Island Communities Impact Assessment
The Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022
The purpose of these Regulations is to make provision for Deprivation of Liberty (DOL) orders made under the inherent jurisdiction by the High Court in England and Wales or the High Court of Justice in Northern Ireland, to be recognised in Scotland as if they were Compulsory Supervision Orders (CSOs). This recognition is subject to the conditions specified in these Regulations and is provided for the purposes of authorising the deprivation of liberty of the child who is the subject of the order in Scotland and the application of certain provisions of the Children's Hearings (Scotland) Act ("the 2011 Act").
Currently, the non-Scottish authorities who place children into Scottish residential care with DOL orders petition the nobile officium jurisdiction of the Court of Session for legal recognition in Scots law of the DOL orders. This is required to ensure compliance with Article 5 of the European Convention of Human Rights (ECHR).
A limited number of children are currently affected, or are likely to be involved in the future. Since the first cross-border (deprivation of liberty) petition in 2019, there have been a further 35 placements of children into residential care in Scotland. Of these, 35 placements have been from England and one from Wales. To date, there have been no placements from Health and Social Care trusts in Northern Ireland.
Scottish Ministers have committed to fulfilling The Promise (the conclusions of the Independent Care Review), which made clear that cross-border placements must be reduced to an absolute minimum. The Scottish Government continues to work with the UK Government to ensure that it addresses the lack of adequate care provision, particularly in England, which has led to the increase in these cross-border DOL order placements.
Petitions to the Court of Session's nobile officium jurisdiction are not intended for routine applications, such as those to recognise DOL orders. The current process of placing authorities petitioning the Court of Session to recognise DOL orders cannot be sustained. It does not serve the interests of the child or young person at the heart of each application, and it places a burden on Local Authorities and on the court itself, when resources could be better directed elsewhere.
That is why we have brought forward the Regulations as an interim step, necessary to better regulate cross-border placements of children and young people on DOL orders into Scottish residential care. This will help us on the way to a longer-term solution that better serves the rights and interests of the cross-border children affected and better aligns with the Promise. We are now consulting on proposals in the Children's Care and Justice (Scotland) Bill.
The Regulations make provision so that DOL orders have effect as if they are CSOs, subject to certain conditions. This does not mean that the DOL order will be fully converted into a CSO, which would result in the child entering Scotland's Children's Hearings System (SCHS) with concomitant issues around dual jurisdiction for the children affected and inappropriate obligations being imposed on Scottish Local Authorities and other agencies. Treating the DOL order as if it were a CSO simply provides a legal basis in Scotland for the deprivation of the liberty to the child who is subject to the order and ensures that the responsibilities of the placing authority are clear and legally enforceable. We intend to supplement the Regulations with a Memorandum of Understanding between the Scottish Government, UK Government and other devolved administrations, as well as compiling associated placement templates for placing authorities to complete. Our intention is to have these administrative agreements in place in time for the Regulations coming into force.
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