MSPs today heard that the financial model for the running of Scotland's five secure units for children and young people was weak, forcing providers of the units to run them at 90 per cent capacity.
As a result, placements from England are accepted to keep the beds occupied and the income of the units protected, leading to a lack of spaces for Scottish young people when they are needed.
Nick Hobbs, head of advice and investigations with the Children and Young People’s Commissioner Scotland, told Holyrood's justice committee the current model was struggling and that the government had to confront the question of whether it could continue to run the risk of beds not being available when needed.
He said: "There's broad agreement that what we want to see is that there's a bed available for children who need it and that's something the current model struggles to achieve. We'd like to see the Scottish Government come up with a range of solutions and do the work around that, that might include a cap, it might be block funding or might be other options.
"I appreciate that one of the risks is we run with beds that aren't utilised for periods of time and the question we need to confront, and the government will need to answer, is which risk are we happier to bear? Beds that are under utilised or the risk that a child who needs a bed isn't able to access one?"
The Scottish Parliament's Justice Committee is conducting an inquiry into secure care places for young poeple and children, in the light of the death of 16 year old William Lindsay who took his own life at Polmont, the young offenders institution. The sheriff dealing with his case had wanted to send him to secure care but no rooms were available.
Hugh Carr, head of strategic procurement with Scotland Excel, the organisation which is used by Scotland's 32 councils to procure services, also told MSPs, that the current commercial model for operating secure care units was an "inherent weakness".
He said that "some form of block funding" could provide a solution to keep spaces free for Scottish children when they were needed, and reduce the reliance of providers on "cross-border placements."
Asked if introducing a cap on cross-border placements could result in places not being used, he said: "That's the inevitable risk.
"We don't set policy but we try to work with local authorities and other key stakeholders to provide a solution to implement council policies, but we need to work harder to understand long term capacity that needs to be in place. That way we could understand what form block funding could take and where that changes the break even point for the individual units, and if that has a direct correlation on any cross border capacity they would have to put in place."
The Scottish Government had previously been urged to introduce a policy for all children under 18 in Scotland to be sent to a secure care unit and to ensure enough places are available for Scottish residents.
Mr Hobbs has said the government "has a duty to make sure that sufficient alternative provision is available in Scotland so that children under 18 are not detained in prisons, other adult provision, or young offender institutions. Where children do need to be detained, it should be for the shortest possible time and in an age-appropriate facility capable of protecting their physical and mental integrity and wellbeing.”
Today he also said that the human rights of children and young people had to be at the heart of the secure care process, including ensuring more units were available closer to where young people live, and that a "lack of secure units outside central belt interferes with childrne’s rights to family life."
There are five secure units in Scotland, providing 84 places. But the number of residents from outside Scotland in these centres has nearly doubled in a year, from an average of 19 in 2017 to 36 in 2018, while residents from within Scotland dropped by 18 per cent over that time, from 56 to 46.
Justice Secretary Humza Yousaf has ordered a review of mental health services for young people in Polmont following the death of William and 21-year-old Katie Allan, who also took her own life while in custody at the institution.
A government Secure Care Group has already asked that local authorities receive consistent advice if they find it difficult to place a young person in secure care due to lack of capacity.
Minutes of the group from May show that lack of capacity was a major reason for councils finding it difficult to find secure care, and added that while there was "no single reason... it is clear the number of Scottish placements have risen considerably in the past nine months. Cross border placements peaked at 43 and have since reduced to 27. With all units also having recently used their emergency bed this suggest there has been an increase of 16-19 placements from Scottish local authorities in that short period."