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

Section 1: Background, aims and options

Background to policy issue

Existing Regulations

The 2022 Regulations came into force in June 2022. The Regulations make provision for a deprivation of liberty (DoL) order granted by a High Court in England and Wales or Northern Ireland, to have effect in Scotland as if it were a CSO in certain circumstances and for certain purposes. The Regulations ensure that placing authorities inform relevant parties of the placement to ensure the young person is appropriately supported and cared for, require a placing authority undertaking to be given, and contain provisions allowing the deprivation of liberty order and placing authority duties to be enforced.

The 2013 Regulations provide for the ”conversion” of care orders, supervision orders or education supervision orders from England and Wales, or, Northern Ireland, into a Scottish CSO in certain circumstances.

Challenges

From information-gathering and engagement with stakeholders, it is clear that temporary cross-border placements into residential and foster care are being made into Scotland on legal bases which are not given effect to by existing Scottish legislation. In addition, we have heard that the requirements in the 2022 Regulations for DoL placements do not go far enough, for example in the level of information shared about the child and their placement.

Evidence gathering has highlighted that for most cross-border placements there is a similar level of risk present, regardless of their underpinning order, or the agreement which has been used to place children into Scotland. For most of the cross-border placements coming to Scotland, Scottish parties know very little about the placed child or their circumstances. In many cases, Scottish partners do not know that children have been placed and often find out through crisis interventions. We have also heard that Scottish parties involved in the child’s care are often not included in reviews of the placement, or that children are placed into services or parts of Scotland that are not meeting their needs.

Bringing forward Regulations covering both temporary and permanent placements into residential and foster care will ensure clarity around the rules which apply in this area and that the risks identified through evidence gathering are effectively mitigated.

Data – residential care

As of 31 October 2025, approximately 101 children were placed cross-border into residential care in Scotland. Of these:

• 94 were from England
• 6 were from Northern Ireland
• 1 was from Wales

Breakdown by legal basis for placement:

• Full Care Order – 63
• Interim Care Order – 8
• Voluntary arrangement – 26
• Deprivation of Liberty Order – 4

These placements cover 21 Scottish local authority areas, with the highest numbers recorded in South Lanarkshire, East Ayrshire, Perth and Kinross, and Dumfries and Galloway.

The number of Deprivation of Liberty (DoL) order placements into residential care in Scotland has been steadily decreasing since the implementation of the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 (‘the 2022 Regulations’) - falling from 17 in December 2022 to 4 in October 2025.

Since the 2022 Regulations came into force, a total of 39 initial DoLs notifications have been received. 35 of these cases have subsequently been confirmed closed either by notification or advocacy intelligence. There are currently 4 DoL placements in Scotland.

Data – foster care

There is limited data of the number of cross-border placements into foster care in Scotland from elsewhere in the UK. The Care Inspectorate published its annual Fostering and Adoption bulletin on 28 October 2025 which showed that:

‘Over the course of 2024, 11 children or young people from outside of Scotland were placed in Scottish foster care households. On 31 December 2024 there were 18 children or young people from outside of Scotland placed in Scottish foster care households, over both Independent and Local Authority services. Therefore, some of these children or young people will have been placed in Scottish foster care households prior to 1 January 2024.’

Evidence gathering conducted by the Scottish Government among English Local Authorities and the Northern Ireland Executive showed that as of 30 September 2025 there were approximately 34 cross-border foster placements in Scotland. These placements were from England and Northern Ireland. The Welsh Assembly (including Foster Wales) could not provide this data.

Purpose/aim of action and desired effect

Cross-border placements into residential care and foster care in Scotland should only occur in exceptional circumstances where the placement is in the best interests of the individual child. The Scottish Government’s intention in bringing forward the Regulations is not to arbitrarily reduce the number of cross-border placements made into Scotland, but to ensure that appropriate consideration is given to whether placements meet children’s needs, and that placements are appropriately regulated to mitigate risk to the safety and wellbeing of children, and to safeguard and promote their rights.

Cross-border placements into residential care and foster care in Scotland are primarily due to a lack of provision elsewhere in the UK, particularly in England. The Regulations are not intended to be a substitute for proper provision for the placement of children being made available in their home nations in England, Wales, and Northern Ireland.

A comprehensive regulatory framework for all cross-border placements into residential and foster care in Scotland will help to safeguard and promote the rights and wellbeing of children who are placed here.

Options (considered so far/still open)

When the 2022 Regulations were considered by Parliament, stakeholders expressed concerns that they did not sufficiently address issues related to cross-border placements. Although Parliament approved the Regulations in draft, this approval was contingent upon the expectation that additional legislative measures would be introduced to address these concerns. Therefore, non-legislative or non-regulatory approaches were not considered.

Sectors/ Groups 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
• Principal Reporter