BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable PDF version]
[Help]
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2022] CSIH 36
P1013/21
Lord Pentland
Lord Matthews
Lady Wise
OPINION OF THE COURT
delivered by LADY WISE
in the petition for the exercise of the nobile officium
by
THE LONDON BOROUGH OF HACKNEY
Petitioners
against
THE RIGHT HONOURABLE DOROTHY BAIN QC, THE LORD ADVOCATE
First Respondent
and
THE RIGHT HONOURABLE LORD STEWART OF DIRLETON QC, THE ADVOCATE
GENERAL FOR SCOTLAND
Second Respondent
Petitioners: Inglis, SKO Family Law Specialists
First Respondent: Irvine, SGLD
Second Respondent: Non-participating party
18 August 2022
[1]
On 29 July 2022 after a hearing we granted the petitioners' motion for dismissal of
the petition and indicated that we would write on the matter. This opinion provides the
2
background to and reasons for our decision. This case is one of many petitions brought in
recent years to the nobile officium of the Court of Session seeking recognition and
enforcement in Scotland of an order of the English High Court depriving a child of his
liberty. The court's general approach to such petitions was summarised in the Extra
Division note delivered by Lord Menzies involving petitions by the Mayor and Burgesses of
the London Borough of Lambeth and Medway Council - [2021] CSIH 59. In short, there was
a statutory lacuna; there was no legislation allowing for the recognition of such High Court
orders. A legislative solution to the problem has now been devised. Since the present
petition was raised the Scottish Ministers have laid and brought into force The Cross-border
Placements (Effect of Deprivation of Liberty Orders) (Scotland) Regulations 2022 (SSI 2022
No. 225) (the 2022 regulations). Those regulations put in place a new system designed to
authorise the deprivation of liberty of a child in Scotland where the child has been made
subject to an order of the High Court of England and Wales (or the High Court of Justice in
Northern Ireland) imposing deprivation of liberty safeguards (DOLS). We comment further
below on the general implementation of the regulations. The present case, however, is
unaffected by the regulations as they came into force on 24 June 2022 after the expiry of the
relevant deprivation of liberty order (DOL order) pronounced by the English High Court.
The case came before us on the petitioners' motion to dismiss the petition on the basis that
there is no extant DOL order and so nothing to be recognised and given lawful authority in
Scotland. In advance of the hearing of the motion, the court raised concerns about the
current circumstances of the young person involved given the absence of any apparent
continuing lawful authority for his being held in restricted accommodation and under close
supervision in this jurisdiction.
3
Chronological background
[2]
The young person involved in this case, IB, was born in 2007 and is now 15 ½ years
old. He was made the subject of a DOL order by the High Court in England on 3 December
2021. The court imposed eight deprivation of liberty safeguards which included his residing
in residential accommodation and being supervised by staff on a ratio of two staff to one
child. He was not given a mobile phone and contact with his family was supervised by
video or phone. He was fully supervised when using the in ternet and out in the
community. IB moved to Scotland on 12 December 2021. He was transferred to his current
location on 25 March 2022. This court, by interlocutor of 4 April 2022, ad interim recognised
and enforced the English order for a period ending on 17 June 2022.
[3]
In May of this year the petitioners made an application to the High Court seeking an
extension of the DOL order to 3 September. At that time the DOL order was due to expire
on 3 June 2022. The paperwork now available illustrates that IB had made good progress in
Scotland and is a young person of some ability and potential but remained vulnerable to the
influences to which he had been subject prior to his move to Scotland. On 10 May 2022 the
High Court continued the DOL order until 3 June 2022 but indicated that there should be
some loosening of restrictions. The application to extend the order further to 3 September
came before the High Court (Roberts J) on 25 May 2022. The social work statement
accompanying the application (dated 20 May 2022 and produced as 6/10 in this process)
confirms (at paragraph 8.5) that the proposed extension of the DOL order was supported by
the reviewing officer because moving IB from his current placement was not in his best
interests. The clear tenor of the application was that the petitioners' social work department
considered that DOLS continued to be necessary, albeit with a view to loosening the
restrictions over time. The proposal was that the restrictions should be "slightly adjusted"
4
to allow him to take part in activities outside the home (paragraph 8.5.4). IB was
represented through a court appointed guardian and Counsel at the 25 May hearing. He
addressed the judge personally by video link and indicated his opposition to the extension
of the order. Roberts J refused the petitioners' application for an extension of the order to
3 September 2022 while acknowledging that the DOLS would remain in place until 3 June
2022.
[4]
In the circumstances outlined above we asked to be addressed on the legal basis on
which IB continued to be placed in restricted accommodation in Scotland notwithstanding
the termination of the DOL order. When the motion was enrolled no information was
available from which we could discern how many, if any, of the deprivation of liberty
measures imposed by the original DOL order remained in place de facto. The information
suggested that the child remained resident in the same type of restricted accommodation
that a primary measure of the DOL order had authorised. An issue also arose about IB's
views and whether he had been informed, following expiry of the order of the English High
Court, that his liberty could no longer be restricted while he remained in Scotland.
Submissions
[5]
Shortly in advance of the hearing a social worker from the London Borough of
Hackney primarily involved in the care and planning of IB swore an affidavit (number 16 of
process, sworn 28 July 2022) providing helpful up-to-date information. Mr Inglis, appearing
at the hearing on the petitioners' behalf, highlighted that the affidavit supported the view
that only minimal restrictions remained in place for IB. Counsel acknowledged from the
outset that, there no longer being a DOL order in this case, IB could only reside in his
current accommodation in Scotland if he had been made aware that he was free to leave at
5
any time (subject to any urgent welfare considerations). The affidavit did not clarify
whether the restriction of 2:1 staff supervision had in fact been lifted nor the basis on which
IB was said to consent to the placement while wanting to return to England as soon as
possible. We were advised that the plan was to return IB to the petitioners' local authority
area in England on 18 August.
[6]
After an adjournment for Mr Inglis to take further instructions he confirmed that as
the care proceedings had now been concluded in England with a full care order being made
IB no longer had representation through a solicitor. However, when the decision was made
by Roberts J on 25 May the judge had explained to IB that the restrictions contained in the
order would no longer apply after 3 June. Further, as his solicitors and Counsel had been
present on that date, this court could be confident that the absence of any lawful authority
for deprivation of liberty after that date will have been explained directly to IB. Further,
since the removal of any DOLS IB was now supported on a staff to young person ratio of 1:1.
He was able to go into the community where he was supported but not supervised. For
example, he is supported by being transported to activities but not accompanied or
supervised in the gym. He now has full access to his mobile phone and is able to spend time
at local retail stores by himself. In short, Mr Inglis submitted that IB's liberty was no longer
restricted beyond such reasonable restrictions as are inherent in the usual parental authority
of a 15 year old young person. On that basis he moved for the petition to be dismissed.
[7]
For the Lord Advocate, Ms Irvine did not oppose dismissal of the petition. She had
submitted in advance a helpful note outlining the transition from cases of this sort requiring
to be dealt with under the nobile officium procedure to their being dealt with by local
agencies under the 2022 regulations. While the present case was unaffected by the
regulations, the Scottish Government Legal Department (SGLD) had appreciated the need to
6
effect a smooth transition from the requirement to petition the nobile officium of this court to
the new regulatory regime. In relation to all existing petitions, so long as the child
concerned is the subject of an extant DOL order recognised in Scotland by an interlocutor of
this court it was important that any review or renewal of the English order should take place
before the expiry of the order or the period of recognition in Scotland whichever was earlier.
The position of the Lord Advocate was that where a petitioner failed to seek a review or a
renewal of an extant English order prior to the expiry of the period of recognition in
Scotland then the transitional recognition available under regulation 5 of the 2022
regulations would not be engaged and statutory recognition would not be available. In such
circumstances it would be for the petitioner to take immediate steps to apply for a new DOL
order from the relevant court in England, Wales or Northern Ireland and then to seek
subsequent recognition through the route provided by the 2022 regulations.
[8]
For all new cases where DOL orders are being made in England and Wales (or
Northern Ireland) the regulations should obviate any need for this court to be involved
under the nobile officium procedure. We asked counsel what would happen should a
situation arise like that in the present case but after the coming into force of the 2022
regulations, namely where a DOL order imposed by the High Court expires and the child
nonetheless remains in Scotland in the same form of restricted accommodation previously
authorised by the now expired order. In broad terms, the position of the Lord Advocate was
that the agencies involved in the notification procedure referred to in regulation 7 would all
be informed of the extinction of the order. As the accommodation involved will be
registered accommodation, the Care Inspectorate has responsibilities in terms of ensuring
the appropriateness of any accommodation. It was submitted that the management of each
establishment would be aware of the need for legal authority before a child could continue
7
to be held there. It was accepted, however, that the regulations do not cover such a
situation.
Decision and observations
[9]
We are grateful to counsel for their efforts in assisting the court. On the basis of the
full explanation and assurances now given on behalf of the petitioners, we were satisfied
that IB is aware of his legal rights and status and the absence of any current lawful authority
for his being deprived of his liberty. As the concerns about whether his liberty was being
deprived de facto had been assuaged, we decided to grant the petitioners' motion and
dismiss the petition. We were grateful also for the explanation provided on behalf of the
Lord Advocate as to the steps that had been taken to try to ensure the effective operation of
recognition and enforcement of future orders under the 2022 regulations. Those regulations
enable recognition of a DOL order from one of the other UK jurisdictions as providing legal
authority to deprive the child of his liberty while in Scotland but only for the limited
purposes of implementation and enforcement. Regulations 3 and 13 combined provide that
the DOL order will be treated for those purposes as if it was a Scottish Compulsory
Supervision Order. Through existing legislative powers, Scottish public authorities can then
ensure that there is compliance with its terms, but the Children's Hearing will not become
involved unless an urgent matter (such as breach of the order) arises. Importantly, the
combined effect of regulations 3 and 13 is that the child concerned will at all times remain in
the legal care of the local authority in the other jurisdiction.
[10]
In all cases covered by the regulations, before a DOL order from the other
jurisdiction can be recognised and enforced in Scotland, regulation 7 requires the placing
authority to give notice in writing containing specified information and undertakings to a
8
number of Scottish agencies listed in regulation 8 who have relevant obligations to children
and young people present in Scotland. Regulation 9 prescribes the information to be
contained in the notice, which includes details of the child concerned, the Scottish residential
care setting involved and critically the date that the DOL order (i) comes into effect and
(ii) expires. The undertaking to be given by the placing authority must, in terms of
regulation 10, specify that for the duration of the placement the authority will provide or
secure the provision of all services required to support the child and meet all of the costs
arising from, or in consequence of, the placement (except for advocacy costs). Importantly,
recognition of the other jurisdiction's DOL order is restricted to three months, unless the
court of primary jurisdiction continues the order before the expiry of that period
regulation 5(2)-(5).
[11]
We have had sight of the Practice Guidance, Notice and Undertaking Template
published by the Scottish Government in June of this year (produced as 14/2 in this process).
It contains useful information about the background to the legislation, the wider policy
context and the factors that a placing authority (such as the petitioners in this case) should
consider before applying for a DOL order. Only a DOL order made by the relevant court in
England and Wales or Northern Ireland will trigger the duties under the regulations.
Careful and effective planning, engagement and information sharing will be required
between the placing authority and the services in Scotland responsible for implementing the
order. The placement notice and undertaking, in terms of regulation 7, for which there is a
template, provides important information relevant to the Scottish authorities and agencies in
relation to any child being moved to Scotland in circumstances where the DOL order can be
legally recognised and so rendered compliant with article 5 ECHR.
9
[12]
In relation to the review, extension and expiry of a DOL order the regulations are
silent as to the obligations imposed. The Practice Guidance, Notice and Undertaking
Template confirms (in paragraph 8) that the placing authority from the other jurisdiction
must inform the relevant people and agencies in Scotland that are identified in the annex to
the notice and undertaking template. As it is a prerequisite of the application of the 2022
regulations that there be a relevant High Court Order from the other jurisdiction in force
and as such orders are necessarily time limited we recognise that further gaps in lawful
authority for the deprivation of liberty of children present in Scotland could yet arise. In
cases where the inherent jurisdiction of the English, Welsh or Northern Irish court is
invoked to deprive the child of liberty, that court will remain the court of primary
jurisdiction. Importantly, the English, Welsh or Northern Irish placing authority will retain
primary responsibility for securing the needs and promoting the welfare of the child. We
agree that the responsibility lies with the relevant placing authority to ensure that
applications in the other jurisdictions are made timeously such that vulnerable young
people are not left in restricted accommodation in Scotland without there being any extant
lawful authority from the court of primary jurisdiction. Any change in the primary order
from the appropriate court must be aligned with the de facto position of the child in Scotland.
The regulations cannot elide the protective jurisdiction inherent in this court to intervene
should such a situation arise and the welfare of the child so demands, but it is hoped and
expected that, if the regulations are properly implemented, no future gaps in lawful
authority will arise.
[13]
Since we appreciate that the new scheme may require further training and guidance
for all concerned in this and the other UK jurisdictions we will provide a copy of this
opinion to the International Family Justice Office for England and Wales (and its Northern
10
Irish equivalent) so that any concerns arising from the operation of the 2022 regulations can
be considered by the Cross-Border Judicial Protocol Group in due course.
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSIH_36.html
