The Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022

Made: 23rd June 2022

Coming into force: 24th June 2022

In accordance with section 190(2)(c) and 197(2) of that Act, a draft of these Regulations has been laid before and approved by resolution of the Scottish Parliament.

Citation and commencement

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These Regulations may be cited as the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 and come into force on the day after the date on which they are made.

Interpretation

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• (1) In these Regulations—

• “the Act” means the Children’s Hearings (Scotland) Act 2011,

• “the 2010 Act” means the Public Services Reform (Scotland) Act 2010[^f00002],

• “chief social work officer” means an officer appointed in accordance with section 3 of the Social Work (Scotland) Act 1968[^f00003] or a deputy designated by the receiving local authority,

• “child” means a person under the age of 18 years,

• “the Commissioner for Children and Young People in Scotland” means the Commissioner appointed in accordance with section 2 of the Commissioner for Children and Young People (Scotland) Act 2003[^f00004], or a member of staff appointed under paragraph 7(1) of schedule 1 of that Act,

• “the court” means— in relation to England and Wales, the court exercising the inherent jurisdiction of the High Court of England and Wales, in relation to Northern Ireland, the High Court of Justice in Northern Ireland,

• “deprivation of liberty order” means an order (including an interim order) made under the inherent jurisdiction of the High Court of England and Wales or, as the case may be, made by the High Court of Justice in Northern Ireland, which authorises the deprivation of liberty of a child in a residential care setting,

• “Health Board” means a Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978[^f00005],

• “local authority” means— in relation to England and Wales, a local authority within the meaning of section 105(1) of the Children Act 1989[^f00006] as it relates to England and Wales, in relation to Northern Ireland, a Health and Social Care trust established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991[^f00007], in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994[^f00008],

• “placement” means the placement of a child into a residential care setting, where that child was, immediately prior to the placement, resident in England, Wales or, as the case may be, Northern Ireland, and references to a child being “placed” are to be construed accordingly,

• “placing local authority” means the local authority in England, Wales or, as the case may be, Northern Ireland, which has been granted a deprivation of liberty order,

• “Principal Reporter” means the Principal Reporter appointed under paragraph 8 of schedule 3 of the Act or an officer of the Scottish Children’s Reporter Administration to whom there is delegated under paragraph 10(1) of schedule 3 of that Act any function of the Principal Reporter,

• “receiving local authority” means the local authority in Scotland within which the residential care setting mentioned in the deprivation of liberty order is located,

• “residential care setting” means a residential institution in Scotland which provides day-to-day care for children,

• “residential institution” means an establishment (whether managed by a local authority, a voluntary organisation or any other person) which— is not secure accommodation, provides residential accommodation for children in order to safeguard or promote their welfare or otherwise to protect or further their interests, and is managed by a care service which is registered by Social Care and Social Work Improvement Scotland in accordance with Chapter 3 of the 2010 Act,

• “Social Care and Social Work Improvement Scotland” means the body established by section 44 of the 2010 Act[^f00009].

• (2) Unless the context otherwise requires, any expression in these Regulations which is not listed in paragraph (1) and which is defined in the Act is to be construed in accordance with the Act’s definition.

• (3) Any reference in these Regulations to anything done in writing includes a reference to anything done in electronic form which is—

• (a) sent by electronic means, and

• (b) capable of being reproduced in legible form.

Deprivation of liberty order to have effect as if compulsory supervision order

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• (1) Where paragraph (1) of regulation 4 or, as the case may be, 5 applies, a deprivation of liberty order has effect as if it were a compulsory supervision order for the purposes mentioned in paragraph (2).

• (2) The purposes are—

• (a) authorising in law the deprivation of liberty of the child who is the subject of the order in Scotland, and

• (b) the application of the Act in relation to the deprivation of liberty order (in respect of which, see regulation 13).

Deprivation of liberty order recognised in Scotland on date Regulations come into force

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• (1) This paragraph applies where, on the day on which these Regulations come into force, a deprivation of liberty order is recognised and enforceable in Scotland by virtue of an interlocutor made before that day by the Court of Session.

• (2) Paragraph (1) ceases to apply on the earlier of the following occurrences—

• (a) the deprivation of liberty order ceasing to have effect in the jurisdiction of the court which made the order,

• (b) regulation 5(1) applying in relation to the deprivation of liberty order,

• (c) the end of the period during which the deprivation of liberty order is recognised and enforceable in Scotland by virtue of the Court of Session’s interlocutor.

Deprivation of liberty order made, or continued, on or after day Regulations come into force

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• (1) This paragraph applies where a relevant circumstance as specified in paragraph (2) occurs and the circumstance specified in paragraph (3) applies.

• (2) A “relevant circumstance” occurs when a deprivation of liberty order—

• (a) which was recognised and enforceable in Scotland as mentioned in paragraph (1) of regulation 4 is, before the end of the period mentioned in paragraph (2)(c) of that regulation, reviewed and continued in effect beyond the end of that period by the court which made the order, or

• (b) is made on or after the day on which these Regulations come into force.

• (3) The circumstance in this paragraph is that regulation 7 has been complied with in relation to the deprivation of liberty order.

• (4) Paragraph (1) ceases to apply—

• (a) on the deprivation of liberty order ceasing to have effect in the jurisdiction of the court which made the order, or

• (b) where the occurrence mentioned in paragraph (a) does not happen within a relevant period, at the end of the relevant period unless the deprivation of liberty order is, on or before the last day of the relevant period, reviewed and continued in effect beyond the end of the relevant period by the court which made the order.

• (5) The “relevant period” is—

• (a) where the deprivation of liberty order has not previously been reviewed and continued in effect by the court which made the order, the period of three months beginning with the day on which the order was made,

• (b) otherwise, the period of three months beginning the day on which the order was reviewed and continued in effect, or last reviewed and continued in effect, by the court which made the order.

• (6) In this regulation, references to a deprivation of liberty order being “continued in effect” include references to that order being extended.

Effect of child becoming subject to compulsory supervision order or interim compulsory supervision order

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A deprivation of liberty order ceases to have effect as provided for in regulation 3(1) where a child who is the subject of the order becomes subject to a compulsory supervision order or interim compulsory supervision order.

Notice and undertaking required for deprivation of liberty order to have effect as if compulsory supervision order

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This regulation is complied with if a copy of the following has been given in writing by or on behalf of the placing authority to each person mentioned in regulation 8—

• (a) a notice containing the information specified in regulation 9, and

• (b) an undertaking meeting the requirements specified in regulation 10.

Persons to be given copy of notice and undertaking

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The persons to be given a copy of the notice and undertaking mentioned in regulation 7 are—

• (a) the Health Board which provides health services in the area in which the child is to be placed,

• (b) the Commissioner for Children and Young People in Scotland,

• (c) the person in charge of the residential care setting in which the child is to be placed,

• (d) the Chief Social Work Officer of the receiving local authority,

• (e) any person acting for the time being as the director of education of the receiving local authority,

• (f) the Scottish Ministers,

• (g) the Principal Reporter, and

• (h) Social Care and Social Work Improvement Scotland.

Content of notice

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The information specified for the purposes of this regulation is—

• (a) the name of the placing local authority,

• (b) the gender of the child who is the subject of the deprivation of liberty order,

• (c) the age of the child who is the subject of the deprivation of liberty order,

• (d) the name of the residential care setting in which the child is to be placed, and

• (e) the time that the deprivation of liberty order—

• (i) comes into effect, and

• (ii) expires (if it is not subsequently extended).

Content of undertaking

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The undertaking mentioned in regulation 7(b) must specify that for the duration of the placement of the child who is the subject of the deprivation of liberty order, the placing local authority will—

• (a) provide or secure the provision of all services required to support the child, and

• (b) meet all of the costs arising from, or in consequence of, the child’s placement, other than the costs of advocacy provided to the child in accordance with regulation 11.

Provision of advocacy services

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• (1) Where a child becomes the subject of a deprivation of liberty order which has effect as if it were a compulsory supervision order as provided for in regulation 3(1), the Scottish Ministers must, as soon as reasonably practicable, inform that child of the availability of children’s advocacy services.

• (2) The Scottish Ministers need not comply with the requirement in paragraph (1) if, taking account of the age and maturity of the child, the Scottish Ministers consider that it would not be appropriate to do so.

• (3) The Scottish Ministers may enter into arrangements (contractual or otherwise) with any person other than a local authority, CHS or SCRA for the provision of children’s advocacy services.

• (4) For the purposes of this regulation, “children’s advocacy services” means services of support and representation provided for the purposes of assisting a child to convey their needs and views to the manager of the residential care setting in which they have been placed.

Review following transfer in cases of urgent necessity

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• (1) This regulation applies where a child who is the subject of a deprivation of liberty order is transferred from the residential care setting where the child was residing to another place under section 143 of the Act (as modified by regulation 13).

• (2) Where paragraph (1) of regulation 4 applies in relation to the order, paragraph (2) of that regulation is to be read as if, after sub-paragraph (a), there were inserted—

(aa) the end of the period of 14 days beginning with the day on which the child who is the subject of the order was transferred to another place under section 143 of the Act,

• (3) Where paragraph (1) of regulation 5 applies in relation to the order, paragraph (4) of that regulation is to be read as if, for that paragraph, there were substituted—

(4) Paragraph (1) ceases to apply on the earlier of the following occurrences— (a) the deprivation of liberty order ceasing to have effect in the jurisdiction of the court which made the order, (b) the end of— (i) a relevant period (as determined in accordance with paragraph (5)), or (ii) the end of the period of 14 days beginning with the day on which the child who is the subject of the order was transferred to another place under section 143 of the Act, unless the deprivation of liberty order is, on or before the last day of the relevant period or, as the case may be, the period of 14 days, reviewed and continued in effect beyond the end of the relevant period or, as the case may be, the period of 14 days by the court which made the order.

Application and modifications of the Act

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• (1) Despite regulation 3(1), references in the Act to a compulsory supervision order do not include reference to a deprivation of liberty order which has effect as provided for in that regulation, except in the following sections (as modified, including by way of substitution, by this regulation)—

• (a) sections 143 to 148 (implementation of orders), and

• (b) sections 168 to 171 (enforcement of orders).

• (2) The following paragraphs provide for further modifications of the Act as it applies, by virtue of a deprivation of liberty order having effect as provided for in regulation 3(1), in relation to such an order.

• (3) In section 143 (transfers in cases of urgent necessity)—

• (a) for subsection (1) substitute—

(1) This section applies where a child is, under the authority of a compulsory supervision order, residing in a residential care setting.

• (b) after subsection (2) insert—

(3) The chief social work officer must, as soon as reasonably practicable after the child is transferred as mentioned in subsection (2), inform the implementation authority of the transfer. (4) Subsection (5) applies where the child is in another place, having been transferred there under subsection (2). (5) The compulsory supervision order to which the child is subject applies in relation to that other place as it applies in relation to the residential care setting in which the child was residing prior to the transfer, but only until the earlier of the following occurrences— (a) the end of the period of 14 days beginning with the day on which the child was transferred to the other place under subsection (2), (b) the end of the day on which the review mentioned in regulation 5(2) (as modified by regulation 12(3)) of the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 takes place.

• (4) For section 144 substitute—

(144) The implementation authority in relation to a compulsory supervision order must comply with— (a) any requirements imposed on it by the order, and (b) any undertaking given by the authority in accordance with regulation 7 of the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 in relation to the child who is the subject of the order.

• (5) In section 145 (duty where child requires to reside in certain place)—

• (a) for subsection (1) substitute—

(1) Subsection (2) applies where a child is, under the authority of a compulsory supervision order, residing in a residential care setting.

• (b) in subsection (2), for “accommodation” substitute “setting”.

• (6) For sections 146 to 148 substitute—

(146) (1) This section applies where it appears to the Scottish Ministers that the implementation authority is in breach of a duty in relation to the child imposed on the authority under section 144 or 145. (2) The Scottish Ministers may give the authority a notice in accordance with subsection (3) of an intended application by them to enforce the authority’s duty. (3) The notice must— (a) set out the respects in which the authority is in breach of its duty in relation to the child, and (b) state that if the authority does not perform that duty before the expiry of the period of 21 days beginning with the day on which the notice is given, the Scottish Ministers may make an application to enforce the authority’s duty. (147) (1) The Scottish Ministers may apply to the relevant sheriff for an order to enforce the implementation authority’s duty in relation to the child. (2) The relevant sheriff is a sheriff of the sheriffdom in which the principal office of the receiving local authority (in relation to the child to whom the duty mentioned in subsection (1) applies) is situated. (3) The Scottish Ministers may not make an application under this section unless— (a) the implementation authority has been given a notice under section 146(2), and (b) the authority has failed to carry out the duty within the period specified in the notice. (4) The application is to be made by way of summary application. (148) (1) The sheriff may, on an application by the Scottish Ministers under section 147, make an order requiring the implementation authority that is in breach of a duty imposed under section 144 or 145 to carry out the duty. (2) Such an order is final.

• (7) In section 168 (enforcement of orders)—

• (a) in subsection (1), for the words from “relevant” to “place” where it first occurs substitute “compulsory supervision order which authorises the deprivation of liberty of the child who is the subject of the order in a residential care setting”,

• (b) omit subsection (3).

• (8) In section 169 (child absconding from place)—

• (a) in subsection (1)—

• (i) for paragraph (a) substitute—