Cross-Border Placements Regulations: business and regulatory impact assessment

17. Summary and recommendation

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 which requires petitions to be made to the Court of Session for Scots law recognition of DOL orders, and it is appropriate for the Scottish Parliament to have the opportunity to scrutinise the Regulations.

In summary, the following is provided for in the Regulations:

• Provision to allow a DOL order that has already been recognised in Scots law through the current Court of Session route on the date of entry into force of the Regulations to be treated as if it were a CSO, for a limited period.
• Scots law recognition of DOL orders granted or continued by the High Court in another part of the UK, with the order having effect as if it were a CSO in certain circumstances. This recognition would be subject to conditions and for a renewable period of up to three months at a time.
• Treatment of DOL orders as if they were CSOs being for the purposes of authorising the deprivation of liberty of the child who is the subject of the order in Scotland and the application of certain provisions of the 2011 Act in relation to the order.
• A requirement for the placing authority to notify a number of key Scottish authorities in writing of key information about the DOL order as a condition of the recognition of a new or continued order.
• A requirement for the placing authority to give an undertaking as a condition of the recognition of a new or continued DOL order. The undertaking must set out that the placing authority will 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 (except the costs of Scottish advocacy provision).
• Application and modification of certain provisions of the 2011 Act, in particular to designate the placing authority as the implementation authority and to ensure that Scottish Ministers can 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.