Cross-Border Placements Regulations: equality impact assessment

Recommendations and Conclusion

The equality screening exercise was undertaken to identify whether the provisions contained within the proposals would adversely impact any particular group of individuals and to consider how this work can better promote equality of opportunity and foster good relationships between groups.

The Equality Impact analysis has shaped the policy making process in a number of ways. It helped to inform the decisions to:

• Include a provision in the Regulations that for a DOL order to have effect as if it were a CSO, a written undertaking has to be provided by or on behalf of the placing authority to all the listed Scottish authorities, to set out that the placing authority will provide or secure the provision of all services required to support the child. This aims to ensure that any potential negative impacts on each characteristic are identified and mitigated and that provision of required services takes account of a child's specific needs, whether in relation to race, religion or other protected characteristics.
• Set out in the Regulations that Scottish Ministers may apply to the relevant sheriff for an order to enforce the implementation authority's duty in relation to the child. The sheriff may then make an order requiring the implementation authority that it is in breach of a duty to carry out that duty. Therefore, even though the decision about whether or not granting a DOL order for a cross-border placement is in the best interests of a child is outwith the policy scope, it is possible - within the Regulations - to ensure that where a placing authority is not fulfilling its duties (including failure to provide services required to support a child with a protected characteristic), it can be held to account.
• Include a provision in the Regulations that, where a child becomes subject to a DOL order which has effect as if it were a CSO, the 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. Where advocacy provision is offered and is taken up, children will have a chance to express their views through the advocate – which provides an opportunity for any issues in terms of impacts on a particular protected characteristic to be identified and communicated to the responsible authorities.
• Include a provision in the Regulations so that – in terms of applying and modifying relevant sections of the 2011 Act – offences relating to inducing a child to abscond from a placement are also applicable in relation to where a child is subject to a DOL order. Whilst it is difficult to match a potential scenario of absconding to a potential impact on a particular characteristic, it could, for example, be that a particular characteristic (such as age or disability) is exploited by an adult, who induces a child to absond from the place where they are being accommodated. Ensuring that offences relating to absconding are applied within the Regulations helps to provide a safeguard against such scenarios.

Furthermore, whilst no issues were identified as a result of this EQIA, plans for ongoing monitoring and evaluation have been considered.

The Regulations:

• Require the placing authority to notify a number of Scottish authorities in writing with key information about a new or continued DOL order as a condition of its recognition as if it were a CSO.
• Require the placing authority to provide an undertaking as a further condition of the recognition that it will provide or secure the provision of all services required to support the child and bear all the costs arising from – or in consequence of – the placement (except the cost of Scottish advocacy provision).
• Set out, with modifications, the provisions of the 2011 Act which apply - including with the effect of designating the placing authority as the implementation authority.

Enforcement considerations have been included and the Regulations:

• Provide for Scottish Ministers to apply to the relevant sheriff court for an order to enforce the implementation authority's duty in relation to the child, if the authority is in breach of that duty.

The Scottish Government will also work with the UK and Welsh Governments and the Northern Ireland Executive to monitor the effectiveness of the administrative arrangements which will support the Regulations, including an annual review of a Memorandum of Understanding which it is intended will be concluded between all parties.

Residential Services in Scotland will continue to be regulated and inspected by the Care Inspectorate to ensure they meet the right standards of care.