Vulnerable children in Scotland may have been detained unlawfully in secure accommodation, according to a new investigation by the office of the Children and Young People’s Commissioner in Scotland.

The investigation found that children may have been deprived of their liberty without due process of law. The office of the Children and Young People’s Commissioner is now urging local authorities and the Scottish Government to urgently review practice to ensure compliance with legal duties and human rights.

“Taking away a child’s liberty is one of the most serious restrictions a state can impose on a child’s human rights. It has deep and long-lasting consequences, particularly on a child’s emotional and social development. For children who have been traumatised already, often as a result of abuse or neglect, the impacts of being deprived of their liberty can be devastating and irreparable,” said Bruce Adamson Children and Young People’s Commissioner Scotland.

“Scotland is failing to properly respect children’s rights through its practice of depriving children of their liberty. This investigation is part of our wider work to address the breaches of both substantive and procedural rights in relation to children deprived of their liberty in a variety of settings, including, police and court custody cells, Young Offenders Institutions, immigration detention facilities, mental health units and residential care placements. This includes the failure to treat all under 18s as children in law, the low age of criminal responsibility, and the availability of secure care beds as a consequence of the current commissioning model,” he added.

The investigation focuses on the procedural protections that exist around decisions to place children in secure accommodation and explores whether children may have been unlawfully deprived of their liberty as a result of failure to comply with legal duties designed to respect, protect and fulfil their human rights.

The investigation relates to the powers and performance of statutory duties by Chief Social Work Officers (CSWOs).

“While the number of children placed in secure accommodation is rightly, relatively small, we became concerned that a breach of procedural rights through failure to properly follow regulations was occurring. In the absence of compliance with these statutory safeguards, the children may have been unlawfully deprived of their liberty,” Bruce Adamson added.

Between 1 August 2018 and 31 July 2019, the investigation examined the cases of 118 children placed in secure accommodation, across 27 local authority areas. These children were detained for between 14 and 572 days.

The investigation found:

• The evidence provided to us varied between local authorities and demonstrated an inconsistency of approaches by CSWOs.
• Overall, there was little evidence of consultation with children during the critical 72-hour period following the hearing’s authorisation. Even where there was evidence that consultation had taken place, and where views were said to have been expressed by children, those views were not routinely recorded.
• It was relatively rare for there to be evidence of notifications of the CSWOs’ decisions being sent to children, as required by the Regulations.
• It was clear that not all children had been formally notified of their appeal rights. However, there were some examples of good practice, where children were informed of their rights and pointed towards supportive adults who could assist them to appeal if they wished to do so.
• This raises serious questions about the extent to which children are meaningfully involved in decision-making and creates gaps in their records, which will impact on the ability to understand their own history later in life.
• It means that too often children have been denied the information necessary to enable them to challenge decisions to deprive them of their liberty.

“The lack of evidence of compliance with legal duties suggests that a significant number of children placed in secure accommodation between 1 August 2018 and 31 July 2019 may have been unlawfully deprived of their liberty for at least part of their detention,” the report said.

Following the investigation, a number of authorities have taken steps to review or amend aspects of their processes, policies or guidance, which has been welcomed by the office of the Children and Young People’s Commissioner.

All local authorities will now have to take steps to ensure they are complying with existing laws and should review previous cases in light of the investigation’s findings.

The Scottish Government must work with partners to consider whether the existing laws is compatible with the UNCRC and make any amendments necessary to strengthen legal protections for children’s human rights.

Alongside any legal changes, consistent rights-based best practice, guidance and training must be identified and aligned with implementation of the UNCRC. The investigation has also revealed a scrutiny gap in relation to compliance with these legal duties at both local and national levels. The Scottish Government, COSLA and other partners must ensure robust scrutiny and accountability mechanisms are in place, through individual organisations, multi-agency partnerships and national inspection arrangements.

The office of the Children and Young People’s Commissioner has pledged to visit each of the secure care centres as soon as it is safe to do so, in order to listen to children and young people discussing their experiences, as part of our office’s work on implementation of the new UNCRC legislation.

Statutory Duties in Secure Accommodation: Unlocking children’s rights