex. The short period for responding reduces opportunities for the Commissioner’s office to seek the views of key stakeholders and expert legal advice.

We should clarify that the High Court orders, referred to in the Scottish Government proposal as ‘Deprivation of Liberty Safeguards (DOLS) orders’, will be referred to in this response as ‘Deprivation of Liberty Orders’.

The current practice of placing children and young people subject to High Court Deprivation of Liberty Orders in Scottish residential care, without the necessary Scots law safeguards, is incompatible with the requirements of international human rights law, policy, and standards.

Current practice creates a “second class” of looked after children in care in Scotland, who are not subject to the full oversight, support, and human rights protections of Scots law and policy. They are also almost entirely invisible and unknown to Scottish public services and Corporate Parents.

In Scotland, children and young people can only be lawfully deprived of their liberty in secure accommodation, approved by Scottish Ministers.[4] However, children and young people subject to Deprivation of Liberty Orders are deprived of their liberty in privately owned facilities. These facilities are not currently authorised, inspected, or regulated to detain children. They are largely invisible to Scottish inspection/regulatory agencies; local authorities (including child protection, social work and education professionals); Children’s Reporters; Police Scotland; health services; advocacy organisations; and members of the local Community Planning Partnerships.

The UN Committee on the Rights of the Child has expressed concern[5] about the increase in the number of children in care in England, Wales and Northern Ireland and the high rate of children in care in Scotland. The Committee noted in particular the numbers of children being placed at a distance from their biological families, which prevents them from keeping in contact, and siblings being separated from each other without proper reason.

Extent of the problem

Since 2015, the number of children and young people from elsewhere in the UK being placed in secure and residential care in Scotland has risen exponentially.

Scottish Social Work statistics show that the use of cross-border placements is generally rising. In 2020, The average number of residents from within Scotland in secure accommodation was 53, while the average from outside Scotland increased slightly from 26 to 28, all of whom were from England.[6]We have been told that currently more than half of secure beds are occupied by children from outside Scotland. We support Article 39’s view that the underlying cause of this increase stems from the chronic lack of suitable provision for highly vulnerable children, and insufficient social protection when children and families are first struggling with trauma and extenuating needs in England and Wales.[7] The 2017 amendments to the Children Act 1989, which the Scottish Government supported as a ‘permanent legislative solution’[8], failed to address these underlying causes.

We are concerned that there is no complete picture of current practice. This is because the Scottish Social Work statistics only relate to placement in Scottish secure care accommodation; in other words, placements in one of the five secure care units which are funded by the Scottish Government and regulated by the Care Inspectorate. As far as we are aware, no statistics exist for the number of children who are subject to Deprivation of Liberty Orders who have been placed in private residential care facilities in Scotland. We are aware of at least 28 cases where petitions were lodged in the Court of Session for recognition of High Court Deprivation of Liberty Orders under the Nobile Officium. However, it is not clear that every case is brought to the attention of the Court of Session.

It is essential that the Scottish Parliament is fully aware of the extent of current practice and how many children and young people will be impacted by the Scottish Government’s proposed legislative fix.

Recommendation: Publish disaggregated data regarding the number of all children deprived of their liberty in Scotland, including in privately managed residential care homes since the changes to allow cross border placements into secure accommodation in 2017.

Right to personal liberty

The proposal engages both Article 5 ECHR and Article 37 UNCRC.

Article 5 ECHR requires deprivation of liberty to be subject to a procedure which is prescribed by law and speedy decision on the lawfulness of detention. “Prescribed by law” requires the law governing the detention to be accessible, precise, and foreseeable.

The requirement of “lawfulness” under Article 5 ECHR in the context of detention “for the purpose of educational supervision” also requires measures taken to be proportionate to the aims of detention. Where the detention concerns a child, the ECtHR (European Court of Human Rights) has stated[9] that detention must be:

• Ordered as a last resort;
• In the child’s best interests, and
• Aimed at preventing serious risks for the child’s development. 

When this criterion is no longer fulfilled, there can no longer be a legal basis for the deprivation of liberty. 

Article 37 UNCRC provides that depriving children of their liberty shall be done only in accordance with the law, as a measure of last resort and for the shortest appropriate period of time.

It requires that children have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of their liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

Children’s rights under the ECHR and UNCRC are reflected in Scots law and practice through a statutory process that requires deprivation of liberty to be authorised by a court or a Children’s Hearing, and for lawful implementation of the authorisation to be subject to the performance of specified duties by the Chief Social Work Officer (CSWO).

We are concerned that the proposal fails to recognise that children and young people must only be deprived of their liberty as a last resort (Article 37 UNCRC). In this respect, the proposal does not properly address the exponential rise in demand for residential placements. If the demand exists or increases, private providers in Scotland will continue to act in accordance with their business models and objectives, which prioritise profit for shareholders. This has already resulted in a shift in the location of their services from English cities and towns, where property is more expensive, to Scottish rural areas, thus maximising profit margins. This practice will exacerbate the existing shortfall of accommodation in England. In this regard, Ofsted have recently highlighted that, of the 13 secure children’s homes in England, none are in London or the West Midlands.[10]

The Scottish Government’s proposal, whether in the short term or long term, is unlikely to change this position. It will replace the practice of petitioning the Court of Session’s nobile officium with another procedure. It does nothing to prevent the demand, or the likelihood that investment funds will see opportunities for profit in developing residential units in Scotland where non-Scottish children can be deprived of their liberty.  We note that the UN Global Study on Children Deprived of Liberty[11] found that systems favouring institutions are sometimes characterised by profit motives or commercialisation of the care of children. These factors must be taken into account in any legislative solution.

Recommendation: Ensure that no child is deprived of their liberty except in accommodation which is authorised, regulated, and approved to the highest Scots law and human rights standards by the Scottish Ministers.

The Commissioner agrees that any order made by the Court of Session to warrant cross-border placement must be time limited, and subject to review. To be consistent with Article 5 ECHR (Right to liberty and security), it is essential that any procedure for recognising placement orders contain safeguards to ensure that there are no delays; and where deprivation of liberty is authorised in Scotland, to ensure that orders are no longer than absolutely necessary.

We are concerned by reports that cross-border placements in Scotland have been allowed to ‘drift on’, without review, which is inconsistent with Article 5 ECHR and Article 37 UNCRC (‘shortest appropriate period of time’). We believe that this is caused fundamentally by children falling between two legal regimes.

By way of illustration, a recent decision of the Court of Session[12] concerned a child subject to a Deprivation of Liberty Order who was placed in Scotland on 26 November 2020. However, a petition seeking to warrant the order was not presented to the Court of Session until 13 July 2021. In effect, the child was deprived of their liberty in Scotland, without the authority of the courts of the jurisdiction in which they were residing for more than eight months. Worryingly, we understand that many children subject to Deprivation of Liberty Orders are placed in Scotland before petitions to the nobile officium are presented.

Recommendation: The Scottish Government must fully consider what safeguards are required to ensure that the procedure for recognition and review of placement orders are consistent with the requirements of Article 5 ECHR and Article 37 UNCRC. In particular, the Scottish Government must address the question of how the continuing deprivation of liberty can be challenged, which court should hear the challenge, and finally what procedure should apply.

Best interests of the child

The UNCRC provides that in all actions concerning children, the best interests of the child shall be a primary consideration.[13] The principle has also been recognised and reinforced by the ECHR in numerous cases involving children.[14]

The UN Committee on the Rights of the Child has commented that the concept of the best interests of the child is also a rule of procedure. This means that in any decision that will affect a child or a group of children, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned.Children must be afforded an opportunity to participate in decision-making and have their views taken into account in determining their best interests.[15]

It is difficult to reconcile the Scottish Government’s proposal with the findings of the Independent Care Review, as set out in The Promise.[16] That review found that the practice of accepting children and young people from outside Scotland into care placements in Scotland, is a breach of their fundamental human rights. This is in part because it denies children and young people access to their family support networks and services. The review called for the end of the practice of selling care placements to local authorities outside Scotland.

We observe that the Scottish Government have failed to evidence that their proposal is consistent with the best interests of the child. No child’s rights impact assessment (CRIA) or human rights assessment has been published to accompany the policy paper.

Recommendation: Undertake a CRIA and other impact assessments before proposing any legislative amendments or making any decisions relating to implementation of the policy to demonstrate that the proposal is grounded in a rights-based approach and compatible with Scotland’s obligations under international law.

Right to be heard

Children have the right to express views freely and these views given due weight in all decisions affecting them (Article 12 UNCRC).

The UN Global Study on Children Deprived of Liberty[17] found that children deprived of their liberty experience fear, isolation, trauma and harm in addition to discrimination, stigma and disempowerment. They often struggle to be heard in decisions made about them.

To ensure their full participation in proceedings concerning them, children subject to Deprivation of Liberty Orders and placed in Scotland must have:

• Access to information;
• A means to challenge their continued detention in Scotland; and
• Access to independent legal representation and/or lay advocacy.

The Scottish Government proposes that the Children’s Hearing will be convened to facilitate information sharing with the High Court in England and Wales to consider access to local rights protections. The proposal suggests that a safeguarder should be appointed. These proposals raise several issues relating to the ability of a child to challenge the basis of the deprivation of liberty.  

First, it is not clear exactly what the Children’s Hearings role is here in circumstances where the child will not fall under the Children’s Hearing (Scotland) Act 2011 and therefore is not entitled to the safeguards required by that statutory regime.

Second, it is not clear what procedure would apply if the Children’s Hearing disagreed with the need for the child to be deprived of their liberty or any aspect of their care plan.

Third, it is not the role of the safeguarder to provide advice on Scots law. A safeguarder cannot therefore be a substitute for independent legal representation.

Finally, the proposal makes no mention of how the child’s Article 12 UNCRC (the right of every child to freely express their views) rights will be secured in the context of the procedure to have the English High Court Deprivation of Liberty Order recognised. We note with concern that most children subject to these orders and petitions in the Court of Session have not participated in the legal representations made on their behalf.

The proposals therefore create the illusion of legal protections equivalent to those that exist for children deprived of their liberty through operation of Scots law, but fall short in reality.

Recommendation: Put in place safeguards to ensure that the child or young person will have access to free and independent legal advice, representation and advocacy provision in any proceedings or decision-making processes to recognise or challenge the placement, their treatment in care, and every deprivation of liberty order.

Impact on health and education

Article 24 UNCRC provides that all children have the right to the enjoyment of the highest attainable standard of health and States shall strive to ensure that no child is deprived of his or her right of access to health care services.

Article 2 Protocol 1 ECHR provides that no person shall be denied the right to education. This is elaborated by article 28 of the UNCRC which recognises the right of the child to education and article 29 in which States Parties agree that the education of the child shall be directed amongst other things to the development of the child’s personality, talents and mental and physical abilities to their fullest potential.

Children are in their formative years; deprivation of liberty will therefore have highly detrimental effects on their physical and mental health, their further development, and their life.

By way of illustration, we understand that there is at least one child from England, deprived of their liberty in Scotland, who has not been permitted to attend school. This reflects a wider concern that because the Scottish local authority does not have primary responsibility for the child resident in their local authority, but rather under the legal supervision of High Court in England, that the child is not able to access education in the same way as looked after children resident in Scotland.

The Scottish Government’s policy position does not refer to educational or health provision, and how it will be coordinated and provided. Indeed, the proposals emphasise that it will be the placing local authority who will have full responsibility for the implementation, oversight, review and financial costs of the placement. While the Scottish local authority will have existing duties, these will not kick in until ‘an emergency situation or in the event of placement breakdown’. We consider that this position will result in two tiers of looked after children in Scotland, and cause children to fall through the cracks in terms of education and healthcare provision.

Children deprived of liberty retain their right to an education which develops their personality, talents and mental and physical abilities to their fullest potential. This is reflected in Scottish legislation, where a child who is “looked after” by a Scottish local authority is automatically categorised as having additional support needs in terms of the Education (Additional Support for Learning) (Scotland) Act 2004. However, children placed in Scotland from England and Wales will not automatically be treated as having additional support needs.[18] It is not clear from the Scottish Government’s proposal whether this position will change.

Children placed in Scotland often have pressing health care needs, particularly in relation to mental health. Under the Scottish Government’s policy position, it is not clear how a child placed in Scotland will have their health care needs considered and provided for. In addition, the proposal does not take into account the mental health impact of continued and prolonged deprivation of liberty. In this regard, the UN Global Study on Children Deprived of Liberty found that the state of psychiatric disorders of children during detention as compared with the mental health of the same children prior to detention increases tenfold.

English/Welsh local authorities and courts’ lack of familiarity with Scottish legal systems and processes for care, protection, health and education, and the respective duties of public authorities, creates disparity of treatment (and therefore rights-compliance) for these children. They are caught in the accountability gap between the two jurisdictions. This is most significant when considering the entirely different and at times incomparable health, education and justice systems, all operating under devolved powers and Scots law. This is especially relevant as many of the children involved have significant and complex needs for mental health supports and additional support for learning needs or disabilities.

Recommendation: Put in place a mechanism which ensures that the placing local authority must notify the Scottish Government and certain public bodies (including the   Care Inspectorate; the Children and Young People’s Commissioner Scotland; the National Preventative Mechanism; the receiving local authority; the Community Planning Partnership; local health board; and all local corporate parents) when a Deprivation of Liberty Order is being considered in the High Court or a petition for exercise of the nobile officium in the Court of Session.

Disabled children and young people with additional support for learning needs (ASN)

Disabled children and young people and those with additional support for learning needs (ASN) are significantly overrepresented in detention in institutions. According to the UN Global Study on Children Deprived of their Liberty it is estimated that one out of three children in institutions is a disabled child. Stigma and misconceptions often lie at the root of the problem. Disabled children are deprived of liberty in order for them to access services that should be delivered in the community, such as education, health care or rehabilitation.

As of July 2020, 9% of young people in secure care accommodation, had at least one disability, defined as “a mental or physical impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”. The figure is likely to be higher, given the number of children and young people categorised as ‘no or not known’.[19]

Deprivation of liberty of disabled children and young people is likely to engage Article 5 ECHR in conjunction with Article 14 ECHR and Article 2 UNCRC (non-discrimination).

Disabled children deprived of liberty are at a heightened risk of violence, abuse and exploitation, which may amount to torture or other forms of ill-treatment, including being restrained, shackled, secluded and/or beaten by staff as a form of control and/or punishment. This treatment is likely to engage Article 3 ECHR, (and Article 37 UNCRC) which prohibits torture, and “inhuman or degrading treatment or punishment”.

Finally, depriving children with disabilities of their liberty is likely to trigger non-discrimination protections under the Equality Act 2010. In particular, the Scottish Government is subject to the Public Sector Equality Duty and therefore must assess the impact of proposed policies on, amongst other groups, people with disabilities.[20] We note with concern that the Scottish Government have not published an Equality Impact Assessment (EQIA) to accompany their proposal.

Recommendation: Undertake and publish an Equality Impact Assessment to fully understand the impacts of the policy on disabled children and the necessary measures required to mitigate any negative impacts.

Recommendation: Put in place sufficient safeguards to ensure that the needs of disabled children and children with ASN are met and the statutory and human rights duties of public authorities are fulfilled.

Regime of Care and Deprivation of liberty involving the use of restraint, strip-searching or solitary confinement

Restraint and other restrictive practices are an interference with a child’s right to respect for their private life under Article 16 UNCRC and Article 8 ECHR. To avoid a breach of the child’s rights, the interference must be lawful, necessary and proportionate. These rights also include the right to respect for bodily integrity, a principle which sums up the right of every human being to autonomy and self-determination in regard to their own body. Non-consensual physical intrusion is a human rights violation, which means that restraint could constitute a breach of the child’s Article 8 rights.

Children with disabilities or additional support needs are especially vulnerable to such rights breaches, as they are often unable to express their views and give or refuse consent.

In more extreme cases restraint may result in a breach of the child’s right to protection from injury, violence and abuse under Article 19 UNCRC (the right to be safe from violence). It may even constitute cruel, inhuman or degrading treatment or punishment under Article 3 ECHR and Article 37 UNCRC.

For these reasons, restraint must be clearly and consistently defined, and subject to the tests of lawfulness, necessity and proportionality which need to be applied by staff who are expected to use these techniques.

We have heard reports that English/Welsh children placed in privately managed Scottish residential care facilities have been subjected to a regime of restraint, strip-searching or solitary confinement and isolation. We are also aware that some of these children have been placed in rural locations, often alone, in conditions which amount to solitary confinement.

This practice highlights the stark differences between looked after children in Scotland, those where there has been a secure accommodation authorisation and children subject to Deprivation of Liberty Orders who are placed in Scotland. It is important to highlight that in England, the use of restraint is placed on a statutory footing and is permitted in limited circumstances in children’s homes.[21] No such statutory provision exists in Scotland. We are therefore deeply concerned that children subject to Deprivation of Liberty Orders are being subject to treatment which is both incompatible with Scots law and international human rights framework.

We consider that this problem is exacerbated by the following factors.

• Children subject to Deprivation of Liberty Orders are unable to complain about the use of restraint and/or seclusion. This stems in part from a lack of understanding of rights, which can be explained by the failure to provide children with independent legal representation and advocacy provision.
• Staff caring for these children are not required to be registered, trained and skilled in providing intensive support to a child being deprived of their liberty, nor comply with the Secure Care Pathways and Standards.
• The facilities where these children are placed are not currently authorised, inspected, or regulated to detain children. They are largely invisible to Scottish inspection/regulatory agencies; local authorities (including child protection, social work and education professionals); Children’s Reporters; Police Scotland; health services; advocacy organisations; and members of the local Community Planning Partnerships.

Recommendation: Ensure that no child is deprived of their liberty except in accommodation which is authorised, regulated, and approved to the highest Scots law and human rights standards by the Scottish Ministers.

Recommendation: The Scottish Government must ensure that sufficient human rights-based safeguards exist in law policy and practice to prevent any child being subjected to cruel, inhuman or degrading treatment, such as restraint, strip-searching or solitary confinement

Contact with family members

Article 8 ECHR requires respect for family life. The European Court of Human Rights has held that the enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and measures hindering such enjoyment amount to an interference with family life.[22]

Article 37 of the UNCRC recognises the right of a child deprived of liberty to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.[23]

English and Welsh children placed in Scotland will be a considerable distance from their families and existing support networks. It is therefore critical that arrangements for contact are in place before a child subject to a Deprivation of Liberty Order is placed in Scotland.

Recommendation: Ensure that children’s rights to family life, privacy and to be brought up by their parents are protected, and that if placed in Scotland, their rights to maintain meaningful contact between children and their family and community networks are met.

Section 190 Children’s Hearings (Scotland) Act 2011

We consider that the regulation-making power set out in Section 190 of the Children’s Hearings (Scotland) Act 2011 is ill-suited to create a legislative scheme which better respects children’s rights. There is a risk that any proposed legislative fix would fall outwith the scope of Section 190 and would therefore be ultra vires. We consider that the most appropriate vehicle for a long-term legislative solution would be the Care and Justice Bill.

Recommendation: No legislative solution to the current problem should be made until a full consultation and impact assessments have been undertaken to ensure human rights compatibility of any proposals, including those to be made under primary legislation, such as the forthcoming Care and Justice Bill.

[1] Section 4, Commissioner for Children and Young People (Scotland) Act 2003

[2] Set out in their policy position paper Cross-border placements of children and young people into residential care in Scotland: policy position paper (6 January 2022). Available at: https://www.gov.scot/publications/cross-border-placements-of-children-and-young-people-into-residential-care-in-scotland-policy-position-paper/

[3] City of Wolverhampton Council v. Lord Advocate and Others [2021] CSIH 68. Available here: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2021csih69.pdf?sfvrsn=cb3015c7_1

[4] See the Children (Secure Accommodation) Regulations SI 1991/1505, which requires, amongst other things, for the Secretary of State to approve secure accommodation in a community home.

[5] United Nations Committee on the Rights of the Child, Concluding observations on the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, CRC/C/GBR/CO/5 (12 July 2016). Available at: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC/C/GBR/CO/5&Lang=En

[6] Scottish Government, Children’s social work statistics: 2019 to 2020 (30 March 2021). Available at: https://www.gov.scot/publications/childrens-social-work-statistics-2019-20/. There were 194 admissions in 2020 to secure care (a decrease of 11% from the previous year). However, there were 28 residents from outside Scotland (an increase of 8% from the previous year). In 2015, the figure was 6, increasing to 35 in 2018.  

[7] Article 39’s response to Scottish Government’s Cross-border placements of children and young people into residential care in Scotland: policy position paper (28 January 2022). Available at: https://article39.org.uk/resources/article-39-publications/article-39s-response-to-scottish-governments-cross-border-placements-of-children-and-young-people-into-residential-care-in-scotland-policy-position-paper-28-january-2022/

[8] Legislative Consent Memorandum, Children and Social Work Bill, LCM-S5-7 (Session 5 2016). Available at: https://publications.parliament.uk/pa/bills/cbill/2016-2017/0121/LCM-S05-7.pdf

[9] D.L v. Bulgaria, application no. 7472/14, para. 74

[10] Ofsted, Main findings: children’s social care in England 2021 (16 July 2021). Available here: https://www.gov.uk/government/statistics/childrens-social-care-data-in-england-2021/main-findings-childrens-social-care-in-england-2021

[11] United Nations, Global Study on Children Deprived of Liberty, A/74/136 (11 July 2019). Available here: https://digitallibrary.un.org/record/3813850?ln=en

[12] City of Wolverhampton Council v. Lord Advocate and Others [2021] CSIH 68. Available here: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2021csih69.pdf?sfvrsn=cb3015c7_1

[13] Article 3, UNCRC

[14] See for example Strand Lobben and Others v. Norway [GC], application no. 37283/13, para. 204

[15] UN Committee on the Rights of the Child, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration. In relation

[16] Independent Care Review, The Promise (5 February 2020), at page 111. Available at: https://www.carereview.scot/conclusions/independent-care-review-reports/

[17] United Nations, Global Study on Children Deprived of Liberty, A/74/136 (11 July 2019). Available here: https://digitallibrary.un.org/record/3813850?ln=en

[18] This is because the definition of “looked after” is taken from section 17(6) of the Children (Scotland) Act 1995

[19] Scottish Government, Children’s social work statistics: 2019 to 2020 (30 March 2021). Available at: https://www.gov.scot/publications/childrens-social-work-statistics-2019-20/

[20] Regulation 5 (Duty to assess and review policies and practices), The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012.

[21] See Regulation 20, The Children’s Homes (England) Regulations 2015

[22] See for example Olsson v Sweden (1989) 11 EHRR 259, where placement was hindered by a placement far away from the parents

[23] See also Article 9 UNCRC which require respect for the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if this is contrary to the child’s best interests.