Children Act changes proposed after court ruling on ‘unenforceable’ care orders

Proposed changes would see section 25 of Children Act 1989 extended to cover placements made by English councils to Scottish units

By Andy McNicoll on December 9, 2016 in Children

The government has moved to close a legal gap that means councils are sending children to secure units in Scotland under care orders that cannot be legally enforced.

Ministers have proposed extending section 25 of the Children Act 1989 so that it covers cases where local authorities in England or Wales have placed children in secure accommodation in Scotland. The legislation, and its Welsh equivalent, currently only cover placements between England and Wales.

The changes have been tabled as part of proposed amendments to the Children and Social Work Bill going through parliament. Amendments to equivalent Scottish and Welsh legislation have also been proposed.

The move follows a High Court ruling in September in a test case where a 16-year-old girl and 15-year-old boy had been placed in secure units in Scotland due to no places being available in England. The court ruled that the care orders, which were made by the English courts, could not be enforced or recognised in Scotland.

Family court chief Sir James Munby, who oversaw the case, warned an urgent solution was needed as a shortage of secure accommodation placements in England meant more councils were turning to Scottish services.

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.

In his judgment Munby 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 was because section 25 (and the equivalent legislation in Wales, section 119 of the Social Services and Well-being (Wales) Act 2014) only allowed 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.