8 February 1984

Dear Sir/Madam

CHILDREN COMMITTED UNDER SECTION 413 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1975

Summary

1. This Circular sets out the arrangements in relation to children committed by the courts for a period of residential training. New procedures are introduced for handling cases where the use of secure accommodation needs to be considered. The attention of Sheriff Clerks is drawn particularly to paragraph 7 which refers to a change of procedure as far as most courts are concerned.

Note

2. Circular SWSG6/88 draws attention to the provisions of section 59 of the Criminal Justice (Scotland) Act 1987 which re-enacts with amendments section 413 of the Criminal Procedure (Scotland) Act 1975. One of the key changes is that from 1 April 1988 the relevant local authority, normally the authority for the child’s home area, will be responsible rather than the Secretary of State for the provision of residential care for children dealt with by the courts in summary procedure under section 413 of the 1975 Act as revised. In addition, Circular SW1/86 advised that local authorities would assume responsibility for List D Schools. As a result, the term List D no longer applies. This Circular (SWSG2/84) should therefore be read in this light.

Statutory Provisions

3. An extract of Section 413 of the 1975 Act as amended is attached as Appendix 1 of Circular SWSG6/88.

Definition of "Child"

4. For the purpose of section 413 a "child" has the meaning assigned to that expression by section 30 of the Social Work (Scotland) Act 1968; the section therefore applies to children under 16 and to those aged 16 or 17 who are subject to a supervision requirement in force at the time of the appearance before the court.

Children Sentenced under Section 206

5. Section 206 of the 1975 Act makes analogous provision for the detention of children convicted on indictment. The Secretary of State’s responsibilities under that section are discharged through the Director of the Scottish Prison Service.

Status of Children Subject to Section 413 Orders

6. Experience shows that in some cases children may be dealt with by a children’s hearing or appear before the Sheriff Court for similar types of offence; and the same residential establishments are normally asked to care for children subject to section 413 orders and those on residential supervision requirements. The Secretary of State takes the view that as far as the different statutory provisions allow children committed under section 413 should be dealt with in the same way as children who have come before the hearings. Their individual circumstances and history must be taken into account, but it would be inappropriate for such children to be treated differently simply on account of their committal under section 413.

Court Procedures

7. It is important that there should be close liaison between the courts and the relevant local authority social work staff. Sheriff Clerks are therefore invited to formally notify the Director of Social Work or Divisional Director of Social Work of the local authority that a section 413 order has been made and provide details of the child’s present whereabouts if he is not being cared for by the local authority following his committal. The requirement to inform SWSG no longer exists as local authorities are now solely responsible for the placement of such children.

General Procedures for Local Authorities

8. The Secretary of State is grateful for the continuing co-operation of local authorities in working with children subject to section 413 orders. The initial duties they are asked to undertake are to take responsibility for the child at the time he is committed under section 413; to escort the child to the residential accommodation where he is to be temporarily detained (if this is necessary) and thereafter to the chosen residential establishment. Appendix A sets out the procedures which local authorities are asked to follow in discharging these responsibilities. Local authorities are also required to undertake periodic reviews of the child’s progress, including reviews of whether he is ready for release under section 58A(3) of the 1937 Act.

9. Planning ahead is desirable so that placements can be made quickly after an order is made. Children admitted to penal establishments on "unruly" certificates may be subsequently committed by the courts under section 413 and local authorities also need to be able to respond quickly to their needs.

Residential Establishments

10. Appendix B sets out the duties and responsibilities of residential establishments when children are placed under a section 413 order. Particular stress is laid on the need to review cases regularly, particularly in relation to whether early release is appropriate, and the desirability of involving the relevant staff of social work departments (with their knowledge of the family and the home area) in these reviews.

Special Arrangements for the Use of Secure Accommodation

11. In certain circumstances it may be necessary to consider holding or placing a child subject to a section 413 order in secure accommodation. The new arrangements for the use of secure accommodation in section 8 of the Health and Social Services and Social Security Adjudications Act 1983 - including the new statutory criteria relating to the child’s behaviour - apply directly only to children dealt with under the Social Work (Scotland) Act 1968. Nevertheless the Secretary of State considers that the administrative arrangements made by local authorities and residential establishments, should reflect as far as possible the principles behind the new legislation. Appendix C sets out the special procedures to be adopted by local authorities and residential establishments in considering the need for the temporary holding or longer term placement of a child in secure accommodation who is subject to a section 413 order. (Appendix D set out the standard information which was required by SWSG in such circumstances but is now excluded as it is no longer relevant.)

Children’s Hearings

12. Appendix E considers some issues relating to the reconciliation of supervision requirements by hearings and directions made by the Secretary of State under section 413.

Reimbursement of Reasonable Expenditure by Local Authorities

Paragraphs 13 to 15 no longer apply because from 1 April 1988 actual costs of placement of children committed under section 413 are the responsibility of the local authority (Paragraph 17 of circular SWSG6/88 refers).

Contact Point

16. Enquiries relating to the general issues dealt with in this Circular should be addressed to Mr M J Hunter, Social Work Services Group, Room 41, James Craig Walk, Edinburgh EH1 3BA (telephone 0131 244 5479).

Yours faithfully

J W SINCLAIR

APPENDIX A

TO CIRCULAR SWSG2/84

CHILDREN COMMITTED UNDER SECTION 413 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1975

PROCEDURE FOR LOCAL AUTHORITIES

Procedure Immediately Following Committal

1. The arrangements made with the courts provide that children committed under section 413 will be handed over the by courts to the local authority which has already been involved in the case through the provision of the background report required under section 308(2) of the 1975 Act. In certain circumstances - for example where the offence was committed and the trial took place elsewhere than in the child’s home area - the local authority to which the child is initially committed by the courts may wish to ask the authority for the child’s home area to assume responsibility.

2. If arrangements have not already been made for the placement of a child direct from the court, the local authority must decide in the light of its knowledge of the circumstances of the case where to hold the child before the final placement. In practice this has usually been in an assessment centre. The local authority should make appropriate arrangements for escorting the child to the location decided on for this purpose. In particular cases it may be desirable to agree arrangements with the police and/or managers of the relevant establishment for them to carry out this task; it may be appropriate, for example, to seek police assistance where a child is to be detained in secure accommodation. If the authority is unable to provide accommodation from its own resources it should make arrangements with another authority or agency which has suitable accommodation.

3. In some exceptional cases a local authority may reach the conclusion that no accommodation which it can provide from its own resources or by arrangements with another authority or agency would be suitable for holding the child. (See Appendix C for procedure on secure accommodation.)

Assessment and Recommendation for Placement

4. A major responsibility of the local authority is to ensure the appropriate placement for the child. In assessing this the local authority should proceed very much as they would in considering the case of a child who is referred for assessment by a children’s hearing as possibly in need of a residential supervision requirement. In many instances the authority will already have reached a provisional view on the appropriate placement before the child is committed. It is for the local authority to decide whether any additional information or examination of the child is needed in order to make a definite recommendation on placement. For example, psychological examination may be considered necessary. Referrals should be arranged as necessary to a psychiatrist, consultant paediatrician or other specialist.

5. In special cases it may be necessary to consider also specialised accommodation in educational and other fields. As explained in paragraph 6 of the main Circular, the Secretary of State will normally expect the child to be treated in the same way as other children in the same establishment, and authorities should bear this in mind in reaching their decisions. Where exceptionally it is thought that any special condition should be attached to the detention of the child, this would be discussed by the head of the establishment and the social worker prior to the child’s placement. (Appendix C outlines the special procedures to be followed for the use of secure accommodation.)

6. If a local authority wishes to recommend an establishment not under its own management (ie one operated by a voluntary body, a health board or another local authority), the necessary enquiries and consultation on placement may require some time to complete.

7. The decision on the actual placement of a child rests with the authority. This may contain some element of compromise in matching the needs of the child to the facilities and vacancies available. Where a placement which would have been preferred in any instance is found not to be practicable because of the lack of a vacancy or for any other reason, an alternative placement should be made - possibly, in some circumstances, on an interim basis.

8. On occasion the complexity of the case may require the local authority to seek further information or to arrange for a further examination before reaching a final decision.

Responsibility after Placement

9. The local authority should make arrangements for conveying the child to the establishment where he is to be placed and for giving him into the care of the head of that establishment; mutually convenient arrangements with the police and the establishment may be desirable. The establishment is expected to keep in touch with the local authority which arranged the admission (or the local authority for the child’s home area in those cases where different authorities are involved). The authority will be responsible for keeping contact with the child’s family, as it would in the case of a child subject to a supervision requirement which involved his leaving his home, and are asked to supervise the child during any period of leave.

Absconding

10. If a child detained under section 413 absconds and is not recovered almost immediately, the establishment concerned will inform the police and the local authority for the home area. As Appendix B explains it is for the establishment in collaboration with the police to make arrangements to ensure that the child’s parents are informed and that the child is recovered. Local authorities are however asked to co-operate fully with the establishment and the police in this respect.

Review, Change of Placement, Release and Recall

11. Authorities are asked to contribute as much as they can to the regular reviews of cases undertaken by the establishments concerned, and also to involve themselves fully in any consideration of a move to another establishment. Authorities will naturally be fully involved in proposals for return to the community, either on release at the end of the Order or (more usually) at an earlier stage to allow a period of time under supervision in the community. The co-operation of authorities is invited to enable the establishments to fulfil their responsibilities outlined in paragraphs 10-13 of Appendix B.

12. The arrangements for the Secretary of State to consider a conditional or unconditional release of a child detained under section 413 of the 1975 Act no longer apply.

SWSG

APPENDIX B

TO CIRCULAR SWSG2/84

CHILDREN COMMITTED UNDER SECTION 413 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1975

PROCEDURES FOR RESIDENTIAL ESTABLISHMENTS

1. This Appendix sets out the procedures for the heads and managers of residential establishments which admit children committed under section 413 of the Criminal Procedure (Scotland) Act 1975. Paragraph 9 of SWSG6/88 suggests that the arrangements set out in this Appendix would be helpful to local authorities in preparing their own procedures further to the transfer of responsibility for children committed under section 413 on 1 April 1988.

Conditions Attached to Placement

2. The Secretary of State considers that a child committed under section 413 should be treated like any other child in the particular establishment in which he is placed. Where it is thought that any special conditions should be imposed, for example restriction on outings, home leave, etc, these should be discussed by the officer in charge with the social worker before the child’s admission, to ensure that they are both practicable and acceptable.

Case Papers

3. Copies of the case papers prepared by the local authority on the child will be sent to the establishment and normally before the child’s admission.

Notifications Required by Social Work Services Group

4. Weekly returns from each List D school (SWSG (G) Form 4) are no longer required. Similarly, notification to SWSG of health, leave arrangements or absconding outlined in paragraphs 5, 6 and 9 is no longer required.

[5. Since the welfare of any child committed under section 413 is ultimately the responsibility of the Secretary of State, Social Work Services Group should be informed immediately of any untoward incident, and particularly of any death, serious injury, or admission to hospital, and a full explanation of the circumstances should be given. Included in this category are all serious accidents, fractures, serious burns, incised wounds requiring suture, eye injuries, suicide attempts, and self-inflicted injuries. Notification is also required if the child develops any of the following illnesses:-

Smallpox

Tuberculosis

Cerebral-spinal fever

Poliomyelitis

Dysentery

Enteric fever

Infective hepatitis

Rheumatic fever

Nephritis.

Notifications should be in writing, but in the case of any serious incidents SWSG should also be informed immediately be telephone.]

[6. SWSG also require notification -

a. (in advance) of any periods of extended leave granted to a child other than home leave over weekends. Weekend leave includes public holidays and time allowed for the child to return to the establishment.

b. of the child being charged with the commission of any offences and of any court appearance relating to those offences; and

c. of the child’s release on the expiry of his court order.]

Notification to Department of Social Security of Admissions

7. Because of the rules on eligibility for child benefit establishments should inform the Department of Social Security when children are first admitted. Children subject to section 413 orders should be included in these arrangements, and it was subsequently agreed that it was more convenient that when a child was placed in a former List D School the establishment should notify DSS direct.

Absconding

8. A child detained under section 413 is deemed to be in legal custody, and if he absconds or fails to return from home leave, he may be recovered by the police without warrant and returned to the place of his former detention. Unless the child is recovered almost immediately, the police and the local authority for the home area should be informed. The establishment should agree arrangements with the police to inform the child’s parents. Responsibility for ensuring that steps are taken to recover the child lies with the establishment; but the police can normally be expected to take whatever action is necessary to find and return the child, and the local authority should be able to provide assistance in some circumstances.

[9. Where absconding is thought to be symptomatic of a degree of disturbance in the child or his family which the residential establishment and the local authority working with the family think may require a change in the placement of the child or the conditions under which he is detained, the establishment in consultation with the appropriate social work department should inform SWSG and make recommendations for the future work with the child and family.]

Progress Reports and Formal Reviews of Progress

10. The requirement for SWSG to receive a progress report on each child’s case at regular intervals is no longer necessary. However there should be periodic formal reviews to assess progress and consider whether any changes are needed for local authority purposes. The following guidance may therefore be helpful in establishing a model. Other than for children placed in secure accommodation, to whom the special arrangements in Appendix C apply, establishments are asked to prepare progress reports for each child:

a. at 4-monthly intervals in the case of a child committed for more than 8 months;

b. at 3-monthly intervals in other cases,

subject to the last report in all cases being submitted one month before the expiry of the court order.

11. Wherever possible progress reports should be based on a formal review of the child’s case. Such reviews should be carried out, to the extent applicable in the somewhat specialised circumstances, in line with good social work practice employed by local authorities in reviewing the cases of children in care. In making arrangements for reviews establishments should make every effort to facilitate the involvement of the local authority for the child’s home area in the review; and in particular they should seek to minimise the demands on local authority staff time - possibly by trying to arrange for a review of a child subject to a section 413 order to take place on the same day as local authority personnel are due to visit the establishment for other purposes. Where appropriate, and at the discretion of the establishment, other professionals with a contribution to make and the child and his parents may be involved in the review. In any event the child himself should be kept in touch with the outcome of the review and of any recommended changes in conditions of placement. The senior staff of the social work department of the child’s home area should be notified directly of the outcome of reviews.

Recommendations for Early Release or Return to the Community

12. The provisions in Section 58A(3) of the Children and Young Persons (Scotland) Act 1937 relating to the release by the Secretary of State of any child detained under Section 413 of the 1975 Act no longer apply.

13. In considering the release of a child establishments should be clear about the arrangements which have been made for the child, including where he will live and what school he will attend or what arrangements have been made for future employment or vocational training. This is of particular importance in cases where it is proposed that the child should live outside his home area. The local authority for the proposed area of residence should be fully consulted and their views on the recommendation for early release and on the arrangements for supervision and support of the child should be included in the report.

Responsibilities of the Local Authority

14. The local authority for the child’s home area is responsible for work with the child’s family (as in the case of a child subject to a residential supervision requirement) and is asked to supervise the child during any period of leave. It should maintain contact with the child and the establishment after the child’s admission. Supervision of the child once released will also be the responsibility of the local authority.

15. Paragraph 15 of original Annex deleted.

SWSG

APPENDIX C

TO CIRCULAR SWSG2/84

USE OF SECURE ACCOMMODATION FOR CHILDREN SUBJECT TO SECTION 413 ORDERS

1. This note sets out procedures to be followed by local authorities and managers of residential establishments where it is considered that the use of secure accommodation is necessary for the temporary holding or longer-term placement of a child subject to a section 413 order. The note also sets out procedures to be followed where detention in a penal establishment is recommended. Detention of a child in a penal establishment - whether for assessment prior to placement or on a longer-term basis - is considered appropriate by the Secretary of State only in exceptional circumstances.

Criteria of Behaviour Leading to Consideration of Use of Secure Accommodation or Penal Institutions

2. Secure accommodation should be considered only if:

a. the child has a history of absconding, and -

i. he is likely to abscond unless kept in secure accommodation; and

ii. if he absconds, it is likely that his physical, mental or moral welfare will be at risk; or

b. the child is likely to injure himself or other persons unless he is kept in secure accommodation.

Where a particular child’s behaviour is such as to satisfy the criteria the secure accommodation to be used must be approved for that purpose by the Secretary of State under the Secure Accommodation (Scotland) Regulations 1983.

3. Detention or placement in penal establishments should be considered only in very exceptional circumstances where it can be clearly demonstrated that no other accommodation is suitable for the child, and that if kept in any other type of accommodation the child is likely to injure himself or other persons.

4. To facilitate consideration of such questions and to ensure that the relevant criteria are consistently applied a proforma was originally provided to ensure that the Secretary of State received all the necessary information but with the Secretary of State’s disengagement this is no longer required.

Procedures to be followed by Local Authorities

5. Where a local authority are holding a child pending final placement the agreement of both the head of the establishment and the Director of Social Work must be obtained before the child may be placed in secure accommodation. In the case of larger authorities, the Divisional Director of Social Work may act for the Director of Social Work. In the case of emergencies the responsible social worker should act quickly to ensure that the person in charge of the establishment and the Director of Social Work have sufficient information available to them to consider whether the criteria for the use of secure accommodation are met.

6. Where the local authority believe it necessary to consider a placement involving secure accommodation, the relevant matters should again be considered by the social workers involved and approval given by the Director of Social Work. The matters should be considered in consultation with the Managers of the residential establishment where it is proposed to recommend placement.

7. Where the authority propose that a child be placed in a penal establishment for initial assessment or for the longer term, section C of the proforma should be completed by the social workers involved and counter-signed by the Director of Social Work or Divisional Director. Wherever possible the social work department should consider an alternative placement. Particularly where longer-term placement in a penal establishment is proposed, it will usually be essential to provide full psychological and psychiatric reports. Only in very exceptional circumstances should detention or placement in a penal establishment be considered appropriate.

8. Local authority social workers should consider secure care only where they are satisfied that the relevant criteria for its use or placing the child in a penal establishment, as the case may be, are met. Confirmation of this view must be obtained from the Director of Social Work or the Divisional Director as appropriate.

Procedures to be followed by Residential Establishments

9. Managers of residential establishments are invited to cooperate with local authorities in their task of finding an appropriate placement for a child in need of secure accommodation in terms of paragraph 6 above. Where necessary the establishment should provide any supplementary reports available as to the needs of the child for consideration by the local authority.

10. When a child is placed in a particular establishment, that establishment is responsible for advising on the desirability of any subsequent arrangements to move the child to other accommodation. Where the establishment consider that a move to either a secure unit or a penal establishment (whether for short-term assessment or longer-term placement) is essential, they must make a full case to the authority. All proposals for a move to secure accommodation or penal establishments will require the prior agreement and support of the Director of Social Work or Divisional Director of Social Work as appropriate.

11. The arrangements in paragraph 10 apply to any proposal by a residential establishment to move a child from open accommodation to a secure unit within the same establishment. In some exceptional circumstances an emergency may arise which makes it impossible for the procedures in paragraph 10 to be followed before a child is moved. In such cases the person in charge should urgently seek the agreement of the Director of Social Work.

12. This paragraph requiring SWSG to be notified in advance of any proposed movement of a child from a secure or closed unit within an establishment to an open unit in the same establishment no longer applies.

Review of Need for Secure Accommodation

13. Where a child is placed in secure accommodation it is essential that his case is thoroughly reviewed at frequent intervals to assess progress and facilitate, wherever possible, his return to an open setting or the community as the case may be. Because of the exceptional nature of a secure placement progress reports in such cases should be provided by establishments at not less than 3-monthly intervals irrespective of the length of committal under the section 413 order; and, other than in very exceptional circumstances, these progress reports should always be prepared by the establishments following a formal review of the child’s case initiated by the head of the establishment in accordance with the procedures outlines at paragraph 11 of Appendix B.

14. Arrangements for reviews of children placed in penal establishments are a matter for the Governors concerned.

SWSG

APPENDIX D

TO CIRCULAR SWSG2/84

FORM FOR USE IN RECOMMENDING ADMISSION OF A CHILD SUBJECT TO SECTION 413 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1975 TO SECURE ACCOMMODATION OR PENAL ESTABLISHMENTS

NOTE: The arrangements in Appendix D are no longer required.

APPENDIX E

TO CIRCULAR SWSG2/84

RECONCILIATION OF SUPERVISION REQUIREMENTS AND DIRECTIONS GIVEN UNDER SECTION 413 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1975

NOTE: The provisions in Section 58A(3) of the Children and Young Persons (Scotland) Act 1937 relating to the release by the Secretary of State of any child detained under Section 413 of the 1975 Act no longer apply. However some of the matters which local authorities have to consider remain relevant and the Appendix is reproduced on that basis.

1. Involvement of Reporters and children’s hearings with a child may sometimes overlap with application to that child of a court order for detention under section 413 of the Criminal Procedure (Scotland) Act 1975. Some clarification may be helpful on how this should be handled.

2. Difficulty for the Reporter and children’s hearing can arise (a) where a child is already detained under section 413 or is on release under section 58A(3) of the Children and Young Persons (Scotland) Act 1937 and subsequently comes to the attention of the Reporter; or (b) where a child is already the subject of a supervision requirement and is subsequently committed by the court.

Child already subject to a section 413 order

3. If a child is already the subject of a section 413 order and the Reporter is presented with information which would, in the ordinary course, persuade him of the need to arrange a children’s hearing, there is no statutory bar to the hearing exercising its power to examine the grounds of referral and consider the desirability of imposing a supervision requirement. Complications would arise, however, if the hearing wished to impose a supervision requirement the terms or effect of which were different from those of the directions made by the Secretary of State in relation to a section 413 order. For example, if a direction by the Secretary of State was in force at the time which required the child to be detained in a given establishment, a supervision requirement allowing the child to remain at home could have no immediate effect, unless the Secretary of State decided to release the child under section 58A(3). This is a point which the hearing would want to bear in mind in reaching its decision.

4. If a child who had been released under section 58A(3) was subsequently made the subject of a supervision requirement from a hearing, he would not be protected against a residential placement under that supervision requirement by the fact that the Secretary of State had authorised his release under section 58A(3). Before deciding to refer a child in these circumstances to a hearing it would seem advisable for the Reporter to bring the facts constituting the grounds of referral to the attention of the Social Work Services Group. It could then be considered whether the best interests of the child would be served the Secretary of State deciding to exercise his powers to recall the child to residential training or by a hearing considering whether the imposition of a supervision requirement and relevant conditions would be appropriate.

Child already subject to a supervision requirement

5. Where a child who is already the subject of a supervision requirement is committed by the court under section 413, the Secretary of State is still required to determine the placement of the child. His decision will have regard to the advice given by the children’s hearing to the court; and he will obtain any information which he requires on the supervision requirement through the Reporter.

6. Although detained under section 413 the child will continue to be subject to the supervision requirement unless it is discharged by the hearing or terminated by the Secretary of State under section 52 of the 1968 Act. SWSG will notify both the Reporter and the local authority of the placement directed by the Secretary of State (and of any subsequent redirection of the child to a different place). In such circumstances the local authority will no doubt wish to consider whether they would wish to recommend that a hearing should review the existing supervision requirement. Before discharging any supervision requirement the hearing should have regard to the value which its continuation might have after expiry of the court order, particularly in relation to younger children.

7. Before exercising his power to release a child who is the subject of both a section 413 order and a supervision requirement the Secretary of State will consult the Reporter to ensure consistency between his own directions and the existing terms of the supervision requirement or any proposed revision of them. In these circumstances the conditions attached to the release of a child detained under section 413 will generally include a requirement for the child to be subject to any conditions of supervision that may be contained in the supervision requirement. The Secretary of State will avoid imposing conditions on the release of a child which are at variance with such conditions, unless there is a clear reason for doing so; and in the latter case there will be full consultation with the Reporter and the local authority since a review hearing might, in consequence, have to be convened.

8. While references in the preceding paragraphs are to section 413 of the 1975 Act, cases may equally arise where there is overlap between a supervision requirement and a court order under section 206 of the 1975 Act. Broadly the same considerations will apply in the case of such children, who are the responsibility of the Prisons Group of the Scottish Home and Health Department. Any necessary liaison with Reporters will normally be carried out by Social Work Services Group.

SWSG