Children in Secure Accommodation (Scotland) (Hansard, 12 April 1983)

§ Mr. Norman Hogg (Dunbartonshire, East)

I beg to move, That leave be given to bring in a Bill to make new provision for children in secure accommodation in Scotland. Article 5.4 of the European convention on human rights states: Everyone who is deprived of his liberty by arrest … shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. It is the case that in Scotland anyone arrested on a criminal charge must be brought to court on the first lawful day and may then make an application for bail. When a child is involved and there is a referral by the reporter to the children's panel in terms of the Social Work (Scotland) Act 1968 there are safeguarding provisions in the statute. An order committing a child to a place of safety lasts 21 days and this can be renewed only once.

My concern, however, is with children who are not subject to compulsory measures of care and whose position is very different. These children may have been taken into care on a voluntary basis—under section 15 of the 1968 Act—or parental rights may have been assumed by the local authority under section 16. In such cases there is no statutory requirement to place the case before either a children's hearing or a court to obtain authority for detention in secure accommodation. A child in this position may be locked up—there is no other way to describe it—on the basis of an administrative decision. Such a decision would usually be taken on the advice of the social work staff involved in the child's case.

I have no doubt that those involved in taking these decisions are acting in the interests of the child. I should not wish it to be thought that I am making a criticism of the social workers' professional judgment, but the right of the child legally to challenge his loss of liberty must exist as a safeguard. The lack of any such right is a serious omission from the law of Scotland and is clearly in contravention of article 5.4 of the European convention on human rights.

In Scotland there are about 16,000 children in care or under supervision. About 35 per cent. are in residential care. The most recently available figures show that these are children in assessment centres. The vast majority of these children will be in this type of accommodation as a consequence of panel or court supervision. The number placed by administrative decision must be very small but it is none the less unacceptable. Councillor Morag Morrell of Grampian regional council, who has made a special study of this problem, concluded that in 1980 46 children were in this position.

In England and Wales there was a lengthy debate about a similar loophole in the statute. As a result of pressure from the all-party penal affairs group and the Children's Legal Centre, the law was changed. Section 25 of the Criminal Justice Act 1982 inserts an appropriate amendment to the Child Care Act 1980. This provides that a child in care may not be placed in secure accommodation unless certain criteria are met. In general terms these are that the child is likely to abscond and if that happens his physical, mental or moral welfare will be at risk, or if he 687 is kept elsewhere he is likely to injure himself or others. The Secretary of State can make regulations laying down the maximum period beyond which a child cannot be so detained without the authority of a juvenile court. There is a right of appeal from the juvenile court to the Crown court against any authorisation to detain a child.

To deal with the similar position in Scotland would require an amendment to the Social Work (Scotland) Act 1968. Indeed, it might have been more appropriate for me to title my Bill the Social Work (Scotland) (Amendment) Bill. However, that is not so important as achieving the object of plugging the gap in the statute.

My Bill will limit the period for which a child can be held without the authority of a children's hearing. If it is necessary to use secure accommodation, the local authority will have to apply for a hearing through the reporter to the children's panel. This will give the parents and the child an opportunity to object and put their case. The appeal following part III of the Social Work (Scotland) Act 1968 would be to the sheriff.

I can understand that there may be some social work opposition to my proposals, on the ground that it would add to the complications of the system. I can understand the argument that the best interests of the child are served by decisions best taken by those engaged on the case. My point, and the aim of my Bill, is to insert safeguards and rights into that situation.

Of course there are children in care whose pattern of behaviour, for whatever reasons, makes it impossible for them to live in a normal children's home. Secure accommodation may be the only means of helping them in the short term. If that is the conclusion of all those concerned with the child's case, they must refer that conclusion to a hearing. It will be for the panel to sanction detention in secure accommodation. Any danger of a child being improperly detained and forgotten about will be removed and clear rights established.

My Bill has the support of the Scottish Association of Children's Panels. It informs me that it was under the 688 impression that the Government would deal with the issues raised by my Bill through amendments to the Health and Social Services and Social Security Adjudications [Lords] Bill which is presently proceeding through the House. I hope that it is the Government's intention to act urgently. There is a need to deal quickly with this problem and I believe a need also for a wider examination of child care law in Scotland.

Recently the chairman of the Reporters Association, Mr. Alistair Sinclair, said that there was no room in the panels system for complacency and that serious deficiencies in the law greatly impede our efforts to help children … We have no consolidating legislation to equate to the English Child Care Act 1980. Our child care law is a jungle, much of it scattered through innumerable acts of Parliament ranging from the 1937 Children and Young Persons (Scotland) Act to the 1981 Education (Scotland) Act". I entirely agree with Mr. Sinclair and I have no wish to add yet another piece of legislation without saying that it is clearly necessary to do so, but his call for a complete review of part III of the Social Work (Scotland) Act 1968 has my support.

I have sought to outline a case for amending the law on child care in Scotland in a way that will bring it into line with the requirement of article 5.4 of the European Commission on Human Rights. I hope the House will share my view that this is a matter of considerable importance and will support my Bill.