The Court of Session (the high court for civil cases in Scotland) has a little-used power, called the nobile officium. This allows the court to provide a fair and equitable remedy, only where some exceptional, unusual or special circumstance has arisen, which justifies and requires the intervention of the court in this way. The purpose of the power is to prevent injustice where the circumstances are extraordinary or unforeseen, and where no other remedy or procedure is provided by the law.
You will gather from the above that a petition to the nobile officium is not something which happens every day in the Scottish court, and not every such petition will meet the strict tests necessary.
Our petition was to ask the Scottish Court to grant orders recognising and enforcing orders of the English Court, in terms of which English children were detained in secure accommodation in units in Scotland. The legal proceedings in relation to these children, who were normally resident in England, were of course in the English Court. The circumstances of these children were such that English local authorities at times had to seek secure accommodation for the young people at very short notice. There happens to be a shortage of secure accommodation for children and young people in England and Wales at present, which means that English local authorities can find that the most suitable place for vulnerable young people is within units in Scotland.
The legal problem with this solution is that there was no means of recognising these orders cross-border from England to Scotland. The effect of this is that the young people were potentially being detained unlawfully and in contravention of their rights under the European Convention on Human Rights, in particular the Article 5 right to liberty. This requires that any deprivation of liberty has to be held by the court in that jurisdiction to be lawful and proper. It also placed the staff at the Scottish units in a difficult position, in terms of whether or not to detain the young people, given the legal uncertainties.
The Scottish petition was prompted by a judgment of the President of the Family Division in England in the case X (a child) and Y (a child)  EWHC 2271 (Fam) http://www.familylawweek.co.uk/site.aspx?i=ed163205. In that case, Sir James Munby detailed the cross-border enforcement difficulties (which appear to have gone unnoticed by the courts up to now) and held that in relation to these placements from England to Scotland: “…there are serious lacunae in the law which, it might be thought, need urgent attention”.
Recognition and enforcement of these English orders was required in Scotland, to ensure that the young people could remain in the Scottish units, which the English court had already determined could best meet their needs. Not obtaining the orders in Scotland may have resulted in very vulnerable young people being immediately turned out of the Scottish units and so in the nobile officium petition this was described in court as a "matter of life and death".
Despite that, we did need to meet the high test for the use of the nobile officium, and undertake considerable investigation in order to submit to the Court of Session that there was no other option at all for recognition or enforcement, before any interim orders could be granted. Our analysis was that provision is in place for a variety of similar orders, but not for a temporary placement of an English child in Scottish secure accommodation.
Interestingly, had these children been from, say, Ireland, or France, a cross-border placement in a Scottish secure unit would have been recognised under a European Regulation between EU Member States. There is however no equivalent statutory regulation in relation to these type of orders when made by a court of another part of the United Kingdom.
We also had to consider whether it would be possible or appropriate for the English local authorities seeking to place children temporarily in Scotland to take substantive proceedings in Scotland, for example through the Children's Hearing system. Again, our argument was that such proceedings would duplicate the existing proceedings in England and would be unfair and inappropriate for the young people and their parents/guardians, as well as having some jurisdictional difficulties given that the children were only in Scotland temporarily.
In summary, our application for interim orders for recognition and enforcement of the English court order was successful, in what turned out to be a very novel and unusual use of the equitable powers of the Scottish court.
The Scottish and UK Governments were also involved in the petition, and took the view that there was a statutory lacuna which should be addressed. We understand that the Governments are now in the process of drafting legislation to rectify the situation for the future, and we welcome that decision.