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

9. Enforcement in event of breach of placing authority duty

The Regulations modify relevant enforcement provisions of the 2011 Act to provide the Scottish Ministers with the power to apply to a sheriff for an enforcement order if a placing authority does not comply with its duties under modified sections 144 and 145 of the Act (see regulation 13(4) and (5)).Those duties are for the placing authority to:

• comply with any requirements imposed on it by the DOL order which is recognised under the Regulations as if it were a CSO;
• investigate 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);
• comply with the undertaking it has given under regulation 7 of the Regulations (i.e. the undertaking to provide or secure the provision of all services required to support the placed child and to meet all of the costs arising from, or in consequence of, the child's placement, other than the costs of Scottish advocacy under regulation 11).
• Where it appears to the Scottish Ministers that the placing authority is in breach of a duty, it may give that authority notice of an intended application by them to enforce the duty. The matter could only escalate to the sheriff where the authority does not fulfil that duty within 21 days of the notice being issued.

If Scottish Ministers brought the matter to court, the sheriff could then make an enforcement order requiring that the relevant duty be carried out if it were found that the placing authority was in breach of it.