Cross-border placements of children and young people into residential care in Scotland: policy position paper

This policy relates to placing children and young people into Scottish residential care when a High Court in England or Wales has granted a Deprivation of Liberty Safeguards (DOLS) order. We are seeking views on DOLS orders having effect 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 intend to lay draft regulations in Parliament in Spring 2022 to achieve this, under section 190 of the 2011 Act.

All responses and enquiries in relation to this policy should be sent to Looked_After_Children@gov.scot by 28 January 2022.

Introduction: The Promise and cross-border placements

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 advocated supporting families at an earlier stage and in a much more positive and sustained way. This is so that they can stay together, where that is appropriate, and so the children within those families can thrive.

The Promise was also clear that the practice of selling care placements to local authorities across borders must end. We know 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. We believe that cross-border placements should only occur in exceptional circumstances where the placement is in the best interests of an individual child.

Current situation

Some residential care services with resources in Scotland are receiving cross-border placements of children and young people subject to English High Court DOLS orders. These are orders granted by the courts in England and Wales which allow a child or young person to be deprived of their liberty in a residential care setting. The experiences of these children are of particular and immediate concern. They are often the children and young people with the most complex needs, in the most vulnerable of situations, who require specialist care and support.

DOLS orders for children and young people are authorised by the High Court in England and Wales under its “inherent jurisdiction.” That happens because there is no statutory provision which authorises deprivation of liberty in residential, as opposed to secure accommodation. (See, in respect of secure accommodation, section 25 of the Children Act 1989, as amended in 2017 - Children Act 1989 (legislation.gov.uk).)   

The UK Supreme Court recently ruled that the use of the inherent jurisdiction to authorise deprivations of liberty in “non-secure” accommodation is lawful. However, it was noted that use of the inherent jurisdiction in the face of a lack of provision for children and young should be a temporary measure. The most appropriate permanent solution is to address this lack of provision.

Currently, DOLS orders are not automatically recognised under Scots law. This means that non-Scottish placing local authorities need to petition the Court of Session in Scotland to get such recognition in each individual case. Lawful authority is an essential requirement for deprivation of liberty to be compliant with Article 5 of the European Convention on Human Rights.

The current process of placing authorities petitioning the Court of Session cannot be sustained. It does not serve the interests of the child or young person at the heart of each application and it places a burden on petitioners and on the court itself, when resources could be better directed elsewhere. Our proposals below focus on how we intend to address this and to better regulate cross-border placements in the short-term. We will set out our vision for a more fundamental and sustained change in the regulation of these placements. This will form part of the preparation for a Children’s Care and Justice Bill in this Parliamentary session.  

Proposed regulations: outline

We have concerns about cross-border DOLS placements, given the lack of sufficient and appropriate provision for these children in England. Simplistic or disproportionate action prohibiting these placements would leave children and young people in vulnerable situations with nowhere to go, putting them at even higher risk. However, the current mechanism for recognition of DOLS orders is unsustainable and does not serve the best interests of children and young people. 

We must therefore remove the need for a placing local authority to petition the Court of Session’s inherent jurisdiction in order to recognise each DOLS order. We propose to do this by laying draft regulations before the Scottish Parliament in Spring 2022. This will be a short-term, interim step, necessary to better regulate cross-border placements of children and young people on DOLS orders into Scottish residential care. This will help us on the way to a longer term solution.

The regulations will be enabled by section 190(1) of the 2011 Act. That section allows the Scottish Ministers to provide that a non-Scottish order which appears to them to correspond to a CSO should have effect as if it were one. If the regulations so specify, this may apply only in particular circumstances or for certain purposes. 

It is considered that DOLS orders do correspond to CSOs, as within Scotland, a CSO can authorise child being looked after away from home in particular places. In addition, a secure accommodation authorisation measure in a CSO can authorise the deprivation of a child’s liberty in secure accommodation. This can be implemented subject to the assent of the relevant Chief Social Work Officer and head of the secure unit in which the child is to be placed.

Proposed regulations: policy proposal

We propose that recognition of a DOLS order as if it were a CSO should be conditional on a number of actions and principles.

The best interests of every child in Scotland, whether or not they themselves are Scottish, must be front and centre. We must consider the need for parity of treatment between children who are established and placed in Scotland, where they are deprived of their liberty. This must be balanced with the appropriate roles of “placing” and “receiving” local authorities.

One option could be to give the receiving local authority primary responsibility for the child on these placements, with the DOLS order being fully converted into a CSO. This means that all the standard provisions and procedures in terms of the 2011 Act would apply. The Children’s Hearing would review, vary and ultimately end the order. This would visit the responsibility for children on the impacted Scottish local authority – in a circumstance where full assessment of the child’s needs is often impossible.  

Instead, we propose that responsibility for the placement should remain where it properly belongs – with the non-Scottish placing authorities. That means that the placing local authority should have full responsibility for the implementation, oversight, review and financial costs of the placement. The placing authority should retain responsibility for the welfare analysis conducted by the High Court as part of assenting to the orders at the time they are made.

We do not envisage the Scottish local authority to have any new duties imposed upon them as receiving local authority. However, the recognition of DOLS orders as CSOs would be without prejudice to the receiving authority’s existing statutory duties. This would ensure these could be relied upon in the case of an emergency situation or in the event of a placement breakdown. 

We also feel that DOLS orders should only be recognised for a maximum period of 3 months. This would ensure that court authorisation is reviewed at a minimum every 3 months.

We must also consider the role and the powers of Scotland’s Children’s Hearings System (CHS) in this context. We are mindful that DOLS orders are lawful orders made by the High Courts in England or Wales. We propose that the children’s hearing will be convened in the authority area in which the child is located. It will facilitate information sharing with regard to the child’s progress in placement and importantly, consider the child’s access to local rights protections. We propose it will be open to the children’s hearing to appoint a safeguarder and to ensure advocacy provision has been offered to the child. We also propose that the children’s hearing will be able to share information on the child’s progress. This should be transmitted to the High Court in England / Wales in the context of their reviews (at least every 3 months) of the DOLS order.

We are considering incorporating key criteria/conditions for recognition of the DOLS order in Scots law, relating to different stages of the placing process, including requirements:

• before a placement occurs, such as: notifying the Chief Social Work Adviser in England/Wales and Scottish counterpart or Scottish Ministers when a DOLS application is made, followed by a multi-agency discussion between Chief Social Work Advisers; notifying relevant parties (including the Chief Social Workers and Scotland’s Principal Reporter) once a DOLS order has been approved; and
• during a placement, such as: time-limiting recognition of the orders to for a maximum of 3 months, to ensure regular reviews.

Action in addition to draft regulations

We are also exploring how non-statutory administrative agreements could be used alongside the regulations to set out procedures around the cross-border DOLS placing process. For example, we could set out processes to be followed before a DOLS order is sought, as well as after it has been granted. This would include expectations around how authorities should work together during a placement, including contingencies and clear respective responsibilities in the event of placement breakdown. We could also set out processes around information sharing and multi-agency discussion. These are key to ensuring that cross-border placements can operate in a way which protects each child’s best interests. 

This would help to build up a picture of the support a young person needs, and where and how that may be best provided. In turn, this should facilitate applications for DOLS orders, and mitigate against risks of disagreements between authorities and placements being unsuccessful.

Questions to think about

You might find it helpful to think about these questions when you consider the policy proposals set out above. Please get in touch with us to share your views.

We will use responses to inform the policy development and the related legislation and administrative agreements.

• Do you support the proposals outlined above? If yes, why?
• If no, what would you wish to see changed and why?
• Do you think the proposals omit key issues that should be addressed through the proposed regulations? If yes, what are these gaps?
• In your view, what should the scope and key features of the proposed non-statutory administrative agreements be?
• In your view, is there anything additional (such as guidance on particular issues) that would further support the achievement of the policy? If so, what would they be and why/how do you think they would help?

Context for regulations

We recognise that what we are proposing is a short-term, partial mitigation of a longer term problem. Until the lack of provision for secure and residential care in England is addressed, cross-border placements into Scotland will continue to be required. We continue to seek assurance from the UK Government that prompt and effective action is being taken to find a solution to capacity issues that exist. We welcome their continued engagement and co-operation on this matter. 

More broadly, we are continuing to review the legal frameworks applying to children and young people in secure and residential care in Scotland.  We are committed to ensuring that these are fit for purpose and will continue to engage and consult with stakeholders as we consider further legislative steps.

Get in touch

All views in relation to the policy outlined above on cross-border DOLS placements should be sent to Looked_After_Children@gov.scot by 28 January 2022.

You might find it helpful to look at the ‘Questions to think about’ section when submitting your views.