Hansard

I am grateful for the opportunity to speak to the draft regulations. The Scottish ministers have committed to keeping the Promise by reducing cross-border placements to a minimum. We all agree that such placements should occur only in exceptional circumstances.

Last year, the United Kingdom Supreme Court ruled the use of a court’s inherent jurisdiction to authorise deprivations of liberty in residential accommodation as lawful and as not incompatible with article 5 of the European convention on human rights.

Where deprivation of liberty—or DOL—orders are made elsewhere in the UK and children are to be placed in Scotland, there needs to be an appropriate legal mechanism to recognise them. Currently, recognition is granted through a Court of Session petition process, which is not designed for such cases. In Scotland, a lawful basis for deprivation of a child’s liberty is an essential requirement under article 5 of the ECHR. Therefore, the essence of the regulations is about ensuring that children’s rights are complied with, and ensuring compatibility with the ECHR.

The Scottish Government is satisfied that the draft regulations are ECHR compliant. We published a suite of impact assessments alongside them, including a children’s rights and wellbeing assessment that detailed our consideration of children’s rights.

The regulations before Parliament provide recognition of DOL orders in Scots law, but with conditions attached. The conditions mean that there will be greater accountability for authorities elsewhere in the UK that place children in Scotland, and greater protections for the children who are placed in that way.

I have always made it clear that the regulations represent an interim step towards better regulation of cross-border placements. Of course, we are exploring longer-term solutions as part of the proposed children’s care and justice bill, on which we are currently consulting. We welcome views from all stakeholders.

I know that the office of the Children and Young People’s Commissioner Scotland raised a number of concerns with the Education, Children and Young People Committee. We have engaged with the commissioner’s office and other key actors throughout the development of the regulations. On 23 May, I wrote to the committee to respond to the concerns that had been raised and, on 25 May, I gave evidence to the committee, in which I focused on the improvements that the regulations will make to the status quo for children who are placed in Scotland.

I also stressed that the scope of the regulations—to provide a route for legal recognition of deprivation of liberty orders and to deliver a better regulated placement process—is in line with the powers that the Parliament has granted to ministers. We are clear that funding models that are based on the acceptance of children on cross-border placements cannot be sustained. That is why we are committed to looking at more fundamental measures in the forthcoming children’s care and justice bill.

Ultimately, the regulations will not and should not be a substitute for proper provision being made available for children in England and Wales.

I have met my UK Government counterpart to express my great concerns about the lack of capacity that is driving cross-border placements into Scotland and will continue to seek assurances that those are being addressed urgently.

In the meantime, we cannot delay in taking action to better protect those children. That is why we introduced the draft regulations, which the Education, Children and Young People Committee voted unanimously to support at its meeting on 1 June.