Cross-Border Placements Regulations: equality impact assessment

The Scope of the EQIA

The policy only relates to a very specific group of children – namely those in care in another part of the UK (outside of Scotland) for whom the High Court in that jurisdiction grants a DOL order for a cross-border placement into residential care in Scotland. Since the first of these cross-border DOL petitions in 2019, there have been a further 35 such placements.

For each protected characteristic, we considered a range of factors, such as:

• Relevant evidence and its strength/sufficiency.
• Potential impacts, whether positive or negative.

Throughout this consideration, it has been important to bear in mind that:

• The impacts of cross-border DOL placements on the protected characteristics are outwith the scope of the policy, insofar as: these placements are already happening; these placements will, at least in the short term, continue to happen; and the placing authority outside of Scotland and the High Court in the relevant part of the UK (England and Wales, or as the case may be, Northern Ireland) are responsible for determining that the placement is in the best interests of the child (and they should take protected characteristics into account in their decision-making); and
• The scope of the policy is to provide for legal recognition in Scots law of DOL orders, to ensure compliance with Article 5 of the ECHR. Furthermore, the Regulations and accompanying administrative agreements will seek to better regulate the placement process – for example, by introducing information-sharing requirements from the placing authority to relevant Scottish authorities. Overall, the policy will, therefore, have minimal impacts on each protected characteristic – though will likely have some positive impacts, in terms of ensuring that these characteristics are an important consideration in the placement process.

This EQIA, therefore, focuses specifically on the impacts, if any, of the Regulations and accompanying agreements – rather than on the impacts of the cross-border DOL placements themselves.

The wider context is that the Regulations and agreements are intended as an interim measure, ahead of the development of primary legislation which will seek to reduce all cross-border placements to a minimum. That primary legislation (the Children's Care and Justice Bill) is now being consulted on and a separate EQIA will be developed for that work in due course.