Seòmar agus comataidhean

It would be helpful to establish for the committee and for the record that a police cell would be used only in one rare circumstance, which is when a child behaves in an exceptionally violent manner or their behaviour poses extreme risk to someone else.

Under the place of safety power, it would be unusual for the police to take a child to a police station, never mind to take the step of putting them in a police cell. If police had concerns about a child and were using the power, they would contact social work and the local authority to try to identify a relevant place that would best meet the child’s needs for a place of safety. Local authorities could identify various places; it could be a care home, or, if that child had identified medical needs, it could be a hospital. A police station would be the last resort, and the use of a police cell would be in extremis.

There would be only one reason for a child to be kept in a cell as a place of safety, and that would be, as I outlined earlier, if they were behaving in an exceptionally violent manner or posing an acute threat to someone else.

On why someone would go to another place of safety, the police would liaise with social work, which would take a holistic view using a getting it right for every child approach to consider what is in the best interest of that child and where would best suit their needs. Social work would consider the situation from a child protection and child safeguarding point of view in relation to whether the child needed to go to a place of safety until they were able to be returned home or to another appropriate adult.

I will take the first part of that question and then I will hand over to Lynsey McKean on compliance.

The 2019 act placed a duty on the Scottish ministers to review its operation in general and with a view to considering the future age of criminal responsibility. The three-year review period started on 17 December last year, which was the day that section 1 of the act came into force. In carrying out that review,

“the Scottish Ministers must consult such persons as they consider appropriate”

and must lay a report before the Parliament within 12 months of the completion of the review period.

An advisory group has been established to support that work and it has met since summer 2019. The review will ensure that the operational learning and experience from the implementation of the act will inform the discussions that we have about the future age of criminal responsibility in Scotland.

I hope that that gives the member an overview of some of the work that is going on. I am sure that we will come back to the matter in future as the review reports.

Yes, I confirm that that is correct. The police can engage with children who are under the age of 12.

The regulations give Scottish ministers the power to apply to the sheriff court for an enforcement order if a placing authority does not comply with its obligations under the regulations. The process to be followed broadly mirrors the process that would apply if a Scottish local authority was in breach of its obligation to a Scottish child when a children’s hearing had made an order. Scottish ministers would give the authority a notice of intended application by them to enforce the authority’s duty. The matter would escalate to the sheriff court only if the authority did not fulfil its duty within 21 days, as per the order that I previously referenced.

If ministers brought the matter to court, the sheriff could make an enforcement order if it was found that the placing authority was in breach of its duties under the regulations, and that order would be final. That process, if it was required, would be undertaken by ministers—who retain oversight through engagement by way of the child’s advocate—Scottish local authorities and the Care Inspectorate, all of which would be able to report concerns or worries.

We initially put out a call for views and held an engagement with stakeholders in January this year, to which the commissioner’s office contributed, and a summary of the stakeholders’ views was also published in March this year. It was not appropriate for us to share drafts of the regulations before sharing them with Parliament.

I am happy to hand over to Hannah Graham, who will explain the process for regulations of this type.

We are aware that there are cross-border placements, but I do not think that the new arrangements will incentivise them. The current Scottish process provides legal recognition of the order, but the High Court does not scrutinise the order or challenge why the order was made or extended. The High Court fully owns the order and reviews the placements, and that will continue. Placing authorities will still need to apply for DOL orders, and any extension of those orders, under the jurisdiction of the High Court. The regulations provide for the recognition of those orders only for a renewable period of up to three months at a time. There will have to be a regular review of the child’s placement and whether it is still appropriate and in their best interests.

The regulations and administrative arrangements seek to better regulate cross-border placements through the information-sharing requirements that we have spoken about and through making it clear that the placing authority is responsible for the child and for the care that they get in their placement. It will incentivise placing authorities to remain fully engaged with the child’s placement and to actively safeguard the child’s welfare.

As you have said, monetisation of the placement of children is certainly a concern for the Scottish Government. As part of the care and justice bill consultation, we are looking at our current secure provision, what secure care provision we would need for the Scottish population and how that can be sustained. We need to think about how we can assist that service to be economically viable. We are alive to that and officials are working through how we can sustain provision. We will need secure care for Scottish children.

There are certainly pressures on the court in that the mechanism for approving DOLs, or recognising DOLs under Scots law, as it currently stands, was not designed for routine use; it was for exceptional use. I am not putting that in legal language—

The regulations are about achieving the recognition of DOL orders in Scots law without having to go through a superior court route. They are therefore quite narrow in their intent. However, we have added on to that some additional safeguards and services such as advocacy for children.

We are currently undertaking a consultation on the proposed children’s care and justice bill, part of which will consider regulation and the role of the Care Inspectorate in secure care placements. Such issues should be examined in the consultation process; they are not within the scope of the regulations that are before the committee.