Legal warning over English councils using Scottish secure units

Munby says "urgent" solution needed after finding gap in law makes orders to place children from England in Scottish units unenforceable

English councils are sending children to secure units in Scotland under care orders that cannot be legally enforced, the president of the Family Court has warned.

Sitting in the High Court, Sir James Munby said an urgent solution was needed after he concluded orders made by the English courts placing a child in a secure unit north of the border could not be enforced or recognised in Scotland.

Munby issued the warning after considering the cases of a 16-year-old girl and 15-year-old boy who, under the care of Cumbria council and Blackpool council respectively, had been placed in secure units in Scotland due to no places being available in England.

More councils, particularly in the northern regions, were turning to Scottish services due to the shortage of secure accommodation placements in England, Munby said.

Reduction in secure places

Official figures show there were 254 places commissioned at secure units in England and Wales in 2016, down 34% on the 390 places available for use 10 years earlier.

Munby said cross-border legal issues needed to be resolved urgently. In his judgment he reviewed relevant law and concluded that a judge in England cannot make a secure accommodation order under section 25 of the Children Act if the child is to placed in a unit in Scotland. This is because section 25 (and the equivalent legislation in Wales, section 119 of the Social Services and Well-being (Wales) Act 2014) only allow for looked-after children in England or Wales to be placed in secure accommodation in those two countries.

An order made by the High Court under its inherent jurisdiction looking to achieve the same outcome could be made but could not be enforced in Scotland, he added.

No available legal route

He said: “In my judgment it is clear that none of these legislative provisions provides for the recognition and enforcement in Scotland of any of the orders made or proposed to be made in these cases nor, putting the point more generally, of any order made by an English judge under the inherent parens patriae jurisdiction. Nor has anyone been able to point me to any other provision in Scottish law having that effect.”

Legal representatives for Cumbria council raised the possibility of an application being made to Scotland’s Court of Session for a “petition of the nobile officium” – a rarely used Scots law provision that allows the Scottish courts to make orders where there is no existing legal remedy.

Munby said the two local authorities should seek to invoke the ‘nobile officium’ option and once the outcome was known, the case should return to the High Court in England to determine further steps.

“One important question which will have to be considered at that stage, in the event that the Court of Session declines to exercise the nobile officium and does not identify any other basis for recognition and enforcement in Scotland of a secure accommodation order made by the English court under the inherent jurisdiction, is whether it is appropriate for the English court to be making such an order at all in those circumstances,” he added.

He said there was an urgent need to review the law in this area to close the gaps he had identified.

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4 Responses to Legal warning over English councils using Scottish secure units

  1. Peter Gill September 14, 2016 at 3:06 pm #

    This beggars belief! Should Social Services not be seeking legal advice on every case that involves placing a child outside the legal jurisdiction? SCO’s by their nature, do not require consent from the child, and they should not be being granted unless there are secure places available within the child’s jurisdiction of origin. If a child from N.I. is placed in a secure unit in England under mental health legislation all legal matters concerning detention have to be addressed prior to a child being detained. A child in NI would not be sent to a Secure Unit in Scotland under a SCO. If there are no places available within the jurisdiction, a judge should not be making the order.

  2. LAworker September 14, 2016 at 7:28 pm #

    You have a child at significant risk and no available placement in England but vacancies in Scotland so what do you do? Emphasise the words child at significant risk. The whole system needs UK wide review

  3. Paul Randle-Jolliffe September 17, 2016 at 3:32 am #

    This is hardly surprising LAs in England and Wales break lots of rules all the time.

  4. Ellie September 17, 2016 at 4:51 pm #

    I cannot help but think that this article, and its subject matter, hides some even more worrying concerns behind a comparatively superficial issue. Whilst placing a child outside the legal jurisdiction is a major problem, and use of Secure Units in Scotland as placements for children from England highlights this concerning issue, ought we not to be asking just why this is occurring in the first place? Because, in seeking an answer to this question, we are faced with the realization that the problem this article describes is merely the “tip of an iceberg”.

    It is my understanding that a placement in a secure unit represents something really significant for a child, the child’s family and for services supporting the child. It is NOT a step to be taken lightly, nor is it something that happens quickly. Children who are placed in secure units are generally there because of major problems, and because the child is at significant risk should they not be placed. Children who end up in secure units may have serious problems such as behavioural difficulties, challenging behaviour, mental health problems, substance misuse problems, offending, or serious learning disabilities. These children may self-harm, commit criminal offences, or be at risk of sexually inappropriate grooming and exploitation. Secure facilities provide full time residential care, where children are often having to be taught everything from the school curriculum, to very basic life skills such as those needed to look after themselves.

    It is my personal belief that a child DOES NOT rapidly end up in a position where he/she needs to be sent to a secure unit. The problems that children in such units display are often the result of serious LONG TERM issues, and represent problems with much more than just the child. These children may come from seriously dysfunctional families, where family feuds or problem behaviours go back generations. They may have parents who are alcoholics, drug takers, mentally ill, and/or abusers.

    Rather than asking why English children are being sent to secure units in Scotland (which IS bad in itself), ought we not rather to be asking why children are having to be sent to secure units at all? Surely, for a child to have to go to such a place, this shows that the child cannot be safely and appropriately cared for in the community. Ought we not to be asking WHY?

    The point I am making is that MOST children DO NOT require placement in secure units. Only those who are severely damaged – and probably many who come also from severely damaged families – end up there. Having worked in Forensic Mental Health Services I came across many service-users who had arrived there via the secure unit placement route as kids. I kept asking why! I could NOT believe, or accept, that ALL these poor kids needed to have ended up there. The fact that they HAD somehow represented the inability of earlier interventions to have dealt with their problems. WHY?

    I was also shocked to see that many of the young people I worked with who had come via secure units, and ended up in the sort of facility I worked in, often came from the SAME GEOGRAPHICAL AREAS. This is hardly surprising, given that the areas many grew up in were areas of high economic deprivation and unemployment, with poor housing, failing schools, poorly performing health services, high crime, high teenage pregnancy, high numbers of substance misusers, and risk of contact with gangs.

    It does not surprise me at all to see that, in your article, the places that are inappropriately sending kids to secure units in Scotland include CUMBRIA, and BLACKPOOL. When I worked in Forensic services, I had several service-users from Blackpool! It strikes me that the number of service-users placed by a particular area or council in secure units as children, and things such as secure Forensic facilities as adults, completely totally and utterly represents the problems that said area faces in general. Thus, places where there ARE issues such as socio-economic deprivation, or drug taking, or teen pregnancy… are likely to be seeing MORE of their population ending up in secure units. This is because unless a local authority recognizes, acknowledges, and then appropriately tackles the problems that contribute to both children, and adults, ending up in secure facilities this is where they will continue to go. Places like Blackpool, that have for a long time had a bad image – the town is associated with drunken stag and hen parties, failing secondary schools, high teen pregnancy rates, is said to be the substance misuse death capital of England and Wales, and has high rates of obesity – are places with problems that contribute to children and adults ending up in secure facilities.

    Perhaps it is time that our society, and Government, did more to investigate why it is that children and adults are ending up requiring secure placements. It is important for us to understand just what societal problems contribute to a person ending up there. We already know that there are huge links between such things as poverty, poor educational attainment, poor housing, crime, substance misuse, and suchlike, and negative life outcomes for people. We know, too, that things such as bullying, abuse and domestic violence can have traumatic, long-lasting effects upon individuals. Therefore, it is obvious to me – and should be obvious to anyone – that places where there is high socio-economic deprivation, which is not only a problem in itself, but is a problem that leads to such issues as bullying, unemployment, teen pregnancy, homelessness and abuse… are places that should be closely monitored both in respect of how they deal effectively with these problems, and how they support people facing the impact of such issues. This includes asking if it is such places that send higher numbers of people (children and adults) to secure facilities.

    IF, as I suspect, it is true that places of high socio-economic deprivation are also places that send high numbers of children and adults to secure placements, then it becomes obvious that there is a link between deprivation and ending up in a secure facility that warrants further, detailed, investigation. We nee to be asking if socio-economic deprivation in a town or city (or even a rural area) creates conditions that make it especially hard for support services – including Social Services – to do their job effectively. My suspicion is that in deprived areas, support services like Social Services are both underfunded and underresourced, whilst simultaneously facing high demand. That seems obvious to me! Councils with little money to go around make cuts to services; when coupled with the fact that these services are in places of socio-economic deprivation that leads to huge demand for services, it is a recipe for disaster.

    Put simply, what I am saying is this… Places like Blackpool, Middlesborough, Morecambe, Tower Hamlets, Solihull… which are amongst the most deprived areas in the UK are likely to show problems that arise as a result of what is called “MULTIPLE DEPRIVATION”. That is, they have issues with poor housing, poor education, poor healthcare, high crime, high drug and alcohol misuse, high teen pregnancy, high unemployment, poverty, homelessness, and many more deprivation-related factors which, when combined, create a situation in which it is likely that a larger than average number of the population require care and support from local services which are themselves hard-hit due to lack of funding, staff and resources. We should be aware that in deprived areas, both the public, and the services that support the public, are deprived! IF, as I suspect, it is THESE AREAS that are more likely to be sending people (children and adults)to secure facilities for placements, THEN it becomes clear that placement in a secure facility is SYMPTOMATIC OF SOCIO-ECONOMIC DEPRIVATION.

    What then needs to happen is some serious debate around the issues created by socio-economic deprivation, including –
    a) What it is about certain areas of the UK that means they ARE hotbeds of socio-economic deprivation?
    b) What can be done to regenerate these areas?
    c) What can be done to tide these areas – especially their essential services such as health and social care, policing, education – over until regeneration is effected?
    d) What can be done to better support deprived individuals and families within such areas, to ensure that fewer people do end up needing secure placements?

    We should also, as the article points out, be asking whether it is right – indeed, legal – for such areas to send children (and adults) to secure placements in Scotland when it is actually outside their jurisdiction to do so. We should be asking just WHAT this says about Social Services departments in places like Blackpool. Does it indicate a lack of knowledge, or lack of understanding of correct procedure? Is it indicative of desperation due to lack of appropriate placements nearby? Does it suggest that these Local Authorities have scant regard for the law, or are happy to break the law? Does it indicate that Local Authorities are so desperate to get rid of “problem” service-users that they place them in Scotland in the hope they stay there? Is it a sign that some Local Authorities are simply not coping, and are seriously failing service-users? I would add that we most definitely should also be asking why it is that SCOTLAND is agreeing to accept such placements (if this is the case).

    I firmly believe that this issue should be made subject to a major public, political and legal inquiry. Munby’s own suggestions as regards remedying the situation are a start, but because the issue is such a significant one, I feel that it should be opened up for public and political debate. This is because of the factors that I have mentioned above – most notably the probable link between socio-economic deprivation, and high need for secure placements. Rather than merely tackling the legal aspects of such an issue as this, it is high time that we as a society started to effectively tackle ALL THE UNDERLYING ISSUES, too.