Cross-Border Placements Regulations: business and regulatory impact assessment

6. Consideration of responses

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

On 25 March 2022, we published a summary paper.^[4] In that paper, we summarised the feedback received, outlined how we were taking key feedback into account, and set out the updated proposal summary.

Key considerations have included:

• Most respondents shared our concerns about the current situation, and were clear that current policy and practice provisions around cross-border DOL placements should be improved.
• 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 responses emphasised that children's needs and rights must be central to any work in this area.
• Respondents emphasised that it would be important to consider a wider strategic plan to address all types of cross-border placements. Some acknowledged the need for interim action, whereas others felt we should re-focus efforts on longer-term thinking instead.
• Many agreed with the proposal for the non-Scottish placing authority to be the implementation authority.
• Respondents also agreed that converting the DOL order 'as if it were a CSO' would be more appropriate than fully converting into a CSO.
• Respondents were also supportive of improving information-sharing processes.
• However, respondents also raised a number of key concerns about some aspects of the proposal, including in relation to: policy principles; children's rights and needs; Scotland's Children's Hearing System (SCHS); and operational clarity.

The three policy options considered are detailed below. In addition, we considered whether a DOL order should be fully converted into a CSO. Full conversion would result in the child entering SCHS, with concomitant issues around dual jurisdiction for the children affected and inappropriate obligations and being imposed on Scottish Local Authorities and other agencies. Further to stakeholder feedback, we did not pursue this option.

6.1 Option 1: Continue the current practice of the placing authority petitioning the Court of Session to authorise each placement in Scotland

Under this option, placing authorities would continue to petition the Court of Session in Scotland in each individual case, in order to gain recognition of a DOL order under Scots law.

This would continue the status quo arrangement. However, petitions to the Court of Session's nobile officium jurisdiction are not intended for routine applications. The increasing number of these petitions is putting unsustainable pressure on the Court and the Scottish Government has made a commitment to resolving this as soon as possible.

This option would not address the concerns of the Scottish Government and those who responded to the engagement about the inadequacy in current legal and care structures to support children effectively. For example:

• It would not address concerns regarding the lack of clarity on roles and responsibilities of placing authorities and Scottish authorities.

Bringing forward Regulations and associated administrative arrangements at this time gives us an opportunity to clarify these roles and responsibilities, including designating the placing local authority as the implementation authority for the duration of the child's placement in Scotland and ensuring that enforcement action can be taken where the placing authority does not fulfil its obligations.

• It would not address concerns around the lack of information-sharing by the placing authority.

The Regulations will provide a robust mechanism for information-sharing which will streamline and better regulate the process – including a notification requirement on a placing authority to inform all relevant Scottish authorities of a placement, ensuring agencies are quickly appraised of the DOL placement and any extension.

Overall, given the legal and policy imperatives to bring forward legislation as an interim measure, Option 1 was not considered to be a suitable policy approach.

Bringing forward Regulations and associated administrative arrangements at this time also gives us an opportunity to ensure that cross-border DOL placements are better regulated. It is appropriate that the Scottish Ministers bring forward these improvements and that the Parliament has an opportunity to fully scrutinise the Regulations.

6.2 Option 2: Lay Regulations to recognise DOL orders as if they were Compulsory Supervision Orders (CSOs), including a role for SCHS.

This option, as set out in the policy position paper in January 2022,^[5] would be to bring forward regulations enabled by section 190 of the 2011 Act to recognise the DOL orders as if they were CSOs.

The placing authority would retain full responsibility for the implementation, oversight, review and financial costs of a DOL placement. The relevant High Court elsewhere in the UK would conduct a welfare analysis as part of assenting to the DOL order at the time it was made and when considering any subsequent extension, variation or revocation.

The placing authority would be required to notify a number of key Scottish authorities of the placement and enter into a placing undertaking with the Scottish Local Authority.

In addition, this proposal would include a role for SCHS in terms of convening a hearing in the Scottish Local Authority area, with a view to facilitating information-sharing and considering the child's access to local protections – including the option to appoint a safeguarder.

The Children's Hearing would transmit a report to the High Court in England/Wales/Northern Ireland in the context of its review (at least every 3 months) of the DOL order.

We have taken into consideration respondents' feedback on this Option, including:

• Many respondents supported the principle behind proposing a role for SCHS.
• Most respondents were concerned about the lack of power available to SCHS, meaning the proposal would not lead to parity of treatment between children in residential care in Scotland subject to DOL orders and those who were looked after in Scotland in these settings.
• Many respondents highlighted that it could be confusing for the child to be involved in engaging with SCHS when they are already involved in the non-Scottish court process.

Whilst this option would address the requirement for an interim solution, we recognise the concerns raised and do not propose to pursue Option 2.

6.3 Option 3: Lay Regulations to recognise DOL orders as if they were CSOs, excluding a role for SCHS.

This option, as set out in the summary paper in March 2022^[6] broadly overlaps with Option 2, with key distinctions being that there would be no formal role for SCHS. This does not mean that the DOL order would be fully converted into a CSO, which would result in the child entering SCHS with concomitant issues around dual jurisdiction for the children affected and inappropriate obligations being imposed on Scottish Local Authorities and other agencies. Treating the DOL order as if it were a CSO simply provides a legal basis in Scotland for the deprivation of liberty of the child who is subject to the order and ensures that the responsibilities of the placing authority are clear and legally enforceable. There would, however, under Option 3, be an offer of independent advocacy made to children on cross-border DOL placements into Scotland.

This would operate under the existing national children's hearings advocacy scheme in the relevant Scottish local authorities. This offer of advocacy would be intended to support children subject to DOL orders to provide their views to the residential provider which is hosting them - 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.

As and when the child returns to their local community within the placing authority, the Scottish advocacy worker will make contact with the advocacy organisation appointed elsewhere in the UK to ensure a smooth transition.

The additional costs to the Scottish Government in respect of each existing advocacy provider grant will vary, depending on the configuration of staffing and services in the affected primary advocacy providers. Total additional provision of the order of £50k in 2022-23 has been made to support advocacy providers.

This option reflects the views of the respondents that children's rights and needs should be paramount. Regulations and associated administrative arrangements will clarify the roles and responsibilities of placing authorities and Scottish local authorities, 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.

This option forms the basis of the proposed policy, as outlined in the Regulations laid before Parliament for approval. In summary, key features under Option 3 include:

• 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 non-Scottish 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.