Cross-Border Placements Regulations: equality impact assessment

Key Findings

Currently, all UK local authorities and organisations involved in the care of children have a duty to ensure the activities and services they are providing do not discriminate against people with protected characteristics as listed in the Equality Act 2010. This means that the child's plan and welfare report submitted to the High Court before a DOL order is granted should include full consideration of all the child's unique needs. This will continue to be the case once the Regulations are, subject to Parliamentary approval, implemented.

During the EQIA process, the potential impact of the policy on each of the protected characteristics was considered. Overall, our assessment was that any impact on each protected characteristic would be minimal. The policy should have the same direct positive impacts (in terms of better regulating these cross-border DOL placements) for all children on such placements. We did not encounter evidence that children with any of the protected characteristics would be disproportionately or adversely affected by the Regulations.

We found that the policy would have a positive impact on children with all protected characteristics. The introduction of Regulations and associated administrative arrangements will clarify the roles and responsibilities of placing and receiving authorities, making clear that the placing authority is responsible for implementation of the DOL order and for ensuring the child's welfare. It will also provide a robust mechanism for information-sharing, which will streamline and better regulate the cross-border placement process.

It is anticipated that the introduction of an offer of advocacy to child who is placed in Scotland on a DOL order will bring further positive impact, supporting affected children to provide their views to the residential accommodation provider which is hosting them. For example, engaging with a Scottish advocate will allow the child to express 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 applies for the DOL order.

In terms of age:

• The Regulations, subject to Parliamentary approval, will apply to children – meaning a person who is under the age of 18 years.
• The Regulations will provide for DOL orders to be recognised in Scots law without the need for the placing authority to petition the Court of Session, and the Regulations and accompanying administrative agreements will provide for better regulation of the placement process. This is unlikely to have any direct impacts on age; it will not introduce anything that will alter or affect the age of children being placed.
• One condition of recognition of a new or continued DOL order which is built into the Regulations is a requirement for the placing authority to notify key stakeholders in Scotland, including Scottish Ministers, of key information in relation to each DOL placement. The age of the child will be included in that notification. Therefore, we will ensure that we continue to gather accurate data on the age of children on cross-border DOL placements, even when there is no longer a court process through the Court of Session in Scotland where this information on age is currently gathered. This notification requirement will enable us to monitor whether the policy is having an impact on the age of children to whom the policy is directly relevant.
• It will continue to be the responsibility of the placing authority and the High Court in another part of the UK that is granting and reviewing the DOL order to determine whether or not the placement is in the best interests of the child. Whether or not the placement is age-appropriate, for example, should be part of that decision-making.
• The Regulations, subject to Parliamentary approval, will have the effect that where a child becomes subject to a DOL order which has effect as if it were a CSO, Scottish Ministers must, as soon as reasonably practicable, inform that child of the availability of children's advocacy services. The Regulations also set out that the Scottish Ministers need not comply with this requirement if, taking account of the age and maturity of the child, the Scottish Ministers do not consider it would be appropriate to do so. This indicates how age and maturity would be taken into account, in order to determine what would be in the best interests of the child who has been placed in Scotland.

In terms of disability:

• In theory, children could be moved to a residential care setting in Scotland which is not suitable for their needs. Being placed at a considerable distance from their home environment could also mean that children may not be able to access the services that they need. 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 outwith the scope of this policy. It will continue to be the responsibility of the placing authority and the High Court in another part of the UK that is granting and reviewing the DOL order to determine whether or not the placement is in the best interests of the child or young person. Whether or not the placement appropriately takes account of any disability should be part of that decision-making.
• 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 children subject to DOL orders is better regulated – so it should have a positive impact on that small group of children, regardless of whether or not any child is disabled.
• One condition built into the Regulations is a requirement for the placing authority to notify certain stakeholders in Scotland of key information on any future cross-border DOL placements. Included on this list of key stakeholders will be:
  • the Health Board which provides health services in the area in which the child has been, or is to be, placed.
  • any person acting for the time being as the director of education of the receiving local authority.

It is outwith the scope of the policy to alter a decision about whether a cross-border placement is appropriate (including consideration of whether it takes into account any disability); however, this provision in the Regulations will ensure that key Scottish stakeholders with the most direct interests in the health and learning needs of the child will be made aware that the placement is happening.

In terms of sex:

• 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 impact on male or female children differently. What the policy will do is ensure that the placement process for those children is better regulated – so it should have a positive impact on that small group of children, regardless of whether they are male or female.

In terms of pregnancy and maternity:

• There has been no evidence to date of any of the children on past or current cross-border DOL placements having been pregnant. In the unlikely scenario of this being the case for any potential future cross-border DOL placements, it would be outwith the scope of the policy to influence any potential impact; it would be for the placing authority applying for the DOL order (and the High Court granting/rejecting/reviewing the order) to take this protected characteristic into account and it is highly unlikely that a cross-border placement would be the right thing for the young person, given the distance it would place them from their home environment.

In terms of gender reassignment:

• As the policy is about providing for legal recognition of the DOL orders and better regulating the placement process, it is not anticipated that the policy would have any impact on gender reassignment.
• The policy relates to a very small subset of children. Therefore, it may be unlikely that it will affect a child who has undergone, is undergoing or is proposing to undergo gender reassignment. If this were to arise, it would be primarily the placing authority and High Court reviewing/granting a DOL order who would be responsible for considering what is in the child's best interests.

In terms of sexual orientation:

• As the policy is about providing for legal recognition of the DOL orders and better regulating the placement process, it is not anticipated that the policy would have any impact on sexual orientation.

In terms of race:

• In theory, it is possible that children could be placed in a setting in which they are more of a minority. These children could feel disorientated due to the differences from home, which could lead to feelings of isolation.
• In the possible scenario of this being the case for any potential future cross-border DOL placements, it would be outwith the scope of the policy to influence any potential impact; it would be for the placing authority applying for the DOL order (and the High Court granting/ rejecting/ reviewing the order) to take this protected characteristic into account.
• The Regulations and accompanying agreements will seek to better regulate the placement process, including to ensure that all relevant authorities in Scotland are aware of the placement. This increases the opportunity for an unlawful discrimination to be identified and addressed.
• Furthermore, Local Authorities and organisations involved in the care of children and young people have a duty to ensure activities and services they are providing do not discriminate against people with protected characteristics, as listed in the Equality Act 2010. The Regulations will help to make clear that this obligation applies to the authority which has placed the child in Scotland and to ensure that regular reviews of the placement (at least every three months) are conducted to unearth any potential issues relating to the placement.
• The Regulations also provide for an offer of advocacy to support children to provide their views as to how their in-placement experience aligns with their child's plan and how their welfare is being protected.

In terms of religion or belief:

• In theory, it is possible that children could be placed in a setting that is not appropriate to their religion or belief. Long-distance placements separating children from their families could also lead to a lack of support and guidance being available to a child in relation to their religion or belief. Children could feel disorientated due to the differences from home.
• In the possible scenario of this being the case for any potential future cross-border DOL placements, it would be outwith the scope of the policy to influence any potential impact; it would be for the placing authority applying for the DOL order (and the High Court granting/ rejecting/ reviewing the order) to take this protected characteristic into account. If a child's religion or belief could not be appropriately accommodated in a proposed placement, the placement would not be in the best interests of the child.
• The Regulations and accompanying agreements will seek to better regulate the placement process, including to ensure that all relevant authorities in Scotland are aware of any cross-border DOL placement. This increases the opportunity for any unlawful discrimination to be identified and addressed.
• Furthermore, Local Authorities and organisations involved in the care of children and young people have a duty to ensure activities and services they are providing do not discriminate against people with protected characteristics, as listed in the Equality Act 2010. The Regulations will help to make clear that this obligation applies to the authority which has placed the child in Scotland and to ensure that regular reviews of the placement (at least every three months) are conducted to unearth any potential issues relating to the placement.
• The Regulations also provide for an offer of advocacy to support children to provide their views as to how their in-placement experience aligns with their child's plan and how their welfare is being protected.

In terms of marriage and civil partnership:

• We have not identified any potential impact of the policy on marriage/civil partnership due to the age and circumstances of the children who will are subject to DOL order placements.

We also identified that it is possible that the policy:

• Could have some slightly differing indirect impacts on groups of children already in care in Scotland. For example, it could have a positive impact on children who are being accommodated in the same residential care settings as children subject to DOL orders. For example, if a better regulated cross border DOL placement is less likely to break down, it reduces the risk of emergency staff time/resource being required (reducing the risk of negative impacts on all childen in the relevant setting).
• Could also impact on the adults/authorities who are working with children subject to DOL orders, in terms of removing the need for placing authorities to petition the Court of Session for recognition of those orders, but increasing the accountability and transparency around the placement process they should follow.