Commentary on Provisions Part 1 – children’s hearings system Section 6 – compulsory supervision orders: movement restriction conditions
31.Section 6 changes the test to be applied when a children’s hearing or sheriff(21) is considering including a movement restriction condition in a CSO by virtue of section 83(2)(d) of the 2011 Act. Section 84 of that Act explains what a movement restriction condition is. It consists of (a) a restriction on the child’s movements in a way specified in the movement restriction condition, and (b) a requirement that the child comply with arrangements specified in the movement restriction condition for monitoring compliance with the restriction. This measure involves giving the child intensive support, and monitoring the child’s compliance with the restriction by means of an electronic monitoring device(22) which uses radio frequency (rather than GPS) technology.
32.Under section 83(4) of the 2011 Act, a CSO may include a movement restriction condition only if two requirements are met. The first is that at least one of the specified conditions must apply. The second is that the children’s hearing or (as the case may be) the sheriff must be satisfied that it is necessary to include a movement restriction condition in the CSO.
33.Section 83(6) sets out the specified conditions. They are: (a) that the child has previously absconded and is likely to abscond again and, if the child were to abscond, it is likely that the child’s physical, mental or moral welfare would be at risk, (b) that the child is likely to engage in self-harming conduct, or (c) that the child is likely to cause injury to another person. The same conditions also apply for the purpose of including a secure accommodation authorisation (which is a more restrictive measure) in a CSO.(23)
34.Section 6 amends section 83 of the 2011 Act to apply a new set of conditions for the purpose of including a movement restriction condition in a CSO. There are two conditions. These are set out in new section 83(4A) and are: (a) that the child’s health, safety or development is at risk, or (b) that the child is likely to cause physical or psychological harm to another person. As a result, a children’s hearing or sheriff may impose a movement restriction condition only if one or both of the new conditions apply and it is considered necessary to do so.
35.The condition in section 83(4A)(a) covers a broader range of circumstances than the original conditions. Like the original conditions in section 83(6)(a) and (b), it would cover circumstances where the child’s health, safety or development is at risk because of a likelihood of absconding and/or engaging in self-harming conduct. But it would also cover circumstances where, due to the child’s vulnerability, the child is encouraged by others into situations where the child can be harmed or abused. So, a movement restriction condition (and the intensive support and monitoring arrangements that come with such a measure) could be used to prevent the child from visiting certain premises or areas that pose a risk to the child’s health, safety or development. For example, it might specify an address where a known abuser lives, a place where there is a risk of sexual exploitation, or a locale where the child is known to buy drugs or to meet up with others to drink alcohol.
36.The condition in section 83(4A)(b) makes it clear that a movement restriction condition may be included in a CSO where there is a likelihood of the child causing harm to another person, whether that be physical or psychological harm. Section 7 brings the condition in section 83(6)(c), now applicable only to secure accommodation authorisations, into line with this one. It 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.
37.Section 6 also amends section 150 of the 2011 Act, which confers a regulation-making power(24) on the Scottish Ministers to prescribe restrictions or monitoring arrangements that may be imposed as part of a movement restriction condition. It clarifies and extends the list of specific matters which they may prescribe.
38.First, it explicitly provides for the Scottish Ministers to prescribe methods of monitoring a child’s movements or whereabouts (including whether a child is at, or not at, a particular place) for the purpose of monitoring compliance with a movement restriction condition. This means that they may prescribe(25) methods for both (a) checking a child’s position or location at any particular time (say, for the purpose of monitoring compliance with a curfew condition), and (b) tracking a child’s movement from place to place (say, for the purpose of monitoring compliance with some type of exclusion zone condition).
39.Secondly, it extends the Scottish Ministers’ power(26) to specify devices that may be used for monitoring compliance with a movement restriction condition. As a result, they may also specify any apparatus to be linked to such monitoring devices.
40.Thirdly, and finally, it enables the Scottish Ministers to prescribe certain matters to make sure that specified monitoring devices are used appropriately and proportionately. This includes prescribing how or when a specified monitoring device may, or may not, be used. For example, they could set out in regulations how or when a particular device is to be worn by a child. It also includes prescribing how or when information obtained through the monitoring of a child by such devices may, or may not, be gathered, retained, used or shared for the purpose of monitoring a movement restriction condition. This is to expressly cover the additional data-collecting involved in using GPS technology should this be used as a method of monitoring a child’s movements or whereabouts in the future. For example, the Scottish Ministers could set out in regulations the particular circumstances in which, or the times at which, the information may be gathered.