Long-term solutions needed for cross-border placements of children

THE Faculty of Advocates believes long-term solutions are required to address instances where residential care services in Scotland receive cross-border placements of children and young people subject to English High Court Deprivation of Liberty orders.

The situation has arisen due to a shortage of appropriate accommodation in England.  The placements in Scotland are, in effect, unauthorised in law.  This has resulted in a series of Petitions to the Nobile Officium to obtain the necessary authority, a mechanism accepted as unsuitable.

In its response to a request for comments from the Scottish Government regarding such cross-border placements, Faculty raised concerns that focussing on “better short-term solutions may make the problem of such placements worse, in the sense of making them more common in practice.

“The policy paper is correct to spell out that the best interests of children should be central. It might be added because it is not spelt out, that the voice of the child should also be central; these children are effectively being deprived of a chance to be effectively heard on the conditions of their care and detention. At present, they are told they must instruct Scottish solicitors and counsel for the Inner House; a very few do so, but for most this is an empty right.”

 A few such placements had been appropriate, e.g. children from Cumberland placed in Dumfries. However, said Faculty, such proximity was rare, as most placements were “emergencies driven by the impossibility (real or perceived) of finding an appropriate placement in England and Wales.”

Faculty accepted that the primary supervising authority in each instance should be the English one that was acquainted with the case. “In particular, because many of these placements last no more than a few weeks or months, it would be inefficient to transfer their supervision to a Scottish local authority for a temporary period. Nevertheless, all such cases should be made known to the Scottish authority. Children may have been in care in Scotland for years, unknown to the Scottish authority.”

However, Faculty believed it should be a condition of all such cross-border placements that, particularly where children were being deprived of their liberty, they should be brought before a children’s hearing in Scotland. “The child would get a right of audience, and the Scottish Children's Reporter Administration would be aware of matters. There could be proper discussion in a way that the English High Court would struggle to do from afar.”

The Faculty’s full response can be accessed here