B.j. V. Pauline Proudfoot Children's Reporter For Stirling+the Lord Advocate

JurisdictionScotland
JudgeLady Paton,Lord Hardie,Lord McEwan
Judgment Date26 October 2010
Neutral Citation[2010] CSIH 85
CourtCourt of Session
Date26 October 2010
Published date26 October 2010
Docket NumberXA156/09

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lady Paton Lord Hardie Lord McEwan [2010] CSIH 85

XA156/09

OPINION OF LADY PATON

in the cause

BJ

Appellant;

against

PAULINE PROUDFOOT, Children's Reporter for Stirling

Respondent:

and

THE LORD ADVOCATE

Sisted Party

_______

Appellant: O'Brien QC, Halley; Drummond Miller LLP (For Jardine Donaldson)

Respondent (the Reporter): Moynihan QC; Brodies LLP (For McSparran McCormick)

The Lord Advocate: Mure QC, McBrearty; Scottish Government Legal Directorate

26 October 2010

Child in secure accommodation: whether human rights breached

[1] On 16 February 2009, a children's hearing in Stirling varied a supervision requirement in respect of a child BJ born on 7 December 1993 ("the appellant"), and decided that she was liable to be placed in secure accommodation in terms of section 70 of the Children (Scotland) Act 1995 as amended by section 135 of the Antisocial Behaviour etc (Scotland) Act 2004. The actual placement of the child was effected by two officials, namely the chief of social work for the area, and the head of the secure accommodation. As the placing and keeping of the child in secure accommodation constituted a deprivation of liberty, articles 5 and 6 of the European Convention on Human Rights (ECHR) were engaged. The appellant contends that section 70 as amended does not comply with articles 5(4) and 6(1), in respect that the deprivation of liberty was left in the hands of two officials who had the power to subvert the hearing's decision. Thus the appellant's human rights were breached.

Articles 5 and 6 of the European Convention on Human Rights

[2] Article 5 of the ECHR provides:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; ...

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

[3] Article 6 provides:

"1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..."

The domestic legislation

[4] Section 70 of the Children (Scotland) Act 1995 ("the Act"), as amended by section 135 of the Antisocial Behaviour etc (Scotland) Act 2004 ("the 2004 Act"), provides:

"(1) Where the children's hearing to whom a child's case has been referred under section 65(1) of this Act are satisfied that compulsory measures of supervision are necessary in respect of the child they may make a requirement under this section (to be known as a "supervision requirement") ...

(3) A supervision requirement may require the child -

(a) to reside at any place or places specified in the requirement; and

(b) to comply with any condition contained in the requirement...

(7) A children's hearing who make a supervision requirement may determine that the requirement shall be reviewed at such time during the duration of the requirement as they determine ...

(9) A children's hearing may exercise a power mentioned in subsection (9A) below in relation to a child if they are satisfied -

(a) that one of the conditions mentioned in subsection (10) below is met; and

(b) that it is necessary to exercise the power concerned.

(9A) The powers are -

(a) that the children's hearing may specify in the supervision requirement that the child shall be liable to be placed and kept in secure accommodation in a residential establishment specified, under subsection (3)(a) above, in the requirement, during such period as the person in charge of that establishment, with the agreement of the chief social work officer of the relevant local authority, considers necessary; and

(b) that the children's hearing may impose, under subsection (3)(b) above, a movement restriction condition.

(10) The conditions are -

(a) that the child, having previously absconded, is likely to abscond and, if he absconds, it is likely that his physical, mental or moral welfare will be at risk; and

(b) that the child is likely to injure himself or some other person ..."

[5] Subordinate legislation, namely The Secure Accommodation (Scotland) Regulations 1996 (SI 1996/3255) ("the Regulations") further provides:

"Welfare of children in secure accommodation

4. - (1) Subject to paragraph (2), the managers in consultation with the person in charge shall ensure that the welfare of a child placed and kept in [secure] accommodation is safeguarded and promoted and that the child receives such provision for his education, development and control as is conducive to his best interests ...

Maximum period in secure accommodation under the Act without authority

5. - Subject to the provisions of regulation 8 the maximum period during which a child may be kept under the Act or the 1995 Act [the Criminal Procedure (Scotland) Act 1995] in secure accommodation without the authority of a children's hearing, or, as the case may be, of the sheriff, is an aggregate of 72 hours (whether or not consecutive) in any period of 28 consecutive days.

Children subject to certain supervision requirements - interim placement

6. - [Sub-sections (1) and (2) provide for the placement in secure accommodation of a child who is subject to a supervision requirement but not subject to a condition that he be liable to be placed and kept in secure accommodation, provided that the chief social work officer of the local authority (who gives effect to the supervision requirement) and the person in charge of the secure accommodation are satisfied that the criteria specified in paragraph (a) or (b) of section 70(10) are met, which placement must be accompanied by an immediate written report to the Principal Reporter] ...

(3) On receipt by the Principal Reporter of the referral and information under paragraph 2(b), he shall arrange for a review of the child's case by a children's hearing ...

(4) The review of the child's case referred to in paragraph (3) shall take place no later than 72 hours from the time of the placement of the child in secure accommodation.

Information provided to a children's hearing by a local authority in relation to the use of secure accommodation

10. - A local authority may submit a report in writing to the children's hearing recommending that a child be placed in a named residential establishment providing secure accommodation subject to a condition or order that he is liable to be kept in secure accommodation only if they are satisfied that the matters referred to in regulation 6(1)(a) and (b) are met.

Review of supervision requirement

11. - Where a children's hearing imposes or continues a condition under section 70(9) of the Act, either on the making of a supervision requirement under section 70(1) of the Act or the continuation of a supervision requirement under section 73(9)(e) of that Act, the Principal Reporter shall arrange a review of the supervision requirement under section 73(8) within 3 months of the condition under section 70(9) being made or continued ...

12. - (1) A child subject to a supervision requirement with a condition imposed under section 70(9) of the Act or any relevant person may, in writing, require the Principal Reporter to make arrangements under section 73 of the Act to have the supervision requirement reviewed by a children's hearing if in the preceding 6 weeks the child has not been placed in secure accommodation by virtue of that condition.

(2) Where a notice is given to the Principal Reporter by a child or any relevant person under paragraph (1), the Principal Reporter shall arrange a children's hearing within 21 days of the receipt by him of the notice."

The appellant's history

[6] The appellant was born on 7 December 1993. Her early childhood was troubled, contributing factors being the separation of her parents; suspected sexual abuse by a local man; and her mother's failure properly to care for her. From March 2003 until April 2007, the appellant lived with foster parents. She was then placed in a residential school. That placement broke down, and on 9 May 2007 she was accommodated in a residential care unit at Bannockburn. On 3 September 2008 the children's hearing continued a supervision requirement in terms of section 73(9)(e) of the Act. On 24 October 2008 there was an emergency transfer of the appellant to The Elms Secure Unit, Dundee. On 24 October and 11 November 2008, two secure warrants were issued in terms of section 66 of the Act. On 2 December 2008 a Place of Safety Warrant resulted in a termination of the secure accommodation, with the appellant being placed at the residential care unit in Bannockburn, the Brucefield Unit. On 16 December 2008 a secure warrant was issued, and the appellant was again placed in secure accommodation in The Elms. On 5 January 2009 the children's hearing applied to the sheriff to find established certain grounds of referral not accepted by the appellant and her mother. The hearing issued a warrant in terms of section 66, ordering the appellant to be placed in secure accommodation. On 30 January 2009, amended grounds of referral were accepted by the appellant and her mother. As a result, the sheriff dispensed with the hearing of evidence, found the grounds established, and remitted the matter to the children's hearing for disposal. On 3 February 2009, the appellant was charged with wilful fire-raising and resisting arrest, arising from an incident which occurred while the appellant was resident at The Elms Secure Unit. The appellant denied any involvement. On 16 February 2009, her case came before the children's hearing.

The...

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