Chamber and committees

I am not necessarily opposed to that in principle. However, there are issues with data and what I have discussed around data protection. I am not opposed in principle, but the issue would need further consideration ahead of stage 3.

If Pam Duncan-Glancy does not mind, I will make some progress. I am happy to take the intervention prior to moving on to the next amendment.

Amendment 159 would make assessments mandatory in all circumstances, but we must recognise that they may not always be necessary and could lead to duplication. If, for example, a child was already being assessed and supported by child and adolescent mental health services at the point of admission to secure accommodation, a further mental health assessment would not need to be undertaken.

In any case, the responsibility for managing a child’s placement rests with the relevant local authority or, for some sentenced children, with the Scottish ministers. Therefore, it is unclear why or how the Scottish ministers could be responsible for meeting the duties under the amendment for all children in secure accommodation. However, as I have said, I am happy to consider that further.

I am now happy to take an intervention from Ms Duncan-Glancy.

I certainly can provide those reassurances. I will be getting on to some of those matters, which are covered in my notes. I will get back to those, but I will be happy to take any further questions from the member.

If it is passed, the bill will result in a very small increase in the number of older children in secure care who would otherwise have been placed in a young offenders institution. The latest figures show that there are only two under-18s in a YOI. As things stand, an under-18’s placement in a YOI is often due not to the type or severity of the offence that they have committed but to their legal status.

In respect of separating girls from boys, as is proposed by amendment 108, research carried out by Kibble found that, while gender is a consideration in placements, mixed-gender living is normal and beneficial, and it is reflective of the wider community experience. Along with other stakeholders, secure accommodation providers do not support such structured separation of children in secure accommodation. Such a change in practice would not be evidence based, nor would it be consistent with the Kilbrandon ethos. Roz McCall’s amendments would be disproportionate and unworkable, and they would further compound capacity challenges.

Amendment 221, in the name of the convener, relates to the ministerial approval process for a secure accommodation service. I understand that the intention is that, if a child has been harmed by another child or is the victim of an offence, they should not be accommodated alongside the child who has caused the harm or who has committed the offence. However, there are issues with the wording of the amendment, particularly in relation to not describing the “behaviour” that it references. That creates ambiguity around the intention of the provision and would make it impossible to implement in practice.

I agree with Sue Webber, in any case, that children should be safeguarded and protected, but amendment 221 does not seem necessary. As I have outlined, there are existing, vigorous processes in place for the admission of children into secure accommodation, and each case is considered individually. A robust matching process is undertaken before a child is placed in a particular secure accommodation setting, as underpinned by contractual requirements and underlined in recently published Care Inspectorate guidance.

As has happened in previous years, the amending order will increase the maximum income levels for families with a two-year-old who is eligible for funded early learning and childcare because they receive a joint working tax credit and child tax credit award or a universal credit award.

The relevant order currently specifies that a two-year-old is eligible for funded ELC if their parent is in receipt of a joint child tax credit and working tax credit award and has an annual income that does not exceed £8,717, or if their parent is in receipt of a universal credit award and has a monthly income that does not exceed £726 per month. The amending order will increase the maximum income level to £9,552 per year for households that receive a joint child tax credit and working tax credit award. The universal credit maximum income level will increase to £796 per month.

Essentially, we are making the proposed changes to reflect changes that have been made at UK level to the national living wage. I will leave it there.

Absolutely. As I have said, I am more than happy to consider and comment on that in due course.

Again, although I agree with the sentiments in amendments 155 and 156, they do not seem to be necessary. The secure care workforce is already, as it should be, highly trained to meet the needs of children and to appropriately support children who are in its care. The Care Inspectorate, the Scottish Social Services Council and Scotland Excel set and monitor the training requirements for secure accommodation staff, which include meeting the needs of children who have a wide range of complex and challenging requirements. Those include the need for evidence of implementation of restraint policy and the training of staff in such approaches and in de-escalation practices.

It is also mandatory that each secure accommodation service provider has a clear child protection policy that ensures that safeguards are in place for those using the service. Secure accommodation managers, in consultation with the head of unit, are under a legal obligation to ensure that, when a child is in secure accommodation, their welfare is safeguarded and promoted. Accommodating children together when there are clear welfare or safeguarding risks would run contrary to that.

In summary, as I understand it, the intention behind the convener’s amendment is already achieved through existing law and practice.

There are also technical issues with amendments 155 and 156. In particular, they are not clear about what is meant by “restrictive practice”, “de-escalation techniques” and “learning disabilities”. The amendments are less effective than current requirements, as they would simply require proposed service providers to make a commitment to train staff at an unspecified point in the future.

However, I appreciate where Mr Briggs is coming from with his amendments. I am not sure whether they were intended as probing amendments, but I would be more than happy to meet him ahead of stage 3 to discuss them. I therefore ask him not to move them at this stage.

Government amendments 110 and 111 relate to the definition of a “secure accommodation service” and address the concerns that some stakeholders, including service providers, raised at stage 1. Recognising those legitimate concerns, the Government committed to working with them to ensure that the definition aligns with the Promise recommendation on being clear

“that the underlying principle of Secure Care is the provision of therapeutic, trauma informed support.”

Amendments 110 and 111 do that by emphasising that the care, education and support that are provided to children in secure accommodation take account of the effects of trauma that they might have experienced.

Secure accommodation service providers are well versed in recognising and understanding the impact of trauma that individual children in their care may have experienced, and they work with children in a way that demonstrates that understanding. Amendments 110 and 111 therefore build on existing practice and ensure that trauma is given the prominence that it warrants in the “secure accommodation service” definition and that further context is provided on a service’s overall purpose.

Regarding amendment 213, the definition of a “secure accommodation service” already includes much of what is listed in the amendment as part of the service’s core purpose. All children’s health, education and other needs are individual, therefore they cannot be prescribed in legislation. Although secure accommodation providers must ensure that the welfare of all children is safeguarded and promoted, in practice that will be done in collaboration with other relevant authorities and in accordance with contractual arrangements.

I appreciate that the amendment is well intended, but it could cause confusion as to where responsibilities lie and compel secure accommodation services to ensure that support is provided even when a child is no longer accommodated by them. For example, local authorities already have after-care duties towards looked-after children under the Children (Scotland) Act 1995. It is not clear what a secure accommodation service could add to that, particularly as it will not maintain a relationship with a child once they leave secure care.

On amendments 157 and 158, I again do not consider that they are appropriate.

In relation to amendment 157, secure accommodation is a highly regulated and monitored sector, with a number of existing safeguards in place to ensure the safety of children being cared for and members of staff. Restraint is a very complex issue that applies to various settings. The national “Holding Safely” guidance is already in place and applies to all residential childcare settings, including secure accommodation. Although that guidance is specifically about physical restraint, the Scottish Government is clear that the wellbeing and safety of children is always paramount and that restraint should be used only as a last resort and in exceptional circumstances. The publication “Secure Care Pathway and Standards Scotland” also makes it clear that restraint should be used only “as a last resort” in cases where

“a child’s behaviour is considered to be a significant risk to themselves or others”.

Secure accommodation service providers have their own techniques, methodologies and training for staff on approaches to physical restraint and restrictive practice, based on that guidance. In my view, there is no need to supplement that with further guidance.

On amendment 158, data on specific uses of restraint in secure accommodation is not publicly available, as is appropriate to protect the rights and privacy of children in that setting. However, clear regulatory frameworks are in place to ensure that secure accommodation services report incidents of restraint to the Care Inspectorate. Therefore, the information-gathering and publication duty in the amendment appears to be unnecessary and would impose a disproportionate and misplaced burden on local authorities, which would not have ready access to the information specified. Local authorities are not subject to such duties in relation to any other care setting. In addition, as with some other amendments that I will come to, I have concerns about the data protection and rights implications of what amendment 158 proposes.

Lastly, in relation to amendments 159, 160 and 161, I completely understand the reasoning behind them. However, in addition to the fact that they raise some technical drafting issues in relation to definitions and data protection, I feel that the obligations that they propose could be problematic in practice.

I do not believe that I referred specifically to a preference to have all children as close to their local authority as possible. I re-emphasise my words about doing what is best for the child and taking that into account in every circumstance. We might prefer children to be placed outside their local authority only in exceptional circumstances, if that is best for the child, but that will be considered. The circumstances must be considered case by case. All children’s cases are individual. There could be reasons why a child would have to be placed away from their local authority. I really re-emphasise that the decision would come down to what was best for the child. However, in the Promise, there was a move towards fewer children moving outwith their local authority.

Our issue is about the definition of the offence. Behaviour is not necessarily negative. The amendment would not be workable in law, essentially. I am happy to have further meetings with the member on the wording. Discussions would need to take place on whether it could be workable, but that is the situation at the moment.

As I said, it would need to be clearer in terms of—

I thank Ross Greer and Miles Briggs for lodging their amendments. Secure transport of children is a very important matter, and a range of work is on-going in that area. As Ross Greer mentioned, the Government has worked with him on amendment 212, which has been carefully framed to take account of wider matters.

It is envisaged that the standards that ministers would be obliged to publish and report on would draw heavily on the service specification that the Scottish Government and the Convention of Scottish Local Authorities have produced. The committee heard about that at stage 1; however, it is not mandatory. Amendment 212 would therefore allow for a set of national standards to which all those who commission secure transport must adhere.

The service specification prohibits use of mechanical restraint, handcuffs or pain-inducing techniques. Careful consideration will be given to the issue before ministers produce the standards. We are aware that, as has been discussed this morning, restraint might be required as an option in a very small number of cases, as a last resort, either to protect a child or to protect those who transport them. The alternative might be the police being called, which would bring a criminal justice response.

On the subject of a national regulator, we have noted the concerns that were raised by the Care Inspectorate in its evidence, regarding its role and remit. However, I assure the committee that discussions on that are on-going. I cannot pre-empt them, but I reassure the committee and other members that existing legislative provision enables the functions of registering, regulating and inspecting secure transport services to be conferred on the Care Inspectorate. Although I am not saying that that is the direction in which things will certainly go, it is useful information in the context of the window of opportunity that is presented by the bill.

In addition, my officials continue to work with relevant agencies on a national contract that would standardise matters related to providers and provide an approach for across Scotland. I commend Miles Briggs for raising those matters in his amendment 162. He has said that he will not move the amendment, so I will not go into detail.

Mr Briggs also referred to data collection. I would be happy to have a discussion with him on any gaps that he feels there are in relation to production of the standards.

In summary, I support amendment 212 and I ask the committee to do likewise.