Scottish government to assist English councils placing children north of border

Deprivation of liberty orders to be recognised in Scotland automatically amid widespread shortage of provision for children with complex needs in England

Scottish Parliament building
Scottish Parliament building (photo: Heartland Arts/Adobe Stock)

The Scottish Government plans to make it easier for English and Welsh councils to transfer vulnerable children in their care to facilities north of the border.

Holyrood said the current system for placing children with deprivation of liberty orders in Scotland was “unsustainable and does not serve the best interests of children and young people”.

It published proposals last week for Scotland to automatically recognise orders issued by the High Court in England and Wales  without the need for a separate court application.

The measure comes amid widespread shortages of secure children’s home places in England, requiring councils to seek High Court orders to authorise bespoke placements in which children are deprived of their liberty.

Currently, if the High Court uses its inherent jurisdiction to authorise a child’s deprivation of liberty, they can only be placed in England and Wales without further action.

Some English and Welsh councils arrange cross-border placements for children in residential care services in Scotland, but they are currently required to petition the Court of Session in Scotland to recognise the High Court’s deprivation of liberty order  in each child’s case.

The Scottish Government now plans to remove the requirement for English and Welsh authorities to petition the Court of Session, instead automatically recognising the orders in Scotland as if they were a compulsory supervision order (CSO). These are issued under Scotland’s children’s hearings system, which covers children in care and those who have committed offences, and require children to meet specific requirements and councils to fulfil certain duties in relation to their needs.

The Scottish Government plans to lay draft regulations in Scottish Parliament in the spring and is consulting on the changes until 28 January.

A spokesperson for Ofsted, which has previously discussed the potential threat of the Scottish Government banning transfers across the border, said it was “aware” of the plans and  “the challenges in finding suitable placements for children who are deprived of their liberty”.

Meanwhile, a spokesperson for the Convention of Scottish Local Authorities said the organisation would respond once it has engaged with councils and professional associations on the proposals.

Placing authorities to be responsible for child

Under the proposals, an English or Welsh local authority which has arranged a child’s transfer to accommodation in Scotland would remain responsible for the child after they have been placed.

The non-Scottish council would be accountable for the placement’s implementation, oversight, review and financial costs.

But the Scottish authority in which the placement was located could have to perform its “existing statutory duties” in the case of an emergency or a placement breakdown.

Reviews to be undertaken after three months

Alongside the rule change, the Scottish Government is considering introducing conditions that must be met for deprivation of liberty orders to be recognised in Scottish law.

It could require English or Welsh authorities to notify the chief social work adviser in their countries – in England’s case this is likely to be a reference to children’s chief social worker Isabelle Trowler – and their Scottish counterpart. There would  then be a multi-agency discussion before any placement is made.

Holyrood may require placing councils to notify relevant parties including the chief social workers and Scotland’s principal reporter, a role which receives referrals for children believed to need compulsory supervision under the hearings system, once an order has been approved.

And it may limit automatic recognition of deprivation of liberty orders in Scotland to three months, after which a review would have to take place.

“We propose that recognition of a [deprivation of liberty] order as if it were a CSO should be conditional on a number of actions and principles,” the Scottish Government said in its policy proposals.

“The best interests of every child in Scotland, whether or not they themselves are Scottish, must be front and centre.

“We must consider the need for parity of treatment between children who are established and placed in Scotland, where they are deprived of their liberty. This must be balanced with the appropriate roles of ‘placing’ and ‘receiving’ local authorities.”

Hearings to be held in host authorities

The Scottish Government proposed that hearings under the country’s children’s hearings system (CHS) for children transferred across the border should be convened in the authority area in which the child is located.

It said information about a child’s progress in placement and their access to local rights protections will be shared at these hearings.

The devolved government said it would be up to children’s hearing to appoint a safeguarder – an independent person who considers a child’s best interests – and to ensure advocacy provision has been offered to the child.

It said the hearings should share information about the child’s progress to the High Court in England or Wales as part of their reviews of the deprivation of liberty order.

Call on UK government to create more capacity

The proposals come despite the Scottish Government’s plan to ban local authorities in the country from selling care placements to councils across borders.

Ofsted said last year that around 20 children had been placed by English councils in Scottish secure units due to the lack of available places.

“We know that such placements result in children and young people being separated and distanced from their families, peers, community support networks and services,” the Scottish Government said in its policy proposals.

“This impacts on the ability to plan for the child and on their ability to maintain meaningful relationships.

“We believe that cross-border placements should only occur in exceptional circumstances where the placement is in the best interests of an individual child.”

Holyrood stated that its current proposals were a “short-term, partial mitigation of a longer-term problem” of there being a lack of children’s homes in England.

It said that the longer-term solution was for the UK government to help create more capacity in England.

“Until the lack of provision for secure and residential care in England is addressed, cross-border placements into Scotland will continue to be required,” it said.

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