Court/Judicial body: Court of Session of Scotland, Inner House, Extra Division
Date: October 26, 2010 CRC
Provisions: Article 37: Torture and deprivation of liberty
Other international provisions: European Convention on Human Rights, Articles 5 (Right to liberty and security of person), 6 (Right to a fair trial)
Domestic provisions: Children (Scotland) Act 1995, Section 70 (Disposal of referral by children’s hearing: supervision requirements, including residence in secure accommodation)
Background: A child, BJ, was being held under supervision in a residential care centre following numerous reports of behavioural issues, including charges of fire-setting and resisting arrest. During a review of her placement, she was ordered to be transferred to secure accommodation by the chief of social work and the head of the secure accommodation facility. She appealed the decision, and the sheriff affirmed the transfer.
Issue and resolution: Juvenile justice; detention. The Court denied BJ’s appeal, stating that the transfer to secure accommodation did not violate her rights to liberty or a fair trial.
Court reasoning: The review by the chief of social work and head of the secure accommodation facility was competent, and BJ had and took the opportunity to appeal their decision. BJ’s placement in secure accommodation was a flexible and temporary measure, and was set to be reviewed in three months’ time at the latest. As such, the transfer was also in line with BJ’s right under Article 37 of the Convention on the Rights to be detained only as a matter of last resort and for the shortest appropriate period of time.
Excerpt citing CRC and other relevant human rights Lady Paton …The flexibility built into the system by the involvement of the two officials facilitated compliance with the UN Convention on the Rights of the Child, which provided in Article 37(b) that detention of a child should be a last resort “and for the shortest appropriate period of time”. The remedy of judicial review was a residual safeguard for the appellant. …  It will be seen that I do not accept that the observation of the children’s hearing quoted in paragraph  above (namely that “…[BJ]’s situation should be monitored closely and if she behaved positively, this should be an incentive for an early release from secure …”) should be construed as an indication that the children’s hearing had decided that the period in secure accommodation should be shorter than three months. In my view, that observation was simply an acknowledgement of the degree of flexibility accorded by section 70(9A)(a) of the Act to the two officials responsible at first hand for the actual placing and keeping of the appellant in secure accommodation. If the appellant’s behaviour improved, the two officials could remove the appellant from secure accommodation (and perhaps transfer her to close supervision) without the necessity of a referral back to the children’s hearing. I consider it important in the context of compliance with the [European Convention on Human Rights] that the statutory provisions give the officials only a one-way discretionary power – namely, taking the appellant out of secure accommodation. The officials could, ex proprio motu, decide not to place the appellant in secure accommodation, or could remove her from such accommodation. Prima facie neither such action would be to the appellant’s detriment: contrast with the circumstances in Van de Hurk v The Netherlands (1994) 18 EHRR 481. On the contrary, both actions would be in keeping with the overarching policy set out in Article 37(b) of the United Nations Convention on the Rights of the Child: “No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time [emphasis added].” As it happens, it is unnecessary in this case to analyse more closely the nature and [European Convention on Human Rights]-compliance of the one-way discretionary power, as the officials in the appellant’s case simply implemented to the letter the carefully-considered decision of the children’s hearing. Lord Hardie  The approach further fails to acknowledge that the decision imposing the supervision requirement that BJ was liable to be placed and kept in secure accommodation was taken by a competent court, namely the children’s hearing and that BJ exercised her right of appeal against that decision to the sheriff. The supervision requirement was that BJ was liable to be placed and kept in secure accommodation at Bishopton “at such times as the person in charge of the residential establishment, with the agreement of the chief social work officer of Stirling Council, considers necessary”. It is understandable why that flexibility was afforded to the appropriate officials. It enabled them to consider and to keep under review the period within which the child should reside in the secure accommodation specified. The officials were thereby empowered to determine, prior to the date of any review by the children’s hearing of BJ’s circumstances, whether it was necessary to continue to detain BJ in the secure accommodation. Thus the involvement of these officials was intended to operate to the benefit of BJ and, as your Ladyship has observed, facilitated compliance with Article 37(b) of the UN Convention on the Rights of the Child. The relationship between the judicial authority and the local authority having responsibility for the care of a child was considered by Judge LJ In re K (A Child) (Secure Accommodation: Right to Liberty)  Fam 377 at paragraphs 93 and 94 where he observed: “the [secure accommodation] order creates additional control over the child, and extends both to the child who is absconding, that is leaving accommodation as and when he wants to and so putting himself at risk of serious harm, and to the child in care because he is beyond parental control. Even if it is faithfully applying the guidance to secure accommodation orders, the local authority, again, cannot impose such an order on its own initiative. The child’s liberty may only be curtailed if the order is authorised by the court. The jurisdiction to make it depends on the local authority satisfying the court under section 25(1) [of the Children Act 1989].” Although these comments were made in the context of the separate system which exists in England for dealing with children such as BJ, they are equally apposite in Scotland. They illustrate and emphasise that it is the judicial authority which determines the issue of the right of others, namely the local authority having the care of the child and the person in charge of the residential establishment, to detain the child in secure accommodation. On the basis of that determination and the warrant following thereon these officials are end to place the child in secure accommodation and to detain him or her there until the date fixed for a review of the child’s case, unless prior to that date the officials determine that the interests of the child are no longer served by his or her detention in secure accommodation. In that event the officials are obliged to release the child from secure accommodation and place him or her in accommodation suitable to the child’s needs.
CRIN comments: CRIN believes this decision is consistent with the CRC in that, as recognised by the Court, children may only be detained as a matter of last resort and for the shortest appropriate period of time as required under Article 37 of the Convention. It must also be noted that children alleged or found to be in conflict with the law have the right to have their cases reviewed by a “higher competent, independent and impartial authority or judicial body according to law” under Article 40 of the Convention.
Citation:  CSIH 85, 2011 SC 201 Link to Full Judgment: http://www.scotcourts.gov.uk/opinions/2010CSIH85.html