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

6. How have you consulted with relevant stakeholders, including involving children and young people in the development of the policy/measure?

Targeted stakeholder engagement

On 6 January 2022, we published a policy position paper on Cross-border placements of children and young people into residential care in Scotland: policy position paper.^[9] We sought views on the proposals by 28 January 2022.

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

The engagement was focused, inviting views by email, given the urgency of bringing forward Regulations to regulate cross-border placements. That means most responses were submitted without the expectation that we would publish them.

We also met with stakeholders and partners, including the UK Government, Welsh Government, Northern Ireland Executive, The Promise Scotland, the Children and Young People's Commissioner Scotland, CELCIS, Children's Hearings Scotland and the Scottish Children's Reporter Administration, Social Work Scotland, Chief Social Workers, COSLA, and the Care Inspectorate.

We have since contacted all those who provided feedback, to seek permission to cite their views in a summary paper. We published that summary paper^[10] on 25 March 2022, outlining key themes raised and the updated policy position. In particular, we adapted the policy to remove the original proposed role for SCHS – as explained above.

We have also adapted the policy by extending an offer of advocacy to children and young people on cross-border DOL placements. This would operate as an extension to the existing national children's hearings advocacy scheme in the relevant Scottish Local Authorities. This offer of advocacy will be intended to support children subject to DOL orders to understand and realise their rights, and 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.

Children and young people's views and experiences

This is a sensitive policy area, because it relates to children who are being deprived of their liberty in a residential care setting far from their home community. These children have often experienced extensive trauma, and DOL orders are primarily granted due to significant concerns for their safety and wellbeing. The placements can often be of an emergency nature, with the children moved to the Scottish placement at short notice. There is scope for the DOL order to be extended, but they are mostly intended to be short-term, for periods of up to three months.

Given the sensitive nature of the placements, great care is required when engaging with the children involved. Therefore, no direct engagement with these children has been undertaken by the Scottish Government, although we have engaged with stakeholders who directly represent their views. We have also worked with the Care Inspectorate to agree that they would undertake a thematic review of DOL orders. This involved a desktop exercise to analyse some of the data and inspection reports held by the Care Inspectorate in relation to DOL placements. It also involved a short thematic review,^[11] in which the Care Inspectorate met virtually with the placing authority social worker, key worker or a member of house staff for all the children subject to a DOL order in Scotland in January 2022. They also conducted face-to face-meetings with nine of the children and had a telephone interview with one young person.

The Care Inspectorate reported, in anonymised terms, on some of the high level themes reviewed – such as:

• The reasons why the children are being placed in a residential care service in another country, a considerable distance from home.
• The quality of information-sharing and joint decision making in the matching and allocation process of children to placement.
• The restrictions and resulting outcomes for the child during the placement.

Key findings from the small number of cases in the review included:

• All children and their families, as appropriate, had access to an advocate and a solicitor representing their views in the legal proceedings in respect of applications for DOL orders.
• The intensity of the care package required for the children in all cases necessitated a UK-wide placement search. The level of risk posed to the child in their local area was a key factor in the rationale for the cross-border placement.
• The placement in Scotland had positive outcomes for the child in most cases.
• Contact with those important to the child was in place for most children. Where there were issues relating to frequency/quality, these were directly related to factors outwith control of the child or the placing authority.
• In all cases, the child was supported to develop a fuller understanding of their rights once they were placed in Scotland.
• In all cases, the host authority and relevant services were not included in the placement decision-making. Notification of the placement was made in all cases at the point of placement or thereafter.
• All children and/or their parents/carers, where appropriate, were involved in decision making.
• Transport to placement was mostly provided by secure escort services. In most cases, the adults transporting the child were not previously known to them and some found the experience negative.
• The children subject to DOL orders in Scotland were in houses delivered by private providers, often in rural areas, where staffing ratios were high.
• The type and number of measures to restrict a child or young person's liberty were particular to the needs and risks for each individual child. The measures were applied in the least restrictive way, promoting the child's rights.
• All children were given the opportunity to participate directly in the most recent review of their DOL order.
• Most were achieving educationally, either through attendance full-time or part-time in mainstream education, education provided by the service provider, or through college and attending work experience.
• Different ways of maintaining family contact had been considered for all children.
• All children were supported to participate in hobbies, activities and leisure pursuits of interest to them, based on a risk assessment / plan and the measures within the DOL order.
• All children were registered with universal health care providers, and most had attended routine appointments and where required, had received more specialised input.
• Almost all of the staff caring for children had not received formal training on court orders made elsewhere in the UK, including DOL orders.

The review also highlighted that whilst a number of positive examples were found, this may not be mirrored if looking at all cross-border cases.

We will continue to take this information into account when further developing our policy position in relation to cross-border placements, particularly in considering longer-term solutions to issues as part of the forthcoming Children's Care and Justice Bill.