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

7. Considerations for the duration of a DOL order placement

7.1 Role of the Scottish local authority

The Regulations make clear that the placing authority has the legal responsibility for implementing the DOL order which is recognised as if it were a CSO and for providing or securing the provision of all services required to support the placed child. The placing authority is also responsible for meeting all of the costs arising from, or in consequence of, the placement, other than the costs of Scottish advocacy provided to the child. Scottish advocacy services will be provided under the children's advocacy in children's hearings national scheme, funded by the Scottish Government.

The Regulations do not prejudice any relevant powers or duties of Scottish local authorities which could be invoked in relation to the child (for example, to safeguard a child's welfare), but the intention and expectation is that these will not need to be engaged. This is because placing authorities are required under the Regulations to implement the child's DOL order and to comply with the undertaking they have made in relation to placement costs and services.

It is the expectation of Scottish Ministers that the local authority which has placed the child in Scotland will timeously assess and address any concerns. However, the receiving local authority may also act as appropriate, particularly considering its own legal responsibilities. This might involve sending a social worker to visit the child or even arranging an emergency transfer for the child to another place in terms of section 143 of the Children's Hearings (Scotland) Act 2011 (as applied and modified by regulation 13(3) of the Regulations). All public authorities – including local authorities across the UK – must act in a way which is compatible with ECHR rights (under section 6 of the Human Rights Act 1998) – so both receiving and placing authorities must ensure that they do this. As above, UNCRC rights should also be fully considered where a child is placed in Scotland, and it should be ensured that those are upheld.

7.2 Role of the placing local authority

The placing authority has legal responsibility in Scotland for:

• complying with any requirements imposed on it by the DOL order which is recognised under the Regulations as if it were a CSO;
• investigating whether, whilst the child is residing in the relevant residential care setting in Scotland, any conditions imposed under the DOL order are being complied with. (If it considers that they are not, the placing authority must take such steps as it considers reasonable);
• providing or securing the provision of all services required to support the placed child; and
• meeting all of the costs arising from, or in consequence of, the child's placement, other than the costs of Scottish advocacy under regulation 11.

7.3 Advocacy arrangements

Where a child becomes subject to a DOL order which has effect as if it were a CSO under the Regulations, the Scottish Ministers will inform the child or young person of the availability of children's advocacy services, unless taking into account the age and maturity of the child, they do not consider it would be appropriate to do so. The advocacy provision will operate as an extension to the existing national children's hearings advocacy scheme Home - Hearings Advocacy.

Once the placing authority has notified Scottish Ministers of the intention to place a child subject to a DOL order in a Scottish residential setting, the Children's Hearings Team, on behalf of Scottish Ministers, will contact the person in charge of the residential care setting to offer independent advocacy for the child or young person as soon as reasonably practicable and ideally within 3 days of the child moving to the residential placement. The Scottish Government Children's Hearings Advocacy Team will notify the placing authority of the name of the advocacy organisation who will be making the Scottish advocacy offer to the child.

If the child agrees to being supported by an advocacy worker, the advocacy worker will make arrangements to meet with the child to begin the relationship building. The child can choose to start and stop the advocacy support at any time.

The Scottish advocacy offer is not a one-time offer. Contact details will be left with the child to allow them to request advocacy support at any time during their placement. If a DOL order is extended, then the advocacy organisation will get in touch with the child or young person again via the placement manager to make an offer of support.