Cross-Border Placements Regulations: child rights and wellbeing impact assessment

1. Which articles of the UNCRC does this policy/measure impact on?

General principles

Article 3 – Best interests of the child to be a primary consideration

Article 3 is key to the policy intention behind bringing forward the Regulations.

The policy relates to placing children and young people into Scottish residential care when a High Court in another part of the UK has granted a DOL order. These DOL orders are made under the High Court's so-called "inherent jurisdiction" because there is no statutory provision to authorise deprivation of liberty in residential accommodation.

Legal recognition of DOL orders is required to ensure compliance with Article 5 of the European Convention on Human Rights. Currently, the placing authorities petition the Court of Session's nobile officium jurisdiction, to seek Scots law recognition of the DOL orders. This jurisdiction is not intended for routine applications.

The Scottish Government is clear that such cross-border DOL placements can only be in the best interests of certain children in exceptional circumstances. There can be exceptional circumstances in which it is in the best interests of the child to be deprived of their liberty, for their safety. There are even more exceptional circumstances in which it is in the best interests of the child to be deprived of their liberty far from home and across a border into Scotland.

The Regulations – and associated administrative agreements - provide an opportunity to better regulate these placements and the policy intent behind this is to ensure that the best interests of the child are a primary consideration. For example:

• the Regulations will set as a condition of legal recognition of a new or continued DOL order that the placing authority must notify key people and agencies in Scotland with information about the DOL order. This includes: key health, education, and residential contacts; the Chief Social Work Officer of the affected Scottish Local Authority; the Commissioner for Children and Young People in Scotland; the Principal Reporter; the Care Inspectorate; and Scottish Ministers. This responds to stakeholder concerns that Scottish Local Authorities and supporting services are often unaware of the existence of such placements and are informed only when there is an emergency, such as a child absconding or a placement breakdown.
• the Regulations will also require undertaking that throughout the duration of a new or continued placement, the placing authority will provide, or secure the provision of, all services required to support the child subject to the DOL order and will be responsible for all of the costs arising as a result of, or in consequence of, the placement (except those relating to Scottish advocacy).
• The Regulations will allow for recognition of a DOL order in Scotland as if it were a CSO for a renewable period of up to three months. This ensures that a court which has granted the DOL order must regularly review the child's placement.This court process is designed to assess the necessity and proportionality of depriving the placed child of their liberty and the associated welfare analysis requires justification of why the proposed placement (and any further extension) is in the child's best interests.

Article 12 - Respect for the views of the child

Article 12 is a key consideration for this policy. A child has a right to express their views freely in all matters affecting them, in particular, in any judicial and administrative proceedings.

The court process through which the High Court in another part of the UK grants, reviews, extends and ends a DOL order for a cross-border placement is a matter for the relevant court. Accordingly, the responsibility for ensuring that the child's views are listened to and respected throughout that court process rests with the relevant authorities outside of Scotland.

We carefully considered how the policy should interact with the non-Scottish court process, to ensure that the child's views are heard and respected as fully as possible in the context of a non-Scottish court order and a non-Scottish Local Authority holding the primary responsibilities for the child under that order, including once they have been placed in Scotland. On that basis, in a policy position paper^[2] published in January 2022, we proposed a role for Scotland's Children's Hearings System (SCHS), including that the children's hearing would be:

• convened in the Local Authority area in which the child is located in Scotland to: facilitate information-sharing with regard to the child's progress in placements; consider the child's access to local rights protections; and provide a safeguarder for the child, where appropriate.
• able to share information on the child's progress to the High Court outside of Scotland in the context of their reviews of the DOL order.

Many of those who responded to the policy position paper supported the principle behind proposing a role for SCHS. However, most were concerned about the lack of power available to SCHS, meaning the proposal would not lead to parity of treatment between children in Scotland subject to DOL orders and those who are looked after in residential care settings in Scotland. They highlighted that it could be confusing for the child to be involved in systems and processes in another legal jurisdiction when they were already involved in the non-Scottish court process.

Responding to this key area of concern, we developed the policy further and have not provided a dispositive or advisory role for SCHS in the Regulations. Whilst the intention was to provide for parity of treatment as far as possible between children who are subject to DOL orders and those liable to losing their liberty while being looked after in residential care in Scotland, we recognise that the lack of dispositive power available to SCHS would mean this intention could not be fully realised in practice. We also acknowledge concerns that engaging with SCHS could increase confusion, distress and trauma for the child, as they will already be required to interact with the court process in the jurisdiction in which the DOL order was made.

We now intend to put in place an offer of independent advocacy to children and young people on cross-border DOL placements into Scotland. This would operate as a particular extension to the existing national children's hearings advocacy scheme operating under s122 of the 2011 Act, partnering with the primary advocacy providers in the relevant Scottish Local Authorities. This offer of independent advocacy will supplement the support that the child receives through relevant UK systems. This uniquely Scottish offer is intended to support children to provide their views to the residential provider which is hosting them - as to how their in-placement experience in Scotland 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.

The relevant advocacy organisations will be notified by Scottish Ministers when a child on a cross-border DOL placement comes to Scotland and is placed in a setting in the Local Authority for which they hold primary provider status under their children's hearings advocacy grant arrangement. The Scottish Ministers will make contact with the child to offer advocacy support for their time in Scotland, unless they consider that this would not be appropriate, taking into account their age and maturity. If the child agrees, any advocacy worker appointed to them will listen to and advocate for the child's views, with the aim of ensuring the child's rights are upheld whilst living in Scotland. As and when the child returns to their local community within the placing authority, the Scottish advocacy worker will make contact with any advocacy organisation appointed elsewhere in the UK to ensure a smooth transition.

Civil rights and freedoms

Article 8 – Preservation of a child's identity

Article 8 is about respecting the right of the child to preserve their identity, including nationality, name and family relations. This is relevant to the policy because children placed across a border into Scotland from elsewhere in the UK will experience a different culture and will likely be geographically further away than normal from family and friends. The deprivation of liberty measures will also be likely to affect their communication with their loved ones – for example, the DOL order might include a requirement for any use of social media to be supervised by staff in the residential care setting which accommodates them.

The High Court in another part of the UK makes decisions relating to granting, reviewing, extending, or ending a DOL order and will carefully consider the conditions which are attached to such an order. As noted above, this is a matter for the relevant court. However, it is within the scope of the policy to require the placing authority to make certain notifications and follow the placement process set out in in proposed administrative agreements between the placing Local Authority and Scottish Local Authority as well as a proposed Memorandum of Understanding between the Scottish Government and the UK Government, Welsh Government and Northern Ireland Executive. These administrative agreements will set out the importance of ensuring that the child's nationality and family relations are taken into account when deciding on the most appropriate placement for them and that these links are supported and maintained throughout the duration of the placement.

Article 13 – Freedom of Expression

Article 13 is about the right of the child to freedom of expression. This right could be impacted by deprivation of liberty measures. The High Court in another part of the UK makes decisions relating to granting, reviewing, extending, or ending a DOL order. Ensuring that the child is able to express their views in this process would be matter for the relevant court and placing authority. However, it is within the scope of the policy to ensure this right is taken into account for the child on placement in Scotland. The offer of advocacy to the child for their time in Scotland will support this.

Article 16 – Protection of privacy

Article 16 is focused on ensuring there is no arbitrary or unlawful interference with the child's privacy, family, home or correspondence. There are some aspects of a DOL order which may inevitably affect this right – for example, the DOL order might authorise the residential home staff to restrict or supervise the child's use of a mobile phone and the internet. As above, it is for the High Court in another part of the UK that is granting/ reviewing/ extending/ ending the DOL order to decide on the most appropriate conditions to include as part of the order, guided by the principles of necessity and proportionality and considering the child's best interests. It is then within the scope of the Regulations to provide for the DOL order to be legally recognised and enforceable in Scotland.

Family environment and alternative care

Article 5 – parental guidance and child's evolving capacities

This Article sets out that State Parties shall respect the responsibilities, rights and duties of parents or other persons legally responsible for the child to provide appropriate direction and guidance in the exercise by the child of UNCRC rights.

The Regulations support this, by requiring an undertaking to be provided by or on behalf of the placing Local Authority that it will provide, or secure, the provision of all services required to support the child who is subject of the DOL order.

Furthermore, we now intend to put in place an offer of independent advocacy to children on cross-border DOL placements into Scotland. This would be offered to children who, considering their age and maturity, may benefit from the offer. The advocacy provision would operate under the existing national children's hearings advocacy scheme in the relevant Scottish Local Authorities. This offer of independent advocacy will supplement the support that the child receives through relevant UK system. This uniquely Scottish offer is intended to support affected children to provide their views to the residential provider - 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.

Article 7 - right to name, nationality and to know and be cared for by parents

Article 9 – separation from parents

Article 10 – family reunification

Article 18 – parental responsibilities and State's assistance

The DOL order Regulations are relevant to situations in which children are cared for in a residential care setting in Scotland. However, the Regulations will make clear that the placing authority from another part of the UK is designated as the implementation authority responsible for the placement. In carrying out its duties as implementation authority, it is likely that the placing authority would engage Articles 9, 10 and 18 (and also Article 7, under the theme of civil rights and freedoms). Decisions impacting on these Articles are a matter for the placing authority and cannot be provided for via the Regulations. However, it is within the scope of the policy to require the placing authority to make certain notifications and follow the placement process set out in in the proposed administrative agreements which will accompany the Regulations. These administrative agreements will set out the importance of ensuring that the child's nationality and family relations are taken into account when deciding on the most appropriate placement for them and that these links are supported and maintained throughout the duration of the placement.

Article 20 – Children deprived of their family environment

Article 20 states that when a child is temporarily or permanently deprived of their family environment, or in where, in their own best interests, they cannot be allowed to remain in that environment, due regard shall be made to the child's ethnic, religious, cultural and linguistic background. This should form an important part of the High Court's consideration when deciding whether a placement across the border into Scotland is the most appropriate for the child and is ultimately a matter for the court. The Scottish Government continues to work with the UK Government to ensure that it addresses the lack of adequate care provision, particularly in England, which leads to cross-border deprivation of liberty placements being made. In line with Keeping The Promise, the Scottish Government is clear that cross-border placements should only occur in exceptional circumstances and be reduced to a minimum.

Article 25 – Periodic review of placement and treatment

Article 25 sets out the child's right to a periodic review of their treatment and all other circumstances relevant to their placement. The Regulations will allow for recognition of a DOL order in Scotland as if it were a CSO for a period of up to three months. This ensures that the High Court that has granted the DOL order must regularly review the child's placement to ensure it remains in their best interests. The High Court granting the DOL order is responsible for reviewing the welfare analysis presented to it, to ensure that any decision to grant, extend, vary or revoke a DOL order is made in the best interests of the child.

Basic health and welfare

We are aware that some of the children on past/ current placements are disabled – for example, they may have an autism diagnosis requiring particular support with their learning and education. For example, in the Care Inspectorate's Short thematic review of children and young people placed on Deprivation of Liberty Orders – January 2022,^[3] it was stated that five of the 11 children in the review had a formal diagnosis of an autism spectrum condition.

In theory, children may be placed in a residential care setting which is not suitable for their needs. We are aware that poor matching could led to children being placed in settings where the therapeutic treatment they need is not available. Being placed at a considerable distance from their home environment could also mean that children may not be able to access the services (e.g. diagnosis, assessment, treatment, support) that they need. For example, some services may be more difficult to access in a very rural setting. Furthermore, if there is a lack of planning by the placing authority before a placement, this could lead to delays or gaps in treatment.

However, the decision about whether or not to grant the DOL order and where to place the child is a matter for the relevant court elsewhere in the UK, informed by submissions from the placing authority. Going forward, it will continue to be the responsibility of that court to determine whether or not the placement is in the best interests of the child or young person and whether or not the placement appropriately takes account of a child being disabled should be part of that decision-making.

As above, given the scope of the policy is to provide for legal recognition of orders and better regulate the placement process, it is unlikely that the policy will negatively impact on disability. What the policy will do is ensure that the placement process for those young people is better regulated – so it should have a positive impact on that small group of children, regardless of whether or not the child is disabled.

Article 24 – Right to health and health services

Article 24 recognises the right of the child to the enjoyment of the highest attainable standard of health and to health facilities. The Regulations support this right by requiring an undertaking that throughout the duration of the placement, a placing authority will provide or secure the provision of all services required to support the child who is the subject of the DOL order, which includes health services. The Regulations will also require the placing authority to notify key people in Scotland of information about the DOL order, including the relevant Health Board which provides health services in the area in which the child has been, or is to be, placed.

Article 27 – right to adequate standard of living

The Regulations are relevant to situations in which children are cared for in a residential care setting in Scotland. The Regulations make clear that the placing authority from another part of the UK is designated as the implementation authority responsible for the placement. In carrying out its duties as implementation authority, it is possible that the placing authority would engage this Article.

We intend that the Regulations will be supported by administrative agreements – including a Memorandum of Understanding between the Scottish Government, the Welsh and UK Governments and the Northern Ireland Executive – as well as a placement undertaking between the placing authority and Scottish Local Authority. The placement undertaking will make clear that all the needs of the child are to be met by the implementation authority. This would include consideration of how the right to this Article is met.

Furthermore, the Care Inspectorate will continue their risk-based prioritisation of children's services which will help to identify the impact of the policy. In Scotland, children's residential services must be registered with the Care Inspectorate. Services are regulated and inspected by the Care Inspectorate^[4] to ensure they meet the national standards. Children's residential services have to provide quality care as set out in legislation, The Residential Establishments – Child Care (Scotland) Regulations 1996^[5] and the National Care Standards.^[6]

Education, leisure and cultural activities

Article 28 – Right to education

Article 28 recognises the right of the child to education. The Regulations support this right by requiring an undertaking to be provided by or on behalf of the placing Local Authority that it will provide, or secure the provision of all services required to support the child who is the subject of the DOL order, which includes education services, for the duration of the child's placement. The Regulations will also require the placing authority to notify key people in Scotland of information about the DOL order, including any person acting as the director of the education authority in the receiving Local Authority.

Article 31 – right to leisure, play and participation in cultural and artistic activities

The Regulations are relevant to situations in which children are cared for in a residential care setting in Scotland. The Regulations make clear that the placing authority from another part of the UK is designated as the implementation authority responsible for the placement. In carrying out its duties as implementation authority, it is possible that the placing authority would engage this Article.

We intend that the Regulations will be supported by administrative agreements – including a Memorandum of Understanding between the Scottish Government, the Welsh and UK Governments and the Northern Ireland Executive – as well as a placement undertaking between the placing authority and receiving authority. The placement undertaking will make clear that all the needs of the child are to be met by the implementation authority. This would include consideration of how the right to this Article is met.

Special protection measures

Article 37 – Restriction of liberty

Article 37 states that no child shall be deprived of their liberty unlawfully or arbitrarily. This is a key foundation of the policy; the High Court in another part of the UK grants a DOL order in the best interests of the child. These DOL orders are made under the High Court's so-called "inherent jurisdiction" because there is no statutory provision to authorise deprivation of liberty in residential accommodation.

The UK Supreme Court has ruled that the use of the inherent jurisdiction to authorise deprivations of liberty in "non-secure" accommodation is lawful.^[7] However, it was noted that use of the inherent jurisdiction in the face of a lack of provision for children and young people should be a temporary measure. The most appropriate permanent solution is to address this lack of provision.

Within Scotland, legal recognition of DOL orders granted elsewhere in the UK is required to ensure compliance with Article 37 UNCRC and Article 5 of the ECHR. Currently, the placing authorities petition the Court of Session's nobile officium jurisdiction, to seek Scots law recognition of the DOL orders. This jurisdiction is not intended for routine applications.

The Regulations will allow for recognition of a DOL order in Scotland as if it were a CSO for a period of up to three months. This ensures that the High Court that has granted the DOL order must regularly review the child's placement.This court process is designed to assess the continued necessity and proportionality of depriving the placed child of their liberty and the associated welfare analysis requires justification of why the proposed placement (and any further extension) is in the child's best interests.