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High Court judge adds voice to calls for clearer framework for placing English children in Scottish residential care homes on interim basis

There is 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, a High Court judge has said.

The case of H (Interim Care: Scottish Residential Placement) [2020] EWHC 2780 (Fam) concerned a young person who, for the purposes of the judgment, wished to be known as Henry. He is aged 15.

Henry was accommodated by South Tyneside Council 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 obtained, an interim care order.

The proceedings under Part IV of the Children Act 1989 are currently progressing in the Family Court sitting at Newcastle-Upon-Tyne.

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Mr Justice Cobb said that when Henry was initially accommodated in August 2019, he was placed in two consecutive short-term unregulated placements, one of which was a caravan.

South Tyneside then identified a suitable placement for Henry in a residential children's home in South Lanarkshire, Scotland, which the judge called Ossian House (not its real name).

The establishment 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.

Mr Justice Cobb noted that 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 judge said: “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.”

Mr Justice Cobb said the issue which arose in the case was one which had, “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 could be achieved, or authorised and/or recognised.

In resolving this issue, the judge said he proceeded 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".

However, beyond that sound and familiar statement of principle, there was no easy answer, Mr Justice Cobb said.

The judge noted that 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).

The then Family President, insofar as he identified the existence of a limited statutory framework, observed (at [3]) that "there are serious lacunae in the law".

Mr Justice Cobb said 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.

However, he added that it was “plain that the wider lacunae to which Sir James Munby P referred extended beyond those specifically covered by that judgment”.

Mr Justice Cobb added that, 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 arose in Henry’s case, "may" constitute: "… a "gap" in the legislative framework similar to the situation that previously existed in respect of secure accommodation".

Mr Justice Cobb said it would be seen that he too, particularly in answering the second and third questions below, had confirmed 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.

The High Court judge broke down the core issue which arose on the facts of this case to the following questions:

i) Did South Tyneside 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 the judge took together as 'the third question') must be answered in the main by reference to the law of Scotland, he said.

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').

Mr Justice Cobb answered these questions as follows:

i) There is nothing in the primary or secondary legislation which prevented South Tyneside Council from placing Henry in the summer of 2019 (as a child which it was 'looking after' under section 20 CA 1989) in Scotland at Ossian House. The Local Authority would need, if required, to be able to demonstrate that it had complied with its multiple duties under Part III CA 1989 (specifically section 22), was satisfied that this is the most appropriate placement for him, and has complied with the detailed provisions of Regulation 9 and 11 of the 2010 Regulations; (see in particular [26]-[30] and [62] above);

ii) South Tyneside Council could place Henry, a child who is the subject of an interim care order (section 38 CA 1989), anywhere in the United Kingdom without seeking a specific free-standing order of the English court giving its formal approval. It was, and is, entitled to do so by reliance on the provisions of section 33(7)/(8). However, before making any interim care order, a court would need – as it would in any public law case – to scrutinise the care plan. In a case such as this, the court will want to ensure very specific compliance (inter alia) with the requirements of the 2010 Regulations. If satisfied with such compliance, and of the view that the plan for placement in residential care in Scotland meets the needs of the child, it would be appropriate for the order placing the child in the interim care of the authority to be endorsed with the explicit acknowledgement and approval of the plan to place the child across the border in Scotland; (see in particular [35], [37], [49], and [51] above);

iii) The current interim care order in respect of Henry is not recognised and is not capable of enforcement in Scotland. Happily, at present no party seeks its enforcement, and there appears to be no reason in Scots law for taking any step towards recognition other than for 'legal tidiness'. If any party (particularly the Local Authority) seeks recognition or enforcement, it would be appropriate for that party to petition to the nobile officium of the Inner House of the Court of Session for an order in that court; I suggest that the success of such an application would depend on a range of factors including the specific facts, and the nature of the relief sought; (see in particular [54], and [63]-[72] above). While it appears possible for the parents to litigate in Scotland in relation to Henry on matters strictly limited to his immediate protection (see [70]/[71] above), it is reasonable to assume that, through judicial liaison under the 2018 Judicial Protocol, steps would be taken to avoid concurrent proceedings being held in the two jurisdictions;

iv) Henry is not, as a matter of fact, currently deprived of his liberty at Ossian House. If I were to have found that he was/is deprived of his liberty, I would have had to consider whether to make a declaration of lawfulness. Had I done so, the Local Authority would currently be obliged to petition to the nobile officium of the Inner House of the Court of Session as in the case of Salford CC (see in particular [81]-[83] above).

Mr Justice Cobb noted that as the 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 highlighted the lack of capacity in children's homes in England and Wales, and revealed how thousands of children in care in England and Wales are living in unregulated independent or semi-independent accommodation.

The judge noted how he and other judges (HHJ Dancey and Judd J) had highlighted the problem in judgments issued in 2020.

“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,” Mr Justice Cobb said.

“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.”

That there was a pressing need for more capacity in the system for residential care of teenagers in England and Wales was “beyond doubt”, and now publicly recognised, the judge said.

“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,” he said.

Mr Justice Cobb added that in making this final point he was doing no more than repeating a plea made by Moylan LJ in Re C, and by Sir James Munby P, in Re X & Y that:

"…what now stand revealed are serious lacunae in the law which, I suggested, need urgent attention. If that is so, and I entirely recognise that others may take a different view, then the question rises as to how the problem should be addressed. On one view, it is the kind of problem which is admirably suited for consideration by a Law Commission – perhaps, given the subject matter, jointly by the Law Commission of England and Wales and the Scottish Law Commission. That is one possibility. No doubt there are others. But it seems to me that something really does need to be done".

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