Cross-border Placement of Children (Requirements, Effect and Enforcement) (Scotland) Regulations 2026: practice guidance, notice and undertaking template
Guidance primarily for local authorities in England and Wales and Health and Social Care Trusts or Education Authorities in Northern Ireland which are involved in the placing of children into residential care homes and foster care in Scotland.
9. Enforcement process in event of breach of placing authority duty
This section applies to breaches of placing authority duties under the Regulations in respect of both residential care home placements and foster care placements.
Should an organisation or individual be concerned that the placing authority is not complying with the duties placed on them by the Regulations, then the following escalation pathway process should be followed.
To note: if the concern is in relation to a serious and imminent risk to a child’s wellbeing or safety, these should be reported to the relevant parties, for example the placing authority social worker or police, immediately to ensure appropriate action is taken and the child is safe and protected.
Steps one to three
Steps one to three, as set out below, aim to resolve concerns between parties on an informal basis where possible.
At each stage, any correspondence should be copied to the Scottish Government at crossborderplacements@gov.scot. This will help to ensure that more serious concerns can be escalated quickly. If deemed appropriate, Scottish Ministers may wish to move straight to step 4.
It is important that throughout this process, the thoughts and views of the child in placement should be sought and considered by all parties where appropriate.
Step one: concern identified
When an organisation or individual identifies a potential breach of a placing authority’s obligations under the Regulations, they should contact the placing authority in writing as soon as possible to inform them of the details of the potential breach and ask for them to rectify the issue. Sending this guidance may help. If the issue raised is not resolved within five working days of correspondence being sent to the placing authority, or a suitable course of action is not identified to do so within this timeframe, proceed to Step 2.
Step two: escalation to Chief Social Work Officer (CSWO) of Scottish local authority
If the placing authority does not appropriately respond to the issues flagged to them within five working days, the organisation or individual identifying the potential breach should contact the Chief Social Work Officer (CSWO) of the Scottish local authority where the child is placed as soon as possible. An up-to-date contact list can be found here. The CSWO will, as part of their statutory duties under Section 12 and 12A of Social Work (Scotland) Act 1968, conduct necessary investigations about the situation and confirm if they agree that the placing authority may be in breach of duties under the Regulations.
If the CSWO deems that the placing authority may be in breach of its obligations, they will then, as appropriate, formally write to their counterpart in the placing authority to inform them of this and to note that they have not satisfactorily responded to previous concerns raised. The placing authority should be given a further five working days to rectify the issue raised, or to advise how they will rectify it if more time is reasonably needed.
Step three: escalation to Scottish Government
If the placing authority does not respond satisfactorily to address the issues raised in correspondence under step 2 within five working days, the CSWO of the Scottish local authority should alert the Scottish Government’s Office of the Chief Social Work Adviser (OCSWA) in writing as soon as possible, attaching all previous correspondence on the potential issue(s).
OCSWA will then investigate further, and as appropriate, formally write to their counterpart in England, Wales or Northern Ireland, to inform them of the concern that the Regulations may have been breached. They will ask counterparts to rectify the situation as a matter of urgency. Again, five working days should be given for rectification of the issue, or for the placing authority to advise how they will rectify it if more time is reasonably needed. OCSWA will require that the CSWO of the Scottish local authority and OCSWA themselves are updated accordingly as and when remedial action is taken and completed.
Steps four and five
Steps four and five below may be initiated when the previous, more informal steps have been exhausted and no resolution has been found. These concerns may now need to be escalated and the formal processes in the Regulations invoked where appropriate. The parties who were involved in steps 1-3 will be informed by Scottish Government of the outcome of steps four and five :
Step four: escalation to and consideration by Scottish Ministers
If the placing authority does not correct the problem as set out within step three, then the Scottish local authority or OCSWA must inform the Scottish Ministers of the issue(s) in writing and enclose copies of any relevant correspondence with the placing authority. Ministers will assess the information provided to consider whether the placing authority may be in breach of a duty in the Regulations. In carrying out its assessment, Ministers may seek further clarification or information about any of these matters.
Where Ministers consider that the placing authority is in breach of a duty , they will give the placing authority a notice of their intention to apply to the sheriff court to enforce it. The notice must:
- Set out the respects in which the authority is in breach of its duty, and
- State that if the placing authority does not perform that duty within 21 days beginning with the day on which the notice is given, the Scottish Ministers may make an application to the sheriff court to enforce the authority’s duty.
Step five: escalation to the courts
If the placing authority does not satisfactorily respond to the notice within 21 working days setting out what steps it has taken or will take in order to comply with its duty, the Scottish Ministers may apply to a sheriff in the receiving authority for an order to enforce the placing authority’s duty in relation to the child.
The sheriff may, following that application, make an order requiring the placing authority that is in breach of a duty to carry out that duty.
Step 6: final stage
Should the sheriff determine that the placing authority has failed to comply with its duty, the Scottish Ministers will follow this up in writing with the placing authority to ascertain what steps it has taken or will take to address these matters.
A flow chart of the escalation process can be found at Annex D.