The Cross-Border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 - practice guidance, notice and undertaking template

1. Background

The Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 ('the Regulations') – and this accompanying guidance – relate to the practice of local authorities elsewhere in the UK placing children into Scottish residential care under a Deprivation of Liberty ("DOL") order. To date, the vast majority of placements have been made by English local authorities, but they may also be sought by local authorities in Wales or Health and Social Care trusts in Northern Ireland.

The Regulations replaced the practice of placing authorities petitioning the Court of Session in Scotland for recognition of a DOL order through use of the court's nobile officium/parens patriae jurisdiction(s). They provide for DOL orders to be treated in Scotland as if they were Compulsory Supervision Orders (CSOs) - for specified purposes and subject to certain conditions. These conditions must be fulfilled by authorities from England / Wales / Northern Ireland who wish to place a child in Scotland to ensure Scots law recognition of the order and a lawful basis for authorising the deprivation of the child's liberty in accordance with the DOL order as required for the purposes of compliance with article 5 of the European Convention on Human Rights (ECHR).

A CSO is a Scottish order made by a Children's Hearing or sheriff including any of the measures mentioned in section 83(2) of the Children's Hearings (Scotland) Act 2011 ("the 2011 Act") and which specifies a local authority in Scotland which is to be responsible for giving effect to the measures in the order.

The Regulations will not "convert" any DOL order into a CSO. The purposes for which a DOL order will be treated "as if" it were a CSO under the Regulations are authorising the deprivation of liberty of the child who is subject to the order in Scotland (which is crucial for compliance with Article 5 of the ECHR); and the application of certain provisions of the 2011 Act in relation to the order.

Given that the Regulations do not "convert" the DOL order into a CSO, the placed child will not become subject to the Scottish children's hearings system and the placing authority will continue to be responsible for implementation of the DOL order which is legally recognised in Scotland. The placing authority also has obligations under the Regulations to:

• Provide or secure the provision of all services required to support the child;
• Meet all of the costs arising from, or in consequence of, the child's placement (other than the costs of an offer of advocacy made by Scottish Ministers to the child); and
• Investigate whether, whilst the child is resident in Scotland under the DOL order, the conditions under the order are being complied with. Where an authority considers that those conditions are not being complied with, it must take such steps as it considers reasonable.

Enforcement action may be taken by the Scottish Ministers where a placing authority is in breach of these duties – see point 9 of this guidance.