Placements Outside England and Wales
In December 2022 Section 3, Placements in Scotland, Northern Ireland, Isle of Man and Guernsey was updated in line with the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 and Cross-Border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022: Practice Guidance, Notice and Undertaking Template.
1. Necessary Consents
Merton Council may arrange the placement of a Looked After child outside England and Wales in exceptional cases
The written consent of the parents is required. If the child is the subject of a Care Order, the consent of the Court is required in addition to the parents.
Where the necessary parental consents are not forthcoming, the application to the Court can include a request to dispense with parental consent.
2. Placement Decision
Any decision to place a child outside England and Wales can only be included in the Care Plan after the following actions have been taken:
- Checks and assessments have been made through the Social Services agency for the relevant area that suitable arrangements have been (or will be) made for the reception and welfare of the child in the country where the child will live;
- The child's consent is given where old enough to do so;
- The parents have been consulted;
- The parents have consented or they cannot be found, are incapable of consenting or are withholding their consent unreasonably;
- Consideration has been given to the effect of the proposed placement on the child's relationship with the parents;
- Specialist advice has been obtained where necessary on the cultural issues raised by the proposal;
- The placement is recommended by the child's Looked After Review;
- Legal advice has been obtained;
- The approval of the Director of Children's Services and/or the Assistant Director, Children's Social Care and Youth Inclusion has been given.
Regard must be paid to the likely timescales involved in achieving the plan, particularly bearing in mind the need to achieve permanence for the child within his or her time-scales.
To obtain the approval of the Director of Children's Services and/or the Assistant Director, Children's Social Care and Youth Inclusion, the social worker should prepare a written report setting out the circumstances of the proposed placement, the time-scales, the child's wishes, the parents' views, the effect of the proposed placement on the child's relationship with the parents, how contact will be arranged if the placement is made, the recommendation of the Looked After Review and attaching a copy of the parents' written consents (if given), the Care Plan, the report of the Social Services agency where the child is to be placed and the minutes of the most recent Looked After Review. This report must be approved by the Head of Service (Access to Resources and Head of Service with case responsibility) prior to presentation to the Director and/or Assistant Director.
The decision of the Head of Service (Access to Resources) or other relevant Head of Service as to whether the consent of the local authority to the placement should be given should be evidenced in writing together with reasons on the child's electronic record on the social care information system. The child, parents and all those involved in the child's care should be notified of the decision.
3. Placements in Scotland, Northern Ireland, Isle of Man and Guernsey
Where a decision is made to place a child in Scotland, Northern Ireland, Isle of Man and Guernsey, legal advice should be obtained as to the appropriate Court applications, notifications and consents required.
The High Court in Re H Interim Care Scottish Residential Placement  EWHC 2780 (Fam) set out, in relation to placements in Scotland, that:
Placement in Scotland of a child looked after under Section 20 Children Act 1989 does not require the seeking of a specific free-standing order of the English court giving its formal approval. The duties in relation to placement planning under the Care Planning, Placement and Case Review (England) Regulations 2010 must be complied with in the same way as if the placement were in England and Wales. The child would not become a Looked After child in Scottish law.
Temporary, short-term placement in Scotland of a child looked after under an Interim Care Order does not require the seeking of a specific free-standing order of the English court giving its formal approval, as the temporary nature of the placement means that the local authority placing the child is not causing the child to 'live' outside England and Wales. A court would need – as it would in any public law case – to scrutinise the care plan. The duties in relation to placement planning under the Care Planning, Placement and Case Review (England) Regulations 2010 must be complied with in the same way as if the placement were in England and Wales. Interim (as opposed to final) Care Orders are not automatically recognised in Scotland, and the Court suggested that, in order to achieve recognition in Scotland of an English Interim Care Order a petition would need to be made to the nobile officium of the Inner House of the Court of Session (akin to the English High Court exercising its inherent jurisdiction).
Where a final Care Order is in existence, the child's care can be transferred to the relevant area. The effect of the transfer will be that the Care Order ceases to have effect in England and Wales and the child's file can be closed. In Scotland, a final Care Order will take effect as if it were a Compulsory Supervision Order.
Once any necessary Court authority has been given, the detailed arrangements for the child's placement, including continued contact with family members, must be included in a Placement Agreement and agreed in writing with the Social Services agency for the area where the child will be placed.
The Children Act 1989 Guidance and Regulations - Volume 2: Care Planning, Placement and Case Review provides that out of authority placements in Scotland require effective planning, engagement and information sharing with the services likely to be responsible for meeting the child's needs. In order to do this, placing authorities, placement providers, other professionals, and service providers must work together to share information and make sound decisions about the suitability of potential placements.
Local authorities must not place a child under 16 in an 'other arrangements' placement in Scotland except where the placement is in one of the exempted regulated settings:
- Residential establishments registered as a care home service equivalent to a children's home in England;
- Accommodation provided by the Scottish public fostering service;
- Accommodation provided by a registered care home service equivalent to a registered care home in England;
- A school care accommodation service equivalent to a residential special school or boarding school in England.
Under 16s cannot be placed in residential family centres in Scotland as these settings are not under an equivalent regulatory framework. It is essential that the responsible authority takes every step to establish that the child's needs are matched to the services provided by the placement.
See also: Placements in Other Arrangements Procedure.
Placements in Scotland of Children Subject to Deprivation of Liberty
Under the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022, deprivation of liberty orders that lead to children being placed in Scotland will be treated as equivalent to compulsory supervision orders (CSOs) under the Scottish hearings system. CSOs place restrictions on children’s movements and liberties under the responsibility of local authorities. This will be for three months from the making, or last review, of the original DoL order, or until it ceases to have effect.
Placing authorities will retain responsibility for implementing the DoL orders and for:
- Providing or securing the provision of all services required to support the child;
- Meeting all of the costs arising from, or in consequence of, the child's placement (other than the costs of an offer of advocacy made by Scottish Ministers to the child); and
- Investigating whether, whilst the child is resident in Scotland under the DOL order, the conditions under the order are being complied with. Where an authority considers that those conditions are not being complied with, it must take such steps as it considers reasonable.
Guidance on the regulations sets out that, before applying to deprive a child of their liberty in Scotland, the placing authority will be expected to:
- First seek a placement in the child’s country of residence, where it is in their best interests to do so;
- Undertake due diligence that any proposed residential setting is registered and meets Scottish health and social care national standards;
- Share information with relevant partners such as the host local authority, including initiating multi-agency discussions around access to education and health services.
There is recognition that the need for specialist provision of a residential children's home placement may exceptionally require placing a child further away from home and potentially outside their country of residence. This might be because the placement is best suited to the child's needs, because of geographical proximity, or because there is no other suitable placement available.
Cross-border placements into Scotland will require effective planning, engagement and information-sharing between the services which will be responsible for meeting the child's needs. Consultation with the relevant Scottish local authority and service providers must be undertaken in good time to enable a thorough assessment to be made with regard to how the proposed placement in Scotland best meets the child's needs.
Consideration must be given to the arrangements which will need to be put in place to enable the child to access key services, such as educational provision and primary and secondary health care.
The placing authority will have to complete a Placement Notice and Undertaking pledging to meet these requirements and providing details on the child and the order:
- The name of the placing local authority;
- The gender and age of the child;
- The name of the residential care setting in which the child is to be placed;
- The time that the deprivation of liberty order;
- Comes in to effect; and
- Expires (if it is not subsequently extended).
The Notice and Undertaking must be sent to Scottish ministers, the local authority and health board for the placement area, the placement provider, watchdog the Children and Young People’s Commissioner for Scotland, inspectorate Social Care and Social Work Improvement Scotland and the head of the Scottish Children’s Reporter Administration (SCRA). The SCRA’s role is to decide whether children should be referred to a hearing.
Children will be entitled to advocacy, funded by the Scottish Government.
4. All Placements Abroad
Where a decision is made to place a child subject to a Care Order abroad, Legal Services should be contacted so that the necessary Court action can be initiated to obtain authority for the placement.
The social worker must keep the parents and the proposed carers regularly informed in writing of the progress of the application.
Once the necessary Court authority has been given, the detailed arrangements for the child's placement must be included in a Placement Agreement and agreed in writing with the Social Services agency for the area where the child will be placed. The Placement Agreement must include the arrangements for the child maintaining contact with the parents and the way in which the placement will be reviewed and how the social worker will be kept informed of progress.
The child's file should not be closed for at least 3 months after the placement and only then with the approval of the Assistant Director for Children's Social Care and Youth Inclusion in consultation with the relevant Head of Service after the receipt of a satisfactory report from the relevant Social Services agency confirming the suitability of the placement and their commitment to continue to support the placement as necessary.
5. Adoptive Placements Abroad
See Placement for Adoption Procedure for details of the procedures to be followed in the case of adoptive placements abroad.