Part 1 – children’s hearings system
Section 1 – age of referral to children’s hearing
15.This section extends the age of referral to the children’s hearings system to age 18 for all children.
16.Under the 2011 Act, if a child has had no prior involvement in the children’s hearings system, then the child may be referred to the Principal Reporter only if they are under 16. Referral to the Principal Reporter is for the purposes of investigation into the child’s circumstances, an assessment of whether the child is in need of protection, guidance, treatment or control, and whether it might be necessary for a CSO to be made in relation to the child. The hearings system may still deal with some 16 year olds provided they have been referred to the system before turning 16. And the system can also deal with some 16 and 17 year olds if they are already subject to a CSO.
17.Section 1 amends section 199 of the 2011 Act, which defines “
Section 2 – children’s hearing: duty to have due regard to effects of trauma on child
18.Section 2(2) inserts new section 7A into the 2011 Act. It places a duty on a children’s hearing, when carrying out its functions, to have due regard to the need to treat the child to whom the hearing relates in a trauma-informed way. The duty applies also to a pre-hearing panel.(7) Section 7A further requires the National Convener, so far as practicable, to ensure that children’s hearings and pre-hearing panels comply with this duty.
19.Section 2(4) supplements the National Convener’s new duty by extending its training-related functions as set out in paragraph 3(3) of schedule 2 of the 2011 Act. As a result, when training (or making arrangements for the training of) panel members, the National Convener must have regard to the need to provide training on how panel members may treat the child to whom a children’s hearing relates in a trauma-informed way.
20.In addition, section 2(3) extends the Scottish Ministers’ power under section 177(1) of the 2011 Act to make procedural rules for children’s hearings.(8) It enables them to make rules about treating the child to whom a children’s hearing relates in a trauma-informed way.
Section 3 – child assessment and child protection measures: secure accommodation
21.Under the 2011 Act, a child may be taken to and kept in a place of safety in a number of circumstances. These include where a child assessment order(9) or a child protection order(10) is made, where a justice of the peace makes an order under section 55, and where a police officer considers, under section 56, that it is necessary to do so to protect the child from harm. In each case, the places to which the child can be taken include secure accommodation.
22.This section inserts new section 57A into the 2011 Act, the effect of which is to limit the circumstances in which a child may be placed in secure accommodation under any of these orders or by the police. Secure accommodation may be used as a place of safety only where it is necessary to do so and one or more of the following applies—
the child has a history of absconding, would be likely to abscond again if not kept in secure accommodation, and, if the child were to abscond, the child’s health, safety or development would be at risk,
the child is likely to self-harm if not kept in secure accommodation, or
the child is likely to cause physical or psychological harm to another person if not kept in secure accommodation.
23.In addition, the section also inserts new section 57B into the 2011 Act. This confers a power on the Scottish Ministers to make further provision by regulations(11) about the placing and keeping of children in secure accommodation under any of these orders or by the police. For example, regulations under section 57B might make provision requiring the person who is in charge of the residential establishment in which the secure accommodation is located to consent to the placing and keeping of the child there, or requiring the agreement of the chief social work officer of the relevant local authority. The regulations might also set out the criteria and procedure for the giving of such consent or agreement. This new section mirrors existing provisions(12) under which the use of secure accommodation can be regulated, as well as other provision being made by this Act.(13) This will allow provision to be made, similar to that already contained in the Secure Accommodation (Scotland) Regulations 2013,(14) for the welfare of children detained in secure accommodation.
Section 4 – compulsory supervision orders: directions authorising restriction of liberty
24.A children’s hearing may make a CSO in relation to a child if it is satisfied that it is necessary to do so for the protection, guidance, treatment or control of the child.(15) Section 83 of the 2011 Act explains what a CSO is. It is an order that may include any of the measures listed in section 83(2). One of those measures is a requirement that the child reside at a specified place.(16) If a CSO includes that type of requirement, it may also include a direction authorising the person in charge of the place where the child is to reside to restrict the child’s liberty. That person may do so to the extent considered appropriate when taking account of the terms of the CSO.
25.Section 4 amends section 83 to make it explicit that any such direction does not include authorisation to deprive the child of their liberty. If a children’s hearing considers it necessary to deprive the child of their liberty, it must instead include in the CSO a secure accommodation authorisation. That measure attracts special legal safeguards for the child’s protection,(17) and is explained further in relation to section 7 (see paragraphs 41 to 47 of these Notes).
Section 5 – compulsory supervision orders: prohibitions
26.Section 5 amends section 83(2) of the 2011 Act to extend the list of measures that may be included in a CSO. It adds two new prohibitions, giving children’s hearings greater choice when deciding on which measure (or combination of measures) is best suited to a child’s individual circumstances and is most likely to safeguard and promote the child’s welfare.
27.The first prohibition is contained in new section 83(2)(ca). It prohibits the child from entering a specified(18) place or description of place. This might relate to a specific address or to a particular area. For instance, this measure could be used to protect someone who is considered to be at risk of harm or harassment from the child by, say, prohibiting the child from entering the person’s home or place of work. Alternatively, it may be used to prohibit the child from entering an area or premises where the child is at risk of being exploited.
28.Section 83(2)(ca) provides a less restrictive and intrusive measure than the alternative of a movement restriction condition, which may be included in a CSO by virtue of section 83(2)(d) and is explained further in relation to section 6 (see paragraphs 31 to 40 of these Notes). It is not subject to any preconditions or specific monitoring arrangements like a movement restriction condition. However, any breach of the prohibition would lead to a review of the CSO and could result in additional or more restrictive measures (like a movement restriction condition) being imposed.
29.The second prohibition is contained in new section 83(2)(cb). It prohibits the child from approaching, communicating with or attempting to approach or communicate with (whether directly or indirectly) a specified(19) person or class of person. This includes prohibiting the child from approaching or communicating with another person through someone else. Section 5 amends the interpretation provision in section 83(8) of the 2011 Act, to make it clear that “communicating with” another person includes communicating with that person by using social media (such as Facebook) or by any other electronic means.
30.Again, the prohibition in section 83(2)(cb) may be used to protect someone where there is a risk of the child harassing or intimidating that person. It differs from the measure in section 83(2)(g), which is a direction regulating contact between the child and a specified person or class of person.(20) This generally involves regulating contact between the child and the people with whom the child has a relationship, such as family members.
Section 6 – compulsory supervision orders: movement restriction conditions
31.Section 6 changes the test to be applied when a children’s hearing or sheriff(21) is considering including a movement restriction condition in a CSO by virtue of section 83(2)(d) of the 2011 Act. Section 84 of that Act explains what a movement restriction condition is. It consists of (a) a restriction on the child’s movements in a way specified in the movement restriction condition, and (b) a requirement that the child comply with arrangements specified in the movement restriction condition for monitoring compliance with the restriction. This measure involves giving the child intensive support, and monitoring the child’s compliance with the restriction by means of an electronic monitoring device(22) which uses radio frequency (rather than GPS) technology.
32.Under section 83(4) of the 2011 Act, a CSO may include a movement restriction condition only if two requirements are met. The first is that at least one of the specified conditions must apply. The second is that the children’s hearing or (as the case may be) the sheriff must be satisfied that it is necessary to include a movement restriction condition in the CSO.
33.Section 83(6) sets out the specified conditions. They 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. The same conditions also apply for the purpose of including a secure accommodation authorisation (which is a more restrictive measure) in a CSO.(23)
34.Section 6 amends section 83 of the 2011 Act to apply a new set of conditions for the purpose of including a movement restriction condition in a CSO. There are two conditions. These are set out in new section 83(4A) and are: (a) that the child’s health, safety or development is at risk, or (b) that the child is likely to cause physical or psychological harm to another person. As a result, a children’s hearing or sheriff may impose a movement restriction condition only if one or both of the new conditions apply and it is considered necessary to do so.
35.The condition in section 83(4A)(a) covers a broader range of circumstances than the original conditions. Like the original conditions in section 83(6)(a) and (b), it would cover circumstances where the child’s health, safety or development is at risk because of a likelihood of absconding and/or engaging in self-harming conduct. But it would also cover circumstances where, due to the child’s vulnerability, the child is encouraged by others into situations where the child can be harmed or abused. So, a movement restriction condition (and the intensive support and monitoring arrangements that come with such a measure) could be used to prevent the child from visiting certain premises or areas that pose a risk to the child’s health, safety or development. For example, it might specify an address where a known abuser lives, a place where there is a risk of sexual exploitation, or a locale where the child is known to buy drugs or to meet up with others to drink alcohol.
36.The condition in section 83(4A)(b) makes it clear that a movement restriction condition may be included in a CSO where there is a likelihood of the child causing harm to another person, whether that be physical or psychological harm. Section 7 brings the condition in section 83(6)(c), now applicable only to secure accommodation authorisations, into line with this one. It also amends the interpretation provision in section 83(8) of the 2011 Act to define “psychological harm” as including (but not limited to) fear, alarm and distress.
37.Section 6 also amends section 150 of the 2011 Act, which confers a regulation-making power(24) on the Scottish Ministers to prescribe restrictions or monitoring arrangements that may be imposed as part of a movement restriction condition. It clarifies and extends the list of specific matters which they may prescribe.
38.First, it explicitly provides for the Scottish Ministers to prescribe methods of monitoring a child’s movements or whereabouts (including whether a child is at, or not at, a particular place) for the purpose of monitoring compliance with a movement restriction condition. This means that they may prescribe(25) methods for both (a) checking a child’s position or location at any particular time (say, for the purpose of monitoring compliance with a curfew condition), and (b) tracking a child’s movement from place to place (say, for the purpose of monitoring compliance with some type of exclusion zone condition).
39.Secondly, it extends the Scottish Ministers’ power(26) to specify devices that may be used for monitoring compliance with a movement restriction condition. As a result, they may also specify any apparatus to be linked to such monitoring devices.
40.Thirdly, and finally, it enables the Scottish Ministers to prescribe certain matters to make sure that specified monitoring devices are used appropriately and proportionately. This includes prescribing how or when a specified monitoring device may, or may not, be used. For example, they could set out in regulations how or when a particular device is to be worn by a child. It also includes prescribing how or when information obtained through the monitoring of a child by such devices may, or may not, be gathered, retained, used or shared for the purpose of monitoring a movement restriction condition. This is to expressly cover the additional data-collecting involved in using GPS technology should this be used as a method of monitoring a child’s movements or whereabouts in the future. For example, the Scottish Ministers could set out in regulations the particular circumstances in which, or the times at which, the information may be gathered.
Section 7 – compulsory supervision orders: secure accommodation authorisations
41.Section 7(2) clarifies the test to be applied when a children’s hearing or sheriff is considering including a secure accommodation authorisation in a CSO by virtue of section 83(2)(e) of the 2011 Act. Section 85 of the Act defines a “secure accommodation authorisation” as an authorisation enabling the child to be placed and kept in secure accommodation within a residential establishment.(27) This is the most restrictive measure that may be included in a CSO, involving the maximum level of intervention and support.
42.Accordingly, under section 83(5) of the 2011 Act, a CSO may include a secure accommodation authorisation only if three requirements are met. The first is that the CSO must contain a requirement that the child reside at either (a) a specified residential establishment which contains both secure and non-secure accommodation, or (b) two or more specified residential establishments, one of which contains non-secure accommodation.(28) The second is that at least one of the specified conditions must apply (those are the conditions which are listed in section 83(6) and set out in paragraph 33 of these Notes). The third is that the children’s hearing or sheriff must be satisfied that it is necessary to include a secure accommodation authorisation in the CSO, having considered the other options available (including a movement restriction condition). Where a secure accommodation authorisation is included, special procedures apply in respect of its implementation and review.(29)
43.Section 7(2) amends the conditions listed in section 83(6) of the 2011 Act in two respects.
44.First, it adjusts each condition so that it applies more clearly in relation to a decision to keep (rather than place) a child in secure accommodation. So, when a CSO containing a secure accommodation authorisation is reviewed, a condition will apply if the relevant risk would be likely to materialise unless the child is kept in secure accommodation. This recognises that a child already in secure accommodation is unlikely to abscond or cause harm to themselves or others while they are receiving the kind of intensive care and support on offer in a secure setting.
45.Secondly, as mentioned in paragraph 36 of these Notes, it adjusts the condition in section 83(6)(c) to align it with the condition in new section 83(4A)(b) which applies in relation to a movement restriction condition. This makes sure that a CSO may include a secure accommodation authorisation if there is a likelihood of the child causing harm to another person, whether it be physical or psychological harm. Section 7(2) also amends the interpretation provision in section 83(8) of the 2011 Act to define “psychological harm” as including (but not limited to) fear, alarm and distress.
46.Section 86 of the 2011 Act makes provision for an ICSO. To that end, it provides for various provisions of section 83 to apply to an ICSO in the same way as they apply to a CSO (including the list of measures contained in section 83(2)). Section 7(3) consequentially amends the cross-references to those provisions in section 86(4) to make sure that the changes made by this section, and sections 4 to 6 of the Act, apply also in relation to ICSOs.
47.However, a secure accommodation authorisation is not a measure limited to CSOs or ICSOs. One can also be included in a medical examination order(30)or a warrant to secure attendance.(31) So, given that the same tests apply for secure accommodation authorisations attached to those orders and warrants, section 7(4) and (5) makes changes to the conditions listed in sections 87(4) and 88(3) of the 2011 Act which are equivalent to those made to section 83(6) by section 7(2).
Section 8 – provision of information to person affected by child’s offence or behaviour
48.Under section 179A of the 2011 Act, certain persons are entitled to request information about the action taken by the Principal Reporter and the children’s hearing in relation to a child who has committed an offence or, while under 12, acted or behaved in a way that was physically or sexually violent, sexually coercive, dangerous, threatening or abusive and which caused harm to another person.(32) Those persons are: persons against whom the offence was committed; persons who were harmed by the child’s actions or behaviour; where either of those persons is a child, a “
49.Section 8 amends section 179A(5) of the 2011 Act to place a duty on the Principal Reporter to inform the persons entitled to request information of their right to do so. The duty applies if it is reasonably practicable to do so. If, for instance, the Principal Reporter does not have and cannot find a person’s contact details, then the person does not have to be informed. New subsection (5A), inserted into section 179A by section 8, will modify the duty to inform, where a person against whom the offence was committed, or who was harmed by the actions or behaviour, is themselves a child, so that the Principal Reporter can inform just the child, or a relevant person in relation to the child, or both.
50.New subsection (5B) disapplies the duty to inform in certain circumstances as set out in that subsection, including where the Principal Reporter is satisfied that it would be detrimental to the best interests of any child involved for the Principal Reporter to inform persons of their right to request information. This mirrors section 179C(1)(a) of the 2011 Act, under which the Principal Reporter can decline to comply with a request for information.(34)
51.Section 179B of the 2011 Act makes provision for the information that can be requested and provided under section 179A. That information varies depending on whether the Principal Reporter has decided to arrange a children’s hearing or not in relation to the child. Where no hearing has been arranged, the Principal Reporter may(35) provide the information set out in section 179B(2)(a) – that is, what determination the Principal Reporter made under section 66(2) of the 2011 Act in respect of the child and any other action taken by the Principal Reporter. Where a children’s hearing was arranged, section 179B(2)(b) governs the information that may be provided – namely, information as to whether a CSO has been made in respect of the child or, where the child was already subject to a CSO, whether the CSO has been terminated, varied or continued, or, where a CSO was not made, terminated, varied or continued, information as to how the referral to the children's hearing was otherwise discharged.
52.Section 8(3) amends section 179B so that, where a children’s hearing is not arranged, the information to be provided is set out in a new version of section 179B(2). Where a hearing is arranged, the information and “further information” to be provided is set out in new section 179B(3) and (4). This sets out a broader range of information that can be provided where a children’s hearing is arranged and a CSO or ICSO(36) is made in respect of the child. It now includes information as to measures included in the order – namely, measures such as those that might be included in a CSO or ICSO as a result of section 83(2)(ca) or (cb) (as inserted by section 5(2)(a) of this Act), and whether a secure accommodation authorisation has been included. It also includes other information necessary to help with safety planning by or in relation to the person against whom the offence was committed or who was harmed by the child’s actions or behaviour. The Principal Reporter can now also provide updates on that information. So, further information can be provided about any subsequent variation or continuation of a CSO or ICSO made in respect of the child – but only in so far as it relates to the inclusion, variation or removal of a measure of the kind mentioned in section 179B(3)(b)(i) or (ii) – or any subsequent termination of a CSO or ICSO made in respect of the child. Similarly, if there are other developments in the child’s case, the Principal Reporter can provide further information necessary for safety planning purposes.
53.Section 8(4)(a) amends section 179C(1)(a) of the 2011 Act to bring it into line with new subsection (5B)(b) of section 179A. Section 8(4)(b) amends section 179C to insert a new subsection (4). This provides that the limitation in section 179C(3), on the ability of the Principal Reporter to provide information which is not directly related to the action taken in relation to the action or behaviour which caused harm or which constituted an offence, does not stop the Principal Reporter from providing information about the measures included in a CSO or ICSO if they relate to the person who requested the information under section 179A (or, where that person is a relevant person, the child in relation to whom that person is a relevant person).
Section 9 – support for victims in the children’s hearings system
54.Section 9 amends the 2011 Act to insert a new section 179D. This requires the Scottish Ministers, by regulations,(37) to make provision for support services for the persons, mentioned in section 179D(2), who are entitled to request information under section 179A about the action taken by the Principal Reporter and the children’s hearing in relation to a child who has committed an offence against them or otherwise acted or behaved in a physically violent, sexually violent or sexually coercive, or dangerous, threatening or abusive way and that has harmed the person. The regulations must specify one person or body who is to act as a point of contact for those persons to access support services. What is to constitute “support services”, besides the provision of “relevant information” to the persons mentioned in section 179D(2), is to be set out in the regulations themselves.(38) Section 179D(4) contains an non-exhaustive list of the things that can be provided for in regulations. Section 179D(5) also enables the regulations to modify sections 179A to 179C of the 2011 Act to provide for the information set out in section 179B to be given automatically on an opt-out basis (rather than on request), to be given to the person providing support services (whether as well as, or instead of, to the persons mentioned in section 179D(2)), or to be given by the person providing support services instead of by the Principal Reporter directly. Before laying draft regulations before the Scottish Parliament for approval, subsection (6) requires the Scottish Ministers to consult a number of persons and bodies, including victim support organisations.(39)
Section 10 – support for victims in the children’s hearings system: review and report
55.Section 10 imposes a duty on the Scottish Ministers to review and report on the operation of support services provided, by virtue of regulations under section 179D(1) of the 2011 Act,(40) to the persons mentioned in section 179D(2) of that Act (which principally includes those who are entitled to request information under section 179A of the 2011 Act about the action taken by the Principal Reporter and the children’s hearing in relation to a child who has committed an offence against them or otherwise acted or behaved in a way that was physically violent, sexually violent or sexually coercive, or dangerous, threatening or abusive and caused them harm). They must do so as soon as reasonably practicable after the end of each two-year review period, the first of which runs from the day on which regulations under section 179D(1) first come into force. In carrying out the review, Ministers must assess the effectiveness of support services (taking particular account of the number of, and feedback from, persons provided with those services) and identify what (if any) action they should take as a result of that assessment. They must also consult with a number of persons and bodies, including the single point of contact established or specified by virtue of section 179D(3) (mentioned in paragraph 54 of these Notes) as well as victim support organisations. Each report on the provision of support services must be laid before the Scottish Parliament and published.
Section 11 – supervision or guidance post-18
56.Where, on reviewing a CSO, the children’s hearing decides that the CSO should come to an end, the hearing must consider whether the child nevertheless has a continuing need for supervision or guidance and make a statement to that effect.(41) Under section 138(7) of the 2011 Act, the relevant local authority(42) has a duty, in such a case, to provide the child with that supervision or guidance, subject to the child accepting it.
57.Section 11 amends section 138 in two ways. First, it requires the children’s hearing to also consider whether the child might need supervision or guidance after the child turns 18. And, where the children’s hearing makes a statement to the effect that the child does, the relevant local authority’s duty under section 138(7) continues to have effect after the child turns 18. But the relevant local authority does not need to provide supervision and guidance after the child turns 19.
Defined by section 79(2)(a) of the 2011 Act as three members of the Children’s Panel selected by the National Convener to determine certain matters in advance of a children’s hearing.
See the Children's Hearings (Scotland) Act 2011 (Rules of Procedure in Children's Hearings) Rules 2013 (S.S.I. 2013/194) (legislation.gov.uk), as amended.
See section 35 of the 2011 Act.
See section 37 of the 2011 Act.
Subject to the affirmative procedure – see new section 57B(3) of the 2011 Act.
Such as sections 151 and 152 of the 2011 Act.
See, for example, section 19(6), new section 208A being inserted into the 1995 Act and, in particular, section 208A(4) to (6).
See section 91(3)(a) of the 2011 Act.
See section 83(2)(a). “
See sections 135 and 151 of the 2011 Act, the Secure Accommodation (Scotland) Regulations 2013 (S.S.I. 2013/205) and the Children's Hearings (Scotland) Act 2011 (Implementation of Secure Accommodation Authorisation) (Scotland) Regulations 2013 (S.S.I. 2013/212) (legislation.gov.uk).
“
“
Section 29A of the 2011 Act requires a children’s hearing to consider whether to include this measure when making, varying or continuing a CSO. It also requires a sheriff to do likewise when varying or continuing a CSO.
When determining an appeal against a decision of a children’s hearing, a sheriff may include a movement restriction condition in a CSO by virtue of 156(1)(b) or (2)(b) of the 2011 Act.
See schedule 2 of the Restriction of Liberty Order etc. (Scotland) Regulations 2013 (S.S.I. 2013/6) (legislation.gov.uk), which applies by virtue of regulation 8 of the Children’s Hearings (Scotland) Act 2011 (Movement Restriction Conditions) Regulations 2013 (S.S.I. 2013/210) (legislation.gov.uk).
By virtue of section 83(5)(b) of the 2011 Act.
This power has been used to make the Children’s Hearings (Scotland) Act 2011 (Movement Restriction Conditions) Regulations 2013 (S.S.I. 2013/210). By virtue of sections 150(3) and 195(2) of the 2011 Act, any regulations made using the power are subject to the affirmative procedure and may make different provision for different purposes.
By virtue of section 150(2)(b) of the 2011 Act.
See section 150(2)(c) of the 2011 Act.
See section 202(1) of the 2011 Act for definitions of “secure accommodation” and “residential establishment”. The former is amended by section 26(2)(a) of this Act.
While a children’s hearing can authorise the placing of a child in secure accommodation, the chief social work officer is responsible for implementing a secure accommodation authorisation: see section 151 of the 2011 Act. That officer may implement the authorisation only so far as it is necessary to do so, and only with the consent of the person who is in charge of the residential establishment that comprises or contains the secure accommodation in which the child is to be placed. So, the first requirement is aimed at ensuring the CSO can still be given effect to, even if the chief social work officer does not implement the secure accommodation authorisation.
See sections 135 and 151 of the 2011 Act, the Secure Accommodation (Scotland) Regulations 2013 (S.S.I. 2013/205) and the Children’s Hearings (Scotland) Act 2011 (Implementation of Secure Accommodation Authorisation) (Scotland) Regulations 2013 (S.S.I. 2013/212).
Defined in section 87 of the 2011 Act.
Defined in section 88 of the 2011 Act.
See section 179A(1) and (2) of the 2011 Act. Section 179B of the 2011 Act sets out the information that may be requested.
See section 179A(4) of the 2011 Act. For the meaning of “
Section 179C(2) of the 2011 Act also sets out the other factors to which the Principal Reporter must have regard in deciding whether it is appropriate to comply with a request for information.
Subject to section 179C of the 2011 Act.
See section 179B(6) of the 2011 Act, as inserted by section 8(3)(c) of this Act.
Subject to the affirmative procedure – see section 179D(7) of the 2011 Act.
See section 179D(8) of the 2011 Act, which defines “relevant information” and “support services”.
See, in particular, section 179D(6)(c) of the 2011 Act.
As inserted by section 9 of this Act.
See section 138(6) of the 2011 Act.
Defined in section 201 of the 2011 Act.
