Cross-Border Placements Regulations: business and regulatory impact assessment

7. Sectors and groups affected

7.1 Scottish Courts and Tribunals Service

The intention behind making these Regulations is that going forward, placing authorities will no longer be required to petition the Court of Session in Scotland in each individual case in order to gain recognition of a DOL order in Scots law. Where, on the entry into force of the Regulations, a DOL order has already been recognised in Scots law through the current Court of Session route, the Regulations provide for the DOL order to be treated as if it were a CSO, for a limited period.

This reflects our intention to ensure that where the Court of Session in Scotland has decided to recognise a DOL order granted elsewhere in the UK, no immediate further process is required for that order to be treated as if it were a CSO on the entry into force of the Regulations.

We consider that this is appropriate since the child will already be established and lawfully deprived of their liberty in Scotland when the Regulations enter into force. In such cases, the Court of Session will have undertaken a review of the child's case before granting recognition of the DOL order for only a short period of up to three months.

Should a placing authority wish to continue the placement of a child subject to a DOL order in Scotland beyond the period for which any Court of Session order has been granted, they will be required to meet the same conditions as any authority which is seeking recognition in Scotland of a new DOL order.

It is recognised that the transitional arrangements in these Regulations may not apply in every case which may arise. For example, if a DOL order is granted shortly before the entry into force of the Regulations, but that order is not yet recognised by the Court of Session, the transitional provisions will not apply.

Whilst this may mean that there may be a small number of outstanding petitions for the Court of Session to consider on the entry into force of the Regulations, we do not consider it appropriate to provide for recognition of DOL orders which were granted prior to the entry into force of the Regulations without the Scottish court's oversight.

7.1.1 Enforcement

The Regulations 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. This is covered further under the Enforcement Sanctions and Monitoring heading below.

Since 2019, there have been 36 DOL order placements in Scotland and we consider that the better regulation of any future placements via the Regulations and associated agreements will ensure that the responsibilities of placing authorities are clear, well understood and adhered to. We therefore anticipate that there will only be a very small proportion of cases – if any - that will be necessary to bring before the sheriff court for enforcement action. The overall impact of these enforcement provisions on the Scottish Courts and Tribunal Service (SCTS) should therefore be minimal.

The Regulations also apply section 171 of the Children's Hearings (Scotland) Act 2011 with modifications, with the effect of making it a criminal offence for a person to:

• knowingly assist or induce a child to abscond from a place they are authorised to be held by virtue of a Deprivation of Liberty order (which our regulations will recognise as if it were a CSO),
• knowingly harbour or conceal a child who has absconded from that place, or knowingly prevent a child from returning to the place

Few – if any – prosecutions for the section 171 offence as applied by the Regulations are expected, with a resulting minimal impact on the Crown Office and Procurator Fiscal Service and SCTS.

7.2 Scottish Local Authorities

As borne out in recent practice, Scottish Local Authorities have often not been informed of DOL order placements in their local area and this has led to considerable resourcing impacts when they have been forced to intervene in individual cases, often in crisis situations. This includes impacts on local services, including health services, police, specialist educational services and others.

The Regulations apply, with certain modifications, provisions of the Children's Hearings (Scotland) Act 2011 ("the 2011 Act"), so that they apply in relation to DOL Orders recognised by the Regulations. The key effect of this is to ensure that the placing authority is designated as the implementation authority and therefore has full responsibility to provide or secure all services to support the child placed in Scotland under the recognised DOL order.

There will be no new statutory duties placed on Scottish local authorities as a result of these Regulations. Where a Scottish local authority is required to take action, the establishment of clear processes and agreements will ensure that information is shared effectively, the best possible support can be offered to a child and any costs incurred are identified and reimbursed by the placing authority.

As noted above, the placing authority will also be required to notify a number of key Scottish authorities in writing of key information about the DOL order as a condition of recognition of a new or continued order. In addition, the placing authority would give an undertaking as a condition of such recognition. 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).

The Regulations 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.

7.3 Children's Hearings System

The Principal Reporter of the Scottish Children's Reporter Administration (SCRA) will be notified when a placement is made. Marginal administrative costs to SCRA may be associated with recording these placements. We do not intend to make particular additional grant-in-aid provision in association with notification or recording.

7.4 Third Sector Advocacy providers

We intend to put in place an offer of advocacy to children on cross-border DOL placements into Scotland. This will operate under the existing national children's hearings advocacy scheme in the relevant Scottish local authorities. This offer of advocacy will be intended to support children on 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 for the child.

The cost of providing this service will be borne by the Scottish Government and therefore there will be no new costs introduced for Scottish providers of these services.