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

Section 4: Additional implementation considerations

Enforcement/ compliance

All providers of care services for children are required to register with the Care Inspectorate, who have a duty to regulate care services and report on their quality, investigate complaints and help support improvement, as required.

The Care Inspectorate undertake regular inspections of residential children’s homes, and the inspections focus on the quality of the service, the support that staff in the service provide to the children in their care and the contribution of the service in achieving good outcomes for children. The Regulations contain a requirement for an officer of the placing authority to visit a child when the Care Inspectorate issues an improvement notice in respect of the residential care service where a child is placed. Where, as a result of such a visit, the placing local authority assesses that the child’s welfare is not adequately safeguarded and promoted, a placement review must be conducted, with consideration given to whether the child requires to be moved to a new setting.

The Care Inspectorate undertake regular inspections of fostering services and the areas of focus for inspections are set out in the quality framework for fostering, adoption and adult placement services.

Since April 2021 the Care Inspectorate have required that they be notified by residential care home services within 48 hours when a child or young person has been placed on a cross-border basis in their service (on any legal basis). The notification should be updated when the young person leaves the placement or when circumstances (e.g. the legal basis underpinning the placement) change. It is understood from the Care Inspectorate that initial notifications are reliably made by providers, but that notifications are often not updated when a placement is extended or comes to an end, which leads to incorrect data sets. This was reflected in the Care Inspectorate Cross-border thematic review 2024.

Currently, the 2022 Regulations provide Scottish Ministers with the power to apply to a sheriff for an enforcement order if a placing authority does not comply with certain duties. Ministers retain such a power under the Regulations, allowing them to seek a judicial remedy where a placing authority does not effectively implement a non-Scottish order which has effect as if it were a CSO and to enforce requirements for visits and reviews in the residential context.

However, recognising the time required to see through this formal enforcement process (noting some issues require immediate attention), in consultation with Chief Social Work Officers, the Scottish Government has developed an escalation process that aims to resolve concerns between parties on an informal basis, where possible. This has already been introduced for DoL order placements under the 2022 Regulations and the Scottish Government intends this will be replicated for all cross-border placements into residential care.

There is currently no framework, notification or enforcement protocol for cross-border foster placements. As of 2025, the Care Inspectorate has started to gather data on such placements through the annual returns process that Local Authorities and registered fostering services are required to fill in every year, there is now a specific question about cross-border foster care placements. The Regulations aim to formalise the process for data collection and sharing in respect of cross-border foster placements, as well as ensure that any non-Scottish order underpinning such a placement can be effectively enforced within Scotland.

UK, EU and International Regulatory Alignment and Obligations

Internal Market/ Intra-UK Trade

N/A

International Trade Implications

N/A

EU Alignment consideration

N/A

Legal Aid

There are no implications of the Regulations in relation to fulfilling individuals' right to access to justice through the availability of legal aid. Children placed cross-border will continue to be able to access legal aid subject to the law applying in their home jurisdiction. Funded legal advice on Scots law matters will be available subject to the provisions of Scottish legal aid legislation, and the same means and merits tests that would apply to a child permanently domiciled in Scotland.

Digital impact

N/A

Business forms

The Regulations require placing authorities to make notifications in relation to temporary cross-border placements and to keep information contained within the notification up to date, as well as to give an undertaking in the context of temporary residential placements. Authorities placing children into foster care in Scotland will also require to enter into an agreement with the proposed foster carer. We consider this documentation essential to ensure clarity around roles and responsibilities for a placed child, to ensure effective coordination of support and services for the child, and to safeguard and promote their wellbeing. Consideration has been given to only requiring placing authorities to share the minimum level of information needed to achieve these aims, and guidance will be given to placing authorities to facilitate this. A template undertaking can be found in schedule 1 of the Regulations and we intend to provide a template notice form in guidance.