What's the background?
In 2016, in the case of X (a child) and Y (a child) [2016] EWHC 2271 (Fam), Sir James Munby identified a "serious lacunae in the law" due to the complete lack of a statutory mechanism to register and enforce an English order placing a child in secure accommodation in Scotland.
Following his judgment, Morton Fraser were instructed in the Scottish test case Cumbria County Council and Others [2016] CSIH 92 and subsequently successfully represented many English local authorities who sought recognition and enforcement of secure accommodation orders by way of a petition to the Inner House of the Court of Session under the 'nobile officium' in Scotland.
That led to amendments to both the English and the Scottish legislation by way of the Children and Social Work Act 2017 which came into effect on 27 April 2017. The effect was to provide that English authorities might place a child in secure accommodation in Scotland (Children Act 1989, section 25 (1) and schedule 2, paragraph 19 (9) (a)); that, if they did so in accordance with s25, the person in charge of that accommodation in Scotland might restrict the liberty of the child so placed to such extent as they considered appropriate. The amendments fit in the placement of children in Scottish secure accommodation by English court orders with the general provisions regulating secure accommodation in Scotland.
What about Deprivation of Liberty Orders under the inherent jurisdiction?
Due to the shortage of approved secure children's homes in England, the English courts have increasingly been using its powers under the inherent jurisdiction to authorise the deprivation of liberty of children in children’s homes in England and Scotland which have not been approved for use as secure accommodation.
The 2017 Act did not change the recognition of English orders made under the inherent jurisdiction in Scotland. Therefore, if an order is made authorising an English local authority to deprive a child of their liberty under the inherent jurisdiction (as opposed to under the statutory scheme) in Scotland in non-secure accommodation, that order is not recognised in Scotland, regardless of whether the order refers to the child being placed in accommodation in Scotland. Unless the English local authority takes affirmative action to have that order recognised by the Scottish Courts, any deprivation of the child's liberty in Scotland shall be done without the appropriate legal authority.
What has the Supreme Court said about this?
The practice of using the inherent jurisdiction to deprive children of their liberty was recently brought before the Supreme Court in appeal of T (A Child) (Appellant) [2021] UKSC 35 in which the judgment was handed down on 30 July 2021. The appeal raised important questions of law about the use of the inherent jurisdiction to authorise a local authority to deprive a child of his or her liberty in accommodation that is not a secure children’s home. The Supreme Court unanimously dismissed the appeal. It held in particular that the use of the inherent jurisdiction to authorise the deprivation of liberty is permissible but expressed grave concern about its use to fill a gap in the childcare system caused by inadequate resources.
So, what does the judgment mean for English local authorities placing children in Scotland going forward?
It is foreseeable that English local authorities will continue to place children in Scotland on the basis of orders sought under the English inherent jurisdiction. Although the Commissioner for Children and Young People for Scotland was an intervener in the Re T case, the Scottish aspect of inherent jurisdiction orders was not addressed other than in passing, being not directly relevant to the facts of the case. That is presumably left for another day. In particular, it will be interesting to see how the English court will interpret Lord Stephens note of important matters to be addressed when such an order is sought (per para 171 of the judgment) when the placement is located in Scotland.
Even if the English court is satisfied that the test for the inherent jurisdiction is met, if an English local authority intends to place or has already placed a child in Scotland who is subject to a deprivation of liberty order, it is crucial that an application is also made immediately to the Scottish Courts.
The English local authority must make an application to petition to the Court of Session under the 'nobile officium'. The effect of obtaining an order under the nobile officium in these cases is to have any deprivation of liberty order granted by the High Court treated as if they were orders made by the Scottish courts, thus giving it immediate recognition and with that the ability to enforce, which is crucial to each placement.
Under Article 5 of the European Convention on Human Rights, any restriction of liberty should be in accordance with a procedure prescribed by law and subject of express legal authorisation. Where an English local authority fails to obtain an order in Scotland recognising the English deprivation of liberty order, any deprivation of the child's liberty in Scotland will be done without legal basis. In the absence of appropriate orders being sought from the Scottish courts, the English local authority will leave themselves open to legal action being taken against them.
What do I need to know about the Scottish system?
The "Court of Session" is Scotland's supreme civil court. It sits in Edinburgh. The Court of Session is divided into the "Outer House" and the "Inner House". The Outer House usually hears civil cases at first instance. The Inner House is primarily the Appeal Court, and usually sits with a bench of three judges. However, any petition to the Scottish "nobile officium" must be made to the Inner House of the Court of Session.
The "nobile officium" (usually pronounced "nob-eel-ay off-icky-um") is an equitable remedy which allows the Court of Session to provide a remedy in cases that are not covered by existing law or legal norms. It has similarities to the "inherent jurisdiction" of the English court but is not identical to this.
There are no forms or standardised applications to the Scottish court in family cases, including for the protection of children. Instead, any application to the court must be drafted in legal pleadings. This takes the form of a "Petition" where the application is to the nobile officium of the Inner House of the Court of Session, which will set out the orders requested and the factual and legal basis for those orders.
Only advocates (the Scottish equivalent of barristers) or solicitor-advocates have rights of appearance in the Court of Session. Most advocates will only accept instruction via a firm of instructing Scottish solicitors.
What will the Scottish solicitor need to know
In order to make the application and draft the pleadings, the Scottish solicitor and advocate will at the very least require: -
- Copies of any Care Orders and the Deprivation of Liberty Orders relating to the child
- Details on any party holding parental rights in respect of the child
- Details regarding where the child has resided recently and the need to restrict their liberty
- Details on efforts made to find a placement in England
- Details of Scottish placement
- Copy of the most recent court bundle lodged with the English Court
How can Morton Fraser help?
Morton Fraser has a highly experienced Family team who provided advice in this area regularly and who have experience in bringing these actions efficiently and successfully to the Scottish Courts on behalf of English local authorities.
Lucia Clark is a partner and Ellen Bond is a senior solicitor at Morton Fraser. They are directly involved in a number of applications regarding the recognition deprivation of liberty orders in Scotland. Lucia can be reached on 0131 247 1243 or by email, while Ellen can be contacted on 0131 247 1048 or by email.
