SNP grandstanding on children's rights belies reality - Martyn McLaughlin

It has been heartening and depressing in equal measure to see the dismay which greeted my story at the weekend about thousands of children - some as young as 11 - who have been held overnight in police custody across Scotland. There is justifiable anger that this should be happening in a country where every child should be able to grow up loved, safe, and respected, although the criticism of Police Scotland in isolation is misplaced.

The fact that the force’s custody suites are being used as a stopgap for more appropriate accommodation settings is just one part of a complex set of interlinked problems around how Scotland deals with children who come into conflict with the law. Sadly, few of these problems are new.

An HMICS inspection of the force’s custody arrangements back in 2014 found that staff in some divisional areas had “expressed concern at their inability to access local authority secure accommodation, which sometimes made it difficult to minimise young people’s time in custody.” It would perhaps be an understatement to suggest that the fact problems with safe accommodation remain seven years on is a sign that not nearly enough has been done to alleviate those concerns.

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A place of safety, as defined in Criminal Procedure (Scotland) Act 1995, can mean many things. It could be family members, or foster carers. But for the most vulnerable children, it is more likely than not to mean secure accommodation, in order to keep themselves - or other people - safe. Sadly, however, the pathways around that very system are fundamentally flawed.

There are four independent secure centres in Scotland, all of but one of which are based in the central belt, as well as one run by the City of Edinburgh Council. Local authorities effectively book places at these facilities for children deemed most at risk, and their viability depends on them meeting a break even occupancy rate of 90 per cent.

In order to do that, they take referrals from local authorities in England. The number of children who are being transferred hundreds of miles across the border to Scottish secure accommodation is not insignificant; there were 26 in 2019, a near four-fold increase over the previous five year period, and a little under half the number of Scottish children who were in secure accommodation.

Anecdotal evidence suggests the coronavirus pandemic has curbed that upward trend, but the perverse business model - which treats vulnerable children as commercial units - remains. Ensuring these centres are operating at a high capacity may make financial sense - the head of one has suggested that without cross-border placements, several would have been forced to close - but it comes at a cost, given it increases the danger that those centres will be unable to provide a bed for children as and when they are needed.

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Senior officials have admitted there is an "inherent weakness" at the heart of Scotland's secure accommodation system. Picture: NKBL

This risks exacerbating the problems with capacity constraint, which can extend beyond a simple issue of supply and demand; sometimes, beds are available, but children are unable to be accommodated because there may be potential for conflict with other young people already at the unit.

The number of nights in which emergency beds at these units have been used has also been sharply rising. In 2017, the number stood at 90, but it spiked to 284 in 2018, and again to 398 in 2019. As of noon yesterday, there were no emergency beds available at any of the centres. Added to this, the number of secure places has fallen in recent years, down from 90 in 2016 to the current number of 84.

In spite of that trend, the value of the contract to provide secure care places has been rising. Scotland Excel - the procurement body for Scotland’s local authorities - signed a deal in 2017 with the four independent secure centres which was worth £60m. When it was renewed last year, the contract was worth £70m. It seems eminently reasonable to question this increase given the number of secure places is on the wane.

Hugh Carr, head of strategic procurement at Scotland Excel, has admitted to Holyrood’s justice committee that the 90 per cent ‘break even’ point represents an “inherent weakness” in the system, and has proposed block funding as a way of ensuring providers are less reliant on cross-border placements.

The 2018 Kilbrandon Again report, which looked at how Scotland treats children in trouble, highlighted the anomaly by which secure accommodation providers turn to children from outside Scotland in order to create a viable financial model, while the Scottish Government provides the full capital and running costs of HMP Polmont.

As its authors observed, there is something wrong here. The provision of secure places for children should be planned on the basis of need, and not left to the whims of market forces. This especially true in light of the fact the children placed in secure care have complex needs and challenging behaviour.

No one, however, should hold their breath for change, at least not anytime soon. In a letter to the same committee last year, Humza Yousaf, the justice secretary, conceded there was no “quick or easy fix to the challenges posed by the current model,” noting that any overhaul would require not just additional resources, but “a will to fundamentally review the respective current responsibilities.”

Reforming the secure care system would only be the beginning of that process. There are crucial underlying questions to be answered over why the proportion of children on remand is far greater than for adults, and why bail and intensive supervision is less likely to be used for children.

Only two weeks ago, MSPs voted unanimously to incorporate the UN Convention on the Rights of the Child into domestic legislation. Maree Todd, the children’s minister, announced it marked a “new era for this nation” and showed Scotland was “a world leader in children’s rights.” These are bold claims. Sadly, the evidence does not support them.

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