The Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022
| Jurisdiction | Scotland |
2022 No. 225
Children And Young Persons
The Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022
Made 23th June 2022
Coming into force 24th June 2022
The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 190 and 195(2) of the Children’s Hearings (Scotland) Act 20111and all other powers enabling them to do so.
In accordance with section 190(2)(c) and 197(2) of that Act, a draft of these Regulations has been laid before and approved by resolution of the Scottish Parliament.
Citation and commencement
1. These Regulations may be cited as the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 and come into force on the day after the date on which they are made.
Interpretation
2.—(1) In these Regulations—
“the Act” means the Children’s Hearings (Scotland) Act 2011,
“the 2010 Act” means the Public Services Reform (Scotland) Act 20102,
“chief social work officer” means an officer appointed in accordance with section 3 of the Social Work (Scotland) Act 19683or a deputy designated by the receiving local authority,
“child” means a person under the age of 18 years,
“the Commissioner for Children and Young People in Scotland” means the Commissioner appointed in accordance with section 2 of the Commissioner for Children and Young People (Scotland) Act 20034, or a member of staff appointed under paragraph 7(1) of schedule 1 of that Act,
“the court” means—
(a) in relation to England and Wales, the court exercising the inherent jurisdiction of the High Court of England and Wales,
(b) in relation to Northern Ireland, the High Court of Justice in Northern Ireland,
“deprivation of liberty order” means an order (including an interim order) made under the inherent jurisdiction of the High Court of England and Wales or, as the case may be, made by the High Court of Justice in Northern Ireland, which authorises the deprivation of liberty of a child in a residential care setting,
“Health Board” means a Health Board constituted under section 2 of the National Health Service (Scotland) Act 19785,
“local authority” means—
(a) in relation to England and Wales, a local authority within the meaning of section 105(1) of the Children Act 19896as it relates to England and Wales,
(b) in relation to Northern Ireland, a Health and Social Care trust established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 19917,
(c) in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 19948,
“placement” means the placement of a child into a residential care setting, where that child was, immediately prior to the placement, resident in England, Wales or, as the case may be, Northern Ireland, and references to a child being “placed” are to be construed accordingly,
“placing local authority” means the local authority in England, Wales or, as the case may be, Northern Ireland, which has been granted a deprivation of liberty order,
“Principal Reporter” means the Principal Reporter appointed under paragraph 8 of schedule 3 of the Act or an officer of the Scottish Children’s Reporter Administration to whom there is delegated under paragraph 10(1) of schedule 3 of that Act any function of the Principal Reporter,
“receiving local authority” means the local authority in Scotland within which the residential care setting mentioned in the deprivation of liberty order is located,
“residential care setting” means a residential institution in Scotland which provides day-to-day care for children,
“residential institution” means an establishment (whether managed by a local authority, a voluntary organisation or any other person) which—
(a) is not secure accommodation,
(b) provides residential accommodation for children in order to safeguard or promote their welfare or otherwise to protect or further their interests, and
(c) is managed by a care service which is registered by Social Care and Social Work Improvement Scotland in accordance with Chapter 3 of the 2010 Act,
“Social Care and Social Work Improvement Scotland” means the body established by section 44 of the 2010 Act9.
(2) Unless the context otherwise requires, any expression in these Regulations which is not listed in paragraph (1) and which is defined in the Act is to be construed in accordance with the Act’s definition.
(3) Any reference in these Regulations to anything done in writing includes a reference to anything done in electronic form which is—
(a)
(a) sent by electronic means, and
(b)
(b) capable of being reproduced in legible form.
Deprivation of liberty order to have effect as if compulsory supervision order
3.—(1) Where paragraph (1) of regulation 4 or, as the case may be, 5 applies, a deprivation of liberty order has effect as if it were a compulsory supervision order for the purposes mentioned in paragraph (2).
(2) The purposes are—
(a)
(a) authorising in law the deprivation of liberty of the child who is the subject of the order in Scotland, and
(b)
(b) the application of the Act in relation to the deprivation of liberty order (in respect of which, see regulation 13).
Deprivation of liberty order recognised in Scotland on date Regulations come into force
4.—(1) This paragraph applies where, on the day on which these Regulations come into force, a deprivation of liberty order is recognised and enforceable in Scotland by virtue of an interlocutor made before that day by the Court of Session.
(2) Paragraph (1) ceases to apply on the earlier of the following occurrences—
(a)
(a) the deprivation of liberty order ceasing to have effect in the jurisdiction of the court which made the order,
(b)
(b) regulation 5(1) applying in relation to the deprivation of liberty order,
(c)
(c) the end of the period during which the deprivation of liberty order is recognised and enforceable in Scotland by virtue of the Court of Session’s interlocutor.
Deprivation of liberty order made, or continued, on or after day Regulations come into force
5.—(1) This paragraph applies where a relevant circumstance as specified in paragraph (2) occurs and the circumstance specified in paragraph (3) applies.
(2) A “relevant circumstance” occurs when a deprivation of liberty order—
(a)
(a) which was recognised and enforceable in Scotland as mentioned in paragraph (1) of regulation 4 is, before the end of the period mentioned in paragraph (2)(c) of that regulation, reviewed and continued in effect beyond the end of that period by the court which made the order, or
(b)
(b) is made on or after the day on which these Regulations come into force.
(3) The circumstance in this paragraph is that regulation 7 has been complied with in relation to the deprivation of liberty order.
(4) Paragraph (1) ceases to apply—
(a)
(a) on the deprivation of liberty order ceasing to have effect in the jurisdiction of the court which made the order, or
(b)
(b) where the occurrence mentioned in paragraph (a) does not happen within a relevant period, at the end of the relevant period unless the deprivation of liberty order is, on or before the last day of the relevant period, reviewed and continued in effect beyond the end of the relevant period by the court which made the order.
(5) The “relevant period” is—
(a)
(a) where the deprivation of liberty order has not previously been reviewed and continued in effect by the court which made the order, the period of three months beginning with the day on which the order was made,
(b)
(b) otherwise, the period of three months beginning the day on which the order was reviewed and continued in effect, or last reviewed and continued in effect, by the court which made the order.
(6) In this regulation, references to a deprivation of liberty order being “continued in effect” include references to that order being extended.
Effect of child becoming subject to compulsory supervision order or interim compulsory supervision order
6. A deprivation of liberty order ceases to have effect as provided for in regulation 3(1) where a child who is the subject of the order becomes subject to a compulsory supervision order or interim compulsory supervision order.
Notice and undertaking required for deprivation of liberty order to have effect as if compulsory supervision order
7. This regulation is complied with if a copy of the following has been given in writing by or on behalf of the placing authority to each person mentioned in regulation 8—
(a) a notice containing the information specified in regulation 9, and
(b) an undertaking meeting the requirements specified in regulation 10.
Persons to be given copy of notice and undertaking
8. The persons to be given a copy of the notice and undertaking mentioned in regulation 7 are—
(a) the Health Board which provides health services in the area in which the child is to be placed,
(b) the Commissioner for Children and Young People in Scotland,
(c) the person in charge of the residential care setting in which the child is to be placed,
(d) the Chief Social Work Officer of the receiving local authority,
(e) any person acting for the time being as the director of education of the receiving local authority,
(f) the Scottish Ministers,
(g) the Principal Reporter, and
(h) Social Care and Social Work Improvement Scotland.
Content of notice
9. The information...
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