The Children (Secure Accommodation) (Wales) Regulations 2015

Made: 2 December 2015

Coming into force: 6 April 2016

In accordance with section 196(6) of the Social Services and Well-being (Wales) Act 2014, a draft of this instrument was laid before and approved by a resolution of the National Assembly for Wales.

Title, commencement, interpretation and application

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• (1) The title of these Regulations is the Children (Secure Accommodation) (Wales) Regulations 2015.

• (2) These Regulations come into force on 6 April 2016.

• (3) These Regulations apply in relation to Wales.

• (4) In these Regulations—

• “the Act” (“y Ddeddf”) means the Social Services and Well-being (Wales) Act 2014;

• “independent visitor” (“ymwelydd annibynnol”) means a person appointed by a local authority under section 98 of the Act;

• “local authority” (“awdurdod lleol”) means a Welsh local authority unless the contrary is indicated;

• “secure accommodation” (“llety diogel”), unless the wording indicates that its meaning is restricted to accommodation in Wales, means accommodation which is provided—in Wales for the purpose of restricting the liberty of children to whom the criteria in paragraphs (a) or (b) of section 119(1) of the Act apply,in England for the purpose of restricting the liberty of children to whom the criteria in paragraphs (a) or (b) of section 25(1) of the Children Act 1989 apply, orby a secure accommodation service in Scotland as defined in paragraph 6 of Schedule 12 to the Public Services Reform (Scotland) Act 2010.

• (5) In these Regulations references to the registration of a secure accommodation service in Wales, or a person who is registered in respect of such a service in regulations 8, 9 and 12 are references to registration under Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016.

Maximum Period Without Court Authorisation

Maximum period in secure accommodation without court authorisation

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• (1) Subject to paragraph (2) and (3), the maximum period beyond which a local authority or a local authority in England may not keep a child in secure accommodation in Wales without the authority of the court is an aggregate of 72 hours (whether or not consecutive) in any period of 28 days.

• (2) Where—

• (a) a child is kept in secure accommodation at any time between 12 midday on the day before and 12 midday on the day after a public holiday or a Sunday,

• (b) during that time the maximum period of 72 hours would otherwise expire, and

• (c) the child has in the 27 days before the day on which the latest period in secure accommodation began, already been kept in secure accommodation for an aggregate of more than 48 hours,

the maximum period is extended until 12 midday on the first day which is not a public holiday or a Sunday.

• (3) Where a court gives authority for a child to be held in secure accommodation, any period during which the child was kept in secure accommodation prior to that period of authorisation shall be disregarded in calculating the maximum period in relation to any subsequent periods in secure accommodation after the court-authorised period has expired.

Requirement where child detained without court authority

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• (1) Before a local authority places a child in secure accommodation without court authority it must first create a written record setting out—

• (a) the reasons why it believes the grounds under section 119(1) of the Act are met;

• (b) the purpose of the placement; and

• (c) the reasons why it considers that the placement is necessary.

• (2) The local authority must provide a copy of that record to—

• (a) the child and any person providing legal representation to the child;

• (b) the child’s parents;

• (c) any person who is not a parent but has parental responsibility for the child;

• (d) the child’s independent visitor, if one has been appointed; and

• (e) any other person who that local authority considers should be informed.

Court Authorisation

Applications to court

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• (1) Applications to court under section 119 of the Act may only be made by the local authority (including an English local authority) which is looking after the child (subject to the power of a local authority to arrange for its functions to be carried out by another person under section 101 of the Local Government Act 1972[^f00004] or sections 14 to 20 of the Local Government Act 2000[^f00005]).

• (2) But where regulation 16(1)(a) of these Regulations applies to modify section 119 of the Act so that it applies in relation to children, other than those being looked after by a local authority, who are being provided with accommodation provided or arranged by a Local Health Board, National Health Service Trust or a local authority in the exercise of education functions, then applications to court can only be made by the Local Health Board or the National Health Service Trust which is providing or arranging the accommodation or by the local authority which is arranging the accommodation.

• (3) Where regulation 16(1)(b) of these Regulations applies to modify section 119 of the Act so that it applies in relation to children, other than those being looked after by a local authority, who are being provided with accommodation in an independent hospital or a care home, then applications to court can only be made by the independent hospital or care home which is providing the accommodation.

Duty to inform parents and others of intention to place child in secure accommodation

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Where a local authority intends to apply to a court to place a child whom it is looking after in secure accommodation, it must, as far as is reasonably practicable, notify, as soon as possible—

• (a) the child’s parents;

• (b) any person who is not a parent but has parental responsibility for the child;

• (c) the child’s independent visitor, if one has been appointed; and

• (d) any other person who that local authority considers should be informed.

Maximum periods of authorisation by the court

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• (1) Subject to paragraph (2) of this regulation and regulation 7, where a child has been made the subject of an application under section 119 of the Act, the maximum initial period for which a court may authorise the child to be kept in secure accommodation in Wales is three months.

• (2) Where a child is subject to an application to extend the period in secure accommodation in Wales under section 119 of the Act the maximum further period which a court may authorise at any one time is 6 months.

Maximum period of authorisation for remanded children

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• (1) The maximum period for which a court may from time to time authorise a child who has been remanded to local authority accommodation under section 91(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012[^f00006] to be kept in secure accommodation in Wales (whether the period is the initial period or a further period) is the period of the remand.

• (2) The reference to “local authority” in paragraph (1) includes an English local authority.

• (3) Any authorisation in respect of such a child must not exceed 28 days on any one occasion without further authorisation.

Requirements in relation to placements in secure accommodation

Placement in a children’s home which is registered

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A local authority may only place a looked after child in secure accommodation—

• (a) provided in Wales by a secure accommodation service in respect of which the provider is registered,

• (b) in a home in England which is registered under Part 2 of the Care Standards Act 2000 as a children’s home providing accommodation for the purpose of restricting liberty, or

• (c) provided by a secure accommodation service in Scotland.

Duty to give information of placement in secure accommodation

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• (1) Where a child is placed in secure accommodation in premises in Wales at which a secure accommodation service is provided by a person other than the local authority which is looking after the child, the person registered in respect of that service must inform the local authority or local authority in England which is looking after the child that the child has been placed there within 12 hours of the placement beginning.

• (2) The local authority or local authority in England looking after the child must then confirm to the registered person—

• (a) its authorisation for the child to be held in secure accommodation;

• (b) the period of authorisation;

• (c) details of any order made by a court authorising the placement.

Appointment of persons to review placements

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A local authority which decides to place a child in secure accommodation must appoint at least 3 persons to review the decision within 15 working days of the start of the placement and then at intervals not exceeding three months where the placement in secure accommodation continues.

Reviews of placement in secure accommodation

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• (1) The persons appointed under regulation 10 must consider, having regard to the welfare of the child in question—

• (a) whether the criteria for keeping the child in secure accommodation continue to apply;

• (b) whether the placement in secure accommodation continues to be necessary or whether any other description of accommodation would better meet the child’s needs.

• (2) In undertaking a review of the placement, the persons appointed must, so far as is reasonably practicable, ascertain and take into account the wishes and feelings of—

• (a) the child;

• (b) the child’s parents;

• (c) any person not being a parent but who has parental responsibility for the child;

• (d) any other person who has had care of the child whose views the persons appointed consider should be taken into account;

• (e) the child’s independent visitor if one has been appointed;

• (f) the person managing the secure accommodation in which the child is placed.

• (3) The persons appointed must make a recommendation to the local authority about whether the placement of that child in secure accommodation should continue.

• (4) The local authority must, as far as is reasonably practicable, inform all those whose views are required to be taken into account under paragraph (2) of the recommendation made by the review and of what action, if any, it proposes to take in the light of the recommendation.

Records to be kept in respect of a child in secure accommodation in a regulated setting

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When a child is placed in secure accommodation in premises in Wales at which a secure accommodation service is provided the persons who are registered to provide a secure accommodation service in respect of those premises must maintain a record for that child which includes—

• (a) the name, date of birth and sex of that child;

• (b) details of the care order or other statutory provisions by virtue of which the child is placed in the premises at which a secure accommodation service is provided;

• (c) details of the local authority or local authority in England placing the child and the name of the authorising officer;

• (d) the date and time of the start of the placement in secure accommodation;

• (e) the reason for the placement;

• (f) the address of the place where the child was living before the placement;

• (g) the names and relevant details of the persons informed by virtue of regulation 5 of the child’s placement;

• (h) details of any court orders made in respect of the child under section 119 of the Act;

• (i) details of reviews undertaken under regulation 11;

• (j) the date and time of any periods when the child is locked on his own in any room other then his bedroom during normal bedtime hours, the name of the person authorising this action, the reason for it and the date on which and time at which the child ceased to be locked in that room;

• (k) the date and time of the child’s discharge and the child’s address following discharge from secure accommodation.

Application of section 119 to particular categories of children

Placement of a child aged under 13 in secure accommodation

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• (1) A local authority may not place a child under the age of 13 years in secure accommodation without the prior approval of the Welsh Ministers in relation to the placement of that child.

• (2) The Welsh Ministers may make the approval subject to such terms and conditions as they see fit.

Children to whom section 119 does not apply

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Section 119 does not apply to a child—

• (a) who is detained under any provision of the Mental Health Act 1983[^f00008] or in respect of whom an order has been made under section 90 or 91 of the Powers of the Criminal Courts (Sentencing) Act 2000[^f00009] or section 250 , 252A or 259 of the Sentencing Code (detention at Her Majesty’s Pleasure or for specified period);

• (b) who is the subject of a child assessment order made under section 43 of the Children Act 1989[^f00010] and who is kept away from home pursuant to that order;

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) who is remanded to youth detention accommodation and is treated as looked after by virtue of section 104(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012[^f00011].

Detained children to whom section 119 applies subject to modifications: children detained under the Police and Criminal Evidence Act 1984

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• (1) Section 119 of the Act has effect subject to the modification specified in paragraph (2) in relation to children who are being looked after by a local authority or local authority in England and are aged between 12 and 17 and are detained under section 38(6) of the Police and Criminal Evidence Act 1984[^f00012] (detained children).

• (2) The modification in paragraph (1) is that, for the words “unless it appears” to the end of subsection (1), there shall be substituted the following words—

unless it appears that any accommodation other than that provided for the purpose of restricting liberty is inappropriate because — (a) the child is likely to abscond from such other accommodation, or (b) the child is likely to injure himself or herself or other people if he or she is kept in any such other accommodation.

Children to whom section 119 has effect subject to modifications

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• (1) Subject to regulation 14 and paragraphs (2) and (3) of this regulation section 119 of the Act applies, in addition to children looked after by local authorities (including English local authorities)—

• (a) to children, other than those looked after by a local authority (including an English local authority), who are accommodated by—

• (i) Local Health Boards;

• (ii) National Health Service Trusts (“NHS Trusts”);

• (iii) local authorities in the exercise of education functions;

• (b) to children, other than those looked after by a local authority, who are accommodated in care homes or independent hospitals.

• (2) In relation to children specified in paragraph (1)(a), section 119 has effect subject to the following modifications—

• (a) in subsection (1) replace the phrase “who is being looked after by a local authority or a local authority in England” with “who is being provided with accommodation by a Local Health Board, an NHS Trust or a local authority in the exercise of education functions”;

• (b) in subsection (2)(c) replace the phrase “by a local authority” with “by a Local Health Board, an NHS Trust or a local authority in the exercise of education functions”.

• (3) In relation to the children specified in paragraph (1)(b) , section 119 of the Act has effect subject to the following modifications—

• (a) in subsection (1) replace the words “who is being looked after by a local authority or a local authority in England” with the words “who is being provided with accommodation in a care home or an independent hospital”; and

• (b) in subsection (2)(c) replace the phrase “by a local authority” with the words “by a person carrying on a care home or an independent hospital”.

Disapplication of the Children (Secure Accommodation) Regulations 1991 to Wales

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Insert into the Children (Secure Accommodation) Regulations 1991[^f00013] the following regulation after regulation 1—

(1A) (1) These Regulations do not apply— (a) in relation to the placement of a looked after child by a Welsh local authority; (b) in relation to the provider of a children’s home in Wales; (c) in relation to an application to a court for authority to place a child in secure accommodation in Wales. (2) In relation to cases to which paragraph (1) applies refer to section 119 of the Social Services and Wellbeing (Wales) Act 2014 and the Children (Secure Accommodation) (Wales) Regulations 2015.

Revocations

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The following Regulations are revoked—

• (a) the Children (Secure Accommodation) (Amendment) (Wales) Regulations 2006[^f00014];

• (b) the Children (Secure Accommodation) (Amendment) (Wales) Regulations 2013[^f00015].

Disapplication of Regulations in relation to Wales

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Signed

Mark Drakeford — Minister for Health and Social Services, one of the Welsh Ministers — 2 December 2015

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations impose requirements in relation to the placement of children in secure accommodation.

Regulation 2 sets the maximum period which a local authority can hold a child in secure accommodation without authorisation from a court. Regulation 3 imposes procedural requirements on the local authority in relation to such arrangements.

Regulation 4 imposes restrictions on who may apply to a court for authorisation to hold a child in secure accommodation. Regulation 5 requires local authorities to notify certain people when making such an application and regulations 6 and 7 set the maximum periods which a court may authorise.