Cross-Border Placements Regulations: business and regulatory impact assessment

3. Rationale for Government intervention

Currently, DOL orders are not automatically recognised under Scots law. This means that an authority which is granted a DOL order needs to petition the Court of Session in Scotland to get such recognition through use of the court's nobile officium jurisdiction. This is particularly important, as lawful authority is an essential requirement for deprivation of liberty to be compliant with Article 5 of the European Convention on Human Rights.

Petitions to the Court of Session's nobile officium jurisdiction are not intended for routine applications, such as those to recognise DOL orders. This current process cannot be sustained. It does not best serve the interests of the child or young person at the heart of each case and it places a burden on placing authorities and the courts when resources could be directed elsewhere.

These Regulations accordingly provide for DOL orders to be treated in Scotland as if they were CSOs. The orders are to be so treated for the purpose of authorising the deprivation of liberty of the child who is the subject of the order in Scotland and for the purpose of the application of certain provisions of the 2011 Act in relation to the order.

The Regulations are an interim step, necessary to better regulate cross-border placements of children and young people on DOL orders into Scottish residential care. This will help us on the way to a longer-term solution as part of the Children's Care and Justice (Scotland) Bill, upon which we are now consulting.^[1]

The aim of the Regulations and associated administrative agreements is to ensure clarity and accountability around the placing authority's responsibilities prior to any cross-border placement, throughout its duration and at its end. Together, legal and administrative provisions will ensure that the relevant Scottish authorities are notified in writing of key information about the DOL order and will clarify roles and responsibilities, 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 existing placement process.

The policy is supportive of the National Outcomes in the Scottish Government's National Performance Framework.^[2] For example, in terms of the outcome for children and young people ('We grow up loved, safe and respected so that we realise our full potential'), the Regulations are focused on ensuring that the placement process for children subject to DOL orders is better regulated. This is to ensure that the best interests of the children are at the centre of all decisions made about their care, their rights are protected and their needs can be met in practice. This also has relevance to fulfilling the human rights outcome ('We respect, protect and fulfil human rights and live free from discrimination'). The decision regarding whether to grant, extend or end a DOL order (which is what has most impact on the child) rests with the High Court outside of Scotland; however it is within the scope of the policy to better regulate the DOL placement process itself, with these key outcomes in mind.