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

4. Considerations before DOL is applied for

Before a placing authority applies to the relevant court in their own jurisdiction to seek a DOL order to place a child into residential accommodation in Scotland, the Scottish Ministers expect that the following factors will be considered.

Placement location

Before seeking a DOL order to place a child in Scotland, it is expected that placing authorities will seek a placement, in the first instance, in their country of residence where it is in the child's best interests to do so. However, there is recognition that the need for specialist provision of a residential children's home placement may exceptionally require placing a child further away from home and potentially outside their country of residence. This might be because the placement is best suited to the child's needs, because of geographical proximity, or because there is no other suitable placement available.

Children's rights

When seeking placements in Scotland, the placing authority must fully consider and uphold the child's rights under the ECHR and the United Nations Convention on the Rights of the Child (UNCRC).

The Children's Rights and Wellbeing Impact Assessment published when the Regulations were laid before Parliament outlines the key UNCRC rights to be considered, including Articles related to:

• General Principles (Articles 3 and 12)
• Civil rights and freedoms (Articles 7, 8, 13 and 16)
• Family environment and alternative care (Articles 5, 9, 10, 18, 20 and 25)
• Basic health and welfare (Article 23, 24 and 27)
• Education, leisure and cultural activities (Article 28 and 31)
• Special protection measures (Articles 37) Information-sharing

Cross-border placements into Scotland will require effective planning, engagement and information-sharing between the services which will be responsible for meeting the child's needs. Consultation with the relevant Scottish local authority and service providers must be undertaken in good time to enable a thorough assessment to be made with regard to how the proposed placement in Scotland best meets the child's needs.

It is critical when assessing the suitability of a cross-border placement involving deprivations of liberty into residential care in Scotland that consideration should be given to the arrangements which will need to be put in place to enable the child to access key services, such as educational provision and primary and secondary health care.

Scrutiny and registration

Children's residential care home services in Scotland must be registered with the Care Inspectorate and are inspected to ensure that they are providing quality care and that they meet the Health and Social Care national standards.

It is expected that, in line with the requirement under the Regulations that any setting in which a child is to be placed in Scotland under a DOL order is to be managed by a Care Inspectorate registered service, placing authorities will undertake due diligence checks in relation to scrutiny and registration of a prospective residential provision in Scotland. This would entail a review of the prospective placement provider's most recent regulatory inspection information alongside its statement of functions and objectives. This information will inform pre-placement assessment to ensure that the placement is best matched to the child's individual needs and can provide a high standard of care. Inspection reports can be found on the Care Inspectorate website here: Inspection Reports (careinspectorate.com).

Multi-agency discussion

The placing authority should initiate multi-agency discussion with the relevant Scottish stakeholders in respect of access to and recharging arrangements for services in health, education, social work, police and any other required specialist services. It must be ensured that any services to be provided to the child are appropriate and tailored to their needs, and that they are delivered in a way which respects and fulfils their rights under the ECHR and UNCRC.