Those in local authorities dealing with the placement of children may be familiar with the case of X (a child) and Y (a child)  EWHC 2271 (Fam) (referred to here as X and Y), heard by Sir James Munby, the President of the Family Division. In his judgement Sir James Munby noted the complete lack of a statutory mechanism to register and enforce an English order placing a child in secure accommodation in Scotland. Sir Munby found 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".
The effect of the lack of recognition is that any young person from England being detained in secure accommodation in Scotland is being detained unlawfully. That unlawful detention is also a potential contravention of the European Convention on Human Rights, specifically Article 5, under which 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.
Scottish Senior Counsel then identified that the only competent remedy would be to petition to the Court of Session under the 'nobile officium'. The nobile officium is a remedy that can be sought when no other statutory or common law remedy is available.
Part of the nobile officium test is demonstrating that there is no other possible remedy. Morton Fraser have worked with Senior Counsel on this issue since Sir James Munby's judgement was published and our analysis was that provision is in place for recognition and enforcement of a variety of similar orders, but not for temporary placement of an English child in Scottish secure accommodation. The orders in the proceedings in X and Y did not fall within the scope of the Children's Hearings (Scotland) Act 2011 (Transfer of Children to Scotland - Effect of Orders made in England and Wales or Northern Ireland) Regulations 2013, being orders made under the inherent jurisdiction.
Interestingly, had these children been from Ireland (or any other EU member state), a cross-border placement in a Scottish secure unit would have been recognised under Council Regulation (EC) 2201/2003 ("Brussels IIA"), which regulates such matters when arising between different EU member states. There is however no equivalent statutory regulation in relation to orders made by a court of another part of the UK.
Having identified the nobile officium as the appropriate remedy, Morton Fraser worked with Counsel to lodge the first petitions at the Court of Session dealing with this subject matter. We have had resounding success with these petitions and have secured orders for recognition of the English orders in each petition we have raised. We have now acted for more than 20 local authorities in England in respect of children from English local authorities being placed in secure accommodation in Scotland, thus allowing the vulnerable children in each case to continue with their placements in Scotland.
The test case brought by Morton Fraser has now been reported - see Cumbria County Council and Others  CSIH 92, 15 December 2016.
A bench of three judges sitting at the Court of Session held that in all the circumstances there had been a clear casus omissus in the legislative scheme governing the recognition of court orders relating to children as between Scotland and England and Wales. The court could find no discernible reason for that gap in legislation and therefore held it to be an omission.
The judgement also commented on the need to make reference to the European Convention on Human Rights, in particular Article 5, stating that:
"(the) need for express recognition is underlined by the requirement of legality in Article 5 of the European Convention on Human Rights, which specifies that any restriction of liberty should be in accordance with a procedure prescribed by law. That means that any restriction on a child’s liberty, which is inevitable with a secure accommodation order, must be the subject of express legal authorization. It seems probable that those responsible for formulating legislative policy did not foresee the need for express recognition, and that is a clear and straightforward example of a casus omissionis."
Finally, the court held that in each case the High Court in England had already concluded that detention in secure accommodation was essential for the child's welfare, and held that the Court of Session should respect those decisions, in circumstances where the English courts had examined the circumstances of each child in greater detail.
The effect of obtaining on order under the nobile officium in these cases is to have the orders granted by the High Court treated as if they were orders made by the Scottish courts, thus giving them immediate recognition and with that the ability to enforce, which is crucial to each placement.
As a direct result of these petitions to the Court of Session, legislative amendment to deal with the statutory lacunae is now proposed, in the form of amendments to the Children and Social Work Bill. At the time of writing the Bill was being considered at the Report Stage at the House of Commons and passed Third Reading on 7 March 2017.
Until such time as any amendment receives Royal Assent (which we understand will not be until April at the earliest) each local authority order placing a child in secure accommodation in Scotland will still require to petition the Court of Session to secure recognition of the English order. In such cases time is generally of the essence. It is therefore worthwhile getting specialist support from an experienced team – particularly given the specific processes involved.