The Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision for a deprivation of liberty (“DOL”) order granted by a High Court in England, Wales or, as the case may be, Northern Ireland to have effect in Scotland as if it were a compulsory supervision order (“CSO”) in certain circumstances and for certain purposes.

Regulation 2 defines terms for the purposes of the Regulations.

Regulation 3 makes provision for when, and for what purposes, a DOL order has effect as if it were a CSO under the Regulations. A DOL order is treated in this way where paragraph (1) of regulation 4 or, as the case may be 5, applies. The purposes for which a DOL order has effect as if it were a CSO are: (a) to authorise in law the deprivation of liberty of the child who is subject to the DOL order in Scotland and (b) to enable the application of certain provisions of the Children’s Hearings (Scotland) Act 2011(1) (“the 2011 Act”) in relation to such orders.

Regulation 4 makes transitional provision. The effect of regulation 4(1) (as read with regulation 3) is that a DOL order which is recognised and enforceable in Scots law by virtue of an interlocutor of the Court of Session prior to the entry into force of the Regulations has effect as if it were a CSO for the purposes specified in regulation 3(2). Regulation 4(2) provides that this applies until the earlier of: the deprivation of liberty order ceasing to have effect in the jurisdiction of the court which made it; the end of the period of enforceability and recognition of the order by virtue of the Court of Session’s interlocutor; or until regulation 5(1) applies in relation to the DOL order.

Regulation 5(1) (as read with regulation 3) has the effect that a DOL order is treated as if it were a CSO under the Regulations where a “relevant circumstance” as specified in paragraph (2) occurs and regulation 7 has been complied with in relation to the DOL order. There are two scenarios in which a “relevant circumstance” occurs. The first (as set out in regulation 5(2)(a)) is where a DOL order that is treated as if it were a CSO under regulation 4(1) is reviewed and continued in effect by the High Court in England, Wales or, as the case may be, Northern Ireland before the end of the period specified in regulation 4(2)(c). The second (as set out in regulation 5(2)(b) is that a DOL order is made on or after the day on which the Regulations come into force.

Paragraphs (4) to (6) of regulation 5 make provision in relation to the “relevant period” for which a DOL order is to be treated as if it were a CSO under that regulation. The DOL order will be so treated for the duration of that period unless, within that period, the deprivation of liberty order ceases to have effect in the jurisdiction of the court which made the order (in which case, the DOL order will no longer be treated as if it were a CSO on its ceasing to have effect.) If the DOL order has not previously been reviewed and continued in effect by the court which made the order, “the relevant period” is the period of three months beginning with the day on which the order was made. Otherwise, the “relevant period” is the period of three months beginning 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. The effect of regulation 5(4)(b) is that it is possible for a DOL order to be treated as if it were a CSO on a rolling basis for several “relevant periods”, as long as the DOL order has been reviewed and continued in effect by the court which originally made it on or before the last day of the preceding “relevant period”.

Regulation 6 provides that a DOL order ceases to have effect as provided for in regulation 3(1) where the child who is the subject of that order becomes subject to a CSO or interim compulsory supervision order (“ICSO”). This is to ensure that any CSO or ICSO made in respect of the child in Scotland under the 2011 Act takes precedence over a DOL order made in England, Wales or, as the case may be, Northern Ireland.

Regulation 7 sets out requirements to be met by a placing local authority (as defined in regulation 2(1)) in order that a DOL order can be recognised as if it were a CSO under regulation 5 (as read with regulation 3). The requirements are that the placing authority must give certain people (as specified in regulation 8) a copy of a notice containing the information specified in regulation 9 and an undertaking meeting the requirements specified in regulation 10.

Regulation 11(1) provides that where a child becomes subject to a DOL order which has effect as if it were a CSO under the Regulations, the Scottish Ministers must, as soon as reasonably practicable, inform the child of the availability of children’s advocacy services. These are services of support and representation provided for the purposes of assisting a child to convey their needs and views to the manager of the residential care setting in which they have been placed. The requirement in regulation 11(1) can be dispensed with if, taking into account the child’s age and maturity, the Scottish Ministers consider that it would not be appropriate to inform them of the availability of children’s advocacy services.

Regulation 12 (as read with regulation 13) makes provision for circumstances in which it is necessary on grounds of urgency to transfer a child who is subject to a DOL order to a place other than the residential care setting which is specified in the order. In such a case, provided that it still has effect in the jurisdiction of the court which made it, a DOL order is to be treated as if it were a CSO which authorises the deprivation of the child’s liberty in the place to which they have been urgently transferred for a period of up to 14 days beginning with the date of the transfer. Regulation 12 modifies the application of regulation 4(2) or, as the case may be, 5(4) in such a case, so that the DOL order can continue to be so treated beyond the 14 day period, as long as it is reviewed and continued in effect by the court which originally made the order.

Regulation 13 provides that despite regulation 3(1), references in the 2011 Act to a CSO do not include reference to a DOL order which has effect as provided for in that regulation, except in sections 143 to 148 (which relate to implementation of orders) and sections 168 to 171 (which relate to enforcement of orders). Regulation 13 sets out modifications and substitutions in these sections and in related interpretative provisions to provide for how the Act is to apply where a DOL order has effect as provided for in regulation 3(1).

Impact assessments have been prepared in relation to these Regulations and are published online at gov.scot.

(1)

2011 asp 1.