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I am sorry. Could you—

Lynsey McKean will be able to tell you about that.

No, there has been no analysis or modelling of that specific issue.

Good morning to the committee. Scottish ministers have committed to keeping the Promise by reducing and, ultimately, ending cross-border placements, whether children’s liberty is to be deprived or restricted. We also have a responsibility to uphold children’s rights and ensure that their wellbeing is our paramount consideration. That applies to all children in Scotland, not only to children from Scotland.

Last week, the committee heard evidence from the office of the Children and Young People’s Commissioner Scotland, and I record my thanks for the careful and thorough analysis of the issues involved. We have engaged with the children’s commissioner’s office and other key actors throughout the development of the regulations. We all agree that cross-border placements should occur only in exceptional circumstances and that we want to see them reduced to the minimum number possible.

Last year, the United Kingdom Supreme Court ruled that the use of the inherent jurisdiction to authorise deprivations of liberty in non-secure accommodation is lawful and is not incompatible with article 5 of the European Convention on Human Rights. There needs to be an appropriate legal mechanism for recognition of those orders. Currently, it involves petitions to the Court of Session to recognise the deprivation of liberty orders made by the High Court in other parts of the UK. The Supreme Court noted that it is the chronic lack of capacity in England in secure and high-intensity residential childcare accommodation that is driving the placements. Members can be assured that I have pressed and will continue to press the UK Government to urgently address those shameful capacity issues.

The Scottish Government is not the author of the circumstances, but we find ourselves in the invidious position of having to mitigate their impact, which falls on the children, on their families and on Scottish services. We cannot delay in taking action to better protect the children.

The options that are before us are stark. The current process of petitioning the Court of Session in respect of dozens of exceptional individual applications is not sustainable. It is imperative that we provide improved safeguards to better protect the children and young people who are in the placements.

The only way that we could achieve full parity of treatment with Scottish children, as advocated by the commissioner’s office, would be to accept wholesale responsibility for cross-border placements into our Scottish care and legal systems. If we took that approach, we would be complicit in severing a child’s links with their home community and support networks, and we would be absolving the placing authorities elsewhere in the UK of the responsibilities that properly lie with them. The likely consequence is that we would, first, see a marked increase in placements. Then, as placements multiplied, they would have a knock-on, unplanned and unfair resourcing impact on Scottish authorities and services.

The regulations that are before the committee provide for recognition of DOL orders in Scots law but with conditions that bring greater accountability to placing authorities and greater protections for the children in the placements than currently exists. The regulations do not transplant responsibility to Scotland, but they offer better notification mechanisms and carefully constructed failsafes, including the requirement for the placing authority to notify key Scottish authorities of placement details and to give an undertaking that it will provide or secure and cover the costs of all services that are required to support the child. That is not happening in practice currently, and it will become a legal requirement. The regulations also provide for the Scottish ministers to apply to the relevant sheriff for an order to enforce the implementation authority’s duties in relation to the child if they are not being fulfilled.

We have listened and responded to stakeholders’ views when developing the regulations. Our original proposal included an advisory role for children’s hearings to facilitate the provision of information to the High Court in England and Wales about a child’s progress in placement and, importantly, to consider a child’s access to local rights protections. We also proposed that it should be open to children’s hearings to appoint a safeguarder, to consider legal representation and to ensure that advocacy provision had been offered to the child.

That earlier, stronger proposal was not supported by the commissioner and other stakeholders. In particular, the commissioner raised several issues about a child’s ability to challenge the basis of the deprivation of liberty. Challenging, varying or overturning the High Court’s order is not in scope here. The scope of available powers cannot influence the decisions of a superior court in another jurisdiction.

The regulations improve on the status quo and represent an interim step that will allow us to get to longer-term solutions as part of the proposed children’s care and justice bill, which is the space where we can consider more fully and fundamentally how to address cross-border placements. That is why, in the consultation for the bill, we are seeking views on regulation, scrutiny and monitoring and on the Care Inspectorate’s role in relation to cross-border placements—all issues that the commissioner’s response highlighted.

The improvements to existing cross-border DOL processes and the protection of Scottish local services that the regulations afford must be implemented as soon as possible. I therefore commend the regulations to the committee.

Yes, it is.

The legal restrictions on the young person’s liberty are governed by English law. They have the right to legal representation and advocacy within that legal system. We are putting in place advocates to support the child and to avail them of their rights under Scots law, but also to help their voices be heard on whether they feel that their children’s plan is being followed and, with respect to the service provider, whether they feel that their needs are being met. They will be able to interact with those advocates in the legal process, because the advocates are not part of that legal process, to pass on concerns or whatever the child wishes to be conveyed to the English legal advocate. However, the advocate will be looking primarily at the child’s welfare and their needs here, in Scotland, and not at their legal needs.

Those advocates have access to a legal support service through Clan Childlaw. I absolutely accept that some advocates will have a legal background, but they are also able to access Clan Childlaw, which I think they all accept are experts in the field of child rights and welfare.

I am sorry to interrupt, but we need to be really clear that the Scottish Government does not want to be in this position. We are in this position because of a lack of capacity and availability of the service in other parts of the UK. As I said earlier, I have pushed my UK Government counterpart to address the issue at source. It is not a problem that Scotland is able to fix. The UK Government recognises that and assures me that it is working apace on trying to alleviate the situation.

I will pass that to the lawyer to put into legalese.

We know that cross-border transfers are happening. We know, following the Supreme Court judgment, that those transfers are legal and do not breach a child’s ECHR rights. We therefore made an undertaking with the court that we would look at creating a legal mechanism to recognise the transfers. However, we have also taken the opportunity to try to better protect children’s rights. It is better than the status quo.

The only way that we could have absolute parity is if we took those children into the Scottish system. As I said in my opening statement, that would have implications for a child. We are talking about children who are very vulnerable and who, in most cases, have already been through very traumatic experiences. They are already going through one legal system.

In addition, DOL placements are temporary in nature. Kaukab Stewart referred to the small—significant, but small—number of children who have been transferred; most of those children have now returned to England. They come to Scotland for a specific reason—for their safety and welfare—but the ultimate aim is for them to be back in their own communities. That might put up a legal barrier to doing what you describe.

As I outlined in my opening statement, the placing authority and High Court outside Scotland are responsible for determining that a placement is necessary, proportionate and in the best interests of the child. That will include consideration of the suitability of the placement for the child in the light of any protected characteristics or particular needs that they might have, including any disability or additional support needs. The undertaking that the placing authority must give under the regulations in order for the DOL to be recognised in Scots law will clarify that it is the placing authority that must provide or procure services to support that child, including services that are required to support particular needs.

It might be helpful for the committee to know that the UK Government tells us that the Care Planning, Placement and Case Review (England) Regulations 2010, and the accompanying guidance, are clear in setting out a placing authority’s responsibilities in general and on making out-of-area placements, in particular. Placing authorities should draw up other plans, such as those for education or health and care in respect of any child who has special educational needs or disabilities, and the care plan must form part of those. The care plan must include a record of the education and training that are proposed for that child. There are additional layers to this. The responsibility is very firmly with the placing local authority, but there are safeguards in the placement process.