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Cross border DOLS placements in Scotland are ‘not in any way’ an ideal situation for children says SASW

On 02 February 2022 the Scottish Association of Social Workers ("SASW") responded to the Scottish government's policy position paper published in January regarding cross-border placements of children.

The police paper arose out of an increasingly common situation in which residential care services in Scotland are receiving cross-border placements of children subject to High Court DOLS orders. These DOLS orders allow a child to be deprived of their liberty in a residential care setting.

Currently, DOLS orders are not automatically recognised under Scots law. This means that following the making of the DOLS order in the High Court, the placing local authority needs to petition the Court of Session in Scotland to get recognition for the order just made. Without the Court of Session's approval, any restriction on a child's liberty whilst in a placement in Scotland risks unlawfully infringing upon the child's rights under Article 5 of the European Convention on Human Rights.

The Scottish government considered that the current process for recognition of DOLS orders by the Court of Session cannot be sustained. It places a burden upon the applicants and on the courts when resources could be better directed elsewhere. The Scottish government therefore intends to lay draft regulations before the Scottish Parliament in Spring 2022 as a short-term, interim step to remove the requirement for an English local authority to petition the Court of Session.

The SASW responded to this proposal:

"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.

Clearly the key element is that there are not enough placements available for children in their countries of origin.  We understand that around 20 children were placed in Scottish secure accommodation last year.  Whilst this doesn't appear a big number, it is a significant number of the placements available in Scotland and so has a knock-on effect for children from Scotland, leaving them vulnerable to either not getting the support they need or being placed further away from their communities."

For the Scottish government policy position paper, click here.

For the SASW response, click here.

Julia Queen, Barrister, Coram Chambers

02.02.2022