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Chamber and committees

Education, Children and Young People Committee

Meeting date: Wednesday, May 25, 2022


Subordinate Legislation

Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 [Draft]

The Convener

The next item on our agenda is an evidence session on the draft Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022.

We will take evidence from Clare Haughey MSP, who is the Minister for Children and Young People, and from Scottish Government officials Hannah Graham, team leader at the improving lives for care experience unit; Tom McNamara, the head of youth justice and children’s hearings; and Claire Montgomery, who is a solicitor. Good morning to each of you.

I invite the minister to make an opening statement of up to five minutes.

The Minister for Children and Young People (Clare Haughey)

Good morning to the committee. Scottish ministers have committed to keeping the Promise by reducing and, ultimately, ending cross-border placements, whether children’s liberty is to be deprived or restricted. We also have a responsibility to uphold children’s rights and ensure that their wellbeing is our paramount consideration. That applies to all children in Scotland, not only to children from Scotland.

Last week, the committee heard evidence from the office of the Children and Young People’s Commissioner Scotland, and I record my thanks for the careful and thorough analysis of the issues involved. We have engaged with the children’s commissioner’s office and other key actors throughout the development of the regulations. We all agree that cross-border placements should occur only in exceptional circumstances and that we want to see them reduced to the minimum number possible.

Last year, the United Kingdom Supreme Court ruled that the use of the inherent jurisdiction to authorise deprivations of liberty in non-secure accommodation is lawful and is not incompatible with article 5 of the European Convention on Human Rights. There needs to be an appropriate legal mechanism for recognition of those orders. Currently, it involves petitions to the Court of Session to recognise the deprivation of liberty orders made by the High Court in other parts of the UK. The Supreme Court noted that it is the chronic lack of capacity in England in secure and high-intensity residential childcare accommodation that is driving the placements. Members can be assured that I have pressed and will continue to press the UK Government to urgently address those shameful capacity issues.

The Scottish Government is not the author of the circumstances, but we find ourselves in the invidious position of having to mitigate their impact, which falls on the children, on their families and on Scottish services. We cannot delay in taking action to better protect the children.

The options that are before us are stark. The current process of petitioning the Court of Session in respect of dozens of exceptional individual applications is not sustainable. It is imperative that we provide improved safeguards to better protect the children and young people who are in the placements.

The only way that we could achieve full parity of treatment with Scottish children, as advocated by the commissioner’s office, would be to accept wholesale responsibility for cross-border placements into our Scottish care and legal systems. If we took that approach, we would be complicit in severing a child’s links with their home community and support networks, and we would be absolving the placing authorities elsewhere in the UK of the responsibilities that properly lie with them. The likely consequence is that we would, first, see a marked increase in placements. Then, as placements multiplied, they would have a knock-on, unplanned and unfair resourcing impact on Scottish authorities and services.

The regulations that are before the committee provide for recognition of DOL orders in Scots law but with conditions that bring greater accountability to placing authorities and greater protections for the children in the placements than currently exists. The regulations do not transplant responsibility to Scotland, but they offer better notification mechanisms and carefully constructed failsafes, including the requirement for the placing authority to notify key Scottish authorities of placement details and to give an undertaking that it will provide or secure and cover the costs of all services that are required to support the child. That is not happening in practice currently, and it will become a legal requirement. The regulations also provide for the Scottish ministers to apply to the relevant sheriff for an order to enforce the implementation authority’s duties in relation to the child if they are not being fulfilled.

We have listened and responded to stakeholders’ views when developing the regulations. Our original proposal included an advisory role for children’s hearings to facilitate the provision of information to the High Court in England and Wales about a child’s progress in placement and, importantly, to consider a child’s access to local rights protections. We also proposed that it should be open to children’s hearings to appoint a safeguarder, to consider legal representation and to ensure that advocacy provision had been offered to the child.

That earlier, stronger proposal was not supported by the commissioner and other stakeholders. In particular, the commissioner raised several issues about a child’s ability to challenge the basis of the deprivation of liberty. Challenging, varying or overturning the High Court’s order is not in scope here. The scope of available powers cannot influence the decisions of a superior court in another jurisdiction.

The regulations improve on the status quo and represent an interim step that will allow us to get to longer-term solutions as part of the proposed children’s care and justice bill, which is the space where we can consider more fully and fundamentally how to address cross-border placements. That is why, in the consultation for the bill, we are seeking views on regulation, scrutiny and monitoring and on the Care Inspectorate’s role in relation to cross-border placements—all issues that the commissioner’s response highlighted.

The improvements to existing cross-border DOL processes and the protection of Scottish local services that the regulations afford must be implemented as soon as possible. I therefore commend the regulations to the committee.

Minister, on the committee’s behalf, I thank you for your helpful correspondence in the days leading up the meeting.

Ross Greer (West Scotland) (Green)

I echo the convener’s thanks for the minister’s letter, which was useful in preparation for the meeting. Once regulations are laid, they cannot be amended—Parliament can make a judgment on them or they can be withdrawn. That presents us with questions of process before we get into the substance.

The commissioner’s office has presented us with proposed alternatives. If the Government adopted them, they would require the withdrawal of the existing regulations and the laying of new regulations. That begs a question about process. Did the commissioner’s office have specific knowledge of the regulations that you intended to bring forward? Obviously, you had engaged with the office on the broad principles, but, before those regulations were laid and published, had the commissioner’s office been given a draft of the regulations or a summary of the specific policy intentions? If that was the case, did the commissioner’s office come back to you at that point with something equivalent to the list of alternatives that it provided to us?

I am trying to understand how we have ended up in a place where alternatives are coming forward from the commissioner’s office but regulations have already been published, so we cannot amend them in order to accept those alternatives, even if we were minded to.

Clare Haughey

We initially put out a call for views and held an engagement with stakeholders in January this year, to which the commissioner’s office contributed, and a summary of the stakeholders’ views was also published in March this year. It was not appropriate for us to share drafts of the regulations before sharing them with Parliament.

I am happy to hand over to Hannah Graham, who will explain the process for regulations of this type.

Hannah Graham (Scottish Government)

We have had a long and constructive dialogue with officials from the office of the commissioner. Looking back, we had around 10 meetings to discuss the proposed regulations and what they should contain. As the minister highlighted, we published a policy paper in January, and the commissioner came back on that with suggestions around how we could strengthen our proposals. One of the suggestions was the requirement to have a notification sent to appropriate Scottish agencies and the commissioner’s office. We took that feedback and built it into the regulations.

We also took on board the commissioner’s concerns around the role of the children’s hearings system. The commissioner had some concerns that the child would not be able to challenge the basis for their deprivation of liberty. That is correct, because that ability sits with the High Court, so, accordingly, we removed that aspect of the proposal.

In our second policy paper, which we published in March, we set out the key features—based on the stakeholder feedback that we had received—of what the regulations would say. The regulations will require a suite of notifications to go to Scottish agencies in order to address information deficits, they will set the placing authority as the implementation authority and they will provide Scottish advocacy. We did not get anything further from the commissioner’s office in respect of those specific proposals. To take a specific example, the officials’ evidence to the committee stated that they consider that a child’s order should be recognised under Scots law for 22 days. We had not heard that suggestion prior to the regulations being laid, so we had to set out, at a high level, what the key features were. I do not think that we received more specific detail of that back from stakeholders.

Ross Greer

I am keen to get into some other points of substance. However, given that you have raised the 22-days proposal, which I asked the commissioner’s office about last week, I am interested in your perspective. My understanding was that we could not, through regulation, address the proposal that the officials laid out. The specifics of what they asked for would have to be addressed through primary legislation or, indeed, are entirely outwith the scope of the Scottish Parliament, given that we are talking about an English High Court order.

Hannah Graham

Yes, absolutely. It is important to be clear that, although, in their evidence, the officials asked for the court order to be restricted to a maximum of 22 days, we do not have any power over how long a High Court is able to grant its orders for; that is not a decision that we can influence. Instead, we propose to set a timeframe for how long the orders are recognised under Scots law, which is different from us presenting a date to limit the court orders. We chose the period of three months because that is analogous to what happens for secure care approvals.

I think that it is helpful to make that point, because, in their subsequent evidence to the committee, the officials questioned how we had the power to make that order. We are not making an order; we are merely recognising it in Scots law.


Ross Greer

That is really helpful. I will move on to some specific points of substance.

Part of the regulations give Scottish ministers the power to pursue the placing authority if it has breached various conditions. A reasonable question from the children’s commissioner was how ministers would become aware that there was an issue in the first place, and specifically how the young person might be able to notify ministers that there was a problem that would justify the Government’s pursual of the placing authority. Can you respond to that? How would someone be in a situation to actually make use of that power?

Clare Haughey

The regulations give Scottish ministers the power to apply to the sheriff court for an enforcement order if a placing authority does not comply with its obligations under the regulations. The process to be followed broadly mirrors the process that would apply if a Scottish local authority was in breach of its obligation to a Scottish child when a children’s hearing had made an order. Scottish ministers would give the authority a notice of intended application by them to enforce the authority’s duty. The matter would escalate to the sheriff court only if the authority did not fulfil its duty within 21 days, as per the order that I previously referenced.

If ministers brought the matter to court, the sheriff could make an enforcement order if it was found that the placing authority was in breach of its duties under the regulations, and that order would be final. That process, if it was required, would be undertaken by ministers—who retain oversight through engagement by way of the child’s advocate—Scottish local authorities and the Care Inspectorate, all of which would be able to report concerns or worries.

Ross Greer

When I discussed the role of the advocate with the children’s commissioner’s office, my presumption was that the advocate would be the most likely route through which ministers would become aware of a concern, but you will be aware that the children’s commissioner’s office has asked why that would be an advocate rather than specifically legal representation. I assume that, in a number of cases, the advocate might well be someone with relevant legal qualifications anyway, but that is not guaranteed. Can you expand a bit on why the regulations do not give those young people guaranteed legal representation? That could be provided alongside the advocate, since the commissioner’s office acknowledged that the advocate can play a really powerful role. However, given that the young people are unlikely to be entirely familiar with their rights under English law, never mind Scots law, there is a need for clear understanding of what their rights are under the Scottish system.

Clare Haughey

The legal restrictions on the young person’s liberty are governed by English law. They have the right to legal representation and advocacy within that legal system. We are putting in place advocates to support the child and to avail them of their rights under Scots law, but also to help their voices be heard on whether they feel that their children’s plan is being followed and, with respect to the service provider, whether they feel that their needs are being met. They will be able to interact with those advocates in the legal process, because the advocates are not part of that legal process, to pass on concerns or whatever the child wishes to be conveyed to the English legal advocate. However, the advocate will be looking primarily at the child’s welfare and their needs here, in Scotland, and not at their legal needs.

Those advocates have access to a legal support service through Clan Childlaw. I absolutely accept that some advocates will have a legal background, but they are also able to access Clan Childlaw, which I think they all accept are experts in the field of child rights and welfare.

Ross Greer

I have one final question. Your letter is useful in explaining why some of the specific proposals that the commissioner’s office has offered as alternatives either would not be appropriate or are not possible. There is one proposal that you said would not be appropriate, but I am not clear why—the proposal that one of the conditions be that the facilities that a young person might be placed into must have been rated at least “adequate” by the Care Inspectorate in the past six months. That sounds entirely reasonable to me, but the Government has taken a different position on it. Can you explain exactly why the Government thinks that that is either not appropriate or not possible?

Clare Haughey

The regulations are about achieving the recognition of DOL orders in Scots law without having to go through a superior court route. They are therefore quite narrow in their intent. However, we have added on to that some additional safeguards and services such as advocacy for children.

We are currently undertaking a consultation on the proposed children’s care and justice bill, part of which will consider regulation and the role of the Care Inspectorate in secure care placements. Such issues should be examined in the consultation process; they are not within the scope of the regulations that are before the committee.

Ross Greer

I understand that the proposed bill would provide us with a significant opportunity to make improvements in this area. I do not object to the regulations; it is better for us to agree to them than not to do so. However, I am still not clear on one point. Given that you have included a number of additional safeguards and conditions, why would this one not have worked? Before you published the regulations, had the children’s commissioner raised with you the proposal for there to have been at least an adequacy rating in the previous six months?

Tom McNamara (Scottish Government)

It might be useful if I were to come in on the practical point about more detailed engagement with representatives from the office of the Children and Young People’s Commissioner Scotland.

Committee members will have seen the thematic review that the Care Inspectorate produced in January and February, which focused specifically on DOL placements rather than on the broader cross-border cohort. It was clear from that review that the Care Inspectorate was responsive to the level of concern that both we and ministers had raised with it during the summer and autumn last year. It had prioritised satisfying itself as to the conditions in which children had found themselves in such placements. It has been able to flex its current responsibilities to a useful degree in order to supply the evidence and support the regulations in the limited locus that Ms Haughey spoke about.

Discussions with the Care Inspectorate about the broader shape of the registration and approval processes and about its satisfying itself as to the continuing suitability of particular facilities are currently live, and we intend to explore those aspects as part of the work on the proposed care and justice bill during the summer and towards the end of the year.

Thank you. I am keen to come back in if there is time, convener. However, I will be happy to leave it there for now, because I know that other members would like to ask questions.

Thank you, Ross. It is very helpful that you are taking the lead on that.

Kaukab Stewart

Good morning, everyone. The number of children who are affected is relatively low—it is 35—but we all know that they will have complex multiple needs. I am deliberately not going to list any of the needs that they might have, because those children are few in number and we should protect their right to privacy. Minister, can you reassure me that the regulations will ensure that a child’s additional support needs will be met?

Clare Haughey

As I outlined in my opening statement, the placing authority and High Court outside Scotland are responsible for determining that a placement is necessary, proportionate and in the best interests of the child. That will include consideration of the suitability of the placement for the child in the light of any protected characteristics or particular needs that they might have, including any disability or additional support needs. The undertaking that the placing authority must give under the regulations in order for the DOL to be recognised in Scots law will clarify that it is the placing authority that must provide or procure services to support that child, including services that are required to support particular needs.

It might be helpful for the committee to know that the UK Government tells us that the Care Planning, Placement and Case Review (England) Regulations 2010, and the accompanying guidance, are clear in setting out a placing authority’s responsibilities in general and on making out-of-area placements, in particular. Placing authorities should draw up other plans, such as those for education or health and care in respect of any child who has special educational needs or disabilities, and the care plan must form part of those. The care plan must include a record of the education and training that are proposed for that child. There are additional layers to this. The responsibility is very firmly with the placing local authority, but there are safeguards in the placement process.

That is great.

Willie Rennie

I agree. The letter that you sent to the committee was really helpful in clarifying a lot of the issues.

I am interested in what is motivating the change. Are excessive pressures on the court the driving force?

Clare Haughey

There are certainly pressures on the court in that the mechanism for approving DOLs, or recognising DOLs under Scots law, as it currently stands, was not designed for routine use; it was for exceptional use. I am not putting that in legal language—

That is good enough for me.

Clare Haughey

I will pass that to the lawyer to put into legalese.

We know that cross-border transfers are happening. We know, following the Supreme Court judgment, that those transfers are legal and do not breach a child’s ECHR rights. We therefore made an undertaking with the court that we would look at creating a legal mechanism to recognise the transfers. However, we have also taken the opportunity to try to better protect children’s rights. It is better than the status quo.

Willie Rennie

As you probably saw, there was quite a bit of debate last week about whether the new arrangements will make the process easier or more difficult. I can understand the motivation for the change, but could it potentially encourage more cross-border placements?

Clare Haughey

We are aware that there are cross-border placements, but I do not think that the new arrangements will incentivise them. The current Scottish process provides legal recognition of the order, but the High Court does not scrutinise the order or challenge why the order was made or extended. The High Court fully owns the order and reviews the placements, and that will continue. Placing authorities will still need to apply for DOL orders, and any extension of those orders, under the jurisdiction of the High Court. The regulations provide for the recognition of those orders only for a renewable period of up to three months at a time. There will have to be a regular review of the child’s placement and whether it is still appropriate and in their best interests.

The regulations and administrative arrangements seek to better regulate cross-border placements through the information-sharing requirements that we have spoken about and through making it clear that the placing authority is responsible for the child and for the care that they get in their placement. It will incentivise placing authorities to remain fully engaged with the child’s placement and to actively safeguard the child’s welfare.

Willie Rennie

The representatives from the children’s commissioner’s office made the point last week that there would be a disparity between the rights of children coming from England and the rights of those in Scotland. I can understand why you would potentially have to double up the process—that is probably not legal language, either—in order to overcome that, which might create some difficulties for those who come from England. Are you concerned about the difference between the rights of children who come here from England and the rights of those who are already here?

Clare Haughey

The only way that we could have absolute parity is if we took those children into the Scottish system. As I said in my opening statement, that would have implications for a child. We are talking about children who are very vulnerable and who, in most cases, have already been through very traumatic experiences. They are already going through one legal system.

In addition, DOL placements are temporary in nature. Kaukab Stewart referred to the small—significant, but small—number of children who have been transferred; most of those children have now returned to England. They come to Scotland for a specific reason—for their safety and welfare—but the ultimate aim is for them to be back in their own communities. That might put up a legal barrier to doing what you describe.


Graeme Dey

As other colleagues have done, minister, I thank you for your very helpful letter in advance of the meeting. The regulations, whatever else they have done, have shone a light on the whole issue, in particular given the commissioner’s response to them.

I will touch on one point. There is a report in The Times this morning on the problems down south. It asserts that there are “scores of inexperienced ... owners” opening children’s homes, with the inference that that is clearly not good for vulnerable children who have been taken into care for very serious reasons.

How do we, in Scotland, ensure that settings in which those children, or any children, are placed are of a type that we would deem appropriate? Are there any plans to strengthen safeguards further in the forthcoming primary legislation?

Clare Haughey

Mr Dey raises a very important point. That situation does not sit comfortably with any of us. None of us feel comfortable with children being deprived of their liberty in secure or non-secure settings. For some of those children, however, that is in their best interests at that particular moment in time.

I am happy to bring in Claire Montgomery in a moment. The difference between the system in England, as I understand it, and the system in Scotland is that any place where a child is placed in residential secure care is regulated by the Care Inspectorate. Not all accommodation in England, in my understanding, is currently regulated.

I know from my conversations with my counterpart in the UK Government—as I mentioned in my opening speech—that they are very much alive to the issue. Obviously, I am not here to speak for the UK Government, but they have assured me that they have put substantial investment into trying to address some of the issues such as a lack of appropriate accommodation for children and young people in England.

I will pass over to Claire Montgomery, who can talk about our plans for the care and justice bill.

Claire Montgomery (Scottish Government)

We have heard about really concerning placements through legal cases down south. For example, children have been placed in caravans and Airbnbs; those are completely unregulated settings, and we are clear that that absolutely would not happen in Scotland. Indeed, the regulations make it clear that a service that is running any setting in which a child is placed where they are subject to a DOL order has to be registered with the Care Inspectorate. The Care Inspectorate would provide regulatory oversight and, if any concerns were raised through the channels that the minister described, follow-up action would be taken. The issue that Mr Dey describes seems to be peculiar to the situation down south, but we are clear, in the regulations and more broadly, that we would not accept such a situation for children in Scotland.

Tom McNamara

Mr Dey asked specifically about the proposed care and justice bill consultation. As part of that, we are exploring whether we need to do a little bit more on the specificity of the service setting and what regulation that attracts in terms of the shape of inspection, registration and approval, along the lines that Mr Greer was exploring.

We might need to think about whether we need to do something prior to a service operating, and whether we look at the frequency and intervals at which the Care Inspectorate would interact with new and existing settings—in particular, when a setting moves from one use to another. We are aware that some of the settings that children who are subject to DOL placements are in have sought registration for a childcare setting, for example, but very shortly thereafter they have offered a deprivation of liberty service. As I said, there is a question whether we have the balance right about the precision of the definition and whether it refers to deprivation or restriction of liberty. We are certainly exploring that with regard to the bill.

Graeme Dey

The response of the Office for Standards in Education, Children’s Services and Skills to the article in The Times indicated that there might be shortcomings in the legislation in England in relation to the oversight of such places. It is not unreasonable to suggest that, down south, there might be a push to clamp down on them in the short to medium term. If that leads to an upsurge in applications for such placements from England while the primary legislation is going through the Scottish Parliament, are we geared up to cope?

I am not quite sure what you mean by “geared up”.

Do we have the capacity to deal with it?

Clare Haughey

Scotland has limited capacity in terms of the premises that are registered. We must remember that at the centre of all this is a very vulnerable child. That is one of the reasons why, although our ambition is to reduce cross-border placements to the absolute minimum, we recognise that there will always be exceptional cases, such as when a child leaves a situation involving county lines or when they are at risk of trafficking. We want to absolutely minimise the number of cross-border placements as an iterative exercise, but even the Promise recognises that there will always be exceptions.

Again, I bring the committee back to the point that the regulations have a very narrow scope, which is about the recognition of DOL orders in Scots law. That is essentially what the regulations propose to do. There are many other issues around secure residential care that are quite rightly being explored in primary legislation and in the consultation on the proposed bill. I am sure that the committee will have lots of input into the development of that legislation.

Graeme Dey

I am trying to make the point that the reason why we find ourselves in the situation is that there is a lack of suitable accommodation in England and Wales. If action is taken now that leads to a further reduction in capacity in England, despite the best of intentions here, there might well be an increase in applications to house such children. If we are to assist in that, I want to be absolutely sure that we have the capacity to do so.

Tom McNamara

As the minister said, the regulations are drafted to deliver a specific set of legal and procedural objectives on conditional recognition. However, you are absolutely right, Mr Dey, that they do not exist in a vacuum. We were conscious that we did not want, in order to salve our own conscience or just for the sake of clarity, to displace demand elsewhere.

As you will know, in the secure care world, there is a cross-border statutory route, but we were similarly uncomfortable about those placements, although they are in settings that are suitably designed, serviced and staffed for that purpose. At the ministerial level and then the official level, it is about working through capacity issues that relate to the entire UK to ensure that we do not clear the decks in one particular sector only to move the problem somewhere else. We are trying to retain an aggregate sense of the demand and capacity in Scotland to ensure that, in order to clarify matters in a purist way, we do not create a situation in which individual children who have a great degree of need and risk and who could be helped in Scotland are just left in limbo.

Thank you. That clears it up.

Michael Marra

The answers to those questions were very useful. We are all concerned about the impact on individual children. We need to ensure that the sector as a whole has the ability to provide the care that we all want to see. That relates to the answers to Willie Rennie’s earlier question. Was any modelling done on whether recognition of deprivation of liberty orders in Scots law could result, for any reason, in a decrease or increase in the number of cross-border placements? Has any analysis been done of that?

No, there has been no analysis or modelling of that specific issue.

I appreciate that. I also recognise that that might be challenging in and of itself. My question was not about whether it would be helpful—

Clare Haughey

I am sorry to interrupt, but we need to be really clear that the Scottish Government does not want to be in this position. We are in this position because of a lack of capacity and availability of the service in other parts of the UK. As I said earlier, I have pushed my UK Government counterpart to address the issue at source. It is not a problem that Scotland is able to fix. The UK Government recognises that and assures me that it is working apace on trying to alleviate the situation.

Michael Marra

Let us hope that it does so. The report in The Times that Mr Dey referred to is horrifying.

Senior policy figures in Scotland have said to me that cross-border placements are essentially allowing institutions in Scotland to keep the lights on and that funding is attached to those young people. I recognise that they are individual children and that it is not about monetisation, but we are talking about how we ensure that those facilities are well inspected and well run. Is that the case?

Clare Haughey

As you have said, monetisation of the placement of children is certainly a concern for the Scottish Government. As part of the care and justice bill consultation, we are looking at our current secure provision, what secure care provision we would need for the Scottish population and how that can be sustained. We need to think about how we can assist that service to be economically viable. We are alive to that and officials are working through how we can sustain provision. We will need secure care for Scottish children.

Michael Marra

In your letter to the committee, you are clear that

“funding models based on the acceptance of cross-border children cannot be sustained, and that Scotland must do all it can to prevent the monetisation of the care of our children.”

You have confirmed that. That is a question for both the UK Government, in terms of its actions to provide appropriate care in England, and the Scottish Government in ensuring the security and viability of facilities in Scotland, whether that is based on Scottish children alone, a reduced number of Scottish children or otherwise.

Yes, it is.

I appreciate that confirmation.

Ruth Maguire

I, too, found the minister’s letter very helpful. The areas that I wanted to explore have been clarified by the minister, particularly in relation to exactly how additional support needs will be met. I do not have any further questions.

Do you want to come back in, Ross?

Ross Greer

I am probably at risk of asking the minister to repeat herself; if so, I apologise in advance. I want to be absolutely clear about the policy intentions of the regulations compared to the aspirations for the bill.

Minister, you confirmed to Willie Rennie that the intention is not to incentivise placements, but to raise the standards of placements. You also confirmed to Graeme Dey that one of the Government’s longer-term objectives, which will be addressed through the bill, is to reduce the number of cross-border placements overall. For clarity, will you confirm whether one of the policy intentions or objectives of the regulations is to disincentivise cross-border placements and to temporarily try to limit the number of placements, or is that not a material consideration for the regulations but a longer-term aspiration to be tackled by the bill?

Clare Haughey

The scope of the regulations is very narrow. It is about the recognition of DOL orders in Scots law. That is the nub of the regulations.

The issues that you raise are extremely important and we will explore them through the proposed care and justice bill. We have committed to reducing cross-border placements, unless, as I have said, it is absolutely necessary for the individual child’s welfare. However, the scope of the regulations is really quite tight, with the addition of notifications from the policing authority, advocacy and so on.

Ross Greer

That is helpful. It might well be that the regulations disincentivise placements, but that is not their intention, which is purely about raising the standards of the current situation until legislation is introduced to make wider changes.


Clare Haughey

In addition to the recognition of the DOL order in Scots law, it is also about ensuring that the placing authority remains engaged with the child and has overall responsibility within law to ensure that they have all the services and support that they need when they are placed in Scotland.

Thank you. That is extremely helpful.

The Convener

As members have no further questions, it falls to me to thank you for attending the committee this morning, minister. Again, thank you for your helpful correspondence in advance of the meeting. I also thank Hannah Graham, Tom McNamara and Claire Montgomery for joining us.

The public part of today’s meeting is now at an end. We will consider our final agenda item in private.

12:16 Meeting continued in private until 12:42.