Deprivation of liberty orders and Anglo- Scottish child law issues

At a recent seminar organised by Resolution, Justin Gray of Trinity Chambers shared his thoughts on matters related to this. Susan Oswald, Partner at SKO Family Law Specialists shares her thoughts.

One area that generated discussion was children from elsewhere in the UK who are subject to deprivation of liberty (DoL) orders being accommodated in Scottish residential care placements that do not satisfy the criteria of secure accommodation.

Previously, any such arrangement required an application by petition to the Court of Session for the exercise of the nobile officium. However, on 24th June 2022, the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 came into force to regulate cross-border placements without the need to petition the Scottish court. 

The new approach

These regulations provided for DoLs to be treated in Scotland as though they were compulsory supervision orders. It is important to note, however, that the DoL is not converted into a compulsory supervision order but is simply treated as if it were one. The child does not become subject to the Scottish Children’s Hearings system. 

The placing local authority remains responsible for implementing the DoL order and the court granting the order retains jurisdiction. The placing local authority is responsible for:

• Securing provision of all services required to support the child.
• Meeting all costs arising from the child’s placement (other than the cost of an offer of advocacy to the child).
• Ensuring that the conditions under the order are complied with.

The regulations provide that the placement must be registered with the Care Inspectorate and that notice must be given to specified persons in Scotland ahead of the child being placed. 

Importantly, the regulations provide that recognition of the DoL order is for a “relevant period”, namely the period of three months beginning with the day on which the order was made or the date on which the order was reviewed and continued by the court that made the order. 

This important provision means that children from other areas of the UK placed in Scottish residential settings are subject to reviews as regularly as Scottish children. This addresses a previous concern that two children in the same placement could be subject to very different levels of review. 

The regulations, in addition, provide a placement notice and an undertaking template that must be signed by an authorised representative of the placing authority. The placement notice has to state:

• The name of the placing authority.
• The gender of the child who is subject to the DoL.
• The age of the child who is subject to the DoL.
• The name of the residential care setting in which the child is to be placed.
• The time that the DoL comes into effect and the time that it expires.

The undertaking recognises the role and duties of the placing authority in respect of the child. This undertaking remains in place for the duration of the placement of the child who is subject to the DoL order. 

The persons who must receive the notice and undertaking in advance of the child being placed are:

• The health board that provides health services in the area in which the child is to be placed.
• The Children and Young People’s Commissioner Scotland.
• The person in charge of the residential care setting in which the child is to be placed.
• The chief social work officer of the Scottish local authority in which the child is to be placed.
• The person acting as director of education of the receiving local authority.
• The Scottish ministers.
• The Principal Reporter.
• The Care Inspectorate.

In context

For the most part, the placing of children from other parts of the UK in Scotland arises because of the shortage of suitable residential provision in England for children who need to be accommodated.

In certain situations, it is also in the best interests of the child to be placed at a distance from harmful situations, abusers and the potential influence of controlling individuals involved in organised crime. For some children, timely intervention and accommodation in an appropriate therapeutic setting is essential. These situations sometimes arise at short notice and at points of crisis in a child’s life. 

There have been situations in the past where well-intentioned social workers and local authorities have placed children without the appropriate steps having first been taken to ensure that the placement is properly regulated and scrutinised.

It is important that local authorities, and those professionals advising them, know about these regulations so as to ensure that cross-border placements of children who are subject to DoL orders in residential care in Scotland take place safely and appropriately.  

It should be noted, however, that most placements of English children in Scotland’s residential units are not made with DoL authorisations, and therefore it will only be in fairly rare cases that the 2022 Regulations will take effect.

Written by Susan Oswald, Partner at SKO Family Law Specialists