Cross-border placements of children and young people in residential care in Scotland: regulation of Deprivation of Liberty (DOL) orders

Overview

This policy relates to when a High Court in a part of the UK other than Scotland has exercised its inherent jurisdiction to authorise deprivation of liberty of a child in a residential care setting in Scotland.

All responses and enquiries in relation to this policy should be sent to Looked_After_Children@gov.scot

Introduction: regulation of cross-border DOL placements

On 6 January 2022, we published a policy position paper on the cross-border placements of children and young people into residential care in Scotland.

The policy related to placing children and young people into Scottish residential care when the High Court in another part of the UK has granted a Deprivation of Liberty order. These DOL orders are made under the High Court’s so-called “inherent jurisdiction” because there is no statutory provision to authorise deprivation of liberty in residential accommodation.

We sought views, by 28 January 2022, on proposals for regulations that would recognise DOL orders in Scotland as if they were Compulsory Supervision Orders (CSOs). CSOs are made under the Children’s Hearings (Scotland) Act 2011 (‘the 2011 Act’). We set out our intention to lay draft regulations in Parliament in Spring 2022 to achieve this, under section 190 of the 2011 Act.

Response rate

A variety of feedback was received from around 30 stakeholders. That included responses from regulatory and oversight organisations, health and social care providers, third sector organisations, and legal stakeholders.

The engagement was focused, inviting views by email - in lieu of a formal 12-week consultation. That means most responses were submitted without the expectation that we would publish them.

We have since contacted all those who provided feedback, to seek permission to cite their views in this summary document.

Where stakeholders have published their responses on their own websites, we have included links in Annex A.

Current situation and proposal: overall response 

The Independent Care Review completed its work in 2020. Its conclusions, written in ‘The Promise’, set out the transformational change required by 2030. The Promise was clear that the practice of selling care placements to local authorities across borders must end.

We set out our concerns that such placements result in children and young people being separated and distanced from their families, peers, community support networks and services. This impacts on the ability to plan for the child and on their ability to maintain meaningful relationships.

Most respondents shared our concerns about the current situation, for example, citing an inadequacy in current legal and care structures to support children effectively. Respondents were clear that current policy and practice provisions around cross-border DOL placements should be improved. On that basis, many expressed support, in principle, for the intention to better regulate the placement process.

Respondents agreed that cross-border placements should only occur in exceptional circumstances where the placement is in the best interests of an individual child. Many focused on the importance of Keeping The Promise, which involves reducing all cross-border placements to a minimum. One response highlighted that this could not be done abruptly, as this could make things worse for some children.

Respondents emphasised that it would be important to consider a wider strategic plan to address all types of cross-border placements (including, but not limited to, DOL placements). However, there was no shared consensus about how to approach and sequence this work. Some acknowledged the need for interim action, whereas others felt we should re-focus efforts on longer-term thinking instead. Many agreed that the proposed Children’s Care and Justice (Scotland) Bill could provide a vehicle for a longer-term solution.

Many responses emphasised that children’s needs and rights must be central to any work in this area.

Proposed regulations: taking key feedback into account

Responding to the specifics of the proposed regulations, there were some key details that respondents agreed upon. For example, many agreed with the proposal for the non-Scottish placing authority to be the implementation authority. This would mean they would retain full responsibility for the implementation, oversight, review and financial costs of the placement.

Respondents also agreed that converting the DOL order ‘as if it were a CSO’ would be more appropriate than fully converting into a CSO. For example, some stated that they would have been concerned that a full conversion would not necessarily be right for the child. It would place burdens on Scottish authorities, displacing responsibility from non-Scottish authorities. Many agreed that it is vital to address the root cause of lack of adequate provision in England in particular. Some asked whether the scope of the regulations could be extended to encompass possible cross-border DOL placements from Northern Ireland.

Respondents were also supportive of improving information-sharing processes, for example, by setting out that the placing authority should notify key Scottish stakeholders before a DOL placement occurs. They felt it would be important to create a better structure for this, helping to clarify roles and responsibilities.

However, respondents also raised a number of key concerns about some aspects of the proposal. Often respondents were supportive of the underlying policy intention, but were concerned that the proposal would not achieve the intention in practice. We have briefly summarised and responded below to the key points raised.

Policy principles

• some respondents disagreed with the policy principle of legislating to recognise deprivation of liberty from another jurisdiction

At present, without Scotland accepting these placements, there would be nowhere else for these children in vulnerable situations to go. These regulations are a first step towards better regulating cross-border DOL placements, ahead of longer-term measures in primary legislation to reduce them. We recognise the complexities of this concern and continue to press the UK Government to address the issues of provision, particularly in England.

• some expressed concern that the regulations could lead to an increase in cross-border DOL placements, which would run counter to the commitment to reduce them. Some emphasised the need to consider all types of cross-border placements, to avoid unintended consequences of focusing on a small subset (i.e. DOL placements)

We recognise this concern and will closely monitor the impact of the regulations. The draft regulations will include key conditions for legal recognition, which are designed to better regulate the placement process. These are more detailed than current information-sharing arrangements, so we do not anticipate that the placement process will be made ‘easier’ by the regulations. We will also progress shortly with the consultation on the Care and Justice Bill, seeking input on how to reduce cross-border placements to a minimum through primary legislation. 

Children’s rights and needs

• a number of respondents raised concerns that the proposal seemed to focus on addressing the pressures that the current system places on the courts in Scotland. They emphasised that children’s rights and needs should be paramount

Whilst there is a legal imperative to address a current statutory gap, the draft regulations are an opportunity to better regulate these placements and improve the status quo. It will ensure that the conditions for recognition of a DOL order in Scotland are set by Ministers, with the approval of the Parliament.

There is currently no clarity on roles and responsibilities of placing and receiving authorities. Regulations and associated administrative arrangements will clarify this, making clear that the placing authority is responsible for implementation of the DOL order and for ensuring the child’s welfare. It will also provide a robust mechanism for information-sharing, which will streamline and better regulate the process.

We have also developed a proposal for an offer of advocacy to children and young people on DOL order placements, outlined in further detail below.

Children’s Hearing System

• many respondents supported the principle behind proposing a role for the Children’s Hearing System (CHS). However, most were concerned about the lack of power available to the CHS, meaning the proposal would not lead to parity of treatment between Scottish and non-Scottish children. They highlighted that it could be confusing for the child to be involved in another legal jurisdiction when they are already involved in the non-Scottish court process

Responding to this key area of consistent concern, we are no longer proposing through these regulations a role for the CHS. Whilst the intention was to provide for parity of treatment, we recognise the lack of dispositive power available to the hearing. We also acknowledge concerns that it could increase confusion and trauma for the child, needing to interact with two different legal systems.

Operational clarity

• some welcomed the intention to supplement the draft regulations with administrative agreements to support a better-regulated placement process. However, they raised concerns that these agreements would be non-statutory. They highlighted the risk that non-Scottish placing authorities would not be legally accountable for following the agreements

We acknowledge this concern, and intend that the regulations to ensure that entering into a placement agreement is also a condition for recognition of the order. We also intend to provide for Scottish Ministers to be able to apply to the sheriff court for an order to enforce the implementation authority’s duty in relation to the child, if the authority is in breach of that duty.

• some respondents wanted further information on some topics. For example, they asked how oversight and scrutiny of these placements could be improved. They also wanted to ensure that the roles and responsibilities of non-Scottish and Scottish authorities are clearly delineated

The regulations provide an opportunity to clearly set out the responsibilities of the non-Scottish authority as the implementation authority. We will continue to work with all key stakeholders – particularly through consultation on the Care and Justice Bill – on developing policy to further improve oversight and scrutiny of these placements.

Draft regulations: updated proposal summary

Our continued intention is to lay the proposed regulations as a short-term interim step, ahead of primary legislation. The regulations and administrative agreements provide an opportunity to ensure cross-border DOL placements are better regulated. It is necessary for us to address the current gap in legislation, and for Scottish Parliament to scrutinise the draft regulations.

In summary, we propose the following key features in the draft regulations: 

• provide for recognition of DOL orders granted or extended by the High Court in exercise of its inherent jurisdiction in another part of the UK, to have effect as if they were a CSO in certain circumstances. This recognition would be for a period of up to three months at a time
• require the non-Scottish placing authority to notify a number key Scottish authorities in writing of key information about the DOL order as a condition of the recognition
• require the non-Scottish placing authority to enter into a placement agreement as a further condition of the recognition, with the agreement containing appropriate undertakings including: to provide or secure the provision of all services required to support the child and bear all the costs arising from – or in consequence of – the placement
• set out the provisions of the 2011 Act which apply and to designate the non-Scottish placing authority as the implementation authority
• provide for Scottish Ministers to apply to the relevant sheriff court for an order to enforce the implementation authority’s duty in relation to the child, if the authority is in breach of that duty

We also intend to put in place an offer of advocacy to children and young people on cross-border DOL placements. This would operate as an extension to the existing national children’s hearings advocacy scheme in the relevant Scottish local authorities. This offer of advocacy will be intended to support affected children to understand and realise their rights, and to provide their views to the residential provider - as to how their in-placement experience aligns with their child’s plan and how their welfare is being protected, in line with the welfare analysis submitted to the High Court when the placing authority first applied for the DOL order.

We welcome the feedback on the policy proposal we published in January. We are grateful to respondents for indicating which aspects they support and where they have concerns. We recognise that this is a complex policy landscape and that continued collaboration will be required to reduce all cross-border placements to a minimum.