Commentary on Provisions Part 1 – children’s hearings system Section 7 – compulsory supervision orders: secure accommodation authorisations
41.Section 7(2) clarifies the test to be applied when a children’s hearing or sheriff is considering including a secure accommodation authorisation in a CSO by virtue of section 83(2)(e) of the 2011 Act. Section 85 of the Act defines a “secure accommodation authorisation” as an authorisation enabling the child to be placed and kept in secure accommodation within a residential establishment.(27) This is the most restrictive measure that may be included in a CSO, involving the maximum level of intervention and support.
42.Accordingly, under section 83(5) of the 2011 Act, a CSO may include a secure accommodation authorisation only if three requirements are met. The first is that the CSO must contain a requirement that the child reside at either (a) a specified residential establishment which contains both secure and non-secure accommodation, or (b) two or more specified residential establishments, one of which contains non-secure accommodation.(28) The second is that at least one of the specified conditions must apply (those are the conditions which are listed in section 83(6) and set out in paragraph 33 of these Notes). The third is that the children’s hearing or sheriff must be satisfied that it is necessary to include a secure accommodation authorisation in the CSO, having considered the other options available (including a movement restriction condition). Where a secure accommodation authorisation is included, special procedures apply in respect of its implementation and review.(29)
43.Section 7(2) amends the conditions listed in section 83(6) of the 2011 Act in two respects.
44.First, it adjusts each condition so that it applies more clearly in relation to a decision to keep (rather than place) a child in secure accommodation. So, when a CSO containing a secure accommodation authorisation is reviewed, a condition will apply if the relevant risk would be likely to materialise unless the child is kept in secure accommodation. This recognises that a child already in secure accommodation is unlikely to abscond or cause harm to themselves or others while they are receiving the kind of intensive care and support on offer in a secure setting.
45.Secondly, as mentioned in paragraph 36 of these Notes, it adjusts the condition in section 83(6)(c) to align it with the condition in new section 83(4A)(b) which applies in relation to a movement restriction condition. This makes sure that a CSO may include a secure accommodation authorisation if there is a likelihood of the child causing harm to another person, whether it be physical or psychological harm. Section 7(2) also amends the interpretation provision in section 83(8) of the 2011 Act to define “psychological harm” as including (but not limited to) fear, alarm and distress.
46.Section 86 of the 2011 Act makes provision for an ICSO. To that end, it provides for various provisions of section 83 to apply to an ICSO in the same way as they apply to a CSO (including the list of measures contained in section 83(2)). Section 7(3) consequentially amends the cross-references to those provisions in section 86(4) to make sure that the changes made by this section, and sections 4 to 6 of the Act, apply also in relation to ICSOs.
47.However, a secure accommodation authorisation is not a measure limited to CSOs or ICSOs. One can also be included in a medical examination order(30)or a warrant to secure attendance.(31) So, given that the same tests apply for secure accommodation authorisations attached to those orders and warrants, section 7(4) and (5) makes changes to the conditions listed in sections 87(4) and 88(3) of the 2011 Act which are equivalent to those made to section 83(6) by section 7(2).