KL v Principal Reporter
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Judgment Date | 22 December 2020 |
| Neutral Citation | [2021] CSIH 4 |
| Docket Number | No 9 |
| Court | Court of Session (Inner House) |
| Date | 22 December 2020 |
[2021] CSIH 4
First Division
Lord Brailsford
Cameron v Gibson [2005] CSIH 83; 2006 SC 283; 2006 SLT 176; 2006 SCLR 637; 2005 Fam LR 108
Children and young persons — Secure accommodation — Children's hearing — Definition of “child” — Referral to children's hearing under Secure Accommodation (Scotland) Regulations 2013 — Whether competent in case of looked after child over age of 16 years at time of referral — Children's Hearings (Scotland) Act 2011 (asp 1), sec 199 — Children (Scotland) Act 1995 (cap 36), secs 25, 75 — Secure Accommodation (Scotland) Regulations 2013 (SSI 2013/205), regs 9(5)(b), 10(2)
Children and young persons — Judicial review — Competence — Whether appeal available to petitioner under Children's Hearings (Scotland) Act 2011 (asp 1)
KL presented a petition for judicial review. The Lord Ordinary (Brailsford) found the petition suitable for urgent consideration. Permission to proceed was granted on 19 November 2020. The cause called for a substantive hearing on 24 and 26 November 2020. On 26 November 2020, the Lord Ordinary refused the petition. The petitioner reclaimed. The cause was marked for urgent disposal on the summar roll.
Section 25 of the Children (Scotland) Act 1995 (cap 36) requires a local authority to provide accommodation for any child who, residing or having been found within its area, appears to require such provision. Section 75 allows the Scottish Ministers to make, by regulations, provision with respect to the placing in secure accommodation of any child who is being looked after by a local authority. Section 93(2)(b)(i) defines “child”, in relation to sec 75, as a person under the age of 18 years.
Section 199(1) of the Children's Hearings (Scotland) Act 2011 (asp 1) defines “child” as a person who is under the age of 16 years.
Regulation 9 of the Secure Accommodation (Scotland) Regulations 2013 (SSI 2013/205) provides that a child who is being provided with accommodation by a local authority under sec 25 of the 1995 Act may only be placed and kept in secure accommodation when certain conditions are satisfied. Regulation 9(5)(b) provides that, on a child being placed in secure accommodation, the chief social work officer must refer the child's case to the Principal Reporter and provide specified information. Regulation 10(2) provides that, on receiving the referral and information, the Principal Reporter must, within 72 hours of the child's placement in secure accommodation, consider and proceed with the child's case in accordance with secs 66 to 69 of the 2011 Act.
Renfrewshire Council began providing accommodation for the petitioner in August 2019, when she was 16 years old. The petitioner became a “looked after child”. On 12 October 2020, when she was 17 years old, the petitioner was placed in secure accommodation. The chief social worker for the council referred the petitioner's case to the Principal Reporter of the Scottish Children's Reporter Administration who considered it necessary for a compulsory supervision order to be made in respect of the petitioner. As required by sec 69(2) of the 2011 Act, the Principal Reporter arranged for a children's hearing for the purpose of deciding whether a compulsory supervision order should be made. The children's hearing took place on 16 October 2020. It imposed an interim compulsory supervision order (‘ICSO’). The ICSO included authorisation that the petitioner be placed in secure accommodation. The sheriff refused an appeal by the petitioner against the imposition of the ICSO.
The petitioner presented a petition for judicial review. She sought, inter alia, declarator that, on and since 12 October 2020, she had been unlawfully deprived of her liberty and reduction and suspension of the ICSO and the decision to implement the secure accommodation authorisation. She argued that, as she was not a child for the purposes of the 2011 Act or the 2013 Regulations, the Prinicpal Reporter could not lawfully refer her to the children's hearing. The ICSO and her placement in secure accommodation were therefore unlawful. On 26 November 2020, the Lord Ordinary refused the prayer of the petition. The petitioner reclaimed.
Held that: (1) as the petitioner had been referred to the children's hearing and was subject to its decisions, it had been open to her to invoke the procedures provided for in the 2011 Act to challenge decisions of the children's hearing, including an appeal to the sheriff and a further appeal to the Sheriff Appeal Court, and those challenges could include issues of competency and jurisdiction; as the petitioner had failed to use a statutory remedy, the petition was incompetent (para 16); (2) the petitioner was a child for the purposes of regs 9 and 10 of the 2013 Regulations and, read together with the 1995 Act, a child for the purposes of reg 9(2) was someone under 18 years of age; the 2011 Act had amended the 1995 Act to allow regulations to be made which applied to persons in the petitioner's position, namely looked after children under 18 years of age who were not the subject of a compulsory supervision order or similar measure, and, while secs 66 to 69 of the 2011 Act provided the legal and procedural framework for dealing with someone referred to the Principal Reporter, that did not mean that the definition of child in sec 199 of the 2011 Act was imported (paras 18, 19); and reclaiming motion refused.
The cause called before the First Division, comprising the Lord President (Carloway), Lord Malcolm and Lord Woolman, for a hearing on the summar roll, on 17 December 2020.
At advising, on 22 December 2020, the opinion of the Court was delivered by Lord Malcolm—
Opinion of the Court— [1] This petition for judicial review raises the issue of whether a 17 year old who is being accommodated by a local authority as a looked after child, but who has not been involved with the children's hearings system, may be placed in secure accommodation. A related question is whether the children's hearing has any jurisdiction in respect of that person.
[2] From an early age, the petitioner was in the kinship care of her grandmother. When 16 years of age she was provided with accommodation by a local authority for the purposes of sec 25 of the Children (Scotland) Act 1995 (cap 36). So far as relevant for present purposes, sec 25 is in these terms:
‘Provision of accommodation for children, etc
25.–(1) A local authority...
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