Shortage is forcing English local authorities to place young people in Scottish placements but care orders cannot be legally enforced north of the border, Sir Munby finds
A shortage of secure accommodation in England is forcing local authorities to place young people in provision in Scotland under care orders that cannot be legally enforced.
Sir James Munby has warned that the issue requires “urgent attention” after considering the cases of a 16-year-old girl, X, who was under the care of Cumbria Council and a 15-year-old boy, Y, who was under the care of Blackpool Council respectively. Both had been placed in secure units in Scotland due to no places being available in England.
The president of the family courts division warned that the issues had arisen because of the shortage of places in secure accommodation units in England, so that local authorities and courts, particularly in the north of England, look to making use of available places in secure accommodation units in Scotland.
“It is, in my judgment, clear that a judge in England cannot make a secure accommodation order under section 25 of the 1989 Act if the child is to be placed in a unit in Scotland (and the same applies, mutatis mutandis, in relation to section 119 of the 2014 Act),” said Munby.
“There are two reason for this: first, that on the face of the statute the power extends only to secure accommodation "in England" (or, as the case may be, "in Wales"); secondly that secure accommodation in Scotland is not approved by the Secretary of State in accordance with regulation 3 of the 1991 regulations – it is approved by the Scottish Ministers in accordance with regulation 3 of The Secure Accommodation (Scotland) Regulations 2013, 2013 No 205,” he added.
He referred to a statement by a Scottish Queen's Counsel which confirmed that orders made by the English court authorising detention of an English child in secure accommodation in Scotland whether made under the inherent jurisdiction or under Section 25 of the Children Act 1989 are not capable of being recognised under Scottish Law whether by way of mirror orders or registration.
Regarding the cases of X and Y, he said the only way in which the cases could be taken forward with a view to finding solutions in other comparable cases is for an application to be made by the local authorities to the Court of Session seeking to invoke the nobile officium. Once the outcome of that application is known, the matters can be listed again before Sir James Munby to determine what should be done in the light of the Court of Session's judgment.
Munby concluded that the gaps in the law unearthed by these cases required “urgent attention”.
“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,” he concluded.