Cross border placements: Memorandum of Understanding between UK, Welsh and Northern Ireland governments

Memorandum of Understanding between: the Scottish Ministers, the United Kingdom Government, the Welsh Ministers, and the Northern Ireland Executive

 (each a “Party” to this Memorandum and all collectively referred to as “the Parties”)

Children placed on Deprivation of Liberty (“DOL”) Orders from England, Wales and Northern Ireland into Scottish residential care

Purpose

This Memorandum of Understanding has been developed to support the use of cross-border placements of children in exceptional circumstances from England, Wales and Northern Ireland into residential children’s homes in Scotland under the authority of a DOL Order. It aims to clarify the respective roles and responsibilities of the Parties in this regard.

This Memorandum does not affect the existing statutory duties and functions of the Parties. It aims to support joint working arrangements between them and also reinforces the Parties’ desire to see those with responsibility for placing children reduce their reliance on DOL Order placements in Scotland. Further, it sets out the context and new regulatory framework for recognition of DOL Orders in Scotland under the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 (“the Regulations”).

Context

The Scottish Independent Care Review was published in 2020 and led to The Promise commitment to reduce cross-border placements to a minimum and to ensure there is no place for profit in how Scotland cares for its children. The Scottish Government is committed to implementing The Promise.

The realisation of The Promise means significantly reducing the number of children living away from their families and, therefore, includes reducing the number of cross-border placements, including those into Scotland, to an absolute minimum. The Regulations provide for recognition of DOL Orders in Scotland for certain purposes and subject to certain conditions, and aim to ensure better regulation of the placement process and improved outcomes for Children. These Regulations are an interim step towards longer term measures to reduce the number of cross-border placements into Scotland.

Where a Local Authority (in England and Wales) or Health and Social Care Trust (in Northern Ireland) is planning to apply for a DOL Order in respect of a child, where possible, arrangements should be made so that the child can be placed in accommodation located in the country of their residence whenever it is in their best interests to do so. This aim should be prioritised in planning and in decisions on use of available capacity.

DOL Order placements from elsewhere in the UK into residential care in Scotland should only occur in exceptional circumstances, where the placement is in the best interests of an individual child.

Terms of the Memorandum

The Parties agree that they shall collaborate in the exercise of their respective functions as they affect cross-border placements of children on DOL Orders into Scottish residential care. They will seek opportunities to work jointly to improve outcomes for children in this type of provision.

The Parties expect that Local Authorities and Health and Social Care Trusts will seek to place children who require to be deprived of their liberty in a placement in the country in which they are ordinarily resident whenever it is in their best interests to do so.

There will be exceptional circumstances when it is appropriate for children who are ordinarily resident in England, Wales or Northern Ireland to be placed in Scotland. 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. When considering children in this position, and where it is the case that the child’s liberty is to be deprived, it is expected that Local Authorities will seek, where possible, to place a child in secure accommodation under the authority of an order made under section 25 of the Children Act 1989, section 119 of the Social Services and Well-being Act (Wales) 2014 or, where the placing authority is a Health and Social Care Trust, under the authority of an order made under Article 44 of the Children (Northern Ireland) Order 1995. All Parties will encourage the bodies responsible for ensuring sufficient capacity in their jurisdiction to continuously work to ensure that sufficient capacity is created to appropriately accommodate children within their “home” countries in the near future.

Scottish Ministers expect all residential care providers in Scotland to prioritise referrals of children who ordinarily reside in Scotland, to ensure that children can remain close to their families and communities wherever that is in their best interests. This may mean that authorities elsewhere in the UK, which seek to place a child in Scotland, may have to source alternative suitable provision to that of their original or first choice, but which still meets the needs of the child being placed.

 The Parties will encourage the bodies responsible for ensuring sufficient capacity in their jurisdiction to continue to work to ensure that there are a sufficient number of children’s secure and residential homes to provide appropriate care for children in the country of their residence, where remaining there is in their best interests. The Scottish Government will monitor the numbers of cross-border placements of children on DOL Orders being placed in Scotland, and will meet regularly with the other Parties to discuss implementation of the Regulations and emerging issues arising. Initially, these meetings will take place quarterly, with the first to be attended by all Parties. It is agreed that subsequent meetings will be attended by Parties representing jurisdictions from which a DOL case or cases have been received into Scotland in the preceding quarter and that all Parties may attend where specific issues emerge and require discussion. It is also agreed that relevant inspection bodies, such as Social Care and Social Work Improvement Scotland (the Care Inspectorate), Ofsted, the Regulation and Quality Improvement Authority in Northern Ireland and Care Inspectorate Wales, may attend quarterly meetings, subject to the agreement of all the Parties in attendance

Should systemic issues be identified by the Care Inspectorate in relation to cross-border placements of children into Scottish residential care, it will be reported to the Scottish Ministers. The Scottish Ministers will then highlight these issues to the other Parties at the earliest possible opportunity in order to agree a suitable course of action.

Review

This Memorandum of Understanding will be reviewed every year, with the first review being due before December 2023, to ensure it remains relevant and up-to-date. Parties will use the quarterly meetings to notify and consider the potential implications of proposals for new relevant legislation or policy changes on this Memorandum of Understanding.

Each Party may negotiate changes to the Memorandum of Understanding and any changes must be agreed by all Parties.

Termination

Any Party may terminate the Memorandum of Understanding by giving one month’s notice to the other Parties.

Signed on Behalf of the Scottish Ministers

Name: Jane Moffat

Title: Deputy Director for Strategy, The Promise and GIRFEC

Date: 30 January 2023

Signed on Behalf of the Welsh Government

Name: Albert Heaney

Title: Chief Social Care Officer for Wales

Date: 25 January 2023

Signed on behalf of the Department of Education

Name: Jonathan Bacon

Title: Deputy Director of Looked After Children Care System

Date: 4 January 2023

Signed on Behalf of the Department of Health, Northern Ireland

Name: Peter May

Title: Permanent Secretary

Date: 22 December 2022