Re X (A Child), Re Y (A Child)

The recent case of Re X (A Child), Re Y (A Child), heard by Sir James Munby President of the Family Division on 28^th July and 1^st September 2016, considered the legal lacuna surrounding placement of a child in a secure accommodation unit outside of England in care proceedings. The two subject children had both been placed in secure accommodation units in Scotland, by Blackpool Borough Council and Cumbria County Council due in part to the shortage of places in England.A secure accommodation unit can only be used as a placement for a child as a last resort as it deprives the child of their liberty – it is therefore an extremely draconian order.S25 of the Children Act 1989 specifies the conditions in placing a child in secure accommodation: -

Subject to the following provisions of this section, a child who is being looked after by a local authority or local authority of in Wales may not be placed, and, if placed, may not be kept, in accommodation in England provided for the purpose of restricting liberty (“secure accommodation”) unless it appears -

(a) that -

(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii) if he absconds, he is likely to suffer significant harm; or

(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

The Court was being asked to consider whether – (a) a judge in England can make a secure accommodation order if the child is to be placed in Scotland; (b) if not, can the same outcome be achieved using the Court’s inherent jurisdiction; (c) if an order is made by an English judge, will it be recognised and enforced in Scotland.The Court’s inherent jurisdiction is detailed under s100 of the Children Act 1989. Firstly, the Court has to grant permission to the Local Authority to make the application. The Court will only grant permission in the following circumstances: -

(a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection(5) applies; and

(b) there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

The Court provided a detailed judgment on this matter and, as a brief summary; Sir James Munby stated that a Judge in England could not make a secure accommodation order if the child is to be placed in Scotland. The English Courts could achieve the same outcome using the Court’s inherent jurisdiction but, currently, the order would not be recognised in Scotland. The Court’s judgment stated that the Local Authorities would need to make an application to the Court of Session in Scotland to “invoke the nobile officum.” This is an application asking the Court of Session to make orders where this is no current legal remedy. Ultimately, until the decision of the Court of Session is known, orders in England under the inherent jurisdiction can only be holding positions. The firm will be keeping an eye on this matter and awaits with great interest the outcome of the application to the Court of Session. Case note by Sarah Colley Wilson Solicitors LLP

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