Memorandum submitted by the Law Society
The Family Law Sub-Committee of the Law Society
of Scotland (the Sub-Committee) welcomes the opportunity to assist
the Joint Committee on Human Rights with their inquiry on children's
This paper looks at the following issues:
Children in detention
In Scotland, the vast majority of children under
16 who are in detention have been placed there by the Children's
They are held in secure units, which contain only children and
young people under the age of 18. Although only children under
the age of 16 may be referred to the Children's Hearing system,
a young person may remain under a Supervision Requirement until
the age of 18. In criminal matters a young person who is over
the age of 16 and under the age of 18 may have their case referred
to the Children's Hearing System.
A child or young person may therefore be held in Secure Accommodation
if a Children's Hearing grants authorisation in addition to a
Supervision Requirement, or under a place of Safety Warrant,
or if ordered by a court.
If a Children's Hearing grants authorisation for
secure accommodation, such authorisation may only be granted for
a maximum period of three months
at a time. The child's case must be reviewed after each three-month
period. Place of Safety Warrants may only be granted for a duration
of 21 days, with the Hearing only being empowered to grant two
warrants immediately succeeding the initial warrant.
The criteria for authorising placement in Secure
Accommodation are clearly set out in section 70 (10) of the Children
(Scotland) Act 1995:
(a) having previously absconded, is likely
to abscond unless kept in secure accommodation, and, if he absconds,
it is likely that his physical, mental or moral welfare will be
at risk: or
(b) is likely to injure himself or some other
person unless he is kept in such accommodation."
Thus the welfare of the child is the paramount
consideration and the purpose of secure accommodation is the management
of the behaviour of the child and the prevention of further risk
while the child receives the necessary supports to deal with the
causes of their behaviour. The purpose of detention in secure
accommodation is not the punishment of the child or young person.
The Scottish Government, through the Secure
Accommodation (Scotland) Regulations 1996 has set down basic standards
for the care of children and young people held, and monitors the
units where such care is provided through inspections.
There are concerns, however, concerning the
actual day-to-day treatment received by such children and young
people in secure accommodation and compliance of their treatment
with the articles of the United Nations Convention on the Rights
of the Child.
1. Article 16 requires that children be protected
from arbitrary or unlawful interference with their right to privacy.
The practice at some units of routinely requiring children who
have been outwith the unit to remove all their clothing and to
do "star" jumps clad only in a dressing gown, while
their clothing is searched is not compatible with Article 16.
While it may be necessary to search children where there is reason
to believe that they have secreted drugs or dangerous items it
should not be routine.
2. There has been a practice at some units of
requiring children to conduct all telephone conversations in the
presence of staff as a routine measure. This is not compliant
with the article 16 right to privacy unless there is reasonable
cause to believe that it is necessary for the protection of the
child, or others that such confidentiality be breached.
3. Article 13 requires respect for medical confidentiality.
Children must be allowed access to medical practitioners without
the unit requiring that they disclose the reason, or the medical
practitioner being required to disclose details of the consultation
to the unit. In the case of a chronic or serious medical condition,
it will be necessary to encourage the child to permit the unit
to have details of the illness or condition and treatment.
4. The same Article 13 principle requires that
children held in secure accommodation have access to a complaints
system that respects their right to complain without that complaint
being read first by the staff of that unit. The current complaints
system does not have procedures which prevent staff opening the
sealed envelope in which the child places any complaint.
5. Article 3 requires that States Parties ensure,
among other things the health of children. Children held in secure
accommodation should have guaranteed access to fresh air and physical
activity. All too often access to exercise and fresh air can be
dependant on staff being free and willing to supervise.
6. The duties of States Parties in Article 3
require that the staff of secure units be able to provide for
the health of the child and, in order to ensure the effective
care for the mental health of children in secure accommodation,
consideration could to be given to:
(a) separation of particularly vulnerable
child who are in secure because of behaviour that is a danger
to themselves from those children who are held because they are
a risk to other;
(b) "in house" specialist treatment
for problems such as self harming and eating disorders so that
children can be treated effectively without need to be taken from
the unit to treatment which can be at a distance from the unit;
(c) effective training in the management
of self-harming and eating disorders for unit staff.
7. It is praiseworthy that the Scottish Government
has stated that no child is to be held in adult prison accommodation.
This should be extended to the transportation of children and
young people so that no child or young person is transported in
adult cellular transport or with adult prisoners. In addition,
it should be the requirement that no child can be subjected to
adult pain restraints whether within a unit, a holding area in
court or during transport.
Children's right to express views in relation
Article 12 of the United Nations Convention
on the Rights of the Child requires states parties to assure to
the child who is capable of forming his or her own views the right
to express those views freely in all matters affecting the child,
the views of the child being given due weight in accordance with
the age and maturity of the child. The article goes on to require
that children be provided the opportunity to be heard in any judicial
and administrative proceedings affecting the child, either directly
or through a representative or appropriate body, in a manner consistent
with the procedural rules of national law.
The requirements of article 12 are reflected in the
provisions of the Children (Scotland) Act 1995, and in particular
in section 11(7)(b) when a court is considering whether to make
an order relating to parental responsibilities or parental rights.
The court is required to give the child an opportunity to express
a view, if the child does so wish then to give the opportunity
to do so and finally to have regard to any views the child does
express. It has been recognised that this provision reflects the
terms of article 12 and failure to give the child the opportunity
to express a view is treated as an error of law.
There are similar provisions affecting the children's hearing
and the sheriff in proceedings relating to the protection of children's
There are no corresponding provisions in relation to education.
Education is clearly a matter affecting the
child for the purposes of article 12. The Scottish Parliament
has recognised that article 12 applies in the sphere of education.
Section 2(2) of the Standards in Scotland's Schools etc. Act 2000
requires education authorities to have regard, so far as reasonably
practicable, to the views (if there is a wish to express them)
of the child or young person in decisions that significantly affect
that child or young person, taking account of the child or young
person's age and maturity. This duty is not dissimilar from the
obligation on a parent to have regard to the views of children.
What is missing is any provision for the child to have the opportunity
to be heard in judicial and administrative proceedings relating
to education. As is recognised by article 12 itself a general
requirement to have regard to the views of the child is likely
to be ineffective unless there is a specific mechanism to give
the child the opportunity to express a view as part of the procedure
relevant to judicial or administrative proceedings.
Within the field of education there are four
areas in particular where children's views are relevant but there
is no procedural requirement to give the child the opportunity
to express a view:
1. Placing requests. The only person entitled
to make a placing request for a child of school age to attend
a particular school is a parent.
The only person who may appeal to an appeal committee
and make an appeal to the sheriff
is a parent. There is no provision for the child to be given the
opportunity to be express a view to either the appeal committee
or the sheriff. This is contrary to the terms of article 12(2).
2. Exclusion appeals. When a child of school
age is excluded from school the parent may refer the exclusion
to an appeal committee and may appeal to the sheriff.
The Standards in Scotland's Schools etc Act 2000 gave pupils with
legal capacity the same right to appeal as the parent.
While this does reflect some concession to children's rights the
following problems remain:
If the parent appeals, but not the
child, there is no provision for the child to be given the opportunity
to express a view to the appeal committee or the sheriff.
Only a child with legal capacity
may appeal. The test of legal capacity is whether a child has
a general understanding of what it means to instruct a solicitor.
No legal aid is available for a child to instruct a solicitor
in a reference to an appeal committee. In practice a child is
unlikely to be able to instruct a solicitor without legal aid.
The right conferred on the child is therefore ineffective in most
It is unclear whether both the parent
and the child have a right to appeal, or whether an appeal by
one will preclude an appeal by the other. Both may have an interest
in appealing, but their positions may differ. The lack of clarity
undermines the effectiveness of the provision as an appeal right
These difficulties indicate that further consideration
is required to make the procedures relating to exclusion compliant
with article 12(2).
3. References to the Additional Support Needs
Tribunal. The ASNT was established pursuant to the Education (Additional
Support for Learning) (Scotland) Act 2004. It operates under the
Additional Support Needs Tribunals for Scotland (Practice and
Procedure) Rules 2006.
It deals with matters relating to co-ordinated support plans for
children for the purposes of their education. Although this is
a new tribunal with new rules, no consideration appears to have
been given to article 12. The rules are actively restrictive in
relation to giving the child the opportunity to be heard. Rule
33 provides that the tribunal may permit a child under the age
of 12 to give evidence only where it considers (a) that the evidence
of the child is necessary to enable a fair and just hearing of
the reference; and (b) that the welfare and interests of the child
will not be prejudiced by so doing. If the child is allowed to
give evidence the convenor may appoint a person with appropriate
skills or experience to facilitate the giving of evidence by the
child. The latter provision is consistent with article 12, but
the lack of any other procedure for the child's views to be made
known to the tribunal does not accord with article 12(2).
4. Consultation on changes in education. When
an education authority proposes to make certain changes in the
provision of education they are bound to undertake consultation.
The changes include closing a school, changing the site of a school,
providing a new school and altering the way places in schools
are allocated or changing guidelines for dealing with placing
requests. Regulations specify who should be consulted and in what
way the consultation should be carried out.
Parents and other interested persons and groups are given an opportunity
to express a view. While this is not a judicial process, consultation
is an important administrative process. It would be consistent
with article 12 for the position of children to be recognised
in the relevant regulations. It would be relatively straightforward
to include in the regulations a mechanism for giving children
in attendance at a school affected by a proposal the opportunity
to express a view.
271 Children (Scotland) Act 1995, s 70 (9). Back
Criminal Procedure (Scotland) Act 1995 s 49. Back
s 69 (11). Back
Criminal Procedure (Scotland) Act 1995 s 44, s 51. Back
Secure Accommodation (Scotland) Regulations. Back
S v S, 2002 SC 246. Back
Children (Scotland) Act 1995, s 16(2). Back
Children (Scotland) Act 1995, s 6(1). Back
Education (Scotland) Act 1980, s 28A. Back
Education (Scotland) Act 1980, s 28C. Back
Education (Scotland) Act 1980, s 28F. Back
Education (Scotland) Act 1980, s 28H. Back
S 41. Back
Age of Legal Capacity (Scotland) Act 1991, s 2(4A). Back
SSI 2006/88. Back
Education (Scotland) Act 1980, s 22A. Back
Education (Publication and Consultation etc ) (Scotland) Regulations
1981, SI 1981/1558, as amended. Back