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

4. If a negative impact is assessed for any area of rights or any group of children and young people, can you explain why this is necessary and proportionate? What options have you considered to modify the proposal, or mitigate the impact?

As explained above, in a policy position paper^[8] published in January 2022, we initially proposed a role for SCHS. Many respondents 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. Stakeholders highlighted that it could be confusing for the child to be involved in another legal jurisdiction when they are 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 role for SCHS in the Regulations. Whilst the intention was to provide for as much parity of treatment as possible between children who are subject to DOL orders and those being looked after in residential care in Scotland, we recognise that the lack of dispositive power available to SCHS, and the concerns that advisory reports from a local children's hearing offered little guaranteed traction with a non-Scottish court, would mean this intention could not be fully realised in practice. We also acknowledge concerns that engaging with SCHS could increase confusion 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.