Residential childcare cross-border regulations development stakeholder engagement minutes: August and September 2024

Attendees and apologies

• AdvoCard
• Angus Independent Advocacy
• Barnardo’s
• Borders Independent Advocacy Service (BIAS)
• Care Inspectorate (CI) 
• CELCIS
• Children’s Commissioner for Jersey
• Children and Young People’s Centre for Justice (CYCJ)
• Children and Young People’s Commissioner Scotland (CYPCS)
• Clan Childlaw
• Curo Salus
• Dumfries and Galloway Council
• East Ayrshire Advocacy Services
• East Ayrshire Council
• East Renfrewshire Council
• Greenleaf
• Harmeny Education Trust
• Health Improvement Scotland (HIS)
• Hillside School
• His Majesty’s Inspectorate of Constabulary in Scotland (HMICS)
• Independent Advocacy Perth and Kinross
• Inverclyde Council
• Moray Council
• Nationwide Association of Fostering Providers
• NHS Scotland
• North Lanarkshire Council
• Partners in Advocacy
• Pebbles Care
• Perth and Kinross Council
• Phoenix Abbey
• Police Scotland
• Quarriers
• Scottish Children Reporter Administration (SCRA)
• Scottish Throughcare and Aftercare Forum
• Social Work Scotland (SWS)
• Spark of Genius
• The Scottish Social Services Council (SSSC)
• The Promise
• Welsh Government
• Who Cares? Scotland

Items and actions

Background

On 27 August 2024 and 4 September 2024, the Scottish Government Residential Childcare Unit held stakeholder engagement sessions to discuss the key challenges with the existing regulations, seeking views on how the new regulations might address these. 

Below is a summary of those discussions. Under each section we have set out what the current position or expectations are for cross-border placements followed by what we heard from attendees in relation to any existing challenges or how the new regulations might offer opportunities to make improvements.

Placement location

For all cross-border placements, it is expected that placing authorities will seek a placement, in the first instance, in their country of residence where it is in the child’s best interests to do so. 

What we have heard:

• concerns around what information is shared with the court or placing authorities to inform decisions, including whether the placement can meet the child’s needs
• concerns about residential homes accepting Deprivation of Liberty (DoL) Order placements if they are unable to fully implement the order. However, there are also concerns about all DoL placements going into secure care when that may not be the best place for the child
• calls for the placing authority to visit the placement to ensure suitability. Although this may not be possible for emergency placements. Concerns also noted in terms of pressures within the system to allow for this
• the importance of a child or young person participating in decision making around their placement where possible
• as much information as possible to be shared with a child or young person about the environment they are going to be living in before they move
• the importance of considering the rights of the child and the impact the placement will have on them in advance of the placement being made. In some cases, young people are placed in very rural parts of Scotland which has left them feeling vulnerable and abandoned/isolated
• before a placement starts, the relevant Scottish local authority should be invited to planning meetings to establish that services such as education and health are in place to meet the child’s needs

Information sharing

All cross-border placements require effective planning, engagement and information-sharing between the services which will be responsible for meeting the child’s needs.

What we have heard:

• some providers have their own checklists (created using Care Inspectorate admissions guidance) that they use before accepting a placement. These checklists include advocacy arrangements, support needs, health, education, and risk assessment
• a clear step-by-step process would be useful to ensure consistency
• a child or young person should be made aware of what information is being shared about them
• a point of contact for each local authority would be helpful for gathering all necessary information, as it's currently hard to know who to contact
• information should be shared with relevant parties in a timely manner to prevent the child or young person having to retell their story multiple times
• consideration needs to be given to consent for information sharing
• it is critical to fully consider needs and even greater importance when considering placements into remote/rural environments
• children and young people are often removed from CAHMS and put on new waiting lists in Scotland, but often return to England before receiving support which leads to delays and the child or young person having to restart the CAHMS process

Notice and undertaking

The existing Cross-Border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 set out what is currently required in terms of notifying relevant parties of a cross-border placement on a DoL order. For a new or continued DoL order to be recognised in Scots Law, a Notice and Undertaking must be given in writing by the placing local authority to specified persons in Scotland. The undertaking must specify that for the duration of the placement, the placing local authority will provide or secure the provision of all services required to support the child and meet all the costs arising from the placement (with exception of advocacy). The placing authority has obligations to investigate whether the conditions under the order are being complied with.

Persons to be given a copy of the notice and undertaking: 

• the health board which provides health services in the area in which the child is to be placed
• the Commissioner for Children and Young People in Scotland
• the person in charge of the residential care setting in which the child is to be placed
• the Chief Social Work Officer of the receiving local authority
• any person acting for the time being as the director of education of the receiving local authority
• the Scottish ministers
• the Principal Reporter
• Social Care and Social Work Improvement Scotland (‘the Care Inspectorate’)

The information specified for the purpose of this regulation is: 

• the name of the placing local authority 
• the gender of the child who is the subject of the deprivation of liberty order 
• the age of the child who is the subject of the deprivation of liberty order
• the name of the residential care setting in which the child is to be placed
• the time that the deprivation of liberty order comes into effect and expires (if it is not subsequently extended)

We are considering if this requirement should be extended to all cross-border placements into Scotland.

What we have heard:

• consideration should be given to what Scottish notified parties are doing with the information they receive and whether being in receipt of this information places a duty on them
• more information should be shared but not everyone needs the same information. Consideration needs to be given as to how information will be used as well as proportionality
• good planning can only happen if notifications are received before a move, and ideally as early as possible
• there needs to be clear oversight. Placement should not happen until the notifications are received and assurances given that all relevant persons/organisations acknowledge that the placement can go ahead
• a named person/central mailbox in each area/health board to be notified of where a child is being placed would be helpful. Where this is/has already happened, it has worked well to avoid crisis
• Child Health Commissioners highlighted difficulties with mental health referrals. They do not receive the notification which delays care plans and makes it difficult to provide support. Additional information provided to health boards would therefore be helpful
• whether Police Scotland should be notified was discussed by participants. Some key points included:
  • importance of ensuring consistency with approach for Scottish Looked After Children
  • if Police Scotland are not notified – concern about ability to respond effectively in crisis
  • concern re appropriateness of police notification
  • Police Scotland have statutory duties when it comes to child protection

Scrutiny and registration

Any setting in which a child is to be placed in Scotland on a cross-border placement is to be managed by a Care Inspectorate registered service. Placing authorities are expected to undertake due diligence checks in relation to scrutiny and registration of a prospective residential provider. This would entail a review of the prospective placement provider’s most recent regulatory inspection information alongside its statement of functions and objectives.

What we have heard:

• concerns that placing local authorities may not understand Scottish inspection process. Care Inspectorate have suggested a video for social workers explaining the process
• the Care Inspectorate need to be clear on what needs to happen for cross-border placements and to visit private providers to raise awareness and ensure correct record keeping, incident recording and reporting procedures are enforced

Multi-agency discussion

For all cross-border placements into Scotland, a multi-agency discussion should take place (ideally before the child is placed) to ensure services in health, education, social work, police, and any other required specialist services are in place. The placing authority should initiate multi-agency discussion with relevant Scottish stakeholders.

What we have heard:

• there is often confusion/lack of understanding around cross-border/DoL placements and stakeholders suggested the introduction of a guidance pack/portal which would set out what everyone needs to do
• multi-agency review should take place within 72 hours with all key partners involved, including in emergency situations. If possible, these discussions should take place prior to the child being moved to Scotland
• a Looked After Child Review would normally be held after 72 hours in Scotland if a child is placed in an emergency, and it was suggested that this should be considered for cross-border placements and be in legislation. These hold all to account and would be line with what should be happening at a multi-agency level. This would involve taking the views of child, how happy are they, risk of absconding (considering consequences) and are the assessed needs being met
• a multi-agency discussion should take place with critical partners including health, social work, education and Police Scotland ideally before the child is placed. Where it is not possible before the child is placed, it should take place as soon as possible after placement commencement
• clarity is needed on what must happen v should happen (best practice) for emergency v non-emergency placements
• placing local authorities need to be clear on Scottish context. For example, child protection processes in Scotland vary from other nations

Provision of advocacy services

What we have heard:

• there is a need to have advocacy available to the child and this should be in place before placements commence
• advocacy should be offered to all children placed into residential care in Scotland on a cross-border placement given that all cross-border placements contain a certain level of risk
• however, if provision is extended to all cross-border placements, consideration needs to be given to the availability of advocacy workers to ensure they can meet demand and need
• there is confusion amongst stakeholders around the role of an advocate specifically what an advocate can and cannot do for young people. It was agreed that more thought should be given to how the offer of advocacy is made to young people e.g. child friendly documents or videos, and how it is explained to all parties involved in a child’s care.
• support should be provided to services to explain the benefits of advocacy to the young people placed with them
• concerns that once a young person is placed in Scotland, advocacy support from their home jurisdiction falls away. This can be problematic as Scottish advocacy workers are not trained in the English court systems and cannot advise on the English court order the child is placed on. Also, the young person’s originating/substantive advocacy support falling away can make it difficult for the young person to maintain relationships which are needed for a smooth transition back to their home jurisdiction
• advocacy providers communicated that it can often be difficult to engage with services where young people are placed which is problematic given this is their only initial link to the young person. Most young people won’t have mobile phones and will rely on an adult, usually the care staff/manager, to help them set up contact with local advocacy services
• initial contact should be made before the young person is placed in Scotland, where possible, and that the voice of the young person is not lost

Enforcement – in event of breach of placing authority duty

The existing DoL regulations provide Scottish Ministers with the power to apply to a sheriff for an enforcement order if a placing authority does not comply with its duties.

We sought views on challenges with existing enforcement process and how it might be improved or extended to cover all cross-border placements.

What we have heard:

• a more detailed escalation process should be developed and that it should be effective, quick and robust
• there is a clear link to pre-placement planning specifically the multi-agency discussion. If links are made and there are good relationships in place before the child is placed in Scotland, then this should negate the need for an enforcement process. However, it was highlighted that this isn’t always the case due to the emergency nature of many cross-border placements
• any enforcement process should be simple so that children and young people understand it
• there was agreement that there is a role here for the Independent Reviewing Officer however it is unclear what power they currently have in terms of enforcement

Reviews, extensions and end of a placements

DoLs are recognised in Scots law as if it were a Compulsory Supervision Order (CSO), for a period of up to three months. Where it’s continued beyond that period, it must be reviewed at least every three months to ensure it continues to meet the child’s best interests. Where an extension is sought or it’s terminated, the placing authority must inform the specified people/agencies in Scotland. 

Views were sought on how the new regulations should deal with reviews, extensions and end of placements for all types of cross-border placements.

What we have heard:

• regular review points are needed to ensure child’s best interest are being met. It was agreed these should be at least every three months for all cross-border placements, as per DoL Regulations
• transition plans need to be in place before a move and reviewed at least every three months
• it is important for child to understand their options in terms of transitions and for them to be able to influence that journey
• voice of child in these processes is key
• the transition process and moving back to placing authority can be challenging
• services in Scotland often not informed when a child moved back to home jurisdiction
• it’s crucial to ensure a positive ending for young people with trauma, as this can prevent further emotional distress
• there isn’t a clear process for children who may wish to remain in Scotland
• concern about care a child receives during transitions back to home jurisdiction  
• there are differing levels of support for care leavers in England and Scotland, including financial entitlements
• young people and the care provider should be informed of the court review date so that the young person is able to access support in order to participate