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Hands across the Border: Cross-Border Cooperation in the Making and Enforcement of Secure Accommodation Orders

Document Cited authorities 11 Cited in Related
Vincent
Date01 May 2017
DOI10.3366/elr.2017.0416
AuthorE B Crawford,J M Carruthers
Pages247-257
Published date01 May 2017
INTRODUCTION

There arose in conjoined cases before Sir James Munby, President of the Family Division of the English High Court of Justice, important cross-border issues in the matter of the making of secure accommodation orders for teenaged children. The cases, In the Matter of X (A Child), In the Matter of Y (A Child),1 raised the same issues, namely, first, the jurisdiction of an English court to make a secure accommodation order for the purpose of placing in a secure unit in Scotland a young person resident in England; and, secondly, the question of recognition and enforcement in Scotland of such an English order. Sir James summarised the issues thus:

Can the court in country A (in the present case, England) make an order to take effect in country B (in this case, Scotland)? If so, will such an order be recognised and enforced in country B (Scotland)? The first question is to be determined by the law of country A (England); the second is one to be determined by the law of country B (Scotland).2

The case of X concerned a girl, then aged sixteen years, living in the area of Cumbria County Council, and that of Y concerned a boy, then aged fifteen years, resident within the authority of Blackpool Borough Council. Each party was the subject of care proceedings in England, and the Councils, respectively, sought authority under section 25 of the Children Act 1989 to place the young person in secure accommodation in Scotland, there being no available unit in England. A judicial order was made in proceedings relating to each party, giving the relevant Council permission to invoke for this purpose the inherent jurisdiction of the High Court, and authorising the placing of each child in a secure accommodation unit in Scotland until 29 July 2016. Both matters having been listed for further consideration, the two cases came before Sir James Munby on 28 July 2016. The High Court decision, handed down on 12 September 2016, provides a noteworthy commentary on lacunae in the intra-UK legislative framework pertaining to secure accommodation orders, and the subsequent decision of the Court of Session of 19 October 2016 in Cumbria County Council, Petitioner 3 completes the picture THE LEGISLATIVE FRAMEWORK

Part III of the Children Act 1989 (“Support for Children and Families provided by Local Authorities in England”) (hereinafter “1989 Act”) narrates in section 25 (“Use of accommodation for restricting liberty”) the circumstances in which a child who is being looked after by a local authority may be placed, and, if placed, may be kept, in secure accommodation in England.4 A child who is being looked after by a local authority in England or Wales may not be placed, and, if placed, may not be kept, in secure accommodation unless it appears “(a) that—(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and (ii) if he absconds, he is likely to suffer significant harm; or (b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.”5 Ex facie the terms of section 25 do not authorise an English judge to make a section 25 order placing a child in Scotland.6

By Schedule 2 to the 1989 Act, paragraph 19 (“Arrangements to assist children to live abroad”), a local authority may arrange for, or assist in arranging for, any child in their care to live outside England and Wales only with approval of the court.7 Such approval will be granted only if the court is satisfied that:8

living outside England and Wales would be in the child's best interests;

suitable arrangements have been, or will be, made for his reception and welfare in the country in which he will live;

the child has consented to living in that country; and

every person who has parental responsibility for the child has consented to his living in that country.

 As Sir James explained in the instant case:

It is difficult to see how the requirements of paragraph 19 of Schedule 2 to the 1989 Act will ever be satisfied where the child is to be sent out of the jurisdiction for the purpose of being placed in secure accommodation; and in the present cases they certainly are not.9

In Scotland, the placing of a child in secure accommodation10 pursuant to a compulsory supervision order11 is regulated by the Children's Hearings (Scotland) Act 2011 (hereinafter “2011 Act”), sections 151–153.12 By section 190 of the 2011 Act (“Effect of orders made outwith Scotland”), the Scottish Ministers may by regulations make provision for a specified non-Scottish order (i.e. an order made by a court in England and Wales, or in Northern Ireland), which appears to them to correspond to a compulsory supervision order, to have effect as if it were such an order. The relevant statutory instrument with regard to the recognition and enforcement in Scotland of orders in family matters made by courts in England is The Children's Hearings (Scotland) Act 2011 (Transfer of Children to Scotland – Effect of Orders made in England and Wales or Northern Ireland) Regulations 201313 (hereinafter “2013 Regulations”). The 2013 Regulations, made in exercise of the powers conferred by section 190 of the 2011 Act, apply where a child is transferred to Scotland from England and Wales or Northern Ireland, in circumstances where the child is subject to an order made in the remitting jurisdiction giving an authority care or...

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