Re X (A Child); Re Y (A Child)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 03 October 2016 |
| Neutral Citation | [2016] EWHC 2271 (Fam) |
| Docket Number | Case numbers omitted |
| Court | Family Division |
| Date | 03 October 2016 |
[2016] EWHC 2271 (Fam)
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case numbers omitted
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Julia Cheetham QC and Mr Michael Jones (instructed by the local authorities) for Cumbria County Council and Blackpool Borough Council
Mr Simon Rowbotham (instructed by Denby & Co) for X's guardian
Ms Susan Grocott QC and Ms Rebecca Gregg (instructed by Gaynham King & Mellor) for X
Ms Susan Grocott QC and Ms Alison Woodward (instructed by Cooper Nimmo) for Y's guardian
Hearing dates: 28 July, 1 September 2016
Judgment Approved This judgment was handed down in open court
Sir James Munby, President of the Family Division:
I have before me two cases which raise important cross-border issues as between England and Scotland in relation to the making of secure accommodation orders. Put very shortly there are three questions: (1) Can a judge in England make a secure accommodation order under section 25 of the Children Act 1989 if the child is to be placed in a unit in Scotland? (2) If not, can the same outcome be achieved by use of the inherent parenspatriae jurisdiction of the High Court? (3) In either case, will the order made by the English judge be recognised and enforced in Scotland? For the reasons which I now proceed to set out in some detail, the answers to these three questions are, in my judgment, respectively, (1) No, (2) Yes and (3) No. A subsidiary issue arises in relation to paragraph 19 of Schedule 2 to the 1989 Act. There are the same three questions. In my judgment the answers are the same.
These particular issues arise because of the shortage of places in secure accommodation units in England, so that local authorities and courts in England, particularly in the north of England, whether on the Northern Circuit or the North-Eastern Circuit, look to making use of available places in secure accommodation units in Scotland. Precise data are not available, but such material (including anecdotal material) as exists suggests that there have been at least five such cases.
These issues need to be viewed in the wider context of other cross-border issues arising as between England and Scotland in family cases. As will become apparent, there are serious lacunae in the law which, it might be thought, need urgent attention.
The proceedings
I propose in this judgment to be very sparing about the facts. I am concerned with two children, a girl aged 16, who I shall refer to as X, and a boy aged 15, who I shall refer to as Y. They live in the areas of two different local authorities: in the case of X, Cumbria County Council; in the case of Y, Blackpool Borough Council. Both have difficulties; each, in their different ways, met the criteria in section 25(1) of the 1989 Act (see below).
In the case of X, Cumbria County Council had begun care proceedings in April 2015. An interim care order was made the same month. Because of their complexity, and because the nature of the proceedings changed mid-course, it proved impossible to comply with the 26-week requirement. By an order dated 9 May 2016 the proceedings were listed for final hearing on 24 August 2016. X's behaviour deteriorated. On 18 June 2016 (a Saturday), a secure accommodation order under section 25 of the 1989 Act was made by Her Honour Judge Forrester, authorising Cumbria County Council to keep X in secure accommodation until 24 June 2016. The only available unit was in Scotland. Judge Forrester was conscious that this raised jurisdictional issues and was aware that Moylan J was due to hear Y's case on 22 June 2016 (see below), which is why she time-limited the order and listed the case for hearing on 24 June 2016. On 23 June 2016, following the outcome of the hearing the day before in Y's case, Cumbria County Council issued an application seeking authority under the inherent jurisdiction to continue X's placement in Scotland. On 24 June 2016 Judge Forrester made an order which, reciting that she was satisfied (a) that the criteria under section 25(1)(a)(i) and (ii) and (b) of the 1989 Act were met and (b) that the criteria in section 100(4) of the 1989 Act were met, gave Cumbria County Council permission to invoke the inherent jurisdiction and ordered that X be placed in secure accommodation at the unit in Scotland until 17:00 on 29 July 2016. Judge Forrester listed the matter for further consideration before me on 28 July 2016. The same day Judge Forrester made an order in the care proceedings, directing that they be listed for further directions as soon as practicable following 29 July 2016. (In the event, the hearing on 24 August 2016 subsequently had to be vacated.)
In the case of Y, Blackpool Borough Council had begun care proceedings in February 2016. An interim care order was made the same month. During May 2016, Y's behaviour deteriorated. On 16 June 2016, Blackpool Borough Council issued an application seeking authority under the inherent jurisdiction to place Y in secure accommodation in Scotland, there being no available unit in England. His Honour Judge Duggan made an order approving the placement on the basis, as the order recorded, of the court finding that the local authority "could place [Y] in secure accommodation in Scotland for a period of less than one month pending assessment of his level of understanding under the provisions of section 33(8)(a)" of the 1989 Act. He adjourned the application under the inherent jurisdiction for hearing on 22 June 2016. The matter came before Moylan J on 22 June 2016. He made an order which, reciting that he was satisfied (a) that the criteria under section 25(1)(a)(i) and (ii) and (b) of the 1989 Act were met and (b) that the criteria in section 100(4) of the 1989 Act were met, gave Blackpool Borough Council permission to invoke the inherent jurisdiction and ordered that Y be placed in secure accommodation at a unit in Scotland until 17:00 on 29 July 2016. He listed the matter for further consideration before me on 28 July 2016.
Both matters came before me on 28 July 2016. Both local authorities were represented by Ms Julia Cheetham QC and Mr Michael Jones. X's guardian was represented by Mr Simon Rowbotham. X was also, separately, represented by Ms Susan Grocott QC and Ms Rebecca Gregg. Y's guardian was represented by Ms Grocott and Ms Alison Woodward. I had the benefit of detailed skeleton arguments and sustained oral argument addressing the very difficult jurisdictional issues which, it was apparent, arise in such cases. By the end of the hearing I had come to the provisional conclusion that (a) section 25 of the 1989 Act does not enable the court to make a secure accommodation order in relation to a placement in Scotland but that (b) such a placement could, in an appropriate case, be authorised under the inherent jurisdiction. I made orders under the inherent jurisdiction authorising X and Y to continue to be placed in their respective units in Scotland until 17:00 on 1 September 2016. I directed that both matters were to be listed for further hearing before me on 1 September 2016.
In accordance with that direction the case came back before me on 1 September 2016. The representation was the same as on the previous occasion. By then, preparation of this judgment was far advanced. I informed the parties that I had come to the clear and concluded view that (a) section 25 of the 1989 Act does not enable the court to make a secure accommodation order in relation to a placement in Scotland, that (b) such a placement could, in an appropriate case, be authorised under the inherent jurisdiction, but that (c) there was, so far as I could see, no mechanism for any such order to be recognised or enforced in Scotland absent some order of the Court of Session, if indeed such an order could in fact be made. So too in relation to paragraph 19 of Schedule 2 to the 1989 Act.
It was clear that X needed to remain in secure accommodation. I therefore extended the order under the inherent jurisdiction I had made on 28 July 2016 until 17:00 on 15 September 2016. It was apparent that Y had done well in secure accommodation and was ready for a 'step-down' move to suitable residential non-secure accommodation, also in Scotland. I therefore made an order under the inherent jurisdiction authorising Blackpool Borough Council to maintain Y in that placement until a date to be confirmed at the next hearing before me, which I fixed for 15 September 2016. I also re-allocated both sets of care proceedings to me, though directing that they were to remain in the Family Court.
The wider context
Within the United Kingdom 1 there are three separate legal jurisdictions, in England and Wales, in Scotland and in Northern Ireland. England and Wales, although one jurisdiction, have separate systems of law in certain areas, including family law. Putting matters very generally, so far as concerns family law, the law in Northern Ireland tends to be very similar to the law in England, while the law in Scotland tends to be rather different. Cross-border family law issues arising between England and its three neighbours within the United Kingdom therefore engage three different types of legal relationship: between England and Northern Ireland the relationship is between separate jurisdictions with very similar systems of law; between England and Scotland the relationship is between separate jurisdictions with rather different systems of law; between England and Wales the relationship is between two different parts of the same jurisdiction with systems of law which differ in certain respects.
My impression is that cross-border issues, in particular between England and Scotland, but probably in future also to a significant extent between England and Wales, have been...
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