Local Authorities in England and Wales placing children in Scotland - is this possible?

Baljit Bains, Partner at Wilson Solicitors LLP, reviews the case below which considers the placement of children in residential units in Scotland.

Re: H Interim Care Scottish Residential Placement [2020] EWHC 2780 (Fam)

This case was heard by The Honourable Mr Justice Cobb on 20^th October 2020 in the High Court of Justice Family Division.

It concerns a 15 year old child who was placed in a residential unit in Scotland initially under section 20 of the Children Act 1989 and then under an interim care order. The issues were whether primary or secondary legislation prevented the Local Authority from placing the child in Scotland, whether formal approval was required from the English Court for the placement and whether the interim care order was enforceable.

Mr Justice Cobb concluded:

1. There is nothing in the primary or secondary legislation which prevented South Tyneside Council from placing the child (as a child which it was ‘looking after’ under section 20 CA 1989) in Scotland at the residential unit.  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;
2. South Tyneside Council could place the child, 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;
3. The current interim care order in respect of the child 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; Mr Justice Cobb suggests 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. While it appears possible for the parents to litigate in Scotland in relation to the child on matters strictly limited to his immediate protection, 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.

If you need assistance with a child care case involving a local authority or social services, contact Baljit on b.bains@wilsonllp.co.uk or call Mavis on 020 8885 7986 for an appointment.