Placements in Scotland and Care Inspectorate requirements

Justin Gray examines the care planning requirements necessary for placements in Scotland to meet the Care Inspectorate requirements.

The quality of children’s homes in Scotland continues to attract placement of a number of children looked after by English local authorities. Quite apart from the high standards of therapeutic care and greater staff consistency that are usually available, the opportunity for a young person to be far removed from the temptations and risks of their local community can make Scottish resources a valuable component in addressing many of the immediate, medium- and/or long-term needs.

The Care Inspectorate, which broadly reflects the role of Ofsted north of the border, is alive to this, and maintains important expectations of the children’s homes that it regulates. The Scottish Children’s Commissioner also makes provision to protect the rights of children placed in Scotland while they are subject to legal orders made in a ‘foreign’ jurisdiction such as England & Wales or Northern Ireland.

The most recent Care Inspectorate guidance for Scottish children’s homes was published in January 2024. It stresses the need for careful planning of the placement in Scotland of looked after children from England & Wales. It reiterates the requirement that care home managers must be satisfied that an English court has approved the placement in Scotland before admitting the young person, or that there is written evidence of the legal basis of the move within the English family justice system. The Care Inspectorate further requires provision to be made for an independent advocate and consideration of how contact with family members is going to be maintained.

It might be said that the Care Inspectorate’s requirements do not sit precisely with what is required in English law, whether in relation to the established principle that Local Authority executive decision-making to place a child in Scotland pursuant to the authority of a full care order can be “legally compliant” without a further court order or the decision in Re H in respect of short-term placements. It is a matter for the Scottish government, by its agencies, to decide the placement criteria in Scotland, and for English lawyers to work out how to meet them without offending the laws of either country. The principle of comity applies just as much to the Scottish system as to other jurisdictions, per Re M (Minors) (Custody: Jurisdiction) [1992] 2 FLR 382.  

Cross-border placements in Scotland are, regrettably, still often arranged in an emergency. The Family Court and, where applicable, the Family Division of the High Court, cannot always respond quickly enough to requests for authority to place a child in a children’s home in Scotland if the Court needs to undertake its own welfare evaluation. Three legal scenarios are most likely to be:

1. An application for Children Act 1989 Schedule II paragraph 19 approval: this is applicable to long-term placements, where the child is going to live in Scotland on a permanent basis, and to embrace the changes and benefits that come with expatriation. Assuming it follows the conclusion of the principal public law proceedings for a Part IV order, the application process involves the appointment of a solicitor for the child, of a guardian, and a careful analysis of the welfare benefits and risks of such a move, as well as exploration of informed consent on the part of those with parental responsibility and the child.
2. Approval of a change of interim care plan within Part IV proceedings: this is generally the most straightforward circumstance where an order of the English court can be obtained from a judge already familiar with the case, and a recital can be included in the case management order to include not just approval of the interim care plan, but also of the named placement in Scotland. A move to Scotland during the course of the proceedings is almost always going to be temporary, even if that is because its early stages need to be monitored and assessed before final decisions are made. Therefore, there should be no need for a schedule II paragraph 19 application at that interim stage, but the Local Authority would have its judicial endorsement of the placement on the case management order.
3. A declaration from the High Court that a proposed temporary placement of a looked after child is lawful: usually post-care order, this might be in relation to the initial move to the placement in Scotland, for the purposes of assessing whether it can be a long-term placement, possibly merely for the purposes of a temporary safe space for the younger person, or a programme of therapeutic work before a return to the home area. This involves an administrative approval of Children’s Services decision-making under Children Act 1989 Part III, whether in respect of a child subject to a section 31 care order or a child looked after by the Local Authority with the consent of those with parental responsibility. 

It is the third of these scenarios that can be the most challenging, with Children’s Services managers facing a need for a placement move on an urgent basis, with a pressing welfare need to get the child to Scotland, and the financial expense of paying not only for an unwanted high cost placement in England but also an expensive retainer for a Scottish placement that cannot be used until the High Court considers itself able to declare it lawful. This kind of application is becoming more commonplace as the Care Inspectorate continues to impress the importance of Scottish children’s homes abiding by its now restated guidance.

This article principally seeks to address the nature of application and the evidence that needs to be placed before the High Court where there are no existing proceedings, and the Local Authority seeks a declaration that the placement is lawful. Preparation requires a good understanding of Children Act 1989 section 22C and the Care Planning, Placement and Case Review (England) Regulations 2010, which clearly envisage the possibility of placements in Scotland.

For reasons set out in my article in the 21 April 2023 edition of Local Government Lawyer, the application should not be in Form C66 to invoke the High Court’s inherent jurisdiction relating to children, which involves at least one welfare evaluation, probably the appointment of a guardian or at least legal representation of the child, and an intrusion on the statutory scheme governing the Local Authority’s executive planning decisions for the young person if there is a care order. I suggest use of the FPR 2010 Part 19 procedure in Form FP1, which has not to date met with any judicial resistance, and carries the additional ‘agility’ of the Local Authority being the only party to the application – although I consider it would be appropriate to join those with parental responsibility in circumstances where there is no care order in place.

Demonstrating and evidencing the lawfulness of the Local Authority decision-making process that arrived at the conclusion that the Scottish placement is the only or the best solution for the young person can be challenging when time is pressing. 

• There should be an updated Regulation 9 placement plan, a crucial document that too often appears not to be prioritised amidst the welfare planning process. This should incorporate the matters set out in Schedule 2 of the 2010 Regulations.
• Either the placement plan or the social work statement should set out the legal status of the child, including the date of any care order and the court that made it.
• There must be approval at the appropriate level of the proposed placement being both out of the Local Authority area and out of the jurisdiction; the nominated officer for such decisions tends to be the director of Children’s Services or an assistant director.
• There needs to be an analysis, ideally within a meeting minute or at the very least within case recordings, that the section 22C options have been considered and why the Scottish placement is the only or most suitable one to meet the young person’s needs. 
• The above will involve consideration of the child’s wishes and feelings, which need to be set out in the social work evidence, together with reasons why those wishes and feelings may have to be overridden by other considerations.
• The child ought to have visited the placement first, or there needs to be adequate reasons set out why this has not been reasonably practicable, and/or will not be so prior to the court application being heard.
• There should be details of the proposed placement, ideally a statement of purpose, with names of the manager, and the senior manager within any company that owns the placement, and when the placement will be available. 
• A recent Care Inspectorate report can also be invaluable, particularly if that confirms that registration as a care home pursuant to Part V of the Public Services Reform (Scotland) Act 2010.
• There must be evidence of consultation with, or at least notification of, the relevant Scottish local authority children & families service for the destination area. The extent of communication required depends on the distance of the placement from the home authority. Contact with the local Children’s Reporter can also be useful.
• The independent reviewing officer needs to have been consulted, ideally with confirmation that he or she agrees with the proposed placement.
• It always helps to be clear about proposals for educational provision.
• It is wise to confirm that there will be funding for the child to have an advocate, and (particularly if the care arrangements are likely to be restrictive) for access to a Scottish solicitor.

The above is a general guide only: there is no one-size-fits-all solution to these cases. Applications have to be tailored to considerations such as the age of the child, whether a parent is also resident in Scotland, and the intention behind the placement. Different care homes may place different stress on the Care Inspectorate’s various strands of guidance.

Placement planning for long-term ‘cared for’ children is often undertaken on an assumption that regulations apply to the United Kingdom as a whole. A legal overview will quickly dispel that notion. But audits of many local authorities’ looked after children placements, particularly in the North of England, reveal a surprising number of children placed in Scotland with no clear legal foundation. The Care Inspectorate is understandably focussing on new arrivals at present, but may turn its attention to children in longer term cross-border placements. In some cases there might even be question marks over whether the English court still has jurisdiction to make an order or give approval.

In other words, once the placement is working well and shows signs of becoming permanent, Children’s Services may still subsequently need to obtain schedule II paragraph 19 approval from the Family Court. There is still no further guidance in relation to when a placement of a child in Scotland stops being temporary or interim and becomes long-term or permanent. Cobb J’s helpful observations in Re H (Interim Care) (Scottish Residential Placement) [2020] EWHC 2780 (Fam) encourage practitioners to look for a point that I have always treated that as akin to the societal and environmental integration reflective of the jurisprudence concerning habitual residence. Whilst the statutory language is ‘to live’ in Scotland, I tend to look for evidence of acceptance of the local community, engagement with the different system of mainstream education, and embracing Scottish culture, the shorthand test for which is inevitably about the young person’s response to that first taste of a certain orange fizzy drink reputedly made from girders.

Justin Gray is a barrister at Trinity Chambers in Newcastle upon Tyne.