B e f o r e :
THE HONOURABLE MR JUSTICE COBB ____________________
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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 ____________________
HTML VERSION OF JUDGMENT APPROVED ____________________
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The Honourable Mr Justice Cobb:
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:
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:
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:
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:
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 saw Henry only 2 or 3 times over a period of 10 years, and latterly her contact had only been by phone.
Henry has complex needs. He has a mild intellectual disability, is reported to suffer from Attention Deficit Hyperactivity Disorder ('ADHD'), for which he is prescribed the drug risperidone, and a possible (though contentious) diagnosis of foetal alcohol syndrome. He has attachment difficulties, struggles to show empathy, and has found it difficult to communicate his feelings. For some time, he has been under the care of his local Child and Adolescent Mental Health Services; there are reported concerns that he may have an autistic spectrum disorder, but he has not yet been formally assessed for this. Henry can still become hyperactive and anxious; his challenging behaviours include displays of anger, aggression, self-harm, screaming, soiling and violence.
Over the years, while in the care of his father, numerous referrals were made to social services about the care of Henry; some included expressions of concern about the father's physical chastisement of Henry. Professional support offered by the Local Authority over this time did not, regrettably, ease the father's difficulties (and latterly his partner's difficulties) in caring for Henry; the father felt that the levels of assistance offered were insufficient. In July 2019, the father, who it is recognised had provided overall a "good standard" of care of Henry's basic needs (and is said to "idolise" his son), was finding it too difficult to manage Henry's challenging behaviours, and in particular his aggression; he requested the Local Authority to accommodate Henry.
The Local Authority was keen to identify a placement for Henry which would be able to support his complex needs and offer a 2:1 staff ratio in a nurturing and safe environment. While searching in England for a suitable placement, many units which were approached declined to offer Henry a place, advising that they felt that he would require a secure environment, and that a simple residential care setting would not be appropriate by reason of the risk he posed to himself and others. Others simply did not have space for him.
As I mentioned above ([2]), Henry was initially placed in very temporary, and largely unsuitable, accommodation local to home. After fruitless enquiries of English residential care homes, in early August 2019 the Local Authority identified Ossian House, which provides specialist school provision and other therapeutic interventions which Henry requires, in what is described as a small and "homely" rural environment; it is located in South Lanarkshire. In early August 2019, Henry moved there.
It is material to note (I return to this later – see [47](v)) that Henry had very little notice of the move, and was not in a good position to express a view about, let alone give any informed 'consent' to, the proposed placement at Ossian House. The social worker simply reported that Henry and his father "appeared 'fine' about the move albeit anxious". Henry's view of the prospective placement would (or at least could), in my judgment, undoubtedly have been affected by the fact that he had quite wrongly been told by his father that he was going to a "bad boy's home" because he was a "bad boy".
One year on [7] , the Guardian reported on Henry's placement at Ossian House, in these terms:
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?
Henry was accommodated pursuant to section 20 CA 1989 [8] on 7 June 2019. He then became a 'looked after' child within the meaning of section 22(1) CA 1989 , and this placed the Local Authority under a number of statutory duties including (but not limited to) [9] :
On reviewing the evidence, I identified at least two ways in which I consider that the Local Authority failed Henry in planning for him as a 'looked after' child:
The statutory framework for the provision of accommodation for Henry as a 'looked after child' are covered by Part III of the CA 1989 ; I have set out some of the key duties falling within Part III at [20] above. I find nothing in Part III which specifically prohibits or even contra-indicates placement of Henry, or an English child like him, in Scotland. Those statutory duties are supplemented by the Care Planning, Placement and Case Review (England) Regulations 2010 ("the 2010 Regulations ").
The 2010 Regulations merit a little attention here. Regulation 9 makes specific provision for placement of a looked after child, and a placement plan for the child, as follows:
In the context of a child who is 'looked after' (namely a child who may be provided with accommodation under Part III CA 1989 or under a care order under Part IV CA 1989 ) it is necessary to consider regulation 11 . This provides as follows:
The important points to collect from Regulation 9 and 11 of the 2010 Regulations it seems to me are as follows:
Thus, it will be clear that there is nothing in the primary or secondary legislation which prevents a local authority from placing a child which it is 'looking after' (accommodating) under section 20 CA 1989 outside of England (i.e. within Scotland) or even outside the UK. On my reading of the legislation (and no party in the instant case demurs), this can be done without recourse to the court, provided that the local authority has complied with its multiple duties under Part III CA 1989 (specifically section 22 ), is satisfied that this is the most appropriate placement for the child [21] , has complied with the placement plan requirements under Regulation 9 of the 2010 Regulations and has complied with the detailed consultation [22] and approval [23] provisions of Regulation 11 of the 2010 Regulations .
Materially, it is a duty on the local authority, when fulfilling its wide obligations under regulation 11 , to ensure that the child's wishes and feelings have been ascertained and given due consideration, pursuant to regulation 9(1)(b)(i) . Accordingly, the child would not be required to consent to a placement in Scotland which is deemed to be necessary in the short-term or interim to meet his or her needs (contrast the position for a permanent relocation: see [40] below); put another way, the child would not have a right of 'veto' over such a placement.
Important statutory safeguards for parents, and others with parental responsibility, are built into this arrangement by reason of the provisions of Part III CA 1989 (particularly section 22(7)/(8) and section 22C(2)-(4) CA 1989 ) discussed above (see [20] and [21](i)).
I was not invited to consider specifically what steps were actually taken to prepare the ground for Henry as he moved placement from England to Scotland. Insofar as I have not addressed the requirements above which would have been applicable in his case, I have assumed for present purposes that:
Had the local authority not fallen into error as discussed in [21] above, and subject to satisfaction of the points discussed in [28] and [29] above, Henry's placement at Ossian House in the summer of 2019, while accommodated by the Local Authority, would have, in my judgment, been a perfectly proper one.
That said, it may be that in some situations a local authority may wish to have the benefit of the court's oversight of a placement of an accommodated child in Scotland or indeed elsewhere. Section 100(2) CA 1989 does not (either explicitly or implicitly) preclude the court from exercising the inherent jurisdiction where the child has been accommodated voluntarily by a local authority with the consent of the parent(s), where that consent has not been withdrawn [28] . In those circumstances, it seems to me that a local authority could apply to invoke the inherent jurisdiction to apply for an order to authorise the child's placement in Scotland. Sir James Munby P largely confirmed the appropriateness of this course in Re X and Y at [47]:
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?
In June 2020, the Local Authority applied for a care order; in adjourning that application on 7 July 2020, Her Honour Judge Hudson perfectly properly made an interim care order in relation to Henry under section 38 CA 1989 . Under statute, the court may not make an order under section 38 :
This subsection references the 'threshold criteria' in section 31 (i.e. proof of harm or likelihood of harm, attributable to the care given to him if the order were not made).
Section 31(11) importantly provides that:
Section 33 CA 1989 sets out the 'Effect of care order', and therefore, per section 31(11) (see [33] above), unless a contrary provision applies, an interim care order. Section 33 sets out the basic duty of the local authority designated by the order "to receive the child into their care and to keep him in their care while the order remains in force". Significantly, section 33(3)(a) invests in the local authority parental responsibility for the child for the duration of the care order / interim care order, and under such order the local authority has the power to determine the extent to which a parent or any other person with parental responsibility may exercise that parental responsibility. It is sometimes said that the local authority acquires 'senior' parental responsibility in this way.
Section 33(7) and Section 33(8) read as follows:
These sections should be read with regulation 12 of the 2010 Regulations which reads as follows:
Section 33(7) CA 1989 largely replicates in public law the provisions of section 13(1) CA 1989 in private law, and section 14C(3) CA 1989 in relation to a Special Guardianship arrangement. In all those sections of the Act , the reference to 'United Kingdom' is both interesting and important. It should be remembered that the jurisdictional reach of the Children Act 1989 is England and (in most respects) Wales. It is plainly not an accident of drafting that the primary legislation contemplates that a child may move around within the United Kingdom, the statutory regime presumably contemplating close intra-UK co-operation in relation to such arrangements. In relation to a child in care, only where the move:
I have considered (though I was not addressed specifically on this point) whether the word 'person' in section 33(7) ("no person may … remove him from the United Kingdom") can refer to a local authority. I consider that it can, and that it does. Under section 5 and Schedule 1 of the Interpretation Act 1978 , "unless the contrary intention appears", the word "person" is to be read as including "a body of persons corporate or unincorporate". This point was picked up in Re C at [31]:
The Court of Appeal in Re C concluded that the word 'person' in paragraph 19 of Schedule 2 did not refer to a local authority as a body corporate. In my judgment this ruling was specific to the context in which the word 'person' was there being considered:
This reference in the last cited sentence above is to [29] [31] of Re X & Y where Sir James Munby P said:
I have underlined the word 'here' in this extract to emphasise again that Sir James Munby P was specifically referring to the context in which the word appears, namely in paragraph 19 of Schedule 2 .
By contrast, Section 33(7) is concerned with the arrangements for, and specifically the restrictions on, the cross-border movement or expatriation of a child; as mentioned above, the provisions replicate in all material ways those in private law under section 13 or section 14C (see [37] above). Given that the local authority, in this context, holds (senior) parental responsibility for the child, sharing it with the parents, it is appropriate to treat it as a 'person' in this context. The fact that the local authority is referred to specifically in section 33(8)(a) as "the authority in whose care he is" does not detract from this conclusion; it simply identifies the local 'authority' as the one 'person' who can remove the child for up to one month, in a similar way to the "person named in the child arrangements order as a person with whom the child is to live" in section 13(2) CA 1989 , and the special guardian (who may remove the child for up to three months) per section 14C(3)(4) CA 1989 . It is also material to note in this regard that in Re J (A minor)(Change of name) [1993] 1 FLR 645, and in Re M, T, P, K and B (Care: Change of name) [2000] 2 FLR 645, the High Court did not question (i.e. in either case) that it was the local authority (qua statutory 'parent') which had brought the application for a change of surname under section 33(7)(a) in respect of the subject children who at the time of the applications were in their care.
What then is the relevance of paragraph 19 of Schedule 2 , which is explicitly referenced in section 33(8) and regulation 12 of the 2010 Regulations (above), and on which the advocates for the respondents in this application initially relied? This paragraph provides as follows:
A review of the authorities, consistent with wider judicial experience in the Family Courts of the North East, reveals that reliance has in fact been placed on this paragraph in a number of intra-UK cases as founding the statutory jurisdiction for achieving the trans-border interim placement of an English child in Scotland, but it has not been possible, following researches in this case, to identify any judgment in which a convincing, indeed any, explanation is given for why. In Re X & Y , Sir James Munby P considered whether paragraph 19 of Schedule 2 could apply to the temporary placement of children abroad, but declined to comment. Having regard to the specific issue raised in that case he was clear that paragraph 19 of Schedule 2 could not be used for the purposes of placement in secure accommodation outside England and Wales; he said this:
He added (at [30]), materially:
In a short judgment I delivered in 2017, in Northumberland County Council v VS and JP [2017] EWHC 2432 (Fam) , a case which was similar factually to the instant case, I noted that paragraph 19 of Schedule 2 had been relied on by the court at an earlier hearing to effect a Scottish placement of an English child, and commented thus:
In Re C , the Court of Appeal did not in fact turn its mind specifically to whether paragraph 19 of Schedule 2 applied to temporary or interim placements out of the jurisdiction. The focus of the enquiry on the appeal was the issue of the child's consent, and specifically whether placement in a residential home in Scotland was capable of satisfying the second condition in paragraph 19(4) ; that is to say, whether the words "live in the country concerned with … a suitable person" included living in a residential home (see Re C at [4], and see [38] above). The Court of Appeal concluded that paragraph 19(4) of Schedule 2 does not cover placement in a residential care home; it covers only placement with people ("parent, guardian, special guardian or other suitable person"). The result of this is that when a child does not consent "to living in that country", and regardless of whether the child does or does not have sufficient understanding, the court is not permitted to approve their placement outside England and Wales other than with a natural person.
Giving the leading judgment in Re C Moylan LJ remarked (at [12]) that the child had been placed in Scotland "without the court's approval having been obtained". He addressed this point more fully later in the judgment at [39]:
I regard Moylan LJ's comments set out in [44] above (i.e. the requirement for a local authority to obtain the court's prior approval) as applying only to that particular class of case where paragraph 19 of Schedule 2 is actively engaged. I do not view his comments at [39] of his judgment as applicable to all proposed placements by an English local authority of one of its looked after children in Scotland, temporary or otherwise.
So, when is paragraph 19 of Schedule 2 CA 1989 actively engaged? In my judgment, this statutory provision is engaged only when an English [35] local authority is making arrangements, as the statute specifically provides, for the child to ' live ' abroad; that is to say, for a proposed long-term or permanent arrangement for a child's future outside of the jurisdiction. It is not engaged in my judgment where the proposal of the English local authority is to place a child [36] temporarily, or in the interim or short term, outside of England and Wales.
I reach the conclusions set out in [46] above for the following reasons:
The views expressed above are consistent with the provisions of the Children's Hearings (Scotland) Act 2011 (Transfer of Children to Scotland – Effect of Orders made in England and Wales or Northern Ireland) Regulations 2013 ('the ' Transfer Regulations 2013 ') which appear to contemplate a degree of permanence in circumstances when paragraph 19 of Schedule 2 is invoked. Regulation 3 of the Transfer Regulations 2013 provides:
It is notable that the 'transfer' arrangements apply in Scotland only where a child is subject to a final care order in England and Wales under section 31(1)(a) and not an interim order under section 38 . Under these regulations the receiving authority in Scotland "takes over" the care of the child, and the care order "has effect as if it were a compulsory supervision order". Under paragraph 15 of the Children's Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 "the care order, supervision order or education supervision order ceases to have effect for the purposes of the law of England and Wales" [38] .
I now turn back specifically to answer the second question. In my judgment, if the child who is to be placed temporarily in a residential children's home outside of England & Wales but within the United Kingdom (i.e. as here, in Scotland) is the subject of an interim care order, the placement can be achieved under section 38 , relying on section 33(7) and section 33(8) CA 1989 ; the details of the proposal for such a placement outside of England and Wales, but within the UK, would be contained in a relevant care plan. The care plan will doubtless be subject to careful scrutiny by the court, as Mr Wraith rightly suggested (see [21(ii)] above). In my view there is no need for a local authority to make specific application to the court for permission to place a child in interim care within the UK. It would however be prudent for the English court, at the time of making the interim care order, specifically to recite on the face of the order that it has considered the care plan for temporary placement in the UK/Scotland, so that the authorities in the relevant part of the UK are aware of the court's endorsement of that arrangement.
Although outwith the particular circumstances of this case, I turn briefly here to address the situation if a local authority proposes to place a child who is subject of an interim or full care order outside of the United Kingdom (say, for instance, in mainland Europe), on a temporary basis. This could only be done, in my view, with the permission of the High Court exercising its inherent jurisdiction. While the inherent jurisdiction may be invoked in an apparently inexhaustible variety of circumstances, the Court's powers to accede to the use of the inherent jurisdiction has its parameters [39] , and its use is at least in part materially curtailed by section 100 CA 1989 . Section 100(4) CA 1989 is key. This provides:
On the analysis provided above, the outcome which the Local Authority wishes to achieve could indeed be achieved under section 33(7) . This allows for placement in Scotland under the aegis of an English interim care order, with the English Court retaining jurisdiction for Henry. It follows that I do not need to deploy section 100 .
If I am wrong in the analysis set out above, and if there is in fact no statutory route to achieve the result which the Local Authority wishes to achieve, I can confirm that I would have had no hesitation in giving leave to the Local Authority to invoke the inherent jurisdiction to achieve the result contended for (see again Re X and Y at [47] quoted above).
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 the child in Scotland? Does the English order give those providing the placement any authority over the child?
These three related questions have equal, if not greater, importance to those which I have already discussed. For, as Moylan LJ observed in Re C at [42] [40] :
In my judgment, the answer to each of the questions posed above is 'No'.
Let me start by disposing of the first limb of the three related questions posed above, by identifying various routes to recognition and enforcement of an English interim care order in Scotland which plainly do not apply:
None of the research undertaken and advice offered in this case offers any contrary view.
This lacuna in the law, on which Sir James Munby P and Moylan LJ have earlier commented (see [6] and [7] above), is all the more striking, I suggest, given that a final care order made in England is capable of recognition and enforcement in Scotland; this is reflected in regulation 3 of the Transfer Regulations 2013 which I have cited in full at [48] above. As Sir James Munby P made clear in Re X and Y at [64]:
A further anomaly (if that is what it is) is revealed by the fact that there is a mechanism for a Scottish Court to make an interim or full compulsory supervision order (the equivalent of a care order), which contains a requirement for the child to reside a specified place, to determine that that place shall be in England or Wales [42] ; that statutory provision "extends to England, Wales and Scotland only" [43] (see the Children's Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 ).
The issues raised within each limb of the 'third question' are essentially matters of Scots Law. In this regard, I have been furnished with two pieces of relevant evidence in these proceedings:
The statement of Mrs S deals with authorisation for placement of an English child in a Scottish residential home, and as a corollary, recognition, and enforcement of any order under which he/she is placed. Mrs S said this:
In a later submission to the court (by e-mail dated 9 October 2020) Mrs S provided the written text of the 'legal' advice which had been provided to her by Mr T of the Care Inspectorate. The e-mail reads as follows:
a young person subject to a care order from England or Wales may only be placed in a care home service outwith England or Wales following a judgement that authorises this placement from an English or Welsh Court.
The young person must also consent for this to happen, but the Court can dispense with consent in certain circumstances, such as where the child cannot consent or withholds consent unreasonably.
The court judgement that authorises a placement outwith England or Wales.
The young person's consent, or the Court's judgement dispensing the need for this consent.
This evidence does not, in my judgment, assist in answering any of the limbs of the third question:
It appears that Mrs S and Mr T may have both proceeded on the understandable, but in my judgment erroneous, premise that paragraph 19 of Schedule 2 applies to all placements of English children outside England and Wales whether temporary or permanent. Their apparent willingness to contemplate receiving an English child into a Scottish residential unit and caring for him/her, provided the formalities of the English court are in place, is nonetheless noted and is of course most welcome.
I therefore turn to the advice of Mr Mitchell QC. He has expressed the views which appear in the following paragraphs.
First, he accepts that the voluntary arrangements put in place in respect of a 'looked after' child under section 20 Children Act 1989 would be respected as such in Scotland, albeit that the child would not become:
On the issue of the purpose of 'legal regulation', or recognition, of the English interim care order in Scotland, Mr Mitchell QC opines:
But in this case, as Mr Mitchell rightly observes, there is essentially no current issue, as no party wishes to enforce it:
He added later
Thus, as Mr Mitchell observes above, if this were a case in which it was felt necessary to achieve recognition and/or enforcement of the order in Scotland, it would probably require a petition to the nobile officium of the Inner House of the Court of Session, "the extraordinary equitable jurisdiction vested in the supreme courts of Scotland" [44] , for relief in that court. Mr Mitchell does not suggest that the Local Authority would not have 'sufficient interest' to be able to do so: per Lord Robertson in Beagley v Beagley 1984 SC (HL) 69 who said at p83:
In my judgment, there is, currently, no benefit to the parties or to Henry in the Local Authority petitioning to the nobile officium . Any desire for mere 'legal tidiness' (see [63] above) would not satisfy the test of 'practicality' which the Inner House of the Court of Session identifies as an important characteristic of the exercise of the jurisdiction, "to address the particular situation that is either unprecedented or has not been adequately foreseen" ( Cumbria County Council & others v X & others [2016] CSIH 92 (' Cumbria CC & others ') at [22]). It is nether appropriate nor possible for me to venture any view on whether, if the authority did so petition, this would succeed; it seems to me that much would depend on relief sought and the precise factual circumstances. As the Inner House of the Court of Session further observed in Cumbria CC & others :
As this jurisdiction was discussed in the hearing, and alluded to in Mr Mitchell's advice, it may be helpful to draw attention to two further points which emerged from the Cumbria CC & Others decision which may have some relevance to these facts:
MacDonald J helpfully discussed these issues at length in Salford CC v M (Deprivation of Liberty in Scotland) [2019] EWHC 1510 (Fam) (' Salford CC '); this was cited by Mr Mitchell in the section quoted at [63] above. I do no more here than to highlight two of the key points which MacDonald J addressed in the concluding sections of his judgment as follows:
Mr Donnelly appears to accept that it is currently unnecessary for his client authority to petition to the nobile officium ; he points to the likely cost, delay, and uncertainty of outcome if the authority were to do so. This route would not even need to be considered, he observes, were there in place a coherent intra-jurisdictional legal framework between England and Scotland (and/or other jurisdictions of the UK) for dealing with jurisdiction, transfer of proceedings, recognition and enforcement in family proceedings. The point has considerable force, in my judgment, particularly given that any petition would be used simply to formalise arrangements in this case which are otherwise (a) lawful (the secure accommodation cases involved matters of personal liberty which, if left unauthorised, carried implications for the child and their carers), (b) agreed, and (c) have operated satisfactorily in meeting Henry's welfare for a significant period.
What of the second limb of this third question? i.e. Whether the English interim care order give the English local authority any power to take any steps in relation to the child in Scotland. Although the answer is a straightforward 'no' so far as the Local Authority is concerned, it appears that the picture is rather different for Henry's parents. Mr Mitchell QC advises that Henry's mother and father, independently of each other, retain parental responsibilities and rights in Scotland as these are defined in section 1 and section 2 of the Children (Scotland) Act 1995 until Henry is 16, and that these rights will be recognised in Scotland. These rights include per section 2 (1) (a) the right to 'regulate the child's residence'. While the interim care order impacts on the exercise of the parents' parental responsibility in England (as I have discussed above [34]), the interim care order is not recognised in Scotland (see [54] et seq . above). The parents each have further rights, in principle, to have 'direct contact' with the child: section 2(1)(c) . Mr Mitchell QC goes on to advise as follows:
I take from this advice, surprising though this may seem given the existence of the English care proceedings, that the parents could potentially litigate in the courts in Scotland in relation to matters of parental responsibility relating to Henry, provided that they could demonstrate that the issue litigated is, or issues are, matters concerning Henry's "immediate protection" ( section 14(3)(b) of the C(S)A 1995 ). This gives rise to the unwelcome possibility of concurrent litigation in Scotland and England – a situation which I trust would be avoided or averted by application of the 2018 Joint Protocol [45] (applying in intra-UK border disputes the Principles for Direct Judicial Communications as published by the Hague Conference on Private International Law). In this instance, the 'requesting judge' of one or both jurisdictions would ask the 'liaison judge(s)' of each jurisdictions, to co-operate over the "effective case management" of the applications, having regard to the status of current orders, and the remedies sought.
In relation to the third limb of the sub-questions ('Does the English order give those providing the placement any authority over the child?'), the answer seems to be that the interim care order does not give the Scottish placement providers any authority over the child; their authority derives from their ordinary functions as providers of a residential care home under Scots law and the fact that Henry has been placed there with his parents' consent.
A final thought. So far as I understand the parties' positions. it is intended that Henry will retain his habitual residence in England, and will indeed return in due course to England; it is a case in which the Local Authority intends to continue to exercise parental responsibility for him with his parents at least for the time being. There is no intention to transfer responsibility for Henry to the Scottish local authority; nor would it be likely, or indeed necessary, that an equivalent order to an interim care order should be made in Scotland to achieve recognition. The scheme of the Children's Hearings (Scotland) Act 2011 is one which does not contemplate concurrent litigation. In Salford CC MacDonald J noted (at [22](viii)) that the expert evidence obtained in those proceedings had concluded:
Even then there has to be agreement of the Principal Reporter of the receiving local authority in Scotland to "take over the care of the child" ( regulation 3(1)(c) 2013 Regulations ) and the 'home' local authority further agrees. In those circumstances, the care order takes effect "as if it were a compulsory supervision order", and in those circumstances "the [English] care order…. ceases to have effect for the purposes of the law of England and Wales" ( regulation 15 2013 Regulations ). I am satisfied, on all that I have heard and read, that this is not what is desired here.
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?
Where the provision for a child placed in residential care (whether in England or elsewhere) involves, or may involve, a deprivation of that child's liberty (where the placement is not in secure accommodation as provided for in section 25 CA 1989 ), then the local authority would currently [46] be expected to apply to the English High Court in the first instance for specific authorisation under the inherent jurisdiction to deprive the child of his liberty so as to render lawful that which would otherwise be unlawful by virtue of Article 5 of the European Convention on Human Rights : see, inter alia, Re T [2018] EWCA Civ 2136 .
If an order authorising deprivation of liberty is granted in the English court, and if the placement is in Scotland, the same local authority would then need to petition the Inner House of the Court of Session in Scotland for orders under the nobile officium :
It is well-known that there is no method by which a child's liberty can be lawfully deprived in the jurisdiction of Scotland in a placement which is not approved by the Scottish Ministers (see Salford CC at [17]).
I considered these very issues in Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47 (' Re RD '). The advocates in this case have relied on, and specifically referred to, my resumé of the law set out in [21]-[34] of that judgment; I see no need either to alter, or to reproduce, that resumé here. This judgment should be treated as having incorporated those paragraphs by this reference.
In short, it is necessary to consider the three limbed test set out in the case of Storck v Germany (Application No 61603/00) (2005) 43 EHRR 96 , para 71, and 74 (" Storck "), a case which clarified that deprivation of liberty under Article 5 has three elements: (i) the objective element of a person's confinement to a certain limited place for a not negligible length of time; (ii) a lack of valid subjective consent to the confinement in question and (iii) confinement imputable to the state. In this case, I do not need to be troubled with (ii) or (iii). There is no real issue about consent: Henry cannot give consent as he is not deemed competent to do so, his parents cannot do so as Henry is the subject of an interim care order. There is no question but that the regime is imputable to the state. The real issue in the case is whether Henry's confinement, objectively viewed, is under the complete supervision and control of those caring for him, where he is not free to leave.
On these facts, rather as in Re RD , I find myself focusing on (i). As to which, in Re RD I said this at [28]:
In Re A-F [2018] EWHC 138 (Fam) at [33] Sir James Munby P considered various substantive and procedural questions in relation to the interface between care proceedings brought in the Family Court pursuant to Part IV of CA 1989 and the requirements of Article 5 of the Convention. Specifically, the circumstances in which Article 5 is engaged in relation to a child in the care of the local authority and, where Article 5 is engaged, what procedures are required to ensure that there is no breach of the requirements of Articles 5(2)-(4) . He helpfully advised that:
As it happens, no party contends now on the facts that Henry is deprived of his liberty at Ossian House, having regard to the specific regime under which he lives. This includes the following:
Henry's liberty is undoubtedly restricted, but the parties agree that the degree or intensity of the constraints are not such as to amount to deprivation of liberty. The doors are not locked, and he is actively encouraged to leave the placement to participate in activities of his choosing. As Lord Kerr said in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another [2014] UKSC 19
The level of restriction here is, as I found in Re RD [48] , no more "intense or overt than a parent's watchfulness over young adolescent people in a domestic setting, in similar circumstances".
It is neither appropriate nor necessary for me to say more on this issue. Had I found that Henry was deprived of his liberty, I would have had to consider if, as a matter of substance it is both necessary and proportionate, that is to say, the least restrictive regime which is compatible with the child's welfare; if so, then I would have had to consider adjourning the case in order to give the Local Authority the opportunity to petition to the Inner House of the Court of Session for the application of the nobile officium (see [67] above).
Summary
I summarise the answers to the questions posed above relating to Henry as follows:
Conclusion
As this judgment was in preparation, the Children's Commissioner published a report entitled "Unregulated: Children in care living in semi-independent accommodation" (10 September 2020) which highlights the lack of capacity in children's homes in England and Wales, and reveals how thousands of children in care in England and Wales are living in unregulated independent or semi-independent accommodation. The report records that "residential care is failing to deliver the right placements in the right areas to meet children's needs". I had cause to discuss one such young person in Re S (Child in Care: Unregistered Placement) [2020] EWHC 1012 (Fam) and in that judgment at [16]-[20] outlined the wider context of the problem; HHJ Dancey had similar cause to highlight the problem a few weeks later in Dorset Council v E [2020] EWHC 1098 (Fam) , and Judd J similarly in Re Z (A Child: DOLS: Lack of Secure Placement) [2020] EWHC 1827 (Fam) .
The problem encountered by the local authority in this case, as I mentioned in Re S (Child in Care: Unregistered Placement) and at [16] and [17] above, is not an uncommon one. There is a scarcity of suitable registered children's homes in England and Wales, and local authorities, particularly those in the North and North-East of England, unsurprisingly look across the border to the number of high-quality residential resources there. A child placed in one of the southern counties of Scotland (i.e. Dumfriesshire, Kirkcudbrightshire, or Roxburghshire) could be much closer to his/her home in Tyneside, for example, than if he or she were placed in many parts of England and Wales.
The pressing need for more capacity in the system for residential care of teenagers in England and Wales is beyond doubt, and now publicly recognised. But I suggest that, given the number of cases of cross-border placements within the UK such as Henry's, and as this case shows, there is also an increasingly pressing need for a clear and coherent statutory or regulatory framework for achieving intra-jurisdictional recognition and enforcement of interim public law orders within the UK.
In making this final point, I am doing no more than repeating a plea made by Moylan LJ in Re C , at [45] [49] , and by Sir James Munby P, in Re X & Y [50] at [74] that:
That is my judgment.
Note 1 Henry is not his real name. At the hearing, I offered him the opportunity to choose the name by which he was to be known in the judgment; Henry is his choice. [Back]
Note 2 7 July 2020 [Back]
Note 3 ‘Ossian House’ is not its real name. [Back]
Note 4 SI 1996/3256 [Back]
Note 5 Joint Protocol Regulating Direct Judicial Communications Between Scotland, And England & Wales, In Children’s Cases (Lord Carloway, Sir James Munby P): July 2018 [Back]
Note 6 Amendments to Section 25 CA 1989 were effected by the Children and Social Work Act 2017 (by section 10 and schedule 1 ) (the reciprocal secure accommodation provisions) to fill the lacuna identified by Munby P in Re X & Y . [Back]
Note 7 July 2020 [Back]
Note 8 This was effected either under section 20(1)(c) CA 1989 or under section 20(4) CA 1989 ; it matters little which statutory provision for present purposes. [Back]
Note 9 See for a discussion of these issues, beyond the scope of this judgment, Williams & Anor v Hackney LBC [2019] 1 FLR 310 . [Back]
Note 10 See section 22(3)(a) CA 1989 [Back]
Note 11 See section 20(6) and section 22(5) CA 1989 [Back]
Note 12 See section 22C(5) CA 1989 [Back]
Note 13 See section 22C(8)(a) CA 1989 [Back]
Note 14 See section 22C(7)(b)&(c) CA 1989 [Back]
Note 15 See section 22(4) CA 1989 [Back]
Note 16 See regulation 2(1) : ““C” means a child who is looked after by the responsible authority”. [Back]
Note 17 As defined in regulation 2 . [Back]
Note 18 Per regulation 2: “F” means a person who is approved as a local authority foster parent and with whom it is proposed to place C or, as the case may be, with whom C is placed”. [Back]
Note 19 These regulations apply in England only: see regulation 1 . [Back]
Note 20 Regulation 9(1)(b)(i) and Regulation 11(2)(a) of the 2010 Regulations [Back]
Note 21 Regulation 11(2)(b) 2010 Regulations [Back]
Note 22 With the child, relatives and IRO [Back]
Note 23 By a nominated officer, or in this case, because the placement was outside England, the director of children’s services [Back]
Note 24 See Regulation 11(1)(b) of the 2010 Regulations [Back]
Note 25 See Regulation 9(2) & 9(3) of the 2010 Regulations [Back]
Note 26 See Regulation 11(2)(d)(ii) and regulation 13(4) of the 2010 Regulations . [Back]
Note 27 See Regulation 11(2)(e) of the 2010 Regulations . [Back]
Note 28 Re E (Wardship Order: Child in Voluntary Accommodation) [2012] EWCA Civ 1773 per Thorpe LJ at [12] and [13]; and Re A (Wardship: 17-Year Old: Section 20 Accommodation) [2018] EWHC 1121 (Fam) per Williams J [Back]
Note 29 There is nothing in section 105(1) (Interpretation section) which is relevant to the issues here. [Back]
Note 30 See Regulation 11(1)(b) of the 2010 Regulations . [Back]
Note 31 I cite the fuller passage in which this quote appears at [41] below. [Back]
Note 32 For X’s Guardian [Back]
Note 33 For the two Local Authorities [Back]
Note 34 For X and for Y’s Guardian [Back]
Note 35 Different considerations apply in Wales: section 124 Social Services and Well-Being (Wales) Act 2014 [Back]
Note 36 In this context, my reference to a ‘child’ is to a child who is habitually resident in England & Wales [Back]
Note 37 Para.4(4), Schedule 3 : “where the child has sufficient understanding to make an informed decision, he consents to its inclusion” [Back]
Note 38 See also Practice Direction 27 on Cross Border Issues, Scottish Children’s Reporter Administration (2015) [2.4]. [Back]
Note 39 FS v RS [2020] EWFC 63 at [100]/[113]; FS v RS is a judgment handed down while this judgment was in preparation. [Back]
Note 40 While also highlighting the “regrettable failure to address at an early stage of the process the legal issues which require to be resolved to enable such a placement to take place in a manner which safeguards the child's best interests”: referencing, inter alia, Re K, T and U (Placement of Children with Kinship Carers Abroad) [2019] EWFC 59 [Back]
Note 41 Re X & Y is an example of a situation (now superseded, in this particular regard, by statutory reform) in which the English court had power to make an order placing a child in secure or non-secure accommodation in Scotland, but that order was without legal authority in Scotland unless the Inner House of the Court of Session applied the nobile officium . [Back]
Note 42 See article 7, 8 and 9 of the 2013 Order [Back]
Note 43 See article 3 of the of the 2013 Order [Back]
Note 44 Cumbria CC & Others at [20] [Back]
Note 45 See footnote 5 above [Back]
Note 46 At the time of drafting this judgment it is known that the judgment of the Court of Appeal in Re T is to be heard on appeal to the Supreme Court within a matter of days. [Back]
Note 47 This was the language of Storck see [74]: “She had been under continuous supervision and control of the clinic personnel and had not been free to leave the clinic during her entire stay there of some 20 months”, deriving essentially from the decision of the HL v United Kingdom (2004) 40 EHRR 761 , at [91] [Back]
Note 48 At [38] [Back]
Note 49 Re C [45]: “This may be a "gap" in the legislative framework similar to the situation that previously existed in respect of secure accommodation. I, therefore, propose that this issue be brought to the attention of the President of the Family Division for his consideration” [Back]
Note 50 Notably, over four years ago…. 12 September 2016 [Back]