Section 29 – cross-border placements: effect of orders made outwith Scotland
132.Section 29 amends section 190 of the 2011 Act, which confers a regulation-making power on the Scottish Ministers to make provision for specific non-Scottish orders to have effect in Scotland.(97) Those are orders made by a court in England and Wales, or in Northern Ireland, which appear to the Scottish Ministers to be an equivalent of a CSO. The power enables them to provide for the orders to have effect in Scotland as if they were a CSO. To that end, regulations made under section 190 may apply the Social Work (Scotland) Act 1968 or the 2011 Act to the specified orders with such modifications as are necessary or appropriate.
133.The amendments give the Scottish Ministers greater flexibility in specifying how each specified non-Scottish order is to have effect.
134.Section 29(2) broadens the application of the power. It amends section 190(1) so that the power is no longer limited to treating CSO-equivalent orders as if they were CSOs. It replaces section 190(2) with a new version so that, instead, the power will cover giving such non-Scottish orders effect in Scotland either as if they were CSOs or in such other way as set out in the regulations.
135.The new version of section 190(2) contains a number of changes. Paragraph (a)(i) and (ii) continues to provide that the Scottish Ministers may specify the circumstances in which, and the purposes for which, non-Scottish orders are to have effect in Scotland. But new paragraph (a)(iii) provides that they can also specify the conditions subject to which such orders are to have effect. New paragraph (b) sets out that Ministers can provide that a specified non-Scottish order is to have effect as if it were a CSO, or is to have whatever other effect they may specify. New paragraph (c) further sets out that Ministers can impose certain kinds of requirement in relation to specified non-Scottish orders. These relate to: the provision and sharing of information; the provision of services needed to support a child who is the subject of a non-Scottish order; and the payment of costs incurred in relation to, or as a consequence of, giving effect to a non-Scottish order. And, finally, new paragraph (d) includes the power to make provision as to the monitoring of compliance, and the consequences of any non-compliance, with any such condition or requirement specified under new paragraph (a)(iii) or (c).
136.Section 29(2) also inserts new section 190(2A), replacing section 190(2)(b) and (c). This does two things. First, it extends the power to apply other enactments in a modified way to a non-Scottish order – in that it now covers any enactment, including the Children (Scotland) Act 1995 as well as the Social Work (Scotland) Act 1968 and the 2011 Act. Secondly, it restates that regulations under section 190(1) are subject to the affirmative procedure.(98)
By virtue of sections 190(2)(c) and 195(2) of the 2011 Act, regulations made using this power are subject to the affirmative procedure and may include incidental, supplementary, consequential, transitional, transitory or saving provision, and they may also make different provision for different purposes. The power has been used to make the Children’s Hearings (Scotland) Act 2011 (Transfer of Children to Scotland – Effect of Orders made in England and Wales or Northern Ireland) Regulations 2013 (S.S.I. 2013/99) (legislation.gov.uk) and the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 (S.S.I. 2022/225) (legislation.gov.uk).
See section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010.
