Commentary on Provisions Part 4 – residential and secure care Section 26 – meaning of “secure accommodation”
110.Section 26(2)(a) amends the interpretation provision in section 202(1) of the 2011 Act to replace the definition of “secure accommodation” as it applies in relation to Scotland (its meaning in relation to England and Wales remains the same). This is to make the definition clearer in two respects.
111.First, the new definition makes it clear that secure accommodation is accommodation which is provided for the purpose of depriving children of their liberty (rather than for the purpose of restricting the liberty of children). This is to properly reflect that such accommodation is designed for, or has as its primary purpose, the deprivation of children’s liberty. It provides a locked setting for children who are placed there for welfare reasons(72) as well as for children who are ordered to be detained there through the criminal justice system. The children are subject to a very high degree of supervision and control, albeit this is alongside provision of care and support to safeguard and promote their welfare whilst accommodated there. Existing secure accommodation settings are designed so that the children accommodated there cannot leave freely and can be subjected to continuous monitoring or surveillance. For instance, they may be subject to round-the-clock supervision by several members of staff, restrictions on their phone or internet use, or reasonable and proportionate measures of restraint. The system for placing and keeping children in secure accommodation therefore builds in the necessary procedural safeguards, including a clear legal basis and review process, to ensure that any deprivation of liberty is compatible with Article 5 of the European Convention on Human Rights (which concerns the right to liberty).
112.Secondly, the new definition makes it clear that secure accommodation is accommodation which is provided in a residential establishment by a secure accommodation service. Section 202(1) of the 2011 Act already defines “residential establishment” as an establishment in Scotland (whether managed by a local authority, a voluntary organisation or any other person) which provides residential accommodation for children for the purposes of the 2011 Act, the Children (Scotland) Act 1995 or the Social Work (Scotland) Act 1968. But section 26(2)(b) inserts a new definition of “secure accommodation service” into section 202(1). It explains that a secure accommodation service is a service which meets two criteria: (a) it is approved by the Scottish Ministers under paragraph 6(c) of schedule 12 of the 2010 Act, and in accordance with regulations made under section 78A of that Act, and (b) it is registered as a care service under Part 5 of that Act. This is to make sure that children may only be deprived of their liberty in secure accommodation that is run by a service which is approved by the Scottish Ministers and which is properly regulated and overseen by Social Care and Social Work Improvement Scotland (known as “the Care Inspectorate”).(73)