Commissioner’s investigation finds at-risk children may have been detained unlawfully


Vulnerable children in Scotland may have been detained unlawfully in secure accommodation, according to a new investigation.

The office of the Children and Young People’s Commissioner has found that children may have been deprived of their liberty without due process of law.

We’re now calling for local authorities and the Scottish Government to urgently review practice to ensure compliance with legal duties and human rights.

What the Commissioner’s Investigation was about

A:

The Commissioner has the legal power to investigate in some cases where he thinks rights promises to children and young people aren’t being kept in Scotland. It’s a way that our office can hold people in power to account and demand they make changes when they’re failing to follow the law around children’s human rights.

A:

Secure accommodation is a place where children can go to get help if it isn’t safe to live at home because they might hurt themselves or someone else.

To make sure that they get the help they need and to keep them safe, they are locked in and can’t leave. It is a place that children should only go if there is no other place where they can get help.

It is important that children are involved in the decision to send them to secure accommodation. They should understand why it is in their best interest to be there.

A:

Someone is deprived of their liberty when they are kept somewhere and not allowed to leave, under constant supervision and control.

A:

Due process means that a country has to respect all the legal rights it owes to a person.

For example, if a person is to lose their liberty, that should only happen after a process where standard laws and procedures are followed.

A:

A rule is statutory when it’s been officially written down in a law.

When someone doesn’t follow a statutory rule, then they are breaking the law.

The investigation focused on whether local authorities were complying with the laws around placing children in secure accommodation.

It found that some children’s human rights had been breached because there was no evidence those children had been consulted following the decision of a children’s hearing to authorise secure accommodation.

There was little communication provided to help their understanding about why they had been detained, and crucially, many had not been told about their right to appeal.

Bruce Adamson, the Children and Young People’s Commissioner Scotland, said:

“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 long-lasting 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.”

“Critical that these children understand what is happening to them”

A child is deprived of their liberty when they are kept somewhere and not allowed to leave, under constant supervision and control. Children in Scotland are locked up in secure accommodation for their own protection or the protection of others.

Nick Hobbs, Head of Advice and Investigations, said:

“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.”

What the investigation examined and what it found

Between August 1, 2018, and July 31, 2019, the investigation examined the cases of 118 children placed in secure accommodation across 27 local authority areas. They were detained for between 14 and 572 days. The research found that a significant number of these children may have been unlawfully held for at least part of their detention. Children in secure accommodation have a high level of need and vulnerability, which reinforces the need for their rights to be respected in the decision-making process.

Mr Hobbs said: “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.”

What are our recommendations following the investigation?

Following the investigation, the Commissioner recommends that:

  • Local authorities urgently ensure compliance with existing laws, and that they assess their policies and practices and compatibility with the European Convention of Human Rights (ECHR) 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.  


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