Children (Care and Justice) (Scotland) Act 2024

JurisdictionScotland
Year2024
Citation2024 asp 5


Children (Care and Justice) (Scotland) Act 2024

2024 asp 5

An Act of the Scottish Parliament to make provision to bring all under 18s within the scope of the children’s hearings system and about the measures that may be included in compulsory supervision orders, the provision of information to certain persons as to disposals made by the hearings system, and about supervision and guidance for children after age 18; to make provision treating under 18s as children for the purposes of the criminal justice system and about how children are treated in that system, including providing for new safeguards for children in court, the circumstances in which courts must seek advice from a children’s hearing or remit the case to a hearing for disposal, the court’s power to impose driving disqualifications and penalty points despite so remitting, the operation of sexual offences notification requirements on such remittal, and the use of secure accommodation, and removing the option of young offenders institutions and remand centres, when detaining children; to make changes to provision on secure accommodation and the regulation of secure accommodation services, including those services which take children from other parts of the United Kingdom; to change the age at which a person is a child for the purposes of antisocial behaviour orders; to repeal provisions on the named person service and on child’s plans; to make provision about UNCRC compatibility issues in relation to decisions to prosecute children; and for connected purposes.

[04 June 2024]

1 Children’s hearings system

Part 1

Children’s hearings system

S-1 Age of referral to children’s hearing

1 Age of referral to children’s hearing

(1) The Children’s Hearings (Scotland) Act 2011 (“the 2011 Act”) is amended as follows.

(2) In section 199 (meaning of “child”)—

(a)

(a) in subsection (1)—

(i) for “16” substitute“18”,

(ii) for “subsections (2) to (9)” substitute“subsection (2)”,

(b)

(b) subsections (3) to (9) are repealed.

S-2 Children’s hearing: duty to have due regard to effects of trauma on child

2 Children’s hearing: duty to have due regard to effects of trauma on child

(1) The 2011 Act is amended as follows.

(2) After section 7 insert—

S-7A

7A

7A. Children’s hearing: duty to have due regard to effects of trauma on child

(1) This section applies where a children’s hearing is held for the purpose of carrying out functions conferred on a children’s hearing by virtue of this Act or any other enactment.

(2) The children’s hearing must, in carrying out its functions, have due regard to the need to treat the child to whom the hearing relates in a way that—

(a)

(a) takes account of the effects of trauma which the child may have experienced, and

(b)

(b) seeks to avoid, or minimise the risk of, exposing the child to—

(i) any recurrence of past trauma, or

(ii) further trauma.

(3) The National Convener must, so far as practicable, ensure that the children’s hearing, in carrying out its functions, has due regard to that need.

(4) In this section—

(a)

(a) “children’s hearing” includes a pre-hearing panel,

(b)

(b) in subsection (2), in so far as it applies to a pre-hearing panel, the reference to the child to whom the hearing relates is to be read as a reference to the child in relation to whom a children’s hearing is to be held.”.

(3) In section 177 (children’s hearings: procedural rules), in subsection (2), after paragraph (h) insert—

“(ha)

“(ha) treating the child to whom a children’s hearing relates in a way that—

(i) takes account of the effects of trauma which the child may have experienced, and

(ii) seeks to avoid, or minimise the risk of, exposing the child to any recurrence of past trauma or to further trauma,”.

(4) In schedule 2 (the Children’s Panel), in paragraph 3(3), after “may” insert

“—

(a)

(a) treat the child to whom a children’s hearing relates in a way that—

(i) takes account of the effects of trauma which the child may have experienced, and

(ii) seeks to avoid, or minimise the risk of, exposing the child to any recurrence of past trauma or to further trauma, and

(b)

(b) ”.

S-3 Child assessment and child protection measures: secure accommodation

3 Child assessment and child protection measures: secure accommodation

(1) The 2011 Act is amended as follows.

(2) In section 35 (child assessment orders), in subsection (3), at the end of paragraph (b) insert “(but see section 57A(2)),”.

(3) In section 37 (child protection orders), in subsection (2), at the end of paragraph (b) insert “(but see section 57A(2)),”.

(4) In section 55 (application to justice of the peace), in subsection (1), at the end of paragraph (b) insert “(but see section 57A(2)),”.

(5) In section 56 (constable’s power to remove child to place of safety), in subsection (1), after “may” insert “, subject to section 57A(3),”.

(6) In section 57 (sections 55 and 56: regulations), in subsection (1), after “safety” insert “(other than secure accommodation)”.

(7) After section 57 insert—

Emergency placement of child in secure accommodation

S-57A

57A

(1) Subsection (2) applies to—

(a)

(a) a child assessment order,

(b)

(b) a child protection order,

(c)

(c) an order made by a justice of the peace under section 55.

(2) The order may not include an authorisation that enables the child to be taken or removed to, and kept in, a place or, as the case may be, a place of safety that is secure accommodation unless—

(a)

(a) one or more of the conditions mentioned in subsection (4) applies, and

(b)

(b) having considered the other options available, the sheriff or, as the case may be, the justice of the peace is satisfied that it is necessary to include such an authorisation in the order.

(3) A constable may not, under section 56(1), remove a child to a place of safety that is secure accommodation and keep the child there unless—

(a)

(a) one or more of the conditions mentioned in subsection (4) applies, and

(b)

(b) having considered the other options available, the constable is satisfied that it is necessary to do so.

(4) The conditions are—

(a)

(a) that—

(i) the child has previously absconded and is likely to abscond again unless the child is kept in secure accommodation, and

(ii) if the child were to abscond, it is likely the child’s health, safety or development would be at risk,

(b)

(b) that the child is likely to engage in self-harming conduct unless the child is kept in secure accommodation,

(c)

(c) that the child is likely to cause physical or psychological harm to another person unless the child is kept in secure accommodation.

(5) In subsection (4)(c), “psychological harm” includes fear, alarm and distress.

S-57B

57B

(1) The Scottish Ministers may by regulations make further provision about the placing and keeping of a child in secure accommodation—

(a)

(a) by virtue of—

(i) a child assessment order,

(ii) a child protection order,

(iii) an order made by a justice of the peace under section 55,

(b)

(b) by a constable acting under section 56(1).

(2) Regulations under subsection (1) may in particular include provision—

(a)

(a) requiring—

(i) the consent of the person in charge of the residential establishment containing the secure accommodation in which the child is to be placed (the “head of unit”),

(ii) the agreement of the chief social work officer,

(b)

(b) specifying the criteria to be applied and the procedure to be followed—

(i) by the head of unit in deciding whether to give such consent,

(ii) by the chief social work officer in deciding whether to give such agreement,

(c)

(c) specifying the procedure for—

(i) the notification of decisions,

(ii) the giving of reasons for decisions,

(d)

(d) imposing requirements in connection with the protection of the welfare of a child being placed and kept in secure accommodation.

(3) Regulations under subsection (1) are subject to the affirmative procedure.”.

S-4 Compulsory supervision orders: directions authorising restriction of liberty

4 Compulsory supervision orders: directions authorising restriction of liberty

(1) The 2011 Act is amended as follows.

(2) In section 83 (meaning of “compulsory supervision order”)—

(a)

(a) in subsection (2), at the end of paragraph (b) insert“(but see subsection (2A)),”,

(b)

(b) after subsection (2) insert—

(2A) A direction of the type mentioned in subsection (2)(b) does not include authorisation to deprive the child of their liberty.”.

S-5 Compulsory supervision orders: prohibitions

5 Compulsory supervision orders: prohibitions

(1) The 2011 Act is amended as follows.

(2) In section 83 (meaning of “compulsory supervision order”)—

(a)

(a) in subsection (2), after paragraph (c) insert—

“(ca)

“(ca) a prohibition on the child entering a specified place or description of place,

(cb)

(cb) a prohibition on the child approaching, communicating with or attempting to approach or communicate with (whether directly or indirectly) a specified person or class of person,”,

(b)

(b) in subsection (8)—

(i) in the opening words, for “subsection (2)” substitute“this section”,

(ii) before the definition of “medical” insert—

““communicating with” another person includes communicating with that person by the use of social media or by any other electronic means,”.

S-6 Compulsory supervision orders: movement restriction conditions

6 Compulsory supervision orders: movement restriction conditions

(1) The 2011 Act is amended as follows.

(2) In section 83 (meaning of “compulsory supervision order”)—

(a)

(a) in subsection (4)(a)—

(i) for “more” substitute“both”,

(ii) for “subsection (6)” substitute“subsection (4A)”,

(b)

(b) after subsection (4) insert—

(4A) The conditions referred to in subsection (4)(a) are—

(a)

(a) that the child’s health, safety or development is at risk,

(b)

(b) that the child is likely to cause physical or psychological harm to another person.”.

(3) In section 150 (movement restriction conditions: regulations etc.), in subsection (2)—

(a)

(a) in paragraph (b), after “of” insert“monitoring a child’s movements or whereabouts (including whether a child is at, or is not...

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