South Tyneside Council v MT
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 20 October 2020 |
| Neutral Citation | [2020] EWHC 2780 (Fam) |
| Date | 20 October 2020 |
| Docket Number | Case No: NE20C00407 |
| Court | Family Division |
[2020] EWHC 2780 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Cobb
Case No: NE20C00407
Tim Donnelly (instructed by Legal Services) for the Local Authority
Anne Spratling (instructed by Duncan Lewis) for the Mother
Lindsay Webster (instructed by PGS Law LLP) for the Father
Andrew Wraith (of Prism Family Law) for the Child
Hearing dates: 8 September 2020;
Further written submissions: 15 September 2020 and 12 October 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Cobb
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
The application before the court concerns one young person who, for the purposes of this judgment, wishes to be known as Henry 1; he is aged 15. He was accommodated by the Applicant, South Tyneside Council (“the Local Authority”) in August 2019, with the agreement, indeed at the instigation, of his father; just under a year later, on 15 June 2020, the Local Authority applied for, and a short time later 2 obtained, an interim care order in respect of Henry. The proceedings under Part IV of the Children Act 1989 (“ CA 1989”) are currently progressing in the Family Court sitting at Newcastle-Upon-Tyne.
When Henry was initially accommodated in August 2019, he was placed in two consecutive short-term unregulated placements, one of which was a caravan. The Local Authority then identified a suitable placement for Henry in a residential children's home in South Lanarkshire, Scotland, which I shall call Ossian House 3. Ossian House is registered and inspected as a care home by the Care Inspectorate in Scotland and is a registered establishment for the purposes of the Residential Establishments — Child Care (Scotland) Regulations 1996 4.
Henry is one of a number of young English people in the care system in England who have been, or are, placed in residential children's homes in Scotland.
The professionals and family agree that the placement at Ossian House is meeting Henry's needs very well; he himself enjoys life there and does not wish to move, at least for the time being. It is right to note, from my own judicial experience of similar cases, that not all such placements enjoy such high levels of support or approval from the family and/or the child as this one.
The issue which arises in this case is one which has, for some time now, confronted judges in the Family Court on the North Eastern Circuit (and I believe elsewhere), namely to identify the legislative or other legal framework under which a placement of an English child in a Scottish residential care home can be achieved, or authorised and/or recognised. In resolving this issue, I proceed on the secure footing that:
“Scotland and England & Wales share a common commitment to the rule of law and to the principle that the welfare of the child is the paramount consideration when his or her needs or rights are being considered by the courts” 5.
However, beyond that sound and familiar statement of principle, there is no easy answer.
The absence of a statutory regulation of cross-border issues within the United Kingdom was a matter on which Sir James Munby P commented in Re X & Y (Secure Accommodation: Inherent Jurisdiction) [2016] EWHC 2271 (Fam); [2016] 3 WLR 1718; [2017] Fam 80 (‘ Re X & Y’) at [51]. Insofar as he identified the existence of a limited statutory framework, he observed (at [3]) that “there are serious lacunae in the law”. The particular lacuna identified in Re X & Y (i.e. placement in secure accommodation in Scotland pursuant to an English order under Section 25 Children Act 1989) was later cured by statutory amendment 6; but it is plain that the wider lacunae to which Sir James Munby P referred extended beyond those specifically covered by that judgment.
More recently, Moylan LJ in Re C (Schedule 2 Paragraph 19 Children Act 1989) [2019] EWCA Civ 1714 (‘ Re C’), again a case concerning an intra-UK (England/Scotland) placement of a young person, commented (at [45]) that the cross-border arrangement which was similar, though not identical, to the one which arises in this case, “may” constitute:
“… a “gap” in the legislative framework similar to the situation that previously existed in respect of secure accommodation”.
It will be seen that I too, particularly in answering the second and third questions below ([8](ii)/(iii)), confirm lacunae or gaps in the intra-jurisdictional legal framework for the placing of an English child subject to an interim care order in Scotland, and the lack of any coherent mechanism for recognition and enforcement in Scotland of the same.
I have broken down the core issue which arises on the facts of this case, on which my determination is sought, to the following questions:
i) Did the Local Authority have the power to place Henry in a placement in Scotland when he was an accommodated child under section 20 CA 1989 (‘the first question’)?
ii) Does the English Family Court need specifically to give permission for the temporary placement in residential care in Scotland of a young person such as Henry who is in the interim care of an English local authority under section 38 CA 1989? And if so, what is the jurisdictional route for the English court to take in giving such approval (‘the second question’)?
iii) Is an English interim care order recognised and/or capable of enforcement in Scotland? Does the English interim care order give the English local authority any power to take any steps in relation to Henry (or a similar child) in Scotland? Does the English order give those providing the placement any authority over the child? These questions (which I shall take together as ‘the third question’) must be answered in the main by reference to the law of Scotland.
iv) Is Henry currently being deprived of his liberty at Ossian House? If so, is this a case in which the court ought to give its authorisation to deprive him of his liberty? How, if at all, can this be formalised in Scotland? (‘the fourth question’).
In determining these questions, I have received and read the statements and reports filed by and on behalf of the parties. I received able written and oral submissions from the advocates at a hearing, conducted remotely, on 8 September 2020. I reserved judgment at least in part to accommodate the filing of further written submissions on the issue identified at [8](iii) above. Having received those submissions, I then invited the parties jointly to instruct a Scottish family lawyer to advise on the relevant law in Scotland; I received the expert opinion from Jonathan Mitchell QC of the Faculty of Advocates on 24 September 2020. I then commissioned further submissions on a discrete issue arising on the evidence, which I received on 9 and 12 October 2020. I am most grateful to all of the advocates, particularly Mr Donnelly who has shouldered the greater part of the research and case management, for obliging this unusually iterative process.
Position of the Parties
Mr Donnelly submitted that the Local Authority was entitled to place Henry at Ossian House in Scotland as an accommodated child, and that the authority did not require the specific approval or permission of the court to continue that placement at the point at which he became the subject of a statutory order under Part IV CA 1989. Mr Donnelly submitted that once an interim care order under section 38 CA 1989 was made on 7 July 2020, the authority had power under section 33(7)/33(8) to continue the placement of Henry within the United Kingdom (i.e. in Scotland).
The respondents each challenged the Local Authority's decision-making in relation to the accommodation of Henry (in particular, the failure to consult with Henry's mother, and the length of the accommodation: both dealt with at [21] below). Ms Spratling, and separately Ms Webster and Mr Wraith, all submitted, with varying shades of conviction, that the route to placement in Scotland once Henry was the subject of an interim care order, was by paragraph 19 of Schedule 2 CA 1989. However, during the hearing, and by the time of their final submissions, they had each retreated somewhat from their positions, acknowledging that there were considerable complications in relying on this provision.
All parties agreed that:
i) if there was no statutory route to achieve a placement of an English child in Scotland under the CA 1989, the inherent jurisdiction of the English High Court could, and should, be deployed;
ii) the interim care order would not, on any view, be recognised or enforceable in Scotland.
Background facts
Henry's parents separated when he was an infant. Public law care proceedings were launched in his early life, arising predominately from concerns about his mother's historic alcohol dependency; those proceedings concluded with an order that Henry live with his father and paternal grandmother. In 2006 a residence order ( section 8 CA 1989) was granted in favour of the father. Henry's mother has had only limited contact with Henry during his life. Indeed, she...
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