X (A child) and Y (A child)  EWHC 2271 (Fam), 12 September 2016 The practice of local authorities and courts making use of secure accommodation units available in Scotland to address the shortage of such accommodation in England has raised cross-border issues in family cases and revealed serious lacunae in the law.
The practice of local authorities and courts making use of secure accommodation units available in Scotland to address the shortage of such accommodation in England has raised cross-border issues in family cases and revealed serious lacunae in the law.
In this case, Sir James Munby, President of the Family Division, considered and answered the following three questions concerning the reach of Section 25 Children Act 1989 Orders made in England for the placement of a child in Scotland:
- Can a judge in England make a secure accommodation order under Section 25 Children Act 1989 if the child is to be placed in a unit in Scotland?
Answer: No [at paragraph 28]. Firstly the statute only refers to secure accommodation ‘in England’ and secondly secure accommodation in Scotland is not approved by the Secretary of State in accordance with Regulation 3 of the Children (Secure Accommodation) Regulations 1991.
- If not, can the same outcome be achieved by use of the inherent parens patriae jurisdiction of the High Court?
Answer: Yes [at paragraphs 31 – 50]. The inherent jurisdiction of the court can be used to achieve this outcome subject to the local authority firstly obtaining permission of the High court pursuant to s.100 CA 1989 and secondly satisfying the court that the exercise of the court’s inherent jurisdiction prerogative is not ousted by any relevant statutory scheme that should take precedence. It was held that s.25 is not an exhaustive statutory scheme capable of excluding, in principle, the exercise of the court’s inherent jurisdiction.
- In either case, will the order made by the English judge be recognised and enforced in Scotland?
Answer: No, absent some order of the Inner House of the Court of Session if possible [at paragraphs 51 – 66].
It was held that the same three questions elicit the same answers in relation to the scope of paragraph 19 of Schedule 2 to the Children Act 1989 (arrangements to assist children to live abroad) [at paragraph 29 and 46].
Sir Mumby observed that there are currently little statutory regulation regarding intra-UK cross border issues. Brussels II Revised (EU Regulation 2201/2003) has no application to issues arising between territorial units within the same Member State.
There are some statutory regulations pertaining to family law orders made in Scotland being implemented in England (the Children's Hearings (Scotland) Act 2011 (Consequential and Transitional Provisions and Savings) Order 2013 ) but the corresponding regulation in England is of limited effect (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 way forward proposed by Sir Mumby in cases involving English local authorities arranging placements in Scotland pursuant to s.25 CA 1989 would require an application to be made by the local authorities to the Inner House of the Court of Session seeking to invoke the nobile officium. This, it was observed, would also require consideration of which jurisdiction would retain responsibility for regular judicial monitoring and review of the deprivation of liberty engaging Article 5 ECHR.
It was strongly suggested that this unresolved issue urgent further consideration, perhaps by the Law Commission of England and Wales and the Scottish Law Commission.