DOLS orders to be automatically recognised in Scotland for cross-border placements

English local authorities placing children in Scotland will no longer need to petition the Court of Session’s inherent jurisdiction in order to recognise each Deprivation of Liberty Safeguards (DOLS) order.

The Scottish Government proposes to do this by allowing DOLS orders to take effect as if they were Compulsory Supervision Orders (CSOs). It says it will lay draft regulations before the Scottish Parliament in Spring 2022, with a consultation on the plans running until 28 January 2022.

Holyrood says it has taken the “short-term, interim step” to better regulate cross-border placements of children and young people on DOLS orders into Scottish residential care, describing the current system as “unsustainable”.

The move comes after condemnations from High Court judges in England, and Ofsted’s National Director for Social Care, Yvette Stanley, of a lack of secure children’s homes in England and Wales. Secure children’s homes are not split evenly across England with no secure children’s homes in London or the West Midlands, while there are four in the North East, Yorkshire and the Humber region. The limited number of secure children’s homes places means that, even when children get a place, they will likely end up living far away from home.

The latest data showed that around 25 children each day were waiting for a secure home place and around 20 are placed by English LAs in Scottish secure units due to the lack of available places.

The Scottish Government says the experiences of these children are “of particular and immediate concern”.

“They are often the children and young people with the most complex needs, in the most vulnerable of situations, who require specialist care and support,” it said in a statement announcing its proposals.

DOLS orders for children and young people are authorised by the High Court in England and Wales under its “inherent jurisdiction.” That happens because there is no statutory provision which authorises deprivation of liberty in residential, as opposed to secure accommodation.

The UK Supreme Court recently ruled that the use of the inherent jurisdiction to authorise deprivations of liberty in ‘non-secure’ accommodation is lawful. However, it was noted that use of the inherent jurisdiction in the face of a lack of provision for children and young people should be a temporary measure.

“The most appropriate permanent solution is to address this lack of provision,” the Scottish Government said.

“The current process of placing authorities petitioning the Court of Session cannot be sustained. It does not serve the interests of the child or young person at the heart of each application and it places a burden on petitioners and on the court itself, when resources could be better directed elsewhere.”

The Scottish Government says that recognition of a DOLS order as if it were a CSO should be “conditional on a number of actions and principles”. It said the best interests of every child in Scotland, whether or not they themselves are Scottish, must be front and centre.

It recommends that responsibility for the placement should remain with the non-Scottish placing authorities, and the placing local authority should have full responsibility for the implementation, oversight, review and financial costs of the placement. It said that recognition of DOLS orders as CSOs would be without prejudice to the receiving authority’s existing statutory duties, to ensure these could be relied upon in the case of an emergency situation or in the event of a placement breakdown.

Holyrood is also considering that DOLS orders only be recognised for a maximum period of three months to ensure regular reviews, as well as a condition that the Chief Social Work Adviser in England/Wales and a Scottish counterpart be notified when a DOLS application is made, followed by a multi-agency discussion between Chief Social Work Advisers.

The proposals also include convening a children’s hearing that can appoint a ‘safeguarder’ and ensure advocacy provision, which Alison Bavidge, National Director of the Scottish Association of Social Workers (SASW) says are “important tools tools in achieving the best interests of children in cross border placements.”

Alison says that, whilst SASW does not support cross-border placements as a standard practice, the measures proposed by Scottish Government are a “short-term interim step in a problem that needs a longer-term solution.”

“Cross border placements are not in any way an ideal situation for children, their families, friends or the professionals supporting them to be able to live safely and healthily.

“Being distanced from families and support networks affects relationships and the capacity to develop and maintain the long-term friendships and family relationships that all of us need to thrive.

“Any experience of moving into care can be experienced as traumatic and being moved perhaps hundreds of miles from where you live can only exacerbate this. At such distances, responsive professional relationships are more difficult to sustain. The planning and work necessary to achieve the goals of safe return to the child’s community will be more complex and entail more barriers.”