110.Section 26(2)(a) amends the interpretation provision in section 202(1) of the 2011 Act to replace the definition of “secure accommodation” as it applies in relation to Scotland (its meaning in relation to England and Wales remains the same). This is to make the definition clearer in two respects.
111.First, the new definition makes it clear that secure accommodation is accommodation which is provided for the purpose of depriving children of their liberty (rather than for the purpose of restricting the liberty of children). This is to properly reflect that such accommodation is designed for, or has as its primary purpose, the deprivation of children’s liberty. It provides a locked setting for children who are placed there for welfare reasons(72) as well as for children who are ordered to be detained there through the criminal justice system. The children are subject to a very high degree of supervision and control, albeit this is alongside provision of care and support to safeguard and promote their welfare whilst accommodated there. Existing secure accommodation settings are designed so that the children accommodated there cannot leave freely and can be subjected to continuous monitoring or surveillance. For instance, they may be subject to round-the-clock supervision by several members of staff, restrictions on their phone or internet use, or reasonable and proportionate measures of restraint. The system for placing and keeping children in secure accommodation therefore builds in the necessary procedural safeguards, including a clear legal basis and review process, to ensure that any deprivation of liberty is compatible with Article 5 of the European Convention on Human Rights (which concerns the right to liberty).
112.Secondly, the new definition makes it clear that secure accommodation is accommodation which is provided in a residential establishment by a secure accommodation service. Section 202(1) of the 2011 Act already defines “residential establishment” as an establishment in Scotland (whether managed by a local authority, a voluntary organisation or any other person) which provides residential accommodation for children for the purposes of the 2011 Act, the Children (Scotland) Act 1995 or the Social Work (Scotland) Act 1968. But section 26(2)(b) inserts a new definition of “secure accommodation service” into section 202(1). It explains that a secure accommodation service is a service which meets two criteria: (a) it is approved by the Scottish Ministers under paragraph 6(c) of schedule 12 of the 2010 Act, and in accordance with regulations made under section 78A of that Act, and (b) it is registered as a care service under Part 5 of that Act. This is to make sure that children may only be deprived of their liberty in secure accommodation that is run by a service which is approved by the Scottish Ministers and which is properly regulated and overseen by Social Care and Social Work Improvement Scotland (known as “
113.Part 5 of the 2010 Act requires all care services to be registered with the Care Inspectorate. It is an offence under section 80 of the 2010 Act to provide a care service while not registered. A “secure accommodation service” is listed as a care service in section 47(1)(f) of the 2010 Act and defined in paragraph 6 of schedule 12 of that Act.
114.Section 27(4) of this Act replaces the definition in paragraph 6 of schedule 12 of the 2010 Act to give a fuller and clearer explanation of what a secure accommodation service is. It defines such a service by reference to three characteristics.
115.The first characteristic is that it provides accommodation in a residential establishment for the purpose of depriving children of their liberty (rather than for the purpose of restricting the liberty of children). Section 27(4) inserts new paragraph 6A into schedule 12, which adopts the definition of “residential establishment” given in section 105(1) of the 2010 Act.(74) That definition mirrors paragraph (a) of the definition in section 202(1) of the 2011 Act (which is mentioned in paragraph 112 of these Notes), except that it also specifies the Criminal Procedure (Scotland) Act 1995 as an enactment for the purposes of which such residential accommodation is provided. This sets out the legal basis for a service providing secure accommodation and the routes by which children are placed there.
116.The second characteristic is that it also provides, in such an establishment, appropriate care, education and support for the purposes of safeguarding and promoting the welfare of the children who are accommodated there, as well as taking account of the effects of trauma which such children may have experienced. Section 27(4) inserts new paragraph 6B into schedule 12 to define “appropriate care, education and support”. This means the kind of care, education and support required to meet the health, educational and other needs of the children.
117.The third characteristic is that it is approved by the Scottish Ministers, in accordance with regulations made under new section 78A of the 2010 Act, for those purposes.
118.Accordingly, section 27(2) inserts new section 78A into Part 5 of the 2010 Act, which confers a new regulation-making power on the Scottish Ministers.(75) This power enables the Scottish Ministers to set out in regulations a process for approving secure accommodation services under paragraph 6(c) of schedule 12.
119.Section 78A(2) of the 2010 Act provides a non-exhaustive list of the particular kinds of provision that the new power may be used to make. It includes provision about: the making of applications for approval; the procedure to be followed by the Scottish Ministers when deciding on applications; the duration of approvals; the attaching of conditions to approvals and the variation of such conditions; the review, renewal and withdrawal of approvals; and appeals against certain decisions of the Scottish Ministers in respect of approvals.
120.However, section 78A(3) of the 2010 Act provides that regulations under section 78A(1) must include provision requiring the Scottish Ministers to satisfy themselves of certain criteria before approving a secure accommodation service – namely, that the service will ensure that particular children are not placed together in the same residential establishment. The service must therefore show that no child who has been determined(76) to have committed an offence against or in respect of another child – or who has acted or behaved in a way that has had, or is likely to have had, a serious adverse effect on the health, safety or development of another child – will be accommodated within the same secure care unit as that other child.
121.Section 27(3) amends section 104(2) of the 2010 Act so that any regulations made under section 78A will be subject to the affirmative procedure.(77) By virtue of section 104(1)(b) and (c), any such regulations may also include ancillary provision(78) and make different provision for different purposes.
122.Section 27(6) revokes regulation 10(3) of the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011.(79) This is because the changes made by this section supersede that regulation’s requirement for ministerial approval of secure accommodation.
123.Section 28 makes three main changes to Part 5 of the 2010 Act, which concerns the scrutiny and improvement of social care services.
124.The first main change is to section 50 of the 2010 Act, which requires the Scottish Ministers to prepare and publish standards and outcomes(80) applicable to care services (as well as social work services).(81) The standards and outcomes are taken into account by the Care Inspectorate when making decisions under Part 5 of the 2010 Act.
125.Section 28(2) inserts new subsections (1A) and (1B) into section 50 to confer a new function on the Scottish Ministers. So, in addition to their general duty under section 50(1), they will have the power under section 50(1A) to prepare and publish specific standards and outcomes for specific types of care service which provide residential accommodation to children who are subject to a cross-border placement. Those care services are: (a) care home services(82) which are provided wholly or mainly to children, (b) school care accommodation services,(83) and (c) secure accommodation services.(84) Section 28(5)(b) amends the interpretation provision in section 105(1) of the 2010 Act to include a definition of “cross-border placement”. This means the placement of a child in a residential establishment in Scotland where (a) the child was, immediately before the placement, resident in England, Wales or Northern Ireland, and (b) the placement is authorised under the law in England and Wales or, as the case may be, in Northern Ireland. A placement may be so authorised by virtue of (a) an order made by a court in England and Wales or in Northern Ireland, and/or (b) any provision made by or under an Act of Parliament, an Act of Senedd Cymru, or Northern Ireland legislation (as defined by section 98(1) of the Northern Ireland Act 1998), whenever passed or made. Section 28(5)(c) further amends section 105(1) of the 2010 Act to define “
126.Section 28(2) makes further changes to section 50 in consequence of adding the new subsection (1A) power. The changes mean that the existing provisions in section 50 will apply to both the standards and outcomes published under section 50(1) and any standards and outcomes published under section 50(1A). Section 50 includes provision for: the review and amendment of standards and outcomes; prepublication consultation with appropriate persons or groups of persons; the taking into account of standards and outcomes for the purposes of certain decisions and proceedings; and the making of different provision for different care services. The Scottish Ministers will also be able to delegate their function under section 50(1A) to the Care Inspectorate or anyone else they consider appropriate.(85)
127.The second main change is that section 28(3) inserts new section 59A into Part 5 of the 2010 Act, which makes further provision about the registration of care services under that Part. Section 59A(2) sets out two additional requirements that apply to the registration of certain care services for children.(86) Those care services are: (a) care home services which are provided wholly or mainly to children, (b) school care accommodation services, and (c) secure accommodation services. As a result, a registration application for such a service must contain (a) any required information about cross-border placements, and (b) confirmation that notice of the application has been given to the persons mentioned in section 59A(3).
128.The persons mentioned in section 59A(3) are: (a) the local authority(87) for each area in which the service is to be provided, and (b) the relevant health board(88) for each such area. Under Part 3 of the Children and Young People (Scotland) Act 2014, they have the responsibility of preparing (every 3 years) a children’s services plan for the local authority area. This is a document setting out their plans for the provision over that 3-year period of all children’s services and related services.(89) In preparing the plan, section 10(1), (2) and (6) of the 2014 Act requires the local authority and relevant health board to consult with certain persons, including organisations which provide a service for children in the area. However, the notice requirement imposed by section 59A(2)(b) means that local authorities and relevant health boards will automatically be made aware of any prospective services for children in their respective areas for the purposes of children’s services planning. To make sure that the notice requirement is complied with, section 59A(4) precludes the Care Inspectorate from considering an application in respect of any of the listed care services unless and until the required confirmation is given. Knowingly giving a false confirmation in an application would be an offence under section 81 of the 2010 Act.(90)
129.Section 59A(2)(a) enables the Scottish Ministers to prescribe,(91) by order, such information about cross-border placements as they deem appropriate to be included in an application for registration as a care service. Section 59A(2)(b) also enables them to prescribe, by order, the form in which notice of the application is to be given to the persons mentioned in section 59A(3). By virtue of section 104(1)(c) of the 2010 Act, those order-making powers include the power to make different provision for different purposes. Any order made under the new provisions(92) will be subject to the negative procedure(93) by virtue of section 104(3).
130.And, finally, the third main change relates to the regulation-making power in section 78(2) of the 2010 Act. This is a general power that enables the Scottish Ministers, by regulations,(94) to impose on care services any requirements which they consider appropriate for the purposes of Part 5 of the 2010 Act.(95) Section 28(4) inserts new subsections (2A) and (2B) into section 78 to expressly provide for the Scottish Ministers to impose specific requirements on specific types of care service which provide residential accommodation to children who are subject to cross-border placements. Those care services are: (a) care home services which are provided wholly or mainly to children, (b) school care accommodation services, and (c) secure accommodation services. Any requirements imposed by virtue of section 78(2A) would constitute “relevant requirements”(96) for the purposes of section 64(1)(b) of the 2010 Act. This means that a care service’s failure to comply with any such requirement could result in its registration with the Care Inspectorate being cancelled.
131.Section 28(5)(a) amends the definition of “child” in section 105(1) of the 2010 Act for the purposes of the new provisions. As a result, references to “children” in sections 50(1A) and (1B), 59A and 78(2A) and (2B) are to persons who are under the age of 18 (rather than under the age of 16).
132.Section 29 amends section 190 of the 2011 Act, which confers a regulation-making power on the Scottish Ministers to make provision for specific non-Scottish orders to have effect in Scotland.(97) Those are orders made by a court in England and Wales, or in Northern Ireland, which appear to the Scottish Ministers to be an equivalent of a CSO. The power enables them to provide for the orders to have effect in Scotland as if they were a CSO. To that end, regulations made under section 190 may apply the Social Work (Scotland) Act 1968 or the 2011 Act to the specified orders with such modifications as are necessary or appropriate.
133.The amendments give the Scottish Ministers greater flexibility in specifying how each specified non-Scottish order is to have effect.
134.Section 29(2) broadens the application of the power. It amends section 190(1) so that the power is no longer limited to treating CSO-equivalent orders as if they were CSOs. It replaces section 190(2) with a new version so that, instead, the power will cover giving such non-Scottish orders effect in Scotland either as if they were CSOs or in such other way as set out in the regulations.
135.The new version of section 190(2) contains a number of changes. Paragraph (a)(i) and (ii) continues to provide that the Scottish Ministers may specify the circumstances in which, and the purposes for which, non-Scottish orders are to have effect in Scotland. But new paragraph (a)(iii) provides that they can also specify the conditions subject to which such orders are to have effect. New paragraph (b) sets out that Ministers can provide that a specified non-Scottish order is to have effect as if it were a CSO, or is to have whatever other effect they may specify. New paragraph (c) further sets out that Ministers can impose certain kinds of requirement in relation to specified non-Scottish orders. These relate to: the provision and sharing of information; the provision of services needed to support a child who is the subject of a non-Scottish order; and the payment of costs incurred in relation to, or as a consequence of, giving effect to a non-Scottish order. And, finally, new paragraph (d) includes the power to make provision as to the monitoring of compliance, and the consequences of any non-compliance, with any such condition or requirement specified under new paragraph (a)(iii) or (c).
136.Section 29(2) also inserts new section 190(2A), replacing section 190(2)(b) and (c). This does two things. First, it extends the power to apply other enactments in a modified way to a non-Scottish order – in that it now covers any enactment, including the Children (Scotland) Act 1995 as well as the Social Work (Scotland) Act 1968 and the 2011 Act. Secondly, it restates that regulations under section 190(1) are subject to the affirmative procedure.(98)
137.Section 30 inserts new section 33A into the Children (Scotland) Act 1995, conferring a regulation-making power on the Scottish Ministers to make provision about cross-border placements. A “cross-border placement” is defined in section 33A(4). It is the placement of a child in a residential establishment in Scotland where (a) the child was, immediately before the placement, resident in England, Wales or Northern Ireland, and (b) the placement is authorised under the law in England and Wales or, as the case may be, in Northern Ireland. A placement may be so authorised by virtue of (a) an order made by a court in England and Wales or in Northern Ireland, and/or (b) any provision made by or under an Act of Parliament, and Act of Senedd Cymru, or Northern Ireland legislation (as defined by section 98(1) of the Northern Ireland Act 1998), whenever passed or made.(99)
138.Mirroring section 190 of the 2011 Act, as amended by section 29 of this Act, regulations under section 33A can include requirements as to: the provision and sharing of information; the provision of services needed to support a child who is the subject of a cross-border placement; and the payment of costs incurred in relation to, or as a consequence of, giving effect to a cross-border placement. Section 33A(2) also specifies that regulations can include provision requiring a cross-border placement to be kept under review. Regulations under section 33A are subject to the affirmative procedure.
By virtue of a secure accommodation authorisation attached to a CSO, an ICSO, a medical examination order or a warrant to secure attendance, to reduce the risk of a child absconding or causing harm to themselves or others.
Established under section 44 of the 2010 Act.
Inserted by section 28(5)(c) of this Act.
Section 105(1) defines “regulations” as regulations made by the Scottish Ministers.
Whether in proceedings under the 2011 Act or in criminal proceedings.
See section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010.
Namely, consequential, supplemental, incidental, transitional, transitory or saving provision.
See the Health and Social Care Standards: my support, my life (www.gov.scot), published on 9 June 2017.
The care services are listed in section 47(1), and defined in schedule 12, of the 2010 Act; “social work services” is defined in section 48 of the 2010 Act.
Defined in paragraph 2 of schedule 12 of the 2010 Act.
Defined in paragraph 3 of schedule 12 of the 2010 Act.
Defined in paragraph 6 of schedule 12 of the 2010 Act, which is modified by section 27(4) of this Act.
By virtue of section 50(8) of the 2010 Act.
See section 59(2) of the 2010 Act for the standard requirements, along with the Social Care and Social Work Improvement Scotland (Applications) Order 2011 (S.S.I. 2011/29).
See the definition of “local authority” in section 105(1) of the 2010 Act.
As defined by section 7(1) of the Children and Young People (Scotland) Act 2014 (legislation.gov.uk).
See section 7(1) of the 2014 Act for the definitions of “children’s service” and “related service”.
And, under section 64 of the 2010 Act, being convicted of such an offence would be a ground for cancelling the registration of a care service whose registration was based on such a false confirmation.
See the definition of “prescribed” in section 105(1) of the 2010 Act.
As with an order made under section 59(2)(a) of the 2010 Act.
See section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010.
See the definition of “regulations” in section 105(1) of the 2010 Act. By virtue of section 104(2) of that Act, regulations made under section 78(2) are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010).
Such requirements are set out in the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011 (S.S.I. 2011/210), the Secure Accommodation (Scotland) Regulations 2013 (S.S.I. 2013/205) and the Registration of Social Workers and Social Service Workers in Care Services (Scotland) Regulations 2013 (S.S.I. 2013/227) (legislation.gov.uk).
Defined in section 64(3)(b) of the 2010 Act.
By virtue of sections 190(2)(c) and 195(2) of the 2011 Act, regulations made using this power are subject to the affirmative procedure and may include incidental, supplementary, consequential, transitional, transitory or saving provision, and they may also make different provision for different purposes. The power has been used to make the Children’s Hearings (Scotland) Act 2011 (Transfer of Children to Scotland – Effect of Orders made in England and Wales or Northern Ireland) Regulations 2013 (S.S.I. 2013/99) (legislation.gov.uk) and the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 (S.S.I. 2022/225) (legislation.gov.uk).
See section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010.
This mirrors the definition of “cross-border placement” inserted into section 105(1) of the 2010 Act by section 28(5)(b) of this Act. “Residential establishment” is defined in section 93(1) of the Children (Scotland) Act 1995.
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