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Yes, it is.

The legal restrictions on the young person’s liberty are governed by English law. They have the right to legal representation and advocacy within that legal system. We are putting in place advocates to support the child and to avail them of their rights under Scots law, but also to help their voices be heard on whether they feel that their children’s plan is being followed and, with respect to the service provider, whether they feel that their needs are being met. They will be able to interact with those advocates in the legal process, because the advocates are not part of that legal process, to pass on concerns or whatever the child wishes to be conveyed to the English legal advocate. However, the advocate will be looking primarily at the child’s welfare and their needs here, in Scotland, and not at their legal needs.

Those advocates have access to a legal support service through Clan Childlaw. I absolutely accept that some advocates will have a legal background, but they are also able to access Clan Childlaw, which I think they all accept are experts in the field of child rights and welfare.

I am sorry to interrupt, but we need to be really clear that the Scottish Government does not want to be in this position. We are in this position because of a lack of capacity and availability of the service in other parts of the UK. As I said earlier, I have pushed my UK Government counterpart to address the issue at source. It is not a problem that Scotland is able to fix. The UK Government recognises that and assures me that it is working apace on trying to alleviate the situation.

I will pass that to the lawyer to put into legalese.

We know that cross-border transfers are happening. We know, following the Supreme Court judgment, that those transfers are legal and do not breach a child’s ECHR rights. We therefore made an undertaking with the court that we would look at creating a legal mechanism to recognise the transfers. However, we have also taken the opportunity to try to better protect children’s rights. It is better than the status quo.

The only way that we could have absolute parity is if we took those children into the Scottish system. As I said in my opening statement, that would have implications for a child. We are talking about children who are very vulnerable and who, in most cases, have already been through very traumatic experiences. They are already going through one legal system.

In addition, DOL placements are temporary in nature. Kaukab Stewart referred to the small—significant, but small—number of children who have been transferred; most of those children have now returned to England. They come to Scotland for a specific reason—for their safety and welfare—but the ultimate aim is for them to be back in their own communities. That might put up a legal barrier to doing what you describe.

As I outlined in my opening statement, the placing authority and High Court outside Scotland are responsible for determining that a placement is necessary, proportionate and in the best interests of the child. That will include consideration of the suitability of the placement for the child in the light of any protected characteristics or particular needs that they might have, including any disability or additional support needs. The undertaking that the placing authority must give under the regulations in order for the DOL to be recognised in Scots law will clarify that it is the placing authority that must provide or procure services to support that child, including services that are required to support particular needs.

It might be helpful for the committee to know that the UK Government tells us that the Care Planning, Placement and Case Review (England) Regulations 2010, and the accompanying guidance, are clear in setting out a placing authority’s responsibilities in general and on making out-of-area placements, in particular. Placing authorities should draw up other plans, such as those for education or health and care in respect of any child who has special educational needs or disabilities, and the care plan must form part of those. The care plan must include a record of the education and training that are proposed for that child. There are additional layers to this. The responsibility is very firmly with the placing local authority, but there are safeguards in the placement process.

I am not quite sure what you mean by “geared up”.

Scotland has limited capacity in terms of the premises that are registered. We must remember that at the centre of all this is a very vulnerable child. That is one of the reasons why, although our ambition is to reduce cross-border placements to the absolute minimum, we recognise that there will always be exceptional cases, such as when a child leaves a situation involving county lines or when they are at risk of trafficking. We want to absolutely minimise the number of cross-border placements as an iterative exercise, but even the Promise recognises that there will always be exceptions.

Again, I bring the committee back to the point that the regulations have a very narrow scope, which is about the recognition of DOL orders in Scots law. That is essentially what the regulations propose to do. There are many other issues around secure residential care that are quite rightly being explored in primary legislation and in the consultation on the proposed bill. I am sure that the committee will have lots of input into the development of that legislation.

Mr Dey raises a very important point. That situation does not sit comfortably with any of us. None of us feel comfortable with children being deprived of their liberty in secure or non-secure settings. For some of those children, however, that is in their best interests at that particular moment in time.

I am happy to bring in Claire Montgomery in a moment. The difference between the system in England, as I understand it, and the system in Scotland is that any place where a child is placed in residential secure care is regulated by the Care Inspectorate. Not all accommodation in England, in my understanding, is currently regulated.

I know from my conversations with my counterpart in the UK Government—as I mentioned in my opening speech—that they are very much alive to the issue. Obviously, I am not here to speak for the UK Government, but they have assured me that they have put substantial investment into trying to address some of the issues such as a lack of appropriate accommodation for children and young people in England.

I will pass over to Claire Montgomery, who can talk about our plans for the care and justice bill.

The scope of the regulations is very narrow. It is about the recognition of DOL orders in Scots law. That is the nub of the regulations.

The issues that you raise are extremely important and we will explore them through the proposed care and justice bill. We have committed to reducing cross-border placements, unless, as I have said, it is absolutely necessary for the individual child’s welfare. However, the scope of the regulations is really quite tight, with the addition of notifications from the policing authority, advocacy and so on.