What are Cross-border placements?
Cross-border placements occurs when children and young people who are subject to a care order elsewhere are placed in care settings in Scotland. This can be hundreds of miles from where they live.
This means that children are separated from their family, friends, support network and communities, which impacts on their rights under the UNCRC and the European Convention on Human Rights.
Decisions are usually made in circumstances where suitable placements cannot be found in the child’s home country, for example, children being placed in Scotland who are from England or Wales. We are concerned both about the lack of suitable placements and the way in which the two legal systems interact.
The legislative framework is not sufficient to ensure a child rights-based approach. There is little to no data collection, an absence of proper monitoring and scrutiny of decisions and quality of care when children are placed in Scotland.
It is vital that no child in Scotland is deprived of their liberty except in accommodation which is authorised, regulated, and approved to the highest Scots law and human rights standards.
What does the ECHR and UNCRC say?
Cross-border placements engage a number of children’s rights across a range of human rights treaties. We have repeatedly reminded the Scottish and UK Government that under the UNCRC and ECHR, government have clear legal obligations:
- Article 3 UNCRC – best interests of the child should be primary consideration.
- Article 8 ECHR – the right to respect for private and family life.
- Article 37 UNCRC – child’s right to liberty and freedom from torture or other cruel, inhuman or degrading treatment or punishment.
- Article 40 UNCRC – rights of children in conflict with the law
- Article 5 ECHR – the right to liberty and security.
- Article 16 UNCRC – the right to privacy and family life.
- Article 6 ECHR – right to a fair trial.
General Comment no 24 states that the deprivation of liberty of a child should be a last resort measure, to be used only for the shortest possible period of time.
The UN Committee on the Rights of the Child is concerned about cross-border placements
In its 2023 Concluding Observations, the Committee made key recommendations regarding what Governments must do including to “Prohibit and prevent the placement of children in secure care, residential care homes without appropriate safeguards or unregulated alternative care…”
“Develop a legislative framework for ensuring a child rights-based approach to the support of children who are placed in alternative care far from their place of residence… and ensure that such placements take place only as a measure of last resort.”
- From 2019 onwards, we intervened in a number of cases at the Court of Session, relating to cross-border placements, with the aim of ensuring better protection of children’s rights
- In February 2022 we responded to the Scottish Government’s policy proposals for legislative amendments on the cross-border placement and deprivation of liberty of children and young people. In this response, we made it clear that no child is deprived of their liberty except in accommodation which is authorised, regulated, and approved to the highest Scots law and human rights standards by the Scottish Ministers.
- In June 2022 we responded to the Scottish Government’s Care and Justice Bill consultation, setting out clearly our concerns on cross-border placements of children and young people.
- In July 2022 we developed a Cross-border Placements Briefing for the National Deprivation of Liberty Court at the Royal Courts of Justice. The briefing provided information to the National Deprivation of Liberty Court and legal professionals in England and Wales to support decision making where it is proposed that a child be placed in Scotland. We set out the relevant considerations, including areas where the different legal jurisdictions do not align and may impact on the child’s human rights.
- In November 2022 we highlighted this issue in our joint report to the United Nations Committee on the Rights of the Child. We raised concerns that children from out with Scotland placed in Scottish residential or secure care settings may be deprived of their liberty, or subject to restrictions that equate to a deprivation of liberty, without access to the same rights protections and safeguards available to children normally resident in Scotland.
- In March 2023 we provided written and oral evidence to the Education, Children and Young People Committee and raised critical areas that must be addressed by the Committee and build on the points we made from previous work.
- In June 2023 we submitted written evidence to the Education, Children and Young People Committee at Stage 1 of Parliament’s consideration of the Children (Care & Justice) (Scotland) Bill. We raised long-standing concerns that the practice of placing children from England and Wales on Deprivation of Liberty orders in Scottish residential care settings was not compliant with rights under the UNCRC or the ECHR.
We will continue to hold Scottish Government to account on its human rights obligations to children and remind duty bearers of their legal obligations.
News and stories on cross-border placements
Please browse below to view some of our publications on Cross-border placements. You can also explore our Resources section to view the many publications our office has produced over the years.