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

Data Protection Impact Assessment

The Cross-border Placement of Children (Requirements, Effect and Enforcement) (Scotland) Regulations 2026 (“the Regulations”)

Version date: 25/11/2025

Review date:

In this assessment, ‘cross-border placements’ are used to describe temporary placements of children into residential or foster care in Scotland from another part of the UK. Children placed into Scotland on cross-border placements remain the responsibility of the placing local authority. For most cross-border placements coming to Scotland, Scottish parties (for example education and health contacts) know very little about those children or their circumstances. In many cases, they do not know that children have been placed and often find out through crisis interventions.

As at 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.

There is limited data on the number of cross-border fostering placements in Scotland. The Care Inspectorate published its annual Fostering and Adoption bulletin on 28 October 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.’

In September 2025 the Scottish Government wrote to English placing authorities and the Northern Ireland Executive to gather updated information on the number of cross-border placements into both fostering and residential care in Scotland. This showed that as of 23 September 2025 there were approximately 34 cross-border foster placements. These placements were from England and Northern Ireland. Wales could not provide this data.

The Regulations will provide more accurate data on cross-border foster placements.

The Children (Care and Justice) (Scotland) Act 2024 includes provision to allow the Scottish Ministers to further regulate cross-border placements of children from England, Wales and Northern Ireland into Scotland, which should only ever occur in exceptional circumstances. The Cross-border Placement of Children (Requirements, Effect and Enforcement) (Scotland) Regulations 2026 (“the Regulations”) provide for the legal effect in Scots law of court orders or arrangements underpinning placements from elsewhere in the UK and set out conditions to be met in respect of temporary placements into residential and foster care.

The overarching aim of the Regulations is to provide a robust legal framework in respect of cross-border placements, thereby ensuring that the welfare of children placed in Scotland is safeguarded and promoted, and that their rights are upheld.

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), subject to certain conditions and for certain purposes, where a child has been placed into residential care in Scotland. DoL orders are primarily issued by courts in England and Wales and provide legal authorisation for the deprivation of a child’s liberty where this is necessary and proportionate.

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 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.

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 cross-border 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 compulsory CSOs where the host local authority in Scotland agrees for this to happen. For temporary placements, the Regulations will help to ensure that children’s rights are upheld by imposing exacting requirements for recognition of the order or arrangement underpinning the placement, as well as requirements which apply during it.

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 risks arising from placements.

For residential care placements, the Regulations require:

• the placing authority to undertake regular visits and reviews of residential care placements to ensure the placement remains suitable to meet the child’s needs,
• the Scottish Ministers to offer funded, independent advocacy to children as soon as reasonably practicable following their placement in residential care, or any move to a new setting.

For foster care placements, the Regulations will require an agreement to be made between the placing authority and the foster carer. This agreement will place obligations on the placing authority to provide all information to the foster carers about the child’s care and wellbeing. This includes outlining a plan for regular reviews and visits in line with the legislative requirements in the child’s home jurisdiction.

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, if the Regulations are passed by Parliament, this will be replicated for all cross-border placements into residential care.

This Data Protection Impact Assessment (DPIA) was drafted alongside the Article 36(4) ICO consultation form submitted to the Information Commissioner’s Office (ICO) and updated as a result of this consultation.