SECURE ACCOMMODATION FOR CHILDREN IN SCOTLAND

HC Deb 11 May 1983 vol 42 cc855-64

Mr. John MacKay

I beg to move amendment No. 33, in page 14, line 31, leave out from 'without' to end of line 33 and insert 'the authority of a children's hearing or of the sheriff'.

Mr. Deputy Speaker

With this it will be convenient to take Government amendments 34, 32, 35 to 37, 11, 13, 14, 26 to 28.

Mr. MacKay

These amendments and clause 8 contain a number of important changes to the Social Work (Scotland) Act 1968, making new provisions to the law in Scotland in relation to the use of secure accommodation for children. It is intended to achieve fundamentally the same effect as the provisions in the Criminal Justice Act 1982, as further amended by this Bill for England and Wales. However, because of the different circumstances in Scotland, the provisions of the clause are rather different. In particular, they give a central place in the decisions on the use of secure accommodation to the children's hearings, since it is in that forum that decisions are taken on children who are in need of compulsory measures of care in Scotland.

It might be worth reminding the House that, unlike England and Wales, we do not have juvenile courts in Scotland. What we have is a system of children's hearings where three members drawn from the public sit and listen in a non-judicial environment to the problems that the child has had in relation to an offence or to a problem of care. The children's panel members listen to the child and the social workers involved, and the parents are also present. I have attended, as an observer, some children's panel hearings in Scotland. I am always impressed by the amount of care and attention that the members of the panel give to considering the case and to seeing how they can work with the parents and the child to find the best solution to the child's problem. Anybody interested in child care would be welcome to come to Scotland to see the way that we conduct the children's panel system. It is a system unique in Europe, and possibly in the world.

The general policy behind what we are discussing tonight is to put beyond doubt, in the light of the advice of the Scottish Law Officers—the Solicitor-General and the Lord Advocate — that current law practice in Scotland on the use of secure accommodation for children is compatible with the European convention on human rights. Any decision to place or keep a child in secure accommodation should either be taken in an appropriate judicial form or be subject to early judicial review.

Usually in Scotland judicial reviews should be undertaken by a children's hearing, subject to the usual rules for references of cases to the sheriff's court for the establishment of grounds, or on appeal. In certain cases where the sheriff is directly involved, for example in the case of safety warrants, new arrangements are proposed for decisions by the sheriff on the use of secure accommodation. My right hon. Friend the Secretary of State for Scotland should approve secure accommodation, which is accommodation for restricting the liberty of children. That would usually be in certain list D schools and assessment centres.

8.30 pm

I wish briefly to outline the scheme that my right hon. Friend the Secretary of State proposes to implement through the detailed amendments before us. It will be possible to place the child in secure accommodation only if specified criteria are satisfied. The case of any child placed in secure accommodation must be referred quickly to a children's hearing. If the child is not already subject to a supervision requirement, that will be done by a referral on the grounds that the child is in need of compulsory measures of care.

If the child is already under a supervision requirement, the referral will be for a review of the requirement to determine whether the conditions need to be changed. The parents must be notified and they or the child will have the right to require an even more rapid review of the placement. A children's hearing may impose a condition that authorises placement in secure accommodation only if it is satisfied that the specified criteria apply. Such a condition will only authorise the use of secure accommodation. The decision whether it is necessary for the child to be placed there, and for how long, will be taken by the head of the residential establishment with the agreement of the director of social work. Such conditions will be subject to more frequent review by hearings than supervision requirements themselves.

On amendment No. 33, the present wording of the new section 58B(1)(a) in clause 8 gives the Secretary of State an obligation to prescribe the maximum period during which a child may be kept in secure accommodation without a condition under section 58A(3) of this Act being imposed"— that is, a condition authorising the use of secure accommodation attached to a supervision requirement from a children's hearing. However, such a condition is not the only authorisation that will permit the keeping of a child in secure accommodation. Place of safety warrants issued under sections 37, 40 and 42 will also have that effect. It is therefore necessary to alter the subsection to refer to the maximum period that can pass before proper authorisation by a hearing or a sheriff is obtained—not simply before a supervision requirement with a relevant condition is imposed.

Amendment No. 34 is in two parts. The first, by amending new section 58B (2), gives a child placed in secure accommodation greater rights; the second, by adding a new subsection (3) to section 58B, ensures that a child may be kept in secure accommodation while the grounds for his referral are tested at a hearing before a sheriff.

As presently drafted, clause 8 (2) lays an obligation on the Secretary of State to make regulations to give a parent whose child has been placed in secure accommodation the right to require that such placement be reviewed by a children's hearing even more rapidly than will be required in the normal course of events. The sole change made by the amendment is to give that right also to the child himself. That will mean that when a child is placed in secure accommodation without formal authorisation by either a children's hearing or a sheriff, although his case will have to be referred to a hearing for a decision within a fairly short period—the present intention is for seven days—the child or his parent can ask for what will be virtually an immediate review of the placement by a hearing.

The second part of the amendment adds a new subsection which applies where a child is referred to a children's hearing as in need of compulsory measures of care, and where the child or his parents do not accept the grounds on which that referral is made. Under section 42 of the Social Work (Scotland) Act 1968, the case then has to go to a sheriff within 28 days in order to determine whether the grounds are established. There may be cases in which, although the grounds of referral are being contested, the hearing is satisfied that the criteria for placement in secure accommodation apply to the child. It therefore seems necessary to give the hearing power to authorise the placement of the child during the period before the sheriff's determination—a period of no more than 28 days.

Amendment No. 32 is a technical amendment, designed to clarify the position on review of a condition authorising the use of secure accommodation. It provides that such a condition must be reviewed when the supervision requirement to which it is attached is reviewed. However, it also makes it clear that it can be reviewed separately, and the regulations to be made under the following subsections will ensure that such conditions are reviewed more frequently than the normal supervision requirement.

Amendments Nos. 35 and 36 rectify the use of the word "condition" to refer to the criteria for the use of secure accommodation which are set out in section 58A(3). In view of the fact that the main authority for the use of secure accommodation will be a condition attached to a supervision requirement, the use of the term here to relate to what are the criteria for the imposition of such a condition would be confusing.

Amendment No. 37 makes it possible to provide by regulation for an orderly transition to the new arrangements for the use of secure accommodation for children. The main use which it is intended to make of the provision is to extend slightly the period after the corning into operation of the new Act and regulations, during which all children who are currently in secure accommodation must have their cases dealt with by a children's hearing and decisions made on whether continued placement in secure accommodation is justified in the light of specified criteria. If no such transitional arrangements were made, there might be an unnecessary rush in trying to cope in a period of one week with the referral to children's hearings of all children currently in secure accommodation, as well as all those coming forward to hearings under the normal arrangements and in need of compulsory measures of care. The transitional arrangements will simply mean that there will be a slight delay—perhaps of two or three weeks—before the new arrangements apply to all the children in secure accommodation in Scotland.

With that explanation, I commend the amendment to the House. It will improve the legal position of both parents and children over secure accommodation for children in Scotland.

Mr. Newton

It would be sensible for me to say something about the amendments linked with those which my hon. Friend the Under-Secretary of State for Scotland has introduced. These are Government amendments Nos. 11, 13, 14, and 26 to 28. which concern the secure accommodation provisions as they apply to England and Wales.

In the case of England and Wales, the basic legal change was made last year in the Criminal Justice Act 1982 which introduced provision for the judicial review of local authority decisions to place children in secure accommodation—that is to say, to restrict the liberty of children in care. In Committee on this Bill, we heard a number of further suggestions about the way in which the provisions introduced in the Criminal Justice Act last year should, or could, be extended and improved.

The hon. Member for Ormskirk (Mr. Kilroy-Silk) has taken considerable interest in these matters. He sought to extend the provisions introduced in section 25 of the Criminal Justice Act 1982 to all children who may be accommodated in community homes. Having heard his arguments in Committee, we agreed to bring forward an amendment on Report.

The provisions of section 25 of the Criminal Justice Act are at present confined to certain categories of children in the care of local authorities and introduce new safeguards in respect of those who have their liberty restricted in accommodation provided for that purpose. For the first time certain criteria will have to be met before such children may be placed or kept in secure accommodation. Moreover, all such children will have to be brought before a juvenile court, which will need to be satisfied that the criteria are met before authorising continued placement in security.

The Government were sympathetic to the view that those safeguards ought not to be restricted to children in local authority care specifically covered under the original provisions. The categories covered were those defined in section 17 of the Child Care Act 1980 — children received into care under section 2 of that Act, that is, those orphaned, deserted, without adequate care, and so on; children subject to care orders made by a court; and children remanded to care under section 23(1) of the Children and Young Persons Act 1969.

In Committee, the hon. Member for Ormskirk suggested five other categories of children to whom the safeguards ought to apply. I said then, partly to show the complexity of the law in this area, that there were at least three other statutory routes by which authorities could be given responsibility for a young person. I must now confess that even that estimate, which brought the figure close to a dozen, has proved substantially too low. During the research leading to the amendment, we found no fewer than 31 separate statutory provisions by way of which a local authority might find itself caring for a child. To include all those in primary legislation would clearly be unwieldy. Therefore, in seeking to meet the point made by the hon. Gentleman in Committee, we have sought in the amendment to enable the inclusion through subsequent regulations of all children who will need to be covered by the safeguards.

Mr. Nicholas Winterton (Macclesfield)

As my hon. Friend knows, the Select Committee on Social Services is currently undertaking an inquiry into the subject of children in care. Indeed, he appeared before the Committee only a week or so ago. He referred to 31 different statutes under which children could be maintained in care by a local authority. Does that mean that there are 31 statutes under which local authorities can keep youngsters in secure accommodation, which is the subject of this debate?

Mr. Newton

I am glad that my hon. Friend has mentioned the Select Committee, of which he is a distinguished member. The Government are certainly aware of the importance of its work and look forward to receiving its recommendations. I was pleased to have the opportunity to answer questions from my hon. Friend and others at the Select Committee hearing last week.

I should make the position quite clear to avoid any obscurity. I am not saying that there are 31 statutes under which children can be taken into care. I am sure that such a thought would horrify my hon. Friend, if only because it had not been brought to the attention of the Select Committee. If my advisers have counted correctly the list in front of me, there are 31 statutory provisions under which children may be accommodated in community homes.

That does not mean 31 separate statutes. For example, there are two parts of the Adoption Act 1976 under which a child might find itself in this position. There are also six provisions in the Children and Young Persons Act 1969. Apart from the perhaps normal and expected ways in which children may be accommodated in community homes, there are several provisions which govern the transfer of children who may have been received into care, or the equivalent of care, in other countries. For example, a schedule to the Army Act 1955 deals with the transfer of children from Germany. Two sections of the Social Work (Scotland) Act 1968 cover the transfer of children from care in Scotland, for which my hon. Friend the Under-Secretary of State for Scotland has responsibility which is admirably exercised, to the care of local authorities in England and Wales.

8.45 pm

To put on record a helpful message which has just been vouchsafed me, there are 31 statutory routes by which a child may come into the charge of a local authority. Once in a local authority's hands, a child could find himself or herself in secure accommodation and the safeguards ought to apply. It was drawn to our attention, and we readily accepted, that the safeguards on secure accommodation introduced in the Criminal Justice Act 1982 were over-restrictively related to existing child care legislation.

We are seeking by this amendment to create a possibility of making regulations, which we intend to bring forward in due course, to cover all children who might be in the charge of local authorities and who could in theory, and might in practice, find themselves in secure accommodation. We want to make sure that in all appropriate cases any decision to place them in secure accommodation will be subject to the legal safeguards which we are introducing.

Mr. Richard Page (Hertfordshire, South-West)

First, may I apologise to my hon. Friend for not being here for the earlier part of his remarks? I hope that my question will not interrupt his train of thought. He has told us that there are 31 routes by which a child may be taken into care. I have a constituency problem where a child has gone into care for family reasons; the family want the child to come out of care but the child wishes to stay in care. I should be grateful if my hon. Friend could tell me whether the wishes of that child will be taken into account or whether they will be overruled by the system and the parental wishes.

Mr. Newton

My hon. Friend will recognise that he is ranging a little beyond the confines of secure accommodation. Nevertheless, the point is important. It is difficult to make a judgment about a specific case without going fully into the circumstances. Therefore, I would be reluctant on this, as on other individual child care cases, to attempt to give an off-the-cuff judgment in response to his question without knowing all the circumstances and therefore without being sure which legal provision would cover the case. The major consideration required of those taking decisions about children in care, whether local authorities, voluntary organisations or the courts, is the welfare and the interests of the child. It is also appropriate to consider the balance of rights, duties and responsibilities among all the parties.

I am certainly willing, although it may not be easy in the next few weeks, to consider the problems raised by my hon. Friend. No doubt he has written to the Hertfordshire local authority about the matter. Certainly I would want to steer any representations that he may make to the local social services department in the first instance because it is primarily its responsibility to determine what decisions must be taken about a child in its care, subject to the parents' legal rights and the decision of the courts. As I have said, from what he has told me, I cannot be sure about those circumstances.

It would he unwieldy to include in primary legislation the various means by which a child might become liable to be placed in secure accommodation. Therefore, we are dealing with the problem by providing ourselves with the power to make regulations. The amendment also seeks to provide some technical improvements to the original section of the Criminal Justice Act 1982 and to enable some categories of children to be excluded from the provisions.

When undertaking to table a Government amendment on Report, I drew particular attention to children arrested or detained by the police and placed by them with a local authority. I said that we did not envisage the regulations applying in those cases. In one circumstance, a detained or arrested child must be released within eight days or come before a justice of the peace before that time. In another, when a child is arrested by the police he must be brought before a magistrates court within 72 hours. Therefore, specific provisions already safeguard the position of such children for whom a local authority home is used by the police in preference to a police or prison cell. Therefore, the amendment in subsection (7) provides for some categories of children to be excepted.

Because of the substantial nature of the changes and additions to the original provision, we thought it best to table a redrafted clause that fully sets out the new provisions. That has the merit of consolidating them in this Bill rather than having them spread between it and the Criminal Justice Act. That is the explanation of what the House might otherwise have thought slightly odd. We are seeking on Report by a subsequent amendment connected with this one to repeal section 25 of the Criminal Justice Act and to incorporate the provisions in what I hope will shortly become this year's Health and Social Services and Social Security Adjudications Act. In both cases the provision will insert a new section 21A in the Child Care Act 1980.

Right hon. and hon. Members may be aware that we have recently laid before the House regulations which fill out the detail of the basic legal provision about the need for a judicial review of decisions about secure accommodation. In the debates on the Criminal Justice Bill, I was asked by the hon. Member for Ormskirk for a concrete undertaking on when regulations would be produced. I got to my feet at this Dispatch Box about eight or nine months ago and said, in the most cautious way that I could devise, that we hoped to be able to lay them before the House by the late spring of 1983. They have now been laid before the House and will come into effect on 24 May. Had we lost another week, I should have had to admit that they would come into effect in early summer rather than late spring. However, in the absence of the hon. Member for Ormskirk, I hope that hon. Members will accept that 24 May can legitimately be called late spring.

The regulations specify 72 hours as the maximum period that a child in local authority care may spend in security before coming be fore a juvenile court, and three months as the maximum period that a court may authorise the continuation of such a placement in the first instance. On second and subsequent applications the court may authorise placements of up to six months. The regulations also set out exceptional cases where the criteria are not to apply to children remanded to local authority care.

Mr. Nicholas Winterton

As this is a matter of deep concern to many hon. Members on both sides, will the Minister say whether in his view there is sufficient secure accommodation to meet the possible requirements that might arise? As my hon. Friend said, the young person who has been placed initially in secure accommodation has to come before the court within 72 hours. He or she can then be remanded in secure accommodation for a longer period. Is my hon. Friend prepared to give the House an assurance that there is adequate secure accommodation to ensure that this legislation and the current regulations can be implemented, not only for the benefit of the young people concerned who may require them for their own advantage, but for the benefit of society as well?

Mr. Newton

My hon. Friend will probably agree that it would be a rash social services Minister who stood at this Dispatch Box and gave an absolute assurance on a matter where the extent to which accommodation was needed depended on a combination of decision-making by the local authorities and the courts. There can be no absolute assurance, because there is no way of knowing the precise number of children who might be affected by these provisions.

As my hon. Friend will know, for some years now there has been a programme of Government assistance to local authorities in the form of grants for the creation of secure accommodation, and our general judgment is that adequate secure provision exists, with the possible exception of one region, the west midlands, as assessed by the children's regional planning committees over the past few years. That is the best judgment that we can make, on the evidence that is available to us.

The pressure to introduce these provisions for a judicial review has been animated by a feeling that too many children are placed in secure accommodation without proper safeguards rather than too few. We shall have to wait and see what follows the implementation of the regulations to which I referred, and what the effect will be on numbers. However, it seems possible, and it is expected by those who have urged us in this direction, that the net effect will be to reduce and not increase the number of children put into secure accommodation, once the courts have to review such decisions in this new way. In logic, I do not expect that the new provision will add to the pressure on secure accommodation. Indeed, the reverse may be true.

As my hon. Friend will know, a number of other proposals exist which are not directly involved in this discussion and which could lead to an increase in the need for secure accommodation—for example, the proposals to end the remand to prison of 15 and 16-year-olds—but decisions on those proposals have not yet been implemented and they are not necessarily involved in this matter.

Mr. Nicholas Winterton

I thank my hon. Friend for that reassuring response. Will he tell the House what representations have been made to him and his Department by juvenile magistrates and the Magistrates Association on this matter, because I believe that they have some strong views about it?

Mr. Newton

At this stage I do not want to enter into a lengthy exchange about our consultations with the Magistrates Association or juvenile justices, but certainly we engage in consultation and discussion with them, and I know that they would welcome not only this provision for judicial review of decisions about secure accommodation, but the amendment to give the possibility of appeal to the courts for parents whose access to their children is terminated. It is perhaps the way of the world that the Magistrates Association believes that the courts have a part to play, perhaps a larger part than in the past, in some of the decisions about children in care. Therein lies a broader argument, on which I touched earlier. It would be inappropriate for me to re-enter it. I take it that my hon. Friend understands what I am seeking to say.

I can, if the House wishes, give further details about the other amendments in this group, but at this stage it would be sensible for me to allow the House to take on board what I have said and consider the broad thrust of the amendments.

However, there is one final point, which will be new to the House and which has not previously been placed as firmly as I should like on the public record. As I have said, the new regulations will come into effect on 24 May, together with part I of the Criminal Justice Act 1982. When informing the local authorities of the effect of the new provisions concerning the management of their secure accommodation in a circular, we took the opportunity of implementing a step that we have had in mind for some time, which is the final phasing out of the single separation rooms that are sometimes used to restrict children's liberty in community homes. Those single rooms are generally considered to be a less than satisfactory way of achieving control of or disciplining a child. Many authorities have discontinued their use. We wish their use to be discontinued. Over the past few years there has been a 30 per cent. reduction in the number of such rooms. Now there are only about 60 in use in all. We have decided that as from the end of this year their use will no longer be approved by the Secretary of State. I think that that step will be widely welcomed on both sides of the House.

As I have said, the amendments will enable the regulations that I have discussed to be re-enacted, together with others that will extend the safeguards to the considerably broadened categories of children that I have already mentioned, except only those specifically covered by other provisions. I hope that the amendments meet the wishes of the House.

Amendment agreed to.

Amendments made: No. 34, in page 14, line 39, leave out subsection (2) and insert— '(2) The Secretary of State shall by regulations make provision to enable a child who has been placed is secure accommodation under section 58(A)(4) of this Act or his parent to require that the child's case be brought before a children's hearing within a shorter period than would apply under regulations made under subsection (1)(a) of this section. (3) Where, in any case, a children's hearing direct the reporter to make application to the sheriff for a finding under section 42(2)(c) of this Act (finding that grounds for referral are established), they shall have power, if they are satisfied with regard to the criteria specified in paragraph (a) or (b) of section 58A(3) of this Act, to authorise the detention of the child in secure accommodation in a named residential establishment, pending the determination of the case in accordance with section 42(5) or (6) of this Act.'

No. 32, in page 15, line 10, leave out 'or', and insert 'and may be reviewed'.

No. 35, in page 15, line 40, leave out from 'satisfied' to 'authorise' in line 42 and insert 'with regard to the criteria specified in paragraph (a) or (b) of section 58A(3) of this Act,'.

No. 36, in page 16, line 3, leave out 'conditions' and insert 'criteria'.

No. 37, in page 16, line 18, at end insert— '58G. Regulations made under sections 58A to 58F of this Act may include such transitional provisions as the Secretary of State may consider necessary, including provisions varying the application of any provision in those sections for a transitional period, either generally, or in relation to specified classes of cases.'.—[Mr. Kenneth Clarke.]