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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.

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.

In addition to the recognition of the DOL order in Scots law, it is also about ensuring that the placing authority remains engaged with the child and has overall responsibility within law to ensure that they have all the services and support that they need when they are placed in Scotland.

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.

Thank you convener. Good morning to you and the committee.

This amending order will increase the income thresholds for families with a two-year-old who is eligible for funded early learning and childcare—ELC—because they get a joint working tax credit and child tax credit or a universal credit award.

The relevant order currently specifies that a two-year-old is eligible for funded ELC if: their parent is in receipt of child tax credit and working tax credits, with an annual income that does not exceed £7,500; or their parent is in receipt of universal credit, with a monthly income that does not exceed £625 per month.

The amending order will increase the income threshold to £7,920 per year for households in receipt of both child tax credit and working tax credit. The universal credit income threshold will increase to £660 per month—the equivalent of £7,920 per year.

We are making the change to reflect changes at the United Kingdom level. The UK Government has increased the national living wage from £8.91 per hour to £9.50 per hour. That means that household income would exceed the current thresholds if they remained the same.

The purpose of the order is to protect eligibility for two-year-olds whom we would expect to be eligible for funded ELC as a result of their parents or carers being in receipt of the affected qualifying benefits. If we choose not to make changes to the income thresholds, we estimate that around 1,000 eligible two-year-olds would no longer be eligible, despite there being no significant difference in their families’ household circumstances.

It is important to be clear that no two-year-old who is currently receiving funded ELC will be affected by the changes. Once a child has met the eligibility criteria, they remain eligible despite any subsequent change in circumstances.

As the purpose of the amendment is to maintain eligibility, we do not anticipate a significant increase in the number of two-year-olds who become newly eligible for the provision, and we do not expect a significant impact on local authorities’ ability to fund the provision within the current financial settlement.

There is no evidence that additional funding is required to support implementation of the amendment. However, the impact on uptake will be closely monitored by the Scottish Government and the Convention of Scottish Local Authorities through the appropriate mechanism—the ELC finance working group—and appropriate arrangements will be made if uptake is significantly above the level expected and local authority costs increase as a result.

As I mentioned on my previous visit to the committee to amend the thresholds, we will monitor future increases to the national living wage and we will uprate thresholds when required, to keep pace with changes. COSLA agrees that the approach is necessary to maintain a similar profile of eligible children.

I am happy to respond to any questions that the committee has.

Yes, Mr Rennie. I know that we have looked at the issue before. You have rightly stated that, according to the latest figures, which are for September 2021, the uptake was 13 per cent, but I should point out that we are talking about the total population of two-year-olds. In order to increase the accuracy of the data on the children who are eligible to access the offer to two-year-olds, we have been working closely with UK Government colleagues on improving data sharing and developing a legal data gateway and an agreed data flow between the Department for Work and Pensions, Her Majesty’s Revenue and Customs and local authorities. The UK Government’s consultation on the secondary legislation that will be required to put the gateway and data sharing in place closed last week—on Friday, I believe. We will be looking at the outcome of that consultation with UK Government officials and colleagues and requesting that they work quickly with us to get the data-sharing mechanism in place.

We have been working closely with the UK Government. It is aware of the issues that we have with the data sharing and that we are keen to access that data so that we can promote the ELC offer for two-year-olds to some families who might not be aware that they are eligible.