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As a minimum, the charter will set out the rights and responsibilities in relation to the NCS so that people who are accessing support have information on the complaints and redress system, which will provide recourse if rights in the charter are not met, and information on how to access information, advice and advocacy services, which was one of the points that Miss Callaghan made. That is the basic minimum but, as Mr Stewart said, we are consulting, including with children and young people, on exactly what the charter should include.

Good afternoon, and thank you for your invitation to address the committee in relation to this Scottish statutory instrument.

The SSI sets out the information that will be contained in the annual report to Parliament on the use of the place-of-safety power in section 28 of the Age of Criminal Responsibility (Scotland) Act 2019. Section 28 provides Police Scotland with the power to take a child who is under the age of 12 to a place of safety when they consider that the child

“is behaving or is likely to behave in a way that is causing or risks causing significant harm to another person.”

The SSI has been developed since the 2019 act’s commencement on 17 December 2021, which means that it has been informed by the first few months of the legislation operating in practice. The police have used the power on only four occasions since December.

In developing the SSI, I have taken account of the fact that the power has been required only infrequently, and of the risk that is therefore posed in relation to compromising a child’s identity when information is reported to Parliament. The information that will be reported to Parliament, as set out in the SSI, will not contain the same level of detail as the information that Police Scotland records and provides to ministers. The essential difference is that it will not focus on the specific date, time and location of a child being taken to a place of safety; instead, the report will contain detail on the length of time that a child was at a place of safety, how many times in a month a place of safety was used, and the number of times each place of safety included in the 2019 act was used within the reporting period.

The SSI has been designed to ensure that the reports that are laid in Parliament safeguard children’s identity while furnishing Parliament with information on the safe and proper use of the power. I believe that the SSI does that without materially altering the intent or the information that ministers receive.

We collaborated with Police Scotland on the development of the instrument, to ensure that its terms are appropriate, deliverable, proportionate and underpinned by the principles of the 2019 act. We also informally consulted with stakeholders, including organisations that have a strong focus on children’s rights.

The 2019 act requires ministers to carry out a review of its operation and to consider the future age of criminal responsibility. Should the age of criminal responsibility be raised or the frequency of the power’s use increase, the regulations can be modified to require reports to include further information.

Scottish ministers will look to provide Parliament with the first report in early 2023, after the end of the first year of the 2019 act’s implementation.

I hope that that provides the committee with a helpful overview of the draft regulations.

It would be helpful to establish for the committee and for the record that a police cell would be used only in one rare circumstance, which is when a child behaves in an exceptionally violent manner or their behaviour poses extreme risk to someone else.

Under the place of safety power, it would be unusual for the police to take a child to a police station, never mind to take the step of putting them in a police cell. If police had concerns about a child and were using the power, they would contact social work and the local authority to try to identify a relevant place that would best meet the child’s needs for a place of safety. Local authorities could identify various places; it could be a care home, or, if that child had identified medical needs, it could be a hospital. A police station would be the last resort, and the use of a police cell would be in extremis.

There would be only one reason for a child to be kept in a cell as a place of safety, and that would be, as I outlined earlier, if they were behaving in an exceptionally violent manner or posing an acute threat to someone else.

On why someone would go to another place of safety, the police would liaise with social work, which would take a holistic view using a getting it right for every child approach to consider what is in the best interest of that child and where would best suit their needs. Social work would consider the situation from a child protection and child safeguarding point of view in relation to whether the child needed to go to a place of safety until they were able to be returned home or to another appropriate adult.

I will take the first part of that question and then I will hand over to Lynsey McKean on compliance.

The 2019 act placed a duty on the Scottish ministers to review its operation in general and with a view to considering the future age of criminal responsibility. The three-year review period started on 17 December last year, which was the day that section 1 of the act came into force. In carrying out that review,

“the Scottish Ministers must consult such persons as they consider appropriate”

and must lay a report before the Parliament within 12 months of the completion of the review period.

An advisory group has been established to support that work and it has met since summer 2019. The review will ensure that the operational learning and experience from the implementation of the act will inform the discussions that we have about the future age of criminal responsibility in Scotland.

I hope that that gives the member an overview of some of the work that is going on. I am sure that we will come back to the matter in future as the review reports.

Yes, I confirm that that is correct. The police can engage with children who are under the age of 12.

I am sorry. Could you—

Lynsey McKean will be able to tell you about that.

No, there has been no analysis or modelling of that specific issue.

Good morning to the committee. Scottish ministers have committed to keeping the Promise by reducing and, ultimately, ending cross-border placements, whether children’s liberty is to be deprived or restricted. We also have a responsibility to uphold children’s rights and ensure that their wellbeing is our paramount consideration. That applies to all children in Scotland, not only to children from Scotland.

Last week, the committee heard evidence from the office of the Children and Young People’s Commissioner Scotland, and I record my thanks for the careful and thorough analysis of the issues involved. We have engaged with the children’s commissioner’s office and other key actors throughout the development of the regulations. We all agree that cross-border placements should occur only in exceptional circumstances and that we want to see them reduced to the minimum number possible.

Last year, the United Kingdom Supreme Court ruled that the use of the inherent jurisdiction to authorise deprivations of liberty in non-secure accommodation is lawful and is not incompatible with article 5 of the European Convention on Human Rights. There needs to be an appropriate legal mechanism for recognition of those orders. Currently, it involves petitions to the Court of Session to recognise the deprivation of liberty orders made by the High Court in other parts of the UK. The Supreme Court noted that it is the chronic lack of capacity in England in secure and high-intensity residential childcare accommodation that is driving the placements. Members can be assured that I have pressed and will continue to press the UK Government to urgently address those shameful capacity issues.

The Scottish Government is not the author of the circumstances, but we find ourselves in the invidious position of having to mitigate their impact, which falls on the children, on their families and on Scottish services. We cannot delay in taking action to better protect the children.

The options that are before us are stark. The current process of petitioning the Court of Session in respect of dozens of exceptional individual applications is not sustainable. It is imperative that we provide improved safeguards to better protect the children and young people who are in the placements.

The only way that we could achieve full parity of treatment with Scottish children, as advocated by the commissioner’s office, would be to accept wholesale responsibility for cross-border placements into our Scottish care and legal systems. If we took that approach, we would be complicit in severing a child’s links with their home community and support networks, and we would be absolving the placing authorities elsewhere in the UK of the responsibilities that properly lie with them. The likely consequence is that we would, first, see a marked increase in placements. Then, as placements multiplied, they would have a knock-on, unplanned and unfair resourcing impact on Scottish authorities and services.

The regulations that are before the committee provide for recognition of DOL orders in Scots law but with conditions that bring greater accountability to placing authorities and greater protections for the children in the placements than currently exists. The regulations do not transplant responsibility to Scotland, but they offer better notification mechanisms and carefully constructed failsafes, including the requirement for the placing authority to notify key Scottish authorities of placement details and to give an undertaking that it will provide or secure and cover the costs of all services that are required to support the child. That is not happening in practice currently, and it will become a legal requirement. The regulations also provide for the Scottish ministers to apply to the relevant sheriff for an order to enforce the implementation authority’s duties in relation to the child if they are not being fulfilled.

We have listened and responded to stakeholders’ views when developing the regulations. Our original proposal included an advisory role for children’s hearings to facilitate the provision of information to the High Court in England and Wales about a child’s progress in placement and, importantly, to consider a child’s access to local rights protections. We also proposed that it should be open to children’s hearings to appoint a safeguarder, to consider legal representation and to ensure that advocacy provision had been offered to the child.

That earlier, stronger proposal was not supported by the commissioner and other stakeholders. In particular, the commissioner raised several issues about a child’s ability to challenge the basis of the deprivation of liberty. Challenging, varying or overturning the High Court’s order is not in scope here. The scope of available powers cannot influence the decisions of a superior court in another jurisdiction.

The regulations improve on the status quo and represent an interim step that will allow us to get to longer-term solutions as part of the proposed children’s care and justice bill, which is the space where we can consider more fully and fundamentally how to address cross-border placements. That is why, in the consultation for the bill, we are seeking views on regulation, scrutiny and monitoring and on the Care Inspectorate’s role in relation to cross-border placements—all issues that the commissioner’s response highlighted.

The improvements to existing cross-border DOL processes and the protection of Scottish local services that the regulations afford must be implemented as soon as possible. I therefore commend the regulations to the committee.