Local authority duties in relation to detained children
Section 23 – duty of local authority to provide residential establishments for detained children
102.Sections 18 and 19 make changes to the places in which children can be detained, with the result that most children are likely to be detained in secure accommodation. As defined in the 2011 Act, as it is amended by section 26, “secure accommodation” in Scotland is accommodation provided for the purposes of depriving children of their liberty which is provided in a residential establishment by a secure accommodation service. A “residential establishment”, also defined in the 2011 Act, is an establishment provided by a local authority, a voluntary organisation or by another person which provides accommodation for the purposes of the 2011 Act, the Children (Scotland) Act 1995 and the Social Work (Scotland) Act 1968.
103.Under section 59 of the 1968 Act, local authorities have a duty to provide and maintain residential establishments that are required for their functions under a number of enactments.(68) But the list of enactments does not currently include the 1995 Act. Section 23 will add the 1995 Act to that list, so that the duty to provide and maintain residential establishments includes providing and maintaining these establishments for the purposes of local authority functions conferred under or by virtue of the 1995 Act.
Section 24 – children detained in secure accommodation to be treated as “looked after” children
104.Section 24 inserts new section 17A into the Children (Scotland) Act 1995. It provides that where a child is detained in secure accommodation under section 51, 205, 208 or 216(69) of the 1995 Act, the child will be treated as a child “looked after” by the local authority for the purposes of section 17 of the Children (Scotland) Act 1995. Section 17(70) puts various duties on local authorities, primarily to safeguard and promote the welfare of looked after children, which will now apply to children detained by order of the court in criminal proceedings.
105.Section 17A also provides that a child detained by order of the criminal court is treated as a looked after child for the purposes of sections 29, 30 and 31 of the Children (Scotland) Act 1995. These sections are about the provision of after-care for looked after children after they cease to be so looked after, including financial support for education or training, as well as about reviewing the cases of looked after children. These sections will now apply to detained children as they apply to former looked after children.
Local authorities may provide and maintain residential establishments themselves, jointly with other local authorities or by securing their provision by voluntary organisations or other person. See section 59(2) of the Social Work (Scotland) Act 1968 (legislation.gov.uk).
These sections deal with detention on remand or committal before trial or sentence (section 51), detention without limit of time where the child is convicted of murder (section 205), detention when convicted on indictment (section 208) and detention for non-payment of fine (section 216). Although children can also be detained in secure accommodation by virtue of section 44 of the 1995 Act, section 17A does not need to apply to such children as section 44(3) provides that the local authority has the same powers and duties in relation to the child as if they were subject to a CSO. Section 17(6) of the Children (Scotland) Act 1995 provides that a “looked after” child includes a child subject to a CSO. So a child detained under section 44 is already treated as a looked after child.
