The Cross-border Placement of Children (Requirements, Effect and Enforcement) (Scotland) Regulations 2026

Made: 21st January 2026

Coming into force: 9th February 2026

In accordance with section 33A(3)(c) of the Children (Scotland) Act 1995 and 190(2A)(b) and 197(2) of the Children’s Hearings (Scotland) Act 2011, a draft of these Regulations has been laid before and approved by resolution of the Scottish Parliament.

PART 1 — GENERAL

Citation and commencement

1

These Regulations may be cited as the Cross-border Placement of Children (Requirements, Effect and Enforcement) (Scotland) Regulations 2026 and come into force on 9 February 2026.

Interpretation

2

• (1) In these Regulations—

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

• “the 1989 Act” means the Children Act 1989[^f00003],

• “the 2010 Act” means the Public Services Reform (Scotland) Act 2010[^f00004],

• “the 2014 Act” means the Social Services and Well-being (Wales) Act 2014[^f00005],

• “the 1995 Order” means the Children (Northern Ireland) Order 1995[^f00006],

• “the 1995 Act” means the Children (Scotland) Act 1995[^f00007],

• “the 2009 Regulations” means Looked After Children (Scotland) Regulations 2009[^f00008],

• “accommodation” means accommodation provided, or to be provided, in a residential care setting for a continuous period of more than twenty-four hours, and references to a child being “accommodated” are to be construed accordingly,

• “authorising fostering provision” means, as the case may be, regulation 20(1), 24(1), or 28(1) of these Regulations in respect of giving effect to a relevant order,

• “authorised foster placement” means the residence of a child with a foster carer in Scotland where the child is subject to a relevant order having effect under an authorising fostering provision,

• “authorising residential provision” means, as the case may be— regulation 3(1), 9(1) or 27(1) of these Regulations in respect of giving effect to a relevant order, regulation 3(2), 9(1) or 27(1) of these Regulations in respect of giving effect to a deprivation of liberty order, regulation 4(2) of these Regulations in respect of giving effect to a voluntary arrangement,

• “authorised residential placement” means the accommodation of a child in a residential care setting who is subject to a relevant order, a deprivation of liberty order or, as the case may be, a voluntary arrangement having effect under an authorising residential provision, and reference to a child being “subject to an authorised residential placement” is to be construed accordingly,

• “chief constable” means the constable appointed to the office of chief constable under section 7(1)(a) of the Police and Fire Reform (Scotland) Act 2012[^f00009],

• “chief social work officer” means an officer appointed in accordance with section 3 of the Social Work (Scotland) Act 1968[^f00010] or a deputy designated by the receiving local authority,

• “care home service” has the meaning given in paragraph 2 of schedule 12 of the 2010 Act,

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

• “cross-border foster placement” means the placement of a child who is subject to a relevant order with a foster carer in Scotland, where the child was, immediately before the placement, resident in England, Wales or Northern Ireland, and references to a child being “subject to a cross-border foster placement” are to be construed accordingly,

• “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,

• “foster carer” means a person approved as a foster carer in accordance with a decision made under regulation 22(3), 23 or 26(8) of the 2009 Regulations,

• “fostering service manager” means the local authority or registered fostering service which made a decision to approve the foster carer under regulation 22(3), 23 or 26(8) of the 2009 Regulations[^f00011],

• “Health Board” means a Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978[^f00012],

• “initial residential placement” means the placement of a child into a residential care setting in Scotland where— the child was, immediately before the placement, resident in England, Wales or Northern Ireland, and the placement is authorised under the law in England and Wales or, as the case may be, in Northern Ireland by virtue of— a relevant order, a deprivation of liberty order, section 20 of the 1989 Act[^f00013], article 21 of the 1995 Order, or section 76 of the 2014 Act[^f00014], and reference to a child being “initially placed” in a residential care setting is to be construed accordingly,

• “local authority” means— in relation to England and Wales, a local authority within the meaning of section 105(1) of the 1989 Act[^f00015] 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[^f00016] or, in the context of an education supervision order, an Education Authority established by section 1 of the Education Act (Northern Ireland) 2014[^f00017], in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994[^f00018],

• “ongoing foster placement” means the residence of a child with a foster carer in Scotland, following a cross-border foster placement, or as the case may be, following a new placement with a foster carer in accordance with regulation 28 or 32, and references to a child being “subject to an ongoing foster placement” are to be construed accordingly,

• “ongoing residential placement” means the accommodation of a child in a residential care setting following their initial residential placement, or as the case may be, following a new placement in a residential care setting in accordance with regulation 27 or 29, and references to a child being “subject to an ongoing residential placement” are to be construed accordingly,

• “ongoing residential placement review” means a review of a child’s placement in a residential care setting, which is conducted virtually, in-person or in a hybrid format, following— an initial residential placement, or a placement in accordance with regulation 27 (change of temporary placement – fostering to residential care under existing order) or regulation 29 (change of placement – fostering to residential care under new order),

• “placing fostering authority” means the local authority in England, Wales or, as the case may be, Northern Ireland, which arranged for the cross-border foster placement of a child, or (as the context requires) which arranges the placement of a child with a foster carer in accordance with regulation 28 (change of temporary placement – residential care to fostering under existing order) or regulation 32 (change of temporary placement – residential care to fostering under new order),

• “placing local authority” means the local authority in England, Wales or, as the case may be, Northern Ireland, which arranged the initial residential placement of a child, or (as the context requires) which arranges the placement of a child into a residential care setting in accordance with regulation 27 (change of temporary placement – fostering to residential care under existing order) or regulation 29 (change of temporary placement – fostering to residential care under new 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 fostering authority” means the local authority in Scotland within which the foster carer with whom a child is placed, or is to be placed, resides,

• “receiving local authority” means the local authority in Scotland within which the residential care setting in which a child is placed, or is to be placed, is located,

• “registered fostering service” means a person other than a local authority whose functions consist of or include the making of arrangements for or in connection with the performance of functions assigned to a local authority under the 2009 Regulations[^f00019], and who is registered under Chapter 3 of Part 5 of the 2010 Act,

• “registered manager” means the individual who manages the care home service provided in the residential care setting in which the child is placed, or to be placed,

• “registered residential care setting” means a residential care setting within which a care home service is provided, as registered with Social Care and Social Work Improvement Scotland (otherwise known as “the Care Inspectorate”) in accordance with Chapter 3 of Part 5 of the 2010 Act,

• “relevant order” means— a care order made under— section 31(1)(a) of the 1989 Act, or article 50(1)(a) of the 1995 Order, an interim care order made under— section 38 of the 1989 Act[^f00020], or article 57 of the 1995 Order, an interim supervision order made under— section 38 of the 1989 Act, or article 57 of the 1995 Order, a supervision order made under— section 31(1)(b) of the 1989 Act[^f00021], or article 50(1)(b) of the 1995 Order, an education supervision order made under— section 36(1) of the 1989 Act[^f00022], or article 55(1) of the 1995 Order[^f00023],

• “residential care setting” means a residential establishment which is not secure accommodation,

• “residential establishment” has the meaning given in paragraph (a) of the definition of “residential establishment” in section 93 of the 1995 Act[^f00024],

• “Social Care and Social Work Improvement Scotland” (otherwise known as “the Care Inspectorate”) means the body established by section 44 of the 2010 Act,

• “secure accommodation” has the meaning given in paragraph (a) of the definition of “secure accommodation” in section 93 of the 1995 Act[^f00025],

• “Police Scotland” means the Police Service of Scotland, established by section 6 of the Police and Fire Reform (Scotland) Act 2012,

• “temporary placement” means the placement of a child into a residential care setting or with a foster carer, where the child is subject to a relevant order, a deprivation of liberty order or a voluntary arrangement having effect under an authorising residential provision or, as the case may be, an authorising fostering provision, and references to a child being “temporarily placed” are to be construed accordingly,

• “voluntary arrangement” means the accommodation of a child in a residential care setting where a local authority would otherwise accommodate a child under the law in England and Wales or, as the case may be, Northern Ireland, by virtue of— section 20 of the 1989 Act[^f00026], article 21 of the 1995 Order[^f00027], or section 76 of the 2014 Act[^f00028].

• (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.

PART 2 — TEMPORARY PLACEMENT IN RESIDENTIAL CARE SETTING - EFFECT OF ORDERS AND ARRANGEMENTS

Temporary placement in residential care setting – effect of orders

3

• (1) Where regulation 5(1) (temporary placement in residential care setting – requirements for effect of orders and arrangements) applies, a relevant order has effect as if it were a compulsory supervision order for the purposes mentioned in paragraph (3).

• (2) A deprivation of liberty order has effect as if it were a compulsory supervision order for the purposes mentioned in paragraph (3) where—

• (a) regulation 5(1) applies, and

• (b) the requirement in regulation 6(1) (additional requirement for continuing effect of deprivation of liberty order) is satisfied.

• (3) The purposes for which a relevant order, or as the case may be, a deprivation of liberty order have effect are—

• (a) authorising in law, in accordance with the order—

• (i) the initial residential placement of the child,

• (ii) the ongoing residential placement of the child,

• (b) providing legal authority for any person who is granted rights under the order to exercise those rights in Scotland, in accordance with the order,

• (c) requiring a person to comply with any condition or requirement imposed on them by the order,

• (d) providing legal authority for any person to exercise any responsibility conferred on them by the order, in accordance with the order,

• (e) providing legal authority for any person who, pursuant to the ongoing residential placement, has care and control of the child to—

• (i) do what is reasonable in all the circumstances to safeguard the child’s health, development and welfare,

• (ii) interfere with the child’s legal rights to the extent that this is—

• (aa) necessary,

• (bb) proportionate, and

• (cc) in accordance with the order, and

• (f) the application of the Act in relation to the relevant order, or as the case may be, the deprivation of liberty order (in respect of which, see regulation 36).

Temporary placement in residential care setting - effect of authority to accommodate child subject to voluntary arrangement

4

• (1) Whereregulation 5(1) (temporary placement in residential care setting – requirements for effect of orders and arrangements) applies, authorisation for a placing local authority to accommodate a child under the law in England and Wales or, as the case may be, Northern Ireland, by virtue of a provision mentioned in paragraph (2) has effect for the purposes mentioned in paragraph (3).

• (2) The provisions are—

• (a) section 20 of the 1989 Act,

• (b) article 21 of the 1995 Order, and

• (c) section 76 of the 2014 Act.

• (3) The purposes are—

• (a) authorising in law—

• (i) the initial residential placement of the child,

• (ii) the ongoing residential placement of the child, and

• (b) providing legal authority for any person who, pursuant to the ongoing residential placement, has care and control of the child to do what is reasonable in all the circumstances to safeguard the child’s health, development and welfare.

PART 3 — TEMPORARY PLACEMENTS IN RESIDENTIAL CARE SETTING - REQUIREMENTS FOR EFFECT OF ORDERS AND ARRANGEMENTS

Temporary placement in residential care setting - requirements for effect of orders and arrangements

5

• (1) This regulation applies where a child is to be temporarily placed in a residential care setting and the conditions in paragraphs (2) to (4) are complied with.

• (2) The first condition is that the placing local authority has given, in writing, to each person mentioned in regulation 7 (persons to receive notice and undertaking in respect of temporary placement in residential care setting)—

• (a) a notice containing the information specified in regulation 8 (content of notice in respect of temporary placement in residential care setting), and

• (b) a completed undertaking in the form specified in schedule 1.

• (3) The second condition is that, prior to the initial residential placement, an officer of the placing local authority—

• (a) visited the residential care setting in which the child is accommodated, or where the placement required to be made in a case of urgent necessity, consulted with the registered manager,

• (b) assessed that the accommodation provided by the residential care setting and the care home service provided in that setting were suitable to meet the child’s needs, and

• (c) recorded, in writing, the reasons for that assessment.

• (4) The third condition is that the care home service being provided in the residential care setting in which the child is accommodated is registered with Social Care and Social Work Improvement Scotland in accordance with Chapter 3 of Part 5 of the 2010 Act.

Additional requirement for continuing effect of a deprivation of liberty order

6

• (1) The requirement referred to in regulation 3(2)(b) and 9(1)(b)(ii) is that a deprivation of liberty order has been reviewed and continued in effect by the court which made the order—

• (a) within the period of three months beginning with the day on which the order was made, or

• (b) otherwise, within the period of three months beginning with 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.

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

Persons to receive notice and undertaking in respect of temporary placement in residential care setting

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The persons to be given the notice and undertaking mentioned in regulation 5(2) (or, as the case may be, regulation 30(2)) are—

• (a) the Health Board which provides health services in the area in which the child is to be subject to an ongoing residential placement,

• (b) the registered manager,

• (c) the chief social work officer of the receiving local authority,

• (d) any person acting for the time being as chief education officer of the receiving local authority,

• (e) the Scottish Ministers,

• (f) the chief constable of Police Scotland, and

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

Content of notice in respect of temporary placement in residential care setting

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The information specified by this regulation (as referenced in regulations 5(2)(a), 27(2)(a) and 30(2)(a)) is—

• (a) the name of the child to be subject to an ongoing residential placement,