Children in Scotland may have been detained unlawfully in secure accommodation, according to a new report by the Children and Young People's Commissioner for Scotland. 

An investigation by the Commissioner's office has found that children may have been deprived of their liberty by local authorities who did not follow the correct procedures.

Children can be placed in secure accommodation for their own protection – if their home environment is unsafe – or the protection of others. While kept there they are locked in, are not allowed to leave, and are under constant supervision and control.

Between 1 August 2018 and 31 July 2019, the investigation examined the cases of 118 children placed in secure accommodation across 27 local authority areas, in relation to the performance of statutory duties by chief social work officers. Periods of detention ranged from 14 to 572 days. 

The report finds an inconsistency of approach, and that despite the requirements of the applicable regulations, there was little evidence that, following the decision of a children's hearing to authorise secure accommodation, children affected were consulted, or that the information obtained was recorded if they were, or that decisions then taken were notified to the children, along with their right to appeal. If correspondence was sent to a child, it did not provide a clear explanation particularly of how the child's views had been taken into account.

The legal protections, the report states, “recognise the significant level of interference in children's human rights when they are deprived of their liberty, the often acute vulnerability of the children concerned, and the imbalance of power between a child and the state”.

Its findings mean that “a significant number of children... may have been unlawfully deprived of their liberty for at least part of their detention”, in breach of the European Convention on Human Rights.

The report recommends that:

  • local authorities urgently ensure compliance with existing laws, and assess their policies, practices and compatibility with the European Convention and the United Nations Convention on the Rights of the Child (UNCRC);
  • the Scottish Government, which has overall responsibility for the legal framework, reviews the law in light of its commitment to delivery of recommendations of the Independent Care Review and implementation of the UNCRC Incorporation Bill.

It welcomes the fact that in response to the investigation, a number of authorities have already taken steps to review or amend aspects of their processes, policies or guidance. 

Bruce Adamson, the Commissioner, commented: “Taking away a child's liberty is one of the most serious restrictions a state can impose on children's human rights. It has deep and longlasting consequences, particularly on a child’s emotional and social development.

“Human rights law is clear that the detention of a child must be within the law and be only used as measure of last resort and for the shortest appropriate period of time.”

Nick Hobbs, head of Advice and Investigations at the Commissioner's office, added: “Secure accommodation should be reserved for those whose needs cannot be met in any other environment or place of safety. Decisions with such severe consequences are not taken lightly but we have found that in some cases they are being made without due process of law, which is in breach of children's human rights. It is critical that these children understand what is happening to them, that they are a key part of decisions that can impact the rest of their lives, and that they are told about their right of appeal.

“Children in secure care are some of the most vulnerable in Scotland. Local authorities in Scotland must urgently review their practice to ensure that they are acting within the law. These legal duties are critical to ensuring that every part of the process designed to protect them has their rights, views and experiences at its heart.”

Click here to access the report.