The Cross-border Placement of Children (Requirements, Effect and Enforcement) (Scotland) Regulations 2026: Business and Regulatory Impact Assessment

Executive summary

Issue and why it needs to be addressed

Currently, the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 (“the 2022 Regulations”) provide legal recognition in Scots law for Deprivation of Liberty orders (DoL orders)^[1] where temporary placements are made into residential care in Scotland. The Children’s Hearings (Scotland) Act 2011 (Transfer of Children to Scotland – Effect of Orders made in England and Wales or Northern Ireland) Regulations 2013 (“the 2013 Regulations”) also provide for the conversion of certain orders made elsewhere in the UK into Scottish Compulsory Supervision Orders (CSOs), where a child is placed in Scotland on a more permanent basis.

Evidence gathering has highlighted that children are being placed into Scotland on a temporary basis subject to orders and arrangements which are not covered by an existing statutory regime. These Regulations are intended to address this issue, as well as bolster existing requirements for the recognition of DoL orders in Scots law. For those children coming to Scotland on cross-border placements not covered by existing Regulations, a key risk is in relation to Scottish parties knowing very little about those children or their circumstances (and so they may be unable to ensure necessary support can be provided where needed). In many cases, Scottish partners currently do not know that children have been placed into Scotland and often find out through crisis interventions. These Regulations address this by introducing notification requirements for cross-border placements into residential and foster care on a variety of bases. They also impose duties on those authorities which place children into Scotland to help to ensure that children are safeguarded and promoted and that their rights are upheld.

Intended outcomes

Cross-border placements into Scotland should only occur in exceptional circumstances where the placement is in the best interests of the individual child. The Scottish Government’s intention through the Regulations, is to ensure that placements into residential and foster care in Scotland are appropriately considered and assessed, and that a clear regulatory framework applies to these placements. This, in turn, will ensure that the rights and wellbeing of children who come to Scotland through cross-border placements are safeguarded and promoted.

The Regulations set out conditions to be met for temporary placements and provide a route for the “conversion” of certain non-Scottish orders into CSOs, where the host local authority in Scotland agrees for this to happen.

Sectors affected

The following sectors could be impacted by the Regulations:

• Authorities in England, Wales and Northern Ireland which arrange cross-border placements into Scotland (“placing authorities”)
• Scottish local authorities which host children subject to cross-border placements
• Residential childcare providers/services in Scotland
• Registered fostering services and Independent Fostering Agencies
• The Care Inspectorate
• Health Boards and Social Care Services
• Education sector
• Police Scotland
• Advocacy and children’s rights organisations
• The Principal Reporter

Engagement completed, ongoing and planned

Residential care

The Scottish Government has undertaken significant engagement on the development of the Regulations with key stakeholders including the Children’s Commissioner Scotland, Clan Childlaw, and the Care Inspectorate. The Scottish Government has also regularly engaged with the UK Government, Welsh Assembly and Northern Ireland Executive in this regard.

In developing the policy to underpin the Regulations, the Scottish Government has undertaken several evidence gathering activities including:

• In March 2025, two open engagement sessions to present policy proposals.
• In August and September 2024, two stakeholder workshops to understand key challenges with cross-border placements and how the Regulations could help to address them. The outputs of these sessions can be found here.

• In July 2024 the Care Inspectorate published its thematic review of cross-border placements into Scotland. The report found pre-placement planning is key to all cross-border placements.
• In October 2023 the Scottish Government facilitated a stakeholder workshop to review the effectiveness of the 2022 Regulations
• In August 2023 the Scottish Government worked with the Association of Directors of Children’s Services (ADCS) in England to gather information on a sample of cross-border placements where children are subject to voluntary arrangements to understand why these types of placements arise.

The Scottish Government has also undertaken several evidence gathering exercises with placing authorities in England, given that is where the majority of placements originate from.

Foster care

Terminology notes (for clarity): In Scotland, all providers are registered as fostering services (this includes local authority in-house services and independent/third-sector providers). In the rest of the UK, non-local-authority providers are commonly referred to as Independent Fostering Agencies (IFAs). Where this BRIA refers to IFAs, it is to non-LA providers outside Scotland; in Scotland those organisations are registered and regulated as fostering services.

To understand cross-border foster placements, the Scottish Government has undertaken targeted engagement with the sector. This includes data gathering exercises with the Care Inspectorate, Scottish Local Authorities and independent/third sector fostering services operating in Scotland, and English Local Authorities to understand the data on cross-border foster placements.

Proportionate, non-consultative engagement has been undertaken with the Care Inspectorate, Social Work Scotland, Local Authorities, fostering services (local authority and independent/third-sector providers) and The Fostering Network to test the policy approach and its alignment with the residential Regulations. High-level materials were circulated to relevant stakeholders and discussed in a small number of meetings. This was not a formal consultation; further engagement is planned at the guidance stage.

Anticipated impacts (intended and unintended, positive and negative) and mitigating actions

We anticipate the Regulations would positively impact the experiences of children placed cross-border into residential and foster care in Scotland. The exacting requirements for temporary placements are intended to ensure that the placing authority appropriately assesses the placement’s suitability for the child, and that there is clarity around matters such as arrangements for visiting the child and reviewing their case.

The Regulations require notification of all temporary placements into Scotland to specified persons so that the order or arrangement underpinning the placement is recognised. We anticipate that this will improve those persons’ ability to exercise their functions as appropriate and allow them to identify any trends and risks arising from placements. Given the requirements to be met before the legal underpinning of temporary placements can be recognised, the Regulations may lead to a reduction in the number of cross-border placements into Scotland. This may have a negative impact on the residential care services in Scotland that rely on such placements for income. However, we consider the new requirements to be necessary and proportionate to ensure children are only placed where this meets their needs and upholds their rights.

Local authorities in Scotland which host cross-border placements may be impacted by the Regulations in a neutral way, in terms of them recouping any costs of a recognised temporary placement from the placing authority. Where a placement is intended to be permanent, the Regulations provide that the Scottish local authority requires to provide consent before it becomes the implementation authority of a non-Scottish order which is “converted” into a CSO. Again, we consider that this will likely have a neutral impact on the host local authority. Whilst staff time may be involved in recouping costs or considering and consenting to any order conversion, we anticipate that this will not be particularly burdensome, given this does not deviate from the existing regimes in the 2013 and 2022 Regulations.

In addition, given the Regulations replicate the 2013 Regulation regime in respect of permanent placements, there will be a neutral impact on the Principal Reporter. Their role will remain as it is currently in regard to the conversion of non-Scottish orders into a CSO.

We consider that placing authorities may be impacted in a neutral way. It is proposed that they will require to meet certain conditions for recognition of the legal underpinning of the placement, as well as requirements which apply during the placement itself. For example, where a child is temporarily placed in residential care, regular visits to the child and reviews of the placement by the placing authority will be required. However, such requirements will be broadly in line with existing requirements in the jurisdictions of the placing authority and so the impact should be minimal. It is important to note that there is no requirement for children to be placed cross-border into Scotland and if placing authorities are unable, or unwilling, to adhere to the requirements set out in the Regulations, an alternative placement can be sought.

Enforcement/compliance

The Regulations allow the Scottish Ministers to apply to a sheriff for an enforcement order if a placing authority does not comply with its duties as set out in the Regulations.

Recommendations/implementation plans

N/A

Evaluation and monitoring of implementation/review of BRIA

The Scottish Government will undertake a review of the implementation of the Regulations, if passed, one year following implementation.