Secure Accommodation (Scotland) Amendment Regulations 2016 [Draft]
Continuing Care (Scotland) Amendment Order 2016 [Draft]
Good morning. I welcome everybody to the second meeting in 2016 of the Education and Culture Committee and remind everybody present to ensure that all electronic devices, particularly mobile phones, are switched off.
Our first item is to take evidence on two pieces of subordinate legislation: the draft Secure Accommodation (Scotland) Amendment Regulations 2016 and the draft Continuing Care (Scotland) Amendment Order 2016. I welcome to the committee the Minister for Children and Young People, Aileen Campbell, and her accompanying officials. Good morning to you all and a happy new year. I do not think that I have seen any of you this year yet.
After we have taken evidence on the instruments, we will debate the motions in the name of the minister under agenda items 2 and 3. Officials are not permitted to contribute to the formal debates, of course. I invite the minister to make some opening remarks on both instruments.
Thank you, convener, and happy new year to you and the rest of the committee. I thank the committee for the opportunity to introduce the two draft instruments.
The draft Secure Accommodation (Scotland) Amendment Regulations 2016 make provision for the time limits for and the hearing of evidence in relation to appeals against a chief social work officer’s decision to detain a child in secure accommodation when an order has been made by a sheriff under section 44 of the Criminal Procedure (Scotland) Act 1995.
When a child over 12 is found guilty of certain summary criminal offences, section 44 of the 1995 act allows a sheriff to order that the child be detained in residential accommodation for up to a year. Those offences are imprisonable if they are committed by someone aged over 21, but an important point is that the section 44 provisions do not extend to indictable offences or murder.
A child who is subject to a section 44 order may be placed in secure accommodation but only if certain conditions are met. The decision to place the child in secure accommodation is taken by the chief social work officer of the local authority, but before such a decision is taken, the officer has to consult the child, each relevant person and the head of the secure unit. In 2013-14, which is the most recent year for which we have reports, fewer than five children were placed in secure accommodation as a result of section 44 orders.
Although there is already a right of appeal under the 1995 act against any section 44 order made by a sheriff, and although the decision by a chief social work officer to place the child in secure accommodation is also subject to a review process, there has previously been no right of appeal against the decision to place the child in secure accommodation in such circumstances. We, along with partners and stakeholders, considered that there was an opportunity to improve that position.
The substantive issue was addressed in section 91 of the Children and Young People (Scotland) Act 2014, which inserted new section 44A into the 1995 act to create a right of appeal against the chief social work officer’s decision. The amendment regulations supplement those 2014 act changes by setting out further detail of the procedure relating to such appeals, including detail on timescales, taking evidence and obtaining the child’s views. Alongside the changes that have already been made to court rules and the 1995 act, the regulations will create a process that reflects as closely as possible the appeal arrangements for children who are placed in secure accommodation via the children’s hearings system.
The draft Continuing Care (Scotland) Amendment Order 2016 amends article 2 of the Continuing Care (Scotland) Order 2015 to increase, from 1 April, the upper age limit for eligible persons specified for the purposes of section 26A(2)(b) of the Children (Scotland) Act 1995 from 17 to 18 years of age. That means that, for the purposes of the duty on local authorities to provide continuing care under section 26A of the 1995 act, an eligible person will from 1 April be a person who is at least 16 years of age but who has not yet reached the age of 18. By virtue of article 3 of the 2015 order, the local authority’s duty to provide continuing care lasts from the date on which the eligible person ceases to be looked after until the date of their 21st birthday.
In summary, part 11 of the 2014 act, on continuing care, and the accompanying secondary legislation stress the importance of encouraging and enabling young people to remain in safe and supported environments until they are ready to make a more graduated transition out of care. That will help to normalise the experience by allowing strong and positive relationships between the young person and their carer to be maintained into adulthood. The draft order essentially makes a procedural amendment to increase the upper age limit for eligible persons from 17 to 18 years of age as part of an agreed annual roll-out strategy.
That concludes my remarks, and I am happy to take questions on both draft instruments.
Thank you very much, minister. Do members have any questions?
I have a brief question, convener.
Good morning, minister. Paragraph 4 of proposed new regulation 11A of the Secure Accommodation (Scotland) Regulations 2013, as inserted by regulation 3 of the draft Secure Accommodation (Scotland) Amendment Regulations 2016, says:
“The sheriff may hear evidence from ... the child”
or
“each relevant person in respect of the child”.
The committee has previously discussed the issue of the capacity of the child or the person acting on the child’s behalf. In such circumstances, who decides the capacity of the child or
“each relevant person in respect of the child”?
Is that down to the sheriff?
It is important to remember that the regulations in question relate to children over the age of 12. There are always appropriate ways of assessing the child’s capacity and there will have been close working on the matter before the decision was made to put the child into a secure unit.
Does John McCutcheon want to say anything more about the social work officer’s role in assessing capacity?
If my memory serves me correctly, I think that there is something in the 2014 act, or at least built into the sheriff court rules, that says that the sheriff can take the child’s views into account, bearing in mind the child’s age and their ability to offer a view.
I understand that, but we heard in a previous conversation that there was an age limit on that, as well. There is still the question whether a child over the age of 12, or indeed the parent or person who is responsible for the child, has the capacity to address the issues. Are you saying that you will leave it to the sheriff to decide that?
A child over the age of 12 will be presumed to have capacity, but there will clearly have been intervention in that child’s life and a lot of support and other interventions put in place given the decision to put the child into a secure unit.
The legislation also has to take cognisance of getting it right for every child and all the checks and balances in it to ensure that child-centred decisions are taken. The amendment regulations will allow the child to have the same right to make an appeal if they do not agree with the decision that they would have if they had been put into a secure unit through the children’s hearings system. That brings that side of the secure unit legislation up to pace with the legislation relating to children who are placed in a secure unit through the hearings system. The regulations are about bringing about that equality and righting the anomaly in the legislation. However, the GIRFEC legislation will capture those children as well and ensure that the decision is child centred, because it is a serious decision. The regulations will allow the child to make an appeal if they deem that the decision was not appropriate.
We support that, but it is important that we do not leave it to the sheriff to decide who is able and who is not able to offer a view and that there is a basis for that decision.
On the draft Continuing Care (Scotland) Amendment Order 2016, paper 1 says:
“The Policy Note explains that in line with discussions during the passage of the Children and Young People (Scotland) Bill when the Continuing Care provisions were being developed, this upper age limit will be extended annually ... up to 21.”
Why do we not just go to the age of 21 now instead of going from 18 to 19 the next year and then 20 the next year?
Members who were on the committee when we passed the 2014 act will know that the aspiration is to get to 21, but the practicalities of doing that have meant that the agreed roll-out is to extend the limit every year. That will capture the young folk who ordinarily would have had to exit their care placement if the legislation had not been changed. This is about the gradual, increased roll-out of the policy to capture all those young folk. It does not make any difference whether they are 16 to 17 or 17 to 18; the same young people will eventually get to the age of 21, and they can decide whether they want to stay in their care placement. That approach allows us to make the transition in a sustainable way that will allow the care placements to cope; it was agreed that that approach would be taken to the roll-out.
Okay. Thank you.
I apologise for my late arrival, which was due to flight problems.
On the subject that Chic Brodie referred to, the minister will recall that, during the passage of the Children and Young People (Scotland) Bill, I was one of the people who advocated an extension to the age of 21. I think that, by the end of the evidence taking, the whole committee found compelling the argument that the minister has put on why a more graduated approach was appropriate. We want to put in place something that is sustainable and delivers the objective. The evidence that we received initially suggested that some 16-year-olds would find themselves having to cope with exiting the care system when they were about to sit key life-stage exams, for example, and I think that everybody accepted that we did not want to be in that place.
I acknowledge the fact that the instrument is coming forward, and I hope that it will have the effect that we all aspired to during the passage of the Children and Young People (Scotland) Bill.
I have a brief question on both instruments. It is interesting that you are revising the 1995 act, which is from 20 years ago. We would always expect a right to appeal in new legislation. Have you carried out a review of any other legislation that relates to children that might require subordinate legislation to bring forward a right of appeal, or is this just a one-off?
Sorry, but do you mean in any element of children’s policy?
Yes. Given that you are revising something that is 20 years old, which is welcome, is there any other legislation relating to children where a right of appeal is absent? Have you carried out a wider review?
10:15
Not to my knowledge but, if other things crop up, we will endeavour to let you know. The regulations are about rectifying an anomaly to allow the group of young people in question to have the same rights of appeal as those in the children’s hearings system have.
I agree with the measure; I am just surprised that the original provision was made in 1995. The change is welcome, nonetheless.
There are many parts of the 1995 act that many parties have been quite determined to ensure that we do not touch. I am sure that you are well aware of the policy differences that exist between our respective parties. Certainly, there are no further measures imminent or on the horizon.
My second question relates to the policy note on the draft Continuing Care (Scotland) Amendment Order 2016. I was slightly surprised to read that
“no Business and Regulatory Impact Assessment (BRIA) is necessary ... in line with the Financial Memorandum”.
I was not a member of the committee when it considered the Children and Young People (Scotland) Bill, but I listened to what you said. Is there no financial impact or additional cost as a result of the duty to provide continuing care and strong positive relationships with carers?
The order is part of the gradual roll-out of the already agreed policy in the Children and Young People (Scotland) Act 2014, the accompanying financial memorandum to which outlined—
So the money has already been allocated.
Yes. To go back to what Chic Brodie and Liam McArthur said, this is about a transition to get to the place where we want to be, which is to allow young people to stay in care up to the age of 21. That was all dealt with in the financial memorandum that was developed for the 2014 act.
So you are saying that there will be additional costs but that they are already accounted for.
Yes.
On the draft Secure Accommodation (Scotland) Amendment Regulations 2016, you talked about the introduction of an appeal process under section 44A of the 1995 act. I think that that is covered in paragraph 6 in the policy note. Clearly, the change is welcome, but are you aware of any adverse impact on children who have been involved in the process, given that we are only now introducing an appeal process?
No. From memory, I think that around five children a year go into a secure unit through the route that we are talking about. The regulations ensure that the right of appeal exists for such children and that the legislation is robust. The reality is that very few children and young people go into a secure unit through that process. However, that does not mean that this is not the right thing to do.
I have just been handed a note that confirms that, in the most recent year for which we have a report, there were five such children and we are not aware of any adverse effect on them. The regulations will rectify the anomaly and ensure that the system is robust and allows for an appeal. The reality is that few children go into a secure unit through that route.
I realise that the numbers are small, but clearly if those five individuals had issues—
They did not, as far as we are aware.
Okay—thank you very much.
As members have no more questions, we will move on to agenda item 2, which is the formal debate on the draft Secure Accommodation (Scotland) Amendment Regulations 2016. I invite the minister to move motion S4M-14968.
Motion moved,
That the Education and Culture Committee recommends that the Secure Accommodation (Scotland) Amendment Regulations 2016 [draft] be approved.—[Aileen Campbell.]
Motion agreed to.
We now move to agenda item 3, which is the formal debate on the draft Continuing Care (Scotland) Amendment Order 2016. I invite the minister to move motion S4M-14984.
Motion moved,
That the Education and Culture Committee recommends that the Continuing Care (Scotland) Amendment Order 2016 [draft] be approved.—[Aileen Campbell.]
Motion agreed to.
I thank the minister and her officials for attending. I suspend the meeting briefly.
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