London Borough of Hackney v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 18 August 2022 |
| Docket Number | No 23 |
| Court | Court of Session (Inner House) |
[2022] CSIH 36
Extra Division
Nobile officium — Petition for recognition of deprivation of liberty order made by High Court of England and Wales in respect of child — Whether child had been deprived of his liberty when there was no extant deprivation of liberty order
A child (‘IB’) was made the subject of a deprivation of liberty (‘DOL’) order by the High Court of England and Wales. The DOL order imposed a number of safeguards, including requirement that IB was to reside in restricted accommodation, that he was to be supervised on a staff ratio of two staff to one child, and that he was not to be given a mobile phone. After the DOL order was made, IB moved to reside in residential accommodation in Scotland. The English local authority with responsibility for IB presented a petition to the nobile officium of the Court of Session for recognition of the DOL order in Scotland. On 4 April 2022 the Court of Session ad interim recognised the DOL order for a period ending on 17 June 2022. The DOL order expired on 3 June 2022. The local authority's application to the High Court of England and Wales for an extension of the DOL order was refused, but IB continued to reside in the same residential accommodation in Scotland. The local authority enrolled a motion for dismissal of the petition on the basis that there was no extant DOL order and so nothing for the court to recognise in Scotland. The motion was unopposed but the court asked to be addressed on IB's current circumstances and the legal basis on which IB continued to be placed in restricted accommodation in Scotland, notwithstanding the termination of the DOL order.
On behalf of the local authority, it was explained that IB had been present at the hearing before the High Court of England and Wales when an extension of the DOL was refused and that the judge had explained to IB that: (1) the restrictions contained in the DOL would not apply after 3 June 2022; (2) as IB had been represented by solicitors and counsel at that hearing, the court would be confident that the absence of lawful authority for deprivation of liberty after 3 June 2022 had been explained directly to IB; (3) IB was now supported (rather than supervised) on a staff to child ratio of one to one; (4) IB had full access to a mobile phone; and (5) IB was no longer restricted beyond such reasonable restrictions as were inherent in the usual parental authority of a 15-year-old young person.
Held that in light of the full explanation and assurances given, the court was satisfied that IB was aware of his legal rights and status and the absence of any current lawful authority depriving him of his liberty, and that he was not being deprived of his liberty de facto (para 9); and motion granted and the petition dismissed.
Observed that after the petition had been presented, the Scottish Ministers had laid and brought into force the Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 (SSI 2022/225) (‘the 2022 Regulations’) which implemented a system designed to authorise the deprivation of liberty of a child in Scotland where the child had been made subject to an order of the High Court of England and Wales or the High Court of Justice of Northern Ireland and the statutory lacuna identified in Mayor and Burgesses of the London Borough of Lambeth and Medway Council, Petrs had been addressed, but the 2022 Regulations could not elide the protective jurisdiction of the court to intervene should a situation arise and the welfare of the child so demand (paras 1, 12).
Lambeth and Medway Council (Mayor and Burgesses of the London Borough of) Petrs [2021] CSIH 59; 2021 SLT 1481; 2022 Fam LR 2
The London Borough of Hackney presented a petition to the nobile officium of the Court of Session craving the court to recognise a deprivation of liberty order made in respect of a child by the High Court of England and Wales. On 4 April 2022 the Court of Session ad interim recognised the order for a period ending on 17 June 2022. The order made by the High Court of England and Wales expired on 3 June 2022 and the petitioners' application to extend it was refused. In the circumstances, the petitioners enrolled a motion for dismissal of the petition.
Scottish Government, Cross-border Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 — Practice, Guidance, Notice and Undertaking Template (PPDAS1112322) (Scottish Government, Edinburgh, June 2022) (Online...
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