X (A Child) and Y (A Child) (Rev 1)

A court in England cannot make a statutory secure accommodation order under Children Act 1989, section 25, for accommodation in Scotland. The territorial limitation and the separate Scottish approval regime prevent that result. The same applies to the corresponding Welsh provision and, in these circumstances, to paragraph 19 of Schedule 2.

The High Court may nevertheless authorise such a placement under its inherent parens patriae jurisdiction where the statutory scheme does not cover the proposed placement. Permission under section 100 is required, and the court must comply with Article 5 safeguards. An English order is not thereby recognised or enforceable in Scotland. Recognition and enforcement must be addressed under Scottish law, potentially through the nobile officium of the Court of Session.

Two local authorities sought to place children subject to care proceedings in secure accommodation in Scotland because no suitable English places were available. Interim orders had been made under the inherent jurisdiction, following an earlier attempt to use section 25 of the Children Act 1989.

The court considered whether an English judge could authorise the placements under section 25 or paragraph 19 of Schedule 2, whether the inherent jurisdiction could be used instead, and whether an English order would be recognised and enforced in Scotland. The proceedings were adjourned so that the local authorities could seek appropriate relief from the Court of Session.

1. Statutory jurisdiction. Section 25 of the Children Act 1989 authorised secure accommodation only in England. The wording, together with the requirement for approval under regulation 3 of the 1991 Regulations, excluded a Scottish unit approved under Scottish legislation. The same conclusion applied, with necessary modifications, to section 119 of the Social Services and Well-being (Wales) Act 2014.
2. Paragraph 19 of Schedule 2. The statutory requirements for parental and child consent were not satisfied. The exception for a child lacking sufficient understanding applied only where the child was to live with a natural person such as a parent, guardian or other suitable person. It did not extend to placement in a secure accommodation institution. The wider question whether paragraph 19 was limited to permanent or long-term arrangements was left open.
3. Inherent jurisdiction. The High Court could authorise the placement of a child in secure or non-secure accommodation in Scotland under its inherent jurisdiction. Section 100(4) was satisfied because the result sought could not be achieved under section 25, and the risk of significant harm requirement would ordinarily be met where secure accommodation or restraint was necessary. The statutory scheme did not cover the whole field and the inherent jurisdiction therefore did not undermine Parliament’s scheme.
4. The court had to comply with Article 5 of the Convention. Any order required convincing evidence, procedural fairness, the minimum necessary restraint and period of detention, identification of the placement, a maximum duration, regular review, access arrangements and liberty to apply. The practical burden of cross-border contact had to be addressed.
5. Recognition and enforcement. No identified statutory provision provided for recognition or enforcement in Scotland of an English secure accommodation order made under section 25 or the inherent jurisdiction. The appropriate next step was an application to the Court of Session invoking the nobile officium. The matters were to return to the High Court after that application.

First-instance determination in the High Court. No appellate history is stated in the judgment.