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.