Petitions By Cumbria County Council, Stockport Metropolitan Council And Blackpool Borough Council For The Exercise Of The Nobile Officium In Relation To The Children X, J, L & Y
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Malcolm,Lord Drummond Young |
| Judgment Date | 19 October 2016 |
| Neutral Citation | [2016] CSIH 92 |
| Published date | 15 December 2016 |
| Date | 19 October 2016 |
| Court | Court of Session |
| Docket Number | P943/16 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 92
P943/16
Lord Drummond Young
Lady Clark of Calton
Lord Malcolm
OPINION OF THE COURT
delivered by LORD DRUMMOND YOUNG
in petitions
by
CUMBRIA COUNTY COUNCIL
Petitioner
for
The exercise of the nobile officium in relation to child X
STOCKPORT METROPOLITAN COUNCIL
Petitioner
for
The exercise of the nobile officium in relation to child J
BLACKPOOL BOROUGH COUNCIL
Petitioner
for
The exercise of the nobile officium in relation to child L
and
BLACKPOOL BOROUGH COUNCIL
Petitioner
for
The exercise of the nobile officium in relation to child Y
Petitioner: JJ Mitchell QC, MacGregor; Morton Fraser LLP
First Respondent: (Lord Advocate): Burnet; Scottish Government Legal Directorate
Second Respondent (Advocate General): Webster; Office of the Advocate General
19 October 2016
[1] The petitioners are three English local authorities who have presented petitions to the nobile officium in respect of four children who are currently resident in secure accommodation in Scotland. The problem confronting the court is as follows. Children have been placed in secure accommodation by the High Court in England on the ground that such a course is necessary for their well-being. At the time when the High Court made those orders there was a shortage of suitable accommodation in England for such children, but suitable accommodation for the four children was available in Scotland. Consequently in each case the child was placed in secure accommodation in Scotland. This, however, gave rise to a jurisdictional problem. The cross-border recognition of orders relating to the custody and care of children is governed by extensive legislation, but that legislation contains a major deficiency, in that it makes no provision for the recognition in Scotland of English orders requiring that a child reside in secure accommodation. The result, so far as the legislation is concerned, is that the orders that the High Court has made in the present cases are not effective in Scotland.
[2] Consequently, unless the Court of Session is prepared to intervene, the children are held in secure accommodation without legal authority. This gives rise to a fundamental conflict: the English courts have decided that it is necessary to keep the children in secure accommodation to ensure their welfare, but doing that without legal authority is a clear infringement of the children’s rights to personal liberty. That raises an obvious conflict, between a child’s welfare and the child’s right to personal liberty. That conflict can be shortly stated, but it is of fundamental importance. The conflict creates a very obvious dilemma for the institutions in which the children are held: unless legal authority is given in Scotland for the detention of the children those authorities will be acting illegally if they prevent them from absconding.
[3] In order to find a way out of this dilemma, the petitioners seek orders under the nobile officium to find and declare that measures ordered by the High Court of England and Wales for the placing of each child in secure accommodation in Scotland should be recognized and enforceable in Scotland as if they had been made by the Court of Session. For the avoidance of doubt they seek further orders finding and declaring that each child may be detained in Scotland in terms of the orders made by the High Court of England and Wales, and any order continuing those orders, at the particular institution in which each child is currently held. In each case the order is sought until any further order is granted by the Court of Session, but subject to any variation of those orders made by the High Court in England and Wales.
[4] Counsel for the petitioners in three of the petitions, those by Cumbria County Council in relation to child X, Stockport Metropolitan Council in relation to child J, and Blackpool Borough Council in relation to child L, moved the court to make interim orders in respect of the three children to whom those petitions relate. Thus the following discussion relates only to the granting of interim orders. The child Y, who is the subject of the second petition by Blackpool Borough Council, is no longer in secure accommodation, and consequently no order is required in that case. The petition of Cumbria County Council in relation to child X has been used as a test case, and the following discussion concentrates on that particular case.
[5] We have been informed that the shortage of secure accommodation in England that gave rise to the present petitions is not an uncommon occurrence. In his judgment in the English case In the Matter of X (A Child), [2016] EWHC 2271 (Fam), Sir James Munby P stated that at least five previous cases appeared to have occurred, and counsel for the petitioners informed us that he was aware of several other cases that were likely to present the same problem in the immediate future. Furthermore, the ability to move children requiring secure accommodation from one jurisdiction to another enables the more efficient use of the accommodation that is available for such children. Consequently the importance of the issues discussed extends beyond the facts of the present cases. Submissions were made to the court by counsel acting on behalf of the Lord Advocate, representing Scottish Ministers, and on behalf of the Advocate General, representing the United Kingdom government. We were informed that both Scottish Ministers and the United Kingdom government recognized the deficiencies of the existing legislation and that discussions had begun with a view to finding a permanent legislative solution for the problem. We return to this issue at the end of this opinion.
The facts and the decisions of the High Court
[6] The following summary of the facts concentrates on X, but the history of the two other children with which these applications are concerned, J and L, is for practical purposes similar. X is a girl aged 16 who lives in the area of Cumbria County Council. The Council began care proceedings in April 2015, and an interim care order was made in that month. In the course of 2016 X’s behaviour deteriorated, and on 18 June a secure accommodation order under section 25 of the Children Act 1989 was made by Judge Forrester; that order authorized the Council to keep X in secure accommodation until 24 June. The only available unit was in Scotland, and the judge was conscious that this raised jurisdictional issues. She was also aware that Y’s case was due to be heard on 22 June, and consequently she time-limited the order and listed the case for hearing on 24 June. The Council then applied for authority under the inherent jurisdiction of the English High Court to continue X’s placement in Scotland, and on 24 June Judge Forrester made an order giving the Council permission to invoke the inherent jurisdiction and ordered that X should be placed in secure accommodation at the unit in Scotland until 29 July.
[7] Cumbria County Council’s application in respect of X, together with Blackpool Borough Council’s application in respect of Y, came before Sir James Munby P on 28 July, and the court was addressed about the difficult jurisdictional issues that had arisen in cases of this nature. The judge came to the provisional conclusion that section 25 of the 1989 Act did not enable the court to make a secure accommodation order in relation to a placement in Scotland but that such a placement could, in an appropriate case, be authorized under the inherent jurisdiction of the court in relation to children. Consequently an order was made under the inherent jurisdiction authorizing X and Y to continue to be placed in the respective units in Scotland until 1 September, with the matter being listed for further hearing on that date.
[8] When the cases called again on 1 September Sir James Munby P informed the parties that he had come to a concluded view that section 25 of the 1989 Act did not enable the court to make a secure accommodation order in relation to a placement in Scotland but that, in an appropriate case, such a placement could be authorized under the inherent jurisdiction of the High Court. He further stated that there was, so far as he could see, no mechanism for any such order to be recognized or enforced in Scotland in the absence of an order of the Court of Session, if that were competent. It was clear that X needed to remain in secure accommodation, and consequently the order under the inherent jurisdiction was extended until 15 September. On 12 September Sir James Munby issued a detailed opinion dealing with the cases of X and Y: In the Matter of X (A Child) and In the Matter of Y (A Child), supra, in which he analyzed the jurisdictional and recognition problems that arose in cases of this nature. The analysis that follows is based on that opinion, which has been of great assistance in explaining the issues that arise so far as the English courts are concerned.
The High Court’s reasoning
[9] In his opinion Sir James Munby P drew the fundamental distinction between the question whether a court in country A (England) can make an order to take effect in country B (Scotland) and the question whether such an order will be recognized and enforced in country B. A secure accommodation order involves a deprivation of liberty and thus engages Article 5 of the European Convention on Human Rights, which makes the problem of recognition particularly acute. The English legislation is contained primarily in section 25 of the Children Act 1989 and regulations made under that section. Section 25 permits the English courts to order that a child be kept in secure accommodation in England provided for the purpose of restricting liberty only if either of two conditions is satisfied: first, that the child has a history of absconding and is likely to abscond from any other form of accommodation and to suffer significant harm if he absconds, or secondly, that the...
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