M (Deprivation of Liberty in Scotland)

A child placed in Scotland may be deprived of liberty for the purposes of Art 5 of the ECHR even where the placement is not locked, if the arrangements involve continuous supervision and control and the child is not free to leave. The assessment is fact-sensitive and must compare the child’s actual freedom with the ordinary life of a child of the same age and circumstances.

An English order made under the inherent jurisdiction does not, without more, provide legal authority in Scotland. Where recognition by the Scottish courts remains arguable and the child’s welfare favours continuity, proceedings may be adjourned to permit a petition to the Inner House of the Court of Session, with interim authorisation continued pending its decision.

Salford City Council sought to continue an interim order authorising the deprivation of M’s liberty in a residential placement in Scotland. M was subject to an interim care order and the placement was not approved by the Scottish Ministers as secure accommodation.

The local authority sought an adjournment to petition the Inner House of the Court of Session for recognition and enforcement of the English measures under the nobile officium. It also sought continuation of the interim authorisation pending determination of that petition. The central issues were whether M was deprived of her liberty, whether an adjournment was justified, and whether interim relief should continue.

1. Deprivation of liberty. M was deprived of her liberty for the purposes of Art 5 of the ECHR. The relevant assessment applied the three elements identified in Storck v Germany (2006) 43 EHRR 6 and the acid test in Cheshire West and Chester v P [2014] AC 896. M was unable to consent, was subject to almost continuous supervision and control, and was not free to leave.
2. The court compared M’s concrete circumstances with the ordinary life of a 13-year-old living at home with her family. The relevant features included two-to-one supervision, monitoring throughout the night, supervision at school and during transport, restricted community access, internet supervision and physical restraint. A short period of lessened supervision did not prevent the arrangements amounting to confinement.
3. Cross-border authority. Re X (A Child) and Y (A Child) [2016] EWHC 2271 (Fam) was authority that the English court had power to make an order directing placement in Scotland, but that the placement might lack legal authority in Scotland unless the Inner House invoked the nobile officium. Cumbria Country Council and Ors, Re Children X, J, L and Y [2016] CSIH 92 did not establish that such orders would be recognised. Its ratio concerned an arguable case for interim relief where the nobile officium might apply and the balance of convenience favoured an interim order.
4. Adjournment. The court could not determine the Scottish court’s jurisdiction. It had only to assess whether the proposed petition was sufficiently arguable to justify an adjournment. The unresolved legal issue, its wider importance, M’s welfare and the value of comity between jurisdictions justified allowing the adjournment.
5. Interim relief and order. The interim authorisation was continued pending the Scottish petition because the placement met M’s welfare needs and the balance of convenience favoured continuity. The court declared the deprivation lawful and in M’s best interests, subject to the minimum degree of force or restraint and measures that were least restrictive, proportionate, necessary and respectful of M’s dignity.