Cross-border placements of children

From Monday 9 February, the Cross‑Border Placement of Children (Requirements, Effect and Enforcement) (Scotland) Regulations 2026 (“the 2026 Regulations”) come into force. These regulations represent the most significant reform in decades to the legal status and oversight of children from England and Wales placed in Scotland. Their central aim is clear: to ensure that the welfare of these children is monitored, safeguarded and promoted within the Scottish system, and that their legal status is properly recognised under Scots law.

The new framework replaces the Children’s Hearings (Scotland) Act 2011 (Transfer of Children to Scotland – Effect of Orders made in England and Wales or Northern Ireland) Regulations 2013 (“the 2013 Regulations”), which were limited to long‑term or permanent transfers. It also substantially expands the approach previously used in the Cross‑border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 (“the 2022 Regulations”).

Under the 2026 Regulations, a far wider range of English orders — including care orders, supervision orders, interim orders under section 38, and education supervision orders — may now be recognised “as if” they were compulsory supervision orders in Scotland, provided specific procedural steps are followed.

The legal landscape until now:

As all local authority Children’s Services lawyers know, while the Family Law Act 1986 provides an intra-UK system for mutual recognition of private law orders relating to children, the Children Act 1989 rarely extends public law orders to the jurisdiction of Scotland. 

In terms of public law, there are mechanisms in place so that an English local authority may lawfully, at least within English law, place a child temporarily in Scotland without Family Court approval. But aside from the limited remit of the 2022 Regulations and a petition to the Court of Session to seek to invoke the nobile officium, there has been no provision for recognition of Children Act 1989 Part IV status in Scots law.

At the time that the Children Act 1989 came into force there were very few placements of English children in Scotland. Part III requires a placement close to the child’s home if possible, or one that does not disrupt current education or training. There are further hurdles contained in the Care Planning (England) Etc Regulations 2010 (“the 2010 Regulations”) to placing children out of the area of the local authority, and more so beyond the areas of neighbouring authorities. In the 1990s most local authorities still managed their own children’s homes in their area, and provision for almost all save the most specialist services could be sourced fairly locally. 

In the 35 years since then, resources, standards and other pressures have led to increasing use of placements at a distance. The southern counties or authorities of Scotland – Ayrshire, Dumfriesshire, the Lanarkshires, and Scottish Borders in particular – have developed an unrivalled reputation for provision of high quality children’s homes, with excellent management, good staff retention, and often offering a safe rural location away from dangerous influences. Some provide their own arrangements for education, and most offer excellent therapeutic care with an emphasis on improving emotional and psychological wellbeing by nurture and encouragement, rather than simply keeping a child safe by containment. There is a different approach to the use of force, embodied in the Scottish legal landscape by provisions such as criminalising all forms of physical punishment, incorporating the UNCRC directly into its laws, and with Parliament still considering Callum’s Law, to further regulate the use of restraint and seclusion in the management of children.

It remains to be seen whether the ongoing ‘crisis’ in the provision of residential care home places in England & Wales, particularly those designed to permit deprivation of liberty of children, will be ameliorated by efforts to build additional resources and to change the regulatory framework in the Children’s Wellbeing and Schools Bill.

The need for reform:

But the numbers of English children in care moving to accommodation in Scotland has caused consternation among a number of Scottish child welfare professional organisations, including the Children’s Commissioner for Scotland and the judges undertaking parent & child work in the Sheriffs Courts covering areas where the English children are so often placed. Many are moved to Scotland for lengthy and uncertain periods of time, albeit not meeting the level of permanence triggering the need for Family Court approval.

English children placed in Scotland are at a disadvantage to their fellow UK-citizens from the start. Their Scottish peers have the full protection of Scots law, welfare orders recognised by the relevant services and institutions, the Children’s Hearing system, and the courts, as well as being closer to their families and friends, and being more culturally assimilated in terms of their community, accent, and the different education system.

Secondly, there were strong indications that the distance of these children from their corporate parent in England could leave these children more isolated or disconnected from the professionals who remained responsible for their wellbeing, as opposed to the care homes responsible for providing their day-to-day needs. Human resources and time pressures on their English social workers, who perhaps proceed with confidence that there were dedicated and skilled care teams providing a high standard of day-to-day care in Scotland, might be said to have combined to create a layer of complacency on the part of some English Children’s Services, meaning they tended to focus their energies on more local, urgent, and visible cases.

Investigations by the Scottish government into the plight of these children found that, in many cases, Scottish services did not know that English children have been placed in their area and sometime only find out when crisis intervention is required. Some children placed north of the border expressed concern that they were might be unable to access health services, particularly mental health services, while placed in Scotland. The government in Edinburgh also found that English children are sometimes placed without education provision having been agreed, leading to some children being without education for prolonged periods. 

These findings also reflect observations of the senior judges in Scotland, for example Lady Paton in the Court of Session in Petition of Wolverhampton Council [2021] CSIH 69, when considering the Children’s Commissioner for Scotland’s concerns about English children who had been placed in Scotland “slipping through the cracks.”

For my part, I have urged a number of local authorities to undertake an audit of the addresses of their looked after children, to establish how many are placed in Scotland. Social work practitioners are used to services and systems that operate at least from their perspective on a national UK basis, and are not aware that Scotland is – legally at least – a foreign country. I have advised in too many cases where the legal department has uncovered a cross-border placement months after the move, leading to both regulatory problems and in some cases jurisdictional difficulties.

The solution proposed by the Scottish government:

The 2026 Regulations are an ingenious solution to these problems. 

• They will provide a mechanism to ensure that English children are elevated to a similar status as their Scottish peers, but without swamping the Scottish child protection systems. 
• They allow monitoring of the numbers, locations, care plans and responsibilities for the children coming from the South, with strict and comprehensive notice provisions. 
• They alert the most relevant and principal authorities in Scotland to their existence, presence, and needs. 
• They provide a significant incentive to the English local authorities to ensure that their charges obtain the rights and legal recognition in what has hitherto been a legal no-man’s land. 
• In meeting that incentive, the English local authorities will have to re-double their arrangements and resources to ensure that the children they place in Scotland are regularly visited and do not “slip beneath the radar.” 
• Yet they avoid the need for any corresponding English legislation or intrusion on the requirements in English law. Some of the requirements in the 2026 Regulations in fact mirror obligations of the placing authority in English authority, many of which my own experience suggests are often overlooked.

How the new system will work:

Although expressed in reg 5 of the 2026 Regulations as three, I would suggest there are in reality four conditions that the English local authority has to fulfil in order to achieve recognition of the Part IV order or section 20 status in Scots law.

1. A social worker of the placing authority must have physically visited the proposed placement in advance, or in cases of where that is not possible due to urgency at least consulted with the registered manager of the proposed placement. 
2. Following the pre-placement visit, there must be a written assessment of the suitability of the placement to meet the needs of the child concerned.  This must be undertaken in consultation with the care home manager.
3. The Scottish care home must be registered with the Care Inspectorate, which performs Ofsted’s role in Scotland.  This is essentially a requirement in English law in any event.
4. The local authority must complete and provide notices and undertakings in accordance with regulation 8 and Schedule 1.  The undertakings relate to the provision of services to the child, to meet the costs of the placement, and to abide by the ongoing duties set out in the 2026 Regulations.  Copies of the notice and undertaking must go to each of the following, in advance of the placement if possible, in order to inform discussions with relevant parties in Scotland:

• • The manager of the care home
  • The children and families service local to the placement
  • The health authority local to the proposed placement
  • The local education authority
  • The Scottish government
  • Police Scotland, and
  • The Care Inspectorate

Once the child is placed, there are ongoing monitoring duties:

• a social work visit to the child within a week of the start date of the placement in Scotland,
• further social work visits to the placement in Scotland at least once every six weeks; these can be delegated to the local children and families service with their agreement, but the responsibility remains with the placing English local authority,
• consideration of any additional visits that might be made at the request of the child or the care home manager
• a commitment to the advocacy worker appointed for the child under the Scottish scheme
• abiding by the statutory review process,
• to check that any conditions or requirements are being complied with
• to provide further pre-placement assessments and notice of any moves of the child to any alternative placement in Scotland
• to give further notice of any change to the child’s legal status in England, or of the death of the child

A breach of the placing authority’s duties under the 2026 Regulations may result in enforcement procedures by the Scottish government in the Sheriff Court.

The legal recognition in Scots law:

The legal recognition of a Part IV order in Scots law provides authority for and for any person granted rights under the order to exercise those rights in Scotland, and requires that person to exercise any responsibilities arising from the order.  It remains to be seen how ‘person’ might be interpreted as a local authority with, say, an interim care order, but that appears to be the intention. Recognition of the English ‘relevant order’ or of the section 20 arrangement authorises the placement in Scotland in Scots law.

Furthermore, it effectively puts the care staff at a residential home in loco parentis in Scots law, so to do what is reasonable to safeguard the child’s health, development and welfare, and to interfere with the child’s legal rights where necessary, proportionate and lawful. This reflects both Children (Scotland) Act 1995 section 5, and the doctrine of necessity. 

It is anticipated that the guidance to be published when the 2026 Regulations come into force will include assistance as to the effect of parental rights and responsibility in Scotland, and as to the additional UNCRC requirements that are applied in Scots law.

Although the child concerned will be treated ‘as if’ subject to a compulsory supervision order, he or she will not become subject to the Scottish Children’s Hearing system, and will remain the responsibility of the English local authority, and in the event that there are ongoing proceedings, of the English Family Court. That at least is the position for temporary placements.

The 2022 Regulations are revoked by the 2026 Regulations, with the recognition of deprivation of liberty authorisations now consolidated in the new provisions. There is an additional condition that any deprivation of liberty authorisation must be reviewed by the High Court at least every three months. Part 17 of the 2026 Regulations provide for transitional arrangements.

Duties in English law continue to apply:

It will be at least as important for the English local authority to abide by the requirements in English law for a placement in Scotland:

• The preparation of a placement plan
• Consultation with the independent reviewing officer
• Approval of the placing decision by the nominated officer in the local authority, or the director of Children’s Services save in rare cases (those involving Cumberland Council, Northumberland County Council, Dumfries & Galloway Council and Scottish Borders)
• The social work authority local to the placement in Scotland must be consulted, including sharing a care plan
• Consideration of the child’s wishes and feelings
• Consultation with family members

Responsibility for the child would only pass to the local Scottish children and families service in the event of agreement of both local authorities, the child being subject to a final care order, and the grant of Schedule II paragraph 19 approval by the Family Court to a permanent living arrangement in Scotland. The child would then be not only treated as if subject to a compulsory supervision order but also become subject to the Children’s Hearing system. This provision to ‘transfer’ a care order to Scotland is in practice not commonly exercised, but the 2013 Regulations are revoked and installed in the 2026 Regulations, aspiring to a comprehensive regulatory framework for all English children placed in Scotland, whether on a temporary or permanent basis. 

The limits of the 2026 Regulations:

The 2026 Regulations relate to children’s homes as well as foster placements in Scotland, but only foster carers who are approved and registered under the Scottish system of assessment pursuant to the Looked After Children (Scotland) Regulations 2009, and not the Fostering (England) Regulations 2011 or temporary foster carers approved pursuant to reg 24 of the 2010 Regulations. This will exclude from the recognition framework most connected carer placements in Scotland, and probably English foster carers moving North of the border with their charges. 

As drafted, the 2026 Regulations do not provide any mechanism for legal recognition of children placed in Scotland before 9 February. The strict requirement of pre-placement assessment at reg 5(3), and the stated purpose in regs 3(3) and 4(3), suggest that retrospective status of existing placements is not achievable. Nor does the opportunity arise where those children currently placed in Scotland as at 9 February change their legal status in England or change placement in Scotland. This might leave a significant number of children placed in Scotland, many of them for lengthy periods of time even if not ‘permanent’, without the protections that the 2026 Regulations are designed to give them.

It remains to be seen whether the administration in Scotland would permit a child who had already been placed in Scotland by 9 February to be ‘re-placed’ there without moving him after a compliant visit and assessment of suitability report was completed. In theory, had there been a visit (or in an emergency, sufficient consultation) and a suitability assessment prior to the original placement of the child then it might be possible to achieve recognition of the English legal authority retrospectively.  But pre-placement visits by a social worker are not currently required under the English regulations, and in my experience the distances and travel time involved mean that English social workers do not tend to physically visit a placement in Scotland before the child moves there.

The Scottish government is due to publish guidance as to the implementation of the 2026 Regulations when they come into force. Accordingly – and quite apart from the fact that I am not a Scottish lawyer – this article should not be treated as legal advice. 

Justin Gray is a barrister at Trinity Chambers, Newcastle upon Tyne, and a door tenant at Harcourt Chambers.