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

Background

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], 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 CSOs where a child is placed in Scotland on a more permanent basis.

When the 2022 Regulations were reviewed 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.

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, the key risks are in relation to Scottish parties knowing very little about those children or their circumstances (and so being unable to ensure necessary support can be provided). In many cases, they do not know that children have been placed and often find out through crisis interventions. Children expressed concern that they were sometimes unable to access health services, particularly mental health services, when placed in Scotland. The Scottish Government also understands that children are sometimes placed without education provision having been agreed, leading to children being without education for prolonged periods.

A comprehensive regulatory framework for cross-border placements into residential and foster care in Scotland will help to ensure that children’s rights are upheld by requiring that the placement is suitable to meet their needs, that information is shared with the relevant parties and that all necessary support is in place for the duration of a child’s placement.

Residential care

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..

Foster care

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.