The Secure Accommodation (Scotland) Regulations 2013

Made: 18th June 2013

Coming into force in accordance with regulation 1

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 152 and 153 of the Children's Hearings (Scotland) Act 2011 , section 44(5) of the Criminal Procedure (Scotland) Act 1995 , section 75 of the Children (Scotland) Act 1995 and section 78(2) of the Public Services Reform (Scotland) Act 2010 and all other powers enabling them to do so.

In accordance with section 104(2) of the Public Services Reform (Scotland) Act 2010 and section 197(2) of the Children's Hearings (Scotland) Act 2011 , a draft of these Regulations has been laid before and approved by resolution of the Scottish Parliament.

Citation and commencement

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These Regulations may be cited as the Secure Accommodation (Scotland) Regulations 2013 and come into force on the same day as section 152 (secure accommodation: placement in other circumstances) of the Children's Hearings (Scotland) Act 2011.

Interpretation

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• (1) In these Regulations—

• “the 1996 Regulations” means the Secure Accommodation (Scotland) Regulations 1996 ;

• “the 2010 Act” means the Public Services Reform (Scotland) Act 2010;

• “the 2011 Act” means the Children's Hearings (Scotland) Act 2011;

• “Criminal Procedure Act” means the Criminal Procedure (Scotland) Act 1995;

• “day” includes a part of a day;

• “head of unit” means the person in charge of the residential establishment containing the secure accommodation who is responsible to the managers of that establishment;

• “managers” means—in the case of a local authority, those officers having delegated powers under section 56 of the Local Government (Scotland) Act 1973 for the management of the residential establishment providing secure accommodation;in any other case those who are responsible for management of the residential establishment providing secure accommodation;

• “permanence order” means an order made under section 80(1) of the Adoption and Children (Scotland) Act 2007 ;

• “relevant date” means the day on which these regulations come into force;

• “relevant person” means—a relevant person within the meaning of section 200 of the 2011 Act; anda person who is to be treated as the child's relevant person by virtue of a decision under section 81(3), 160(4)(b) or 164(6) of the 2011 Act;

• “residential establishment” has the meaning given by paragraph (a) of that definition in section 202(1) of the 2011 Act;

• “secure accommodation” means accommodation provided for the purpose of restricting the liberty of children in a residential establishment;

• “secure accommodation service” has the meaning given by paragraph 6 of Schedule 12 to the 2010 Act.

• (2) Any requirement in these regulations which must be done in writing will be satisfied if made in electronic form which is—

• (a) sent by electronic means; and

• (b) capable of being reproduced in legible form.

Approval of secure accommodation service

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• (1) No secure accommodation service may be provided unless it has been approved by the Scottish Ministers under paragraph 6(b) of Schedule 12 to the 2010 Act and in accordance with these regulations.

• (2) The Scottish Ministers may approve a secure accommodation service which is to provide secure accommodation in a residential establishment on such terms and conditions as they may consider appropriate.

• (3) Where immediately before the relevant date accommodation which was provided for the purpose of restricting the liberty of children in residential premises where care services are provided was approved, or treated as if it had been approved by the Scottish Ministers, that accommodation is to be treated for all purposes as a secure accommodation service approved by the Scottish Ministers in accordance with paragraph (1).

Welfare of children in secure accommodation

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Where a child is in secure accommodation the managers, in consultation with the head of unit, must ensure that the welfare of a child so placed and kept is safeguarded and promoted.

Maximum period in secure accommodation

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• (1) Subject to regulation 10(6) the maximum period during which a child may be kept in secure accommodation without the authority of the children's hearing or the sheriff is an aggregate of 72 hours (whether or not consecutive) in any period of 28 consecutive days.

• (2) Any time accrued, prior to the relevant date, for the purposes of regulation 5 of the 1996 Regulations is deemed to be time accrued for the purposes of this regulation.

• (3) This regulation does not apply in relation to a child placed in secure accommodation in Scotland under section 25 of the Children Act 1989 (which allows accommodation in Scotland to be used for restricting the liberty of children looked after by English and Welsh local authorities).

Information to be supplied to children's hearing by a local authority recommending the inclusion of a secure accommodation authorisation

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A local authority may only submit a report to the children's hearing which recommends that a secure accommodation authorisation be included in an order or warrant in respect of that child if it is satisfied that one or more of the conditions specified in section 83(6) of the 2011 Act is satisfied.

Placement in secure accommodation of children subject to compulsory supervision orders which do not include a secure accommodation authorisation

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• (1) A child in relation to whom a compulsory supervision order is in force which does not include a secure accommodation authorisation may only be placed and kept in secure accommodation where the circumstances in paragraph (2) apply.

• (2) Those circumstances are—

• (a) that the chief social work officer and the head of unit are satisfied with respect to the child that one or more of the conditions in paragraph (3) is satisfied in respect of the child;

• (b) that the chief social work officer and the head of unit are satisfied that placement in secure accommodation would be in the best interests of the child; and

• (c) that the chief social work officer is satisfied in relation to the placing of the child in the residential establishment providing the secure accommodation, that the placement in that establishment is appropriate to the child's needs having regard to the residential establishment's statement of functions and objectives.

• (3) The conditions mentioned in paragraph (2)(a) are—

• (a) that the child has previously absconded and is likely to abscond again and, if the child were to abscond, it is 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.

• (4) Where the child is placed in secure accommodation under paragraph (1) the chief social work officer must—

• (a) immediately, in writing, inform—

• (i) each relevant person in respect of the child;

• (ii) the Principal Reporter;

• (b) immediately and in any event not later than 24 hours from the time of the placement (whether or not the child is still held in secure accommodation)—

• (i) require a review of the compulsory supervision order in relation to the child under section 131 of the 2011 Act; or

• (ii) inform the Principal Reporter of the need for the Principal Reporter to initiate a review of the compulsory supervision order under section 136 of that Act; and

• (c) inform the Principal Reporter in writing of—

• (i) the details of the placement and any subsequent placement or release;

• (ii) the reasons why at the time of placement the chief social work officer and head of unit were satisfied with respect to the conditions mentioned in paragraph (2)(a) and the reasons why at the time of writing they continue to be so satisfied or otherwise; and

• (iii) the views of the chief social work officer and the head of unit as to the need or otherwise for the child's detention in secure accommodation.

• (5) Where, by virtue of this regulation, a review of the compulsory supervision order is required under section 131 of the 2011 Act or the Principal Reporter is required to initiate a review under section 136 of that Act the children's hearing must be arranged to take place before the expiry of the period of 72 hours beginning with the time of the placement of the child in the secure accommodation.

Placement in secure accommodation of children subject to a relevant order which does not include a secure accommodation authorisation

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• (1) A child in relation to whom a relevant order is in force which does not include a secure accommodation authorisation may only be placed and kept in secure accommodation where, after the order is made, or granted, as the case may be, the circumstances in paragraph (2) apply.

• (2) Those circumstances are—

• (a) that the chief social work officer and the head of unit are satisfied with respect to the child that one or more of the conditions in paragraph (3) is satisfied in respect of the child;

• (b) that the chief social work officer and the head of unit are satisfied that placement in secure accommodation would be in the best interests of the child; and

• (c) that the chief social work officer is satisfied in relation to the placing of the child in the residential establishment providing the secure accommodation, that the placement in that establishment is appropriate to the child's needs having regard to the residential establishment's statement of functions and objectives.

• (3) The conditions mentioned in paragraph (2)(a) are—

• (a) that the child has previously absconded and is likely to abscond again and, if the child were to abscond, it is 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.

• (4) A relevant order is—

• (a) an interim compulsory supervision order;

• (b) a medical examination order.

• (5) Where the child is placed in secure accommodation under paragraph (1) the chief social work officer must immediately, in writing, inform—

• (a) each relevant person in respect of the child;

• (b) the Principal Reporter.

• (6) Where a child has been placed in secure accommodation in accordance with paragraph (1), the Principal Reporter must—

• (a) where an interim compulsory supervision order was made by a children's hearing under section 92 or 120 of the 2011 Act, arrange a children's hearing to take place under section 119 of the 2011 Act before the expiry of the period of 72 hours of the child being placed in secure accommodation;

• (b) where an interim compulsory supervision order was made by a children's hearing under section 93 or 96 of the 2011 Act, arrange a children's hearing to take place under section 96(2) of the 2011 Act before the expiry of the period of 72 hours of the child being placed in secure accommodation;

• (ba) where an interim compulsory supervision order was made by a children’s hearing under section 95(4) of the 2011 Act, arrange for the children’s hearing which the grounds hearing has required the Reporter to arrange under section 95(2) of the 2011 Act to take place before the expiry of the period of 72 hours of the child being placed in secure accommodation;

• (c) where an interim compulsory supervision order was made by a children's hearing under section 96 of the 2011 Act and the children's hearing would be prevented from making a further interim compulsory supervision order by virtue of section 96(4) of the 2011 Act, make an application for an extension or variation of the interim compulsory supervision order under section 98 of the 2011 Act;

• (d) where an interim compulsory supervision order was made by the sheriff under section 98, 99 or 100 of the 2011 Act, apply before the expiry of the period of 72 hours of the child being placed in secure accommodation to the sheriff for a further extension of the interim compulsory supervision order under section 99 of the 2011 Act;

• (e) where the interim compulsory supervision order was made by the sheriff under section 109, 115 or 117 of the 2011 Act, arrange a children's hearing to take place under section 119 of the 2011 Act before the expiry of the period of 72 hours of the child being placed in secure accommodation; or

• (f) where a medical examination order was made by the children's hearing under section 92 or 120 of the 2011 Act, arrange a children's hearing to take place under section 119 of the 2011 Act before the expiry of the period of 72 hours of the child being placed in secure accommodation.

Placement in secure accommodation of looked after children

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• (1) A child who falls within paragraph (2) may only be placed and kept in secure accommodation where the circumstances in paragraph (3) are satisfied.

• (2) A child falls within this paragraph if the child is—

• (a) being provided with accommodation by a local authority under section 25 of the Children (Scotland) Act 1995; or

• (b) subject to a permanence order.

• (3) The circumstances are—

• (a) that the chief social work officer and the head of unit are satisfied with respect to the child that one or more of the conditions referred to in paragraph (4) is satisfied and that placement in secure accommodation is in the best interests of the child;

• (b) that the chief social work officer is satisfied in relation to the placing of the child in the residential establishment providing the secure accommodation that the placement in that establishment is appropriate to the child's needs having regard to the residential establishment's statement of functions and objectives.

• (4) The conditions are—

• (a) that the child has previously absconded and is likely to abscond again and, if the child were to abscond, it is 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;

• (c) that the child is likely to cause injury to another person.

• (5) On a child being placed in secure accommodation under paragraph (1) the chief social work officer must—

• (a) immediately notify—

• (i) the child's parents;

• (ii) each relevant person in respect of the child;

• (iii) any person other than a relevant person who appears to the chief social work officer to have (or to recently have had) a significant involvement in the upbringing of the child;

• (iv) the Principal Reporter;

• (b) immediately, and in any event not later than 24 hours from the time of the placement, refer the child's case to the Principal Reporter and provide the Principal Reporter with the information mentioned in paragraph (6).

• (6) The information is—

• (a) details of the placement in secure accommodation including details of any subsequent placement in secure accommodation and release;

• (b) details of any previous placement in secure accommodation;

• (c) the reasons why the chief social work officer believes that the child may be in need of compulsory measures of supervision;

• (d) the reasons why at the time of the placement in secure accommodation the chief social work officer was satisfied that one of the conditions in paragraph (4) was met and the reasons why, at the time of writing, the chief social work officer continues to be so satisfied or otherwise;

• (e) the views of the chief social work officer and head of unit on whether or not the child should continue to be detained in secure accommodation.

Looked after child placed in secure accommodation: duties of the Principal Reporter and local authority

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• (1) This regulation applies where the Principal Reporter receives the referral and information from the chief social work officer under regulation 9(5)(b) and (6).

• (2) Subject to paragraphs (3) and (4) the Principal Reporter must, within 72 hours of the child's placement in secure accommodation under regulation 9, consider and proceed with the child's case in accordance with sections 66 to 69 of the 2011 Act.

• (3) Where the Principal Reporter determines under section 66(2) of the 2011 Act that a children's hearing does not require to be arranged, the Principal Reporter must, within 72 hours of the child's placement in secure accommodation—

• (a) notify the chief social work officer of the determination;

• (b) if the Principal Reporter considers that the child's case should be referred to the local authority with a view to arrangements for advice, guidance and assistance under Chapter 1 of Part II of the Children (Scotland) Act 1995 , inform the local authority accordingly.

• (4) Where the chief social work officer receives notification under paragraph (3)(a) the chief social work officer must remove the child from the secure accommodation immediately and notify the persons mentioned in regulation 9(5)(a).

• (5) Subject to paragraph (6) where the Principal Reporter determines under section 66(2) of the 2011 Act that it is necessary for a compulsory supervision order to be made in respect of the child, the Principal Reporter must, within 72 hours of the child's placement under regulation 9, arrange a children's hearing for the purpose of deciding whether a compulsory supervision order should be made in respect of the child.

• (6) Where paragraph (5) applies and the Principal Reporter considers that it would not be reasonably practicable to arrange the children's hearing within 72 hours the Principal Reporter will have a further period of 24 hours from the end of the period of 72 hours referred to in paragraph (5) within which to comply with the requirements in paragraph (5).

Child detained under section 44 of the Criminal Procedure Act: use of secure accommodation

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• (1) This regulation applies where the sheriff makes an order under section 44(1) of the Criminal Procedure Act (detention of children) requiring a child to be detained in a residential establishment provided by a local authority.